Decision calls for construction of part of Act 6, approved January 30, 1941, under which the Highway Commission assumed maintenance of the Arkansas river bridge westward from Garrison avenue, Fort Smith.
The Commission sued Sebastian Bridge District for an accounting, contending that because the State had *Page 326 paid $45,150 in discharge of the District's bonded indebtedness, funds in the District's treasury should go to the State for highway purposes, specifically to be used in the upkeep of bridges. See Sebastian Bridge District v. Refunding Board, 197 Ark. 790, 124 S.W.2d 960; Refunding Board v. Sebastian Bridge District, 199 Ark. 944,136 S.W.2d 480; State ex rel. Attorney General v. Sebastian Bridge District, 204 Ark. 340, 161 S.W.2d 955.
An allegation was that the bridge needed repairing at an estimated cost of $20,000. The District, it was averred, had assets which should be made available to the Highway Commission. It was asked that a commissioner in chancery be appointed to state an account and that all of the District's funds be transferred to the State.
Answer was filed when the District's demurrer and motion to dismiss were overruled. Fagan Bourland, owner of real property assessed for betterments, intervened for himself and others similarly situated. Bourland contended, as did the District, that landowners had vested interests in moneys collected under the assessments. Other defenses were interposed. On reconsideration the chancellor vacated the order overruling the demurrer. From the court's act in sustaining the demurrer comes this appeal.
The decision of February 13, 1939,1 is determinative of the proposition that in paying bridge district bonds the State acted voluntarily. It was further held that there was no express or implied condition in the legislation considered requiring the District to exhaust its own balance or to spend any of it as a condition precedent to State aid. Act 6 does not strengthen the State's claim to the fund. If authority to reach the end desired by the Highway Commission is to be found in the Act, it must arise from an inference that the Legislature intended to make bridge district money available. The question would then be presented whether landowners had vested interests in these assets. There is no language in Act 6 justifying the construction contended for by the State. *Page 327
In Red River Bridge District v. State, 201 Ark. 365,144 S.W.2d 723, the State's act in appropriating an eleven-thousand-dollar balance held by the bridge commissioners and applying it to maintenance was upheld because the money came from tolls. It was said that a different question would be presented if the surplus had arisen from betterments assessed against lands.
The Fort Smith District received certain sums from rentals paid by utilities corporations. This fund would fall within the rule announced in the Red River case and the State would be entitled to net balance in the district commissioners' hands which arose from such source. Such commissioners are also charged with the duty of collecting delinquencies from property-owners, and with the further duty of disposing of lands bid in at foreclosure sales.
The court's determination that betterment collections did not go to the State was correct; hence to the extent that these funds are involved the demurrer was properly sustained. The cause, however, is remanded with directions to ascertain the amount due in consequence of rentals.
SMITH, McHANEY and HOLT, JJ., dissent.