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entered a decree dismissing the complaint of appellants and the cross-complaint of appellees for want of equity, and both parties have appealed to this court.

The transcript in this case is a very large one, consisting of 1,622 pages, in four volumes. The evidence is directed very largely to the question of whether Red river, at, above, and below Fulton, is navigable. The chancellor found that the preponderance of the evidence showed Red river to be navigable at Fulton. Both parties to this litigation have so regarded it in the past-appe!lant Fulton Ferry & Bridge Company so regarded it when in October, 1924, it petitioned the county courts of Hempstead and Miller counties to extend its franchises in the language heretofore quoted; and appellees are so insisting here. Both parties have applied

to Congress for authority to build this bridge, same being granted to the appellees by an act approved February 4, 1926, entitled "An act granting the consent of Congress to the state highway commission of Arkansas to construct, maintain, and operate a bridge across Red river near Fulton, Ark." (44 Stat. 3), and the authority of appellant to build same has been denied. We have also care fully examined the evidence on this question and have reached the conclusion that, perhaps, the fair preponderance of the evidence is in favor of the findings of the chancellor -at least, we cannot say that it is against the clear preponderance of the evidence.

But we do not regard the question of the navigability of Red river at Fulton of controlling importance in the case.

The serious and most important question we have to deal with in this case is the validity of Act 136 of 1925, tested by section 28 of article 7 of the Constitution of 1874, and the former decisions of this court construing said section of the Constitution. It is as follows: "The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges (a), ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes (b), and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided."

This section of the Constitution is found in article 7, which deals entirely with the Judicial Department and matters incidental thereto. The jurisdiction of the several courts is defined, from the Supreme Court on down to justices of the peace.

The act is too long to copy in full in this opinion. It authorizes and directs the highway commission to build this bridge, fixes the maximum cost, provides that it shall be a toll bridge, fixes the tolls for 10 years and thereafter to be fixed by the commission. Also, that when the bridge is paid for it shall be toll free except sufficient to operate it and

keep it in repair. State and federal aid are provided for, together with the power of the commission to borrow money to pay the cost thereof. Section 5 is as follows:

"The state highway commission is given authority to borrow money in such sums as may be necessary to construct said bridge with the roads, and approaches to connect said bridge with the existing highway from the city of Hope in Hempstead county to the city of Texarkana in Miller county; and also to pay such sums as may be needed or necessary for the purchase or condemnation of lands for right of way for said bridge, roads and approaches; including the right to purchase or condemn any existing franchise, right or easement necessary in the construction of said bridge."

Other provisions are for the sale of the notes or bonds, rate of interest, and the se

curity. A clause in section 8 provides:

"Provided, however, that nothing in this act shall give the state highway commission authority to pledge the credit of any county or the state for the indebtedness incurred in building said bridge; and, provided further that the lands adjacent to said bridge, except approaches, shall not be liable for any part of the construction price of said bridge for its maintenance and that the bridge and its approaches together with the tolls collected from said bridge, shall be the sole security for the And said notes or bonds herein authorized. bonds, or evidences of indebtedness, shall give notice in appropriate language of the limitations of the trust."

[1] It is earnestly insisted by learned counsel for appellant that the act is unconstitutional for the reason that it does not recognize the jurisdiction of the county courts of these counties, either in the approval of the plans or taking over its control on completion, and for the further reason that it provides for the payment of the cost of the bridge by tolls which is an exaction on the general public. Let us now examine this act carefully in the light of the former decisions of this court to determine whether this contention is logical and well founded.

In section 5, "the state highway commission is given authority to borrow money in such sums as may be necessary to construct said bridge with the roads, and approaches to connect said bridge with the existing highway from the city of Hope in Hempstead county to the city of Texarkana in Miller county."

It will therefore be seen that this bridge is to be built on an "existing highway," running through the state of Arkansas, from Memphis via Little Rock, to Texarkana, and, as shown by the evidence, is one of the main national highways, from the Atlantic Seaboard on the east to the Pacific Ocean at San Diego on the west. Who laid out this "existing highway from the city of Hope in Hempstead county to the city of Texarkana in Miller county"? The county courts of Hempstead and Miller counties laid out this "existing highway," aml in doing so exercised

So it will be seen that there has been an exercise of the constitutional jurisdiction of both county courts in making a definite location of said bridge with such deviation from the actual point as may be found necessary for engineering purposes, or as may be required by federal authorities in the interest of navigation, and the act of Congress granting this right to the highway commission recties, and that it is not and cannot be wholly ognized this necessity by providing that such bridge might be built within 5 miles of the Missouri Pacific bridge at Fulton.

(293 S.W.)

who will never have occasion to use this cited is that the Legislature may delegate particular bridge and will therefore pay no tolls. No funds of either county will ever be required, either in construction or maintenance, and no tax will be levied in either county for any purpose connected therewith. True, there is no provision in the act authorizing the county court to take over this bridge at any time, but such a provision is not necessary to its constitutionality, and it is contemplated that the state highway commission forever thereafter shall control, operate, repair, and maintain same. In Conway v. Miller County Highway & Bridge Dist., 125 Ark. 325, 188 S. W. 822, the question was the authority of the improvement district, embracing lands lying wholly in Miller county, to build roads and a bridge across Red river, at the same location as in this case, from the Miller county side to the Hempstead county side, and this court said:

"The fact that the bridge spans the boundary line of the county does not make an invasion of the jurisdiction of the county courts of either of the counties."

to an independent agency, such as an improvement district or to the state highway commission, the authority to take' over, improve, repair, and maintain an existing high. way or a bridge thereon without trenching upon the jurisdiction of the various county courts of this state, so long as the proposed improvement exacts no tax from the general public and requires no expenditure of the county's funds for such purposes. This does not in any way interfere with the jurisdiction of the county courts. While in many of the cases coming before this court it has not been the unanimous opinion of this court that the acts of the Legislature in question did not invade the jurisdiction of the county courts, none of the dissenting opinions have ever gone so far as to hold that the Legislature might not delegate to another agency of this state the power to construct or improve a road or bridge over an existing highway. And from the decisions heretofore cited, and from many others too numerous to mention herein, we are of the unanimous opinion that the act in question, authorizing the state

In Easley v. Patterson, 142 Ark. 62, 218 highway department to construct this bridge,

S. W. 381, 385, this court said:

"This statute does not, however, contain any provision that the plan for the improvement must be submitted to and approved by the county court, and it is contended that this constitutes an invasion of the county court's jurisdiction. We have never had that question before us for decision, and now for the first time the question is squarely presented whether or not an improvement district created by statute can be authorized to make improvements on public highways without obtaining the approval of the county court. Our conclusion is that the authority to improve a public highway does not invade the jurisdiction of the county court. The road is a public highway, but the improvement is for the betterment of the contiguous lands. The improvement of the road does not in any sense constitute an interference with the general control of the county court over public highways. The authority of the board of commissioners is to bring about a betterment of the highway."

And in Johns v. Road Improvement Districts of Bradley County, 142 Ark. 73, 218 S. W. 389, the court said:

"It is not true, as contended, that the statute in question invades the province of the county court in authorizing the commissioners to lay out and improve roads not already established as public highways. In describing the various roads in the two districts, the statute does not in each instance refer to the roads as public highways, but it is fairly inferable that they were found by the framers of the statute to be public highways, and there is no showing made in this case that they were not public roads; on the contrary, the proof adduced in the case shows that they are public roads. It is not essential to the validity of the statute that they should be described therein as public roads."

[3] The effect of the holding of these decisions and various others that might be

does not invade the jurisdiction of the county courts of Hempstead and Miller counties, either in the failure of the act to provide for a submission of the plans for same to said county courts, or to provide for the taking over of said bridge by said county courts. But the act does recognize the jurisdiction of the county courts in that it provides that said bridge shall be located on the present highway from Hope in Hempstead county to Texarkana in Miller county, and the provision therein for the exaction of tolls from the users of said bridge until same is paid for, and that thereafter it shall be toll free except for the actual cost of maintenance, is not a tax upon the general public, but only on such part of the public as may find it convenient or necessary to use said bridge. The payment of tolls for the use of said bridge is no more a tax on the general public, indeed not so much so, as a tax on betterments assessed upon lands embraced in an improvement dis|trict created for the purpose of building such a bridge. The result of our deliberations is, therefore, that the act in question does not offend against section 28 of article 7 of the Constitution, and is, therefore, a valid exercise of Legislative powers.

[4] It is next suggested that:

Even "if Act 136 of 1925 is valid and sufficiently operative to construct the bridge from a practical standpoint, the contract rights of plaintiff set forth in the franchises are destroyed."

Let it be conceded that, under section 10255-10258 of Crawford & Moses' Digest, and by Act 22 of the Special Session of 1923, which was passed before the granting of franchises in controversy, the county courts

had authority to grant franchises to build, 354, 187 S. W. 327; St. L., I. M. & S. R. Co. v. bridges over county boundary streams, and Clark, 90 Ark. 904, 119 S. W. 825. the county courts of Hempstead and Miller counties have in this instance granted franchises, or a franchise, to appellant to build the bridge in question, still, since Red river at Fulton is a navigable stream, and the consent of the federal government being a condition precedent, such franchise or contract rights have not ripened into maturity. So far as the state of Arkansas is concerned, the franchises already granted appellant are valid, but the consent of Congress to the building of such a bridge by appellants having been denied by the passage of the Act of February 4, 1926, granting the consent of Congress to the highway commission to build said bridge, leaves the consent of one of the necessary parties to the contract lacking, with neither party bound by the terms thereof.

[5, 6] But, assuming for the sake of argument that Red river is not a navigable stream and that the franchises in question are entirely valid, still the highway commission would have the right under Act 136 of 1925, and under the general powers of condemnation in this state, to condemn and take over for public use not only the "lands for right of way for said bridge, roads and approaches," but also "any existing franchise, right, or easement necessary in the construction of said bridge." The power of the Legislature would not extend to the condemnation and taking over of such property including franchises for private use, nor could it transfer same to any other individual, firm, or corporation, but whenever the public convenience or necessity is involved, the power of the Legislature to delegate to a public agency power of condemnation of private property for public use is supreme.

[7] Furthermore, the franchise granted by Hempstead county is unilateral, and the time limit fixed in the Miller county part of the franchise for performance is unreasonable. The time for commencement of the building of the bridge under the Hempstead county

order was

"extended for a period of two years from and after the dates of approval of Congress and other governmental body granting the said Fulton Ferry & Bridge Company the right to construct said bridge."

Appellant's obligation therefore is conditioned upon its getting the approval of Congress and the consent of other governmental agency, and such approval and consent are too vague and uncertain to bind the appellant to ever construct the bridge or to perform its nart of the contract. In other words, there was no mutuality of obligation. Slayden v. Augusta Cooperage Co., 163 Ark. 638, 260 S. W. 741; El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460; Grayling Lumber Co. v. Hemingway, 124 Ark.

[8] The provision in the Miller county franchise, contained in the order of extension which provided that the "extension shall terminate upon the expiration of 5 years from the date hereof in any event, unless the construction of said bridge shall be sooner begun," is unreasonable and void in that it requires nothing to be done toward the con. struction of said project for a period of 5 years. Whether the franchise would be void on account of the unreasonable time and tolls granted appellant in said franchise, we do not deem it necessary to determine in this case. In the case of White River Bridge Co. v. Hurd, 159 Ark. 652, 252 S. W. 917, which was a case involving the right of the county court to fix the tolls on a bridge over White river, where the court had granted a franchise for a period of ten years, this court said:

"Therefore we have concluded that any apparent ambiguity in the statute is made certain when interpreted according to the evident purposes of the act, and are of the opinion that the act conferred upon the county court the power not only to grant the franchise, but to fix

the toll for the first ten years of the life of the franchise. There is nothing in the record to show that the fixing of the tolls for this period of time would be unreasonable or arbitrary."

But if we desired to go into this question, there appears to be ample evidence in the record that the return allowed by reason of the tolls fixed in the franchise, based upon an estimated cost of the bridge of $300,000 by eminent engineers, would be an unreasonable exaction on the users of said bridge, and it might be void for this reason. Since, from what we have said heretofore, it necessarily follows that appellants have acquired no valid rights by reason of the franchise attempted to be granted by the county courts of Hempstead and Miller counties, it becomes unnecessary to go into this question fully.

This is the view of the matter taken by the Supreme Court of the United States. In

the West River Bridge Co. v. Dix, 6 How. 507, 12 L. Ed. 535, it was held that a bridge owned by an incorporated company, under a charter from a state, may be condemned and taken as a part of a public road, under the laws of the state.

[9] It was further held that in such a case the charter is a contract between the state and the company, but, like all private rights, it is subject to the right of eminent domain in the state. The exercise of the right of eminent domain does not interfere with the inviolability of contracts, for the reason that all property is held by tenure from the state and all contracts are made subject to the right of eminent domain.

It necessarily follows, from what we have heretofore said in this opinion, that it is within the power of the Legislature to grant

(293 S.W.)

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