City of Malvern v. Cooper

• Citation: 156 S.W. 845,108 Ark. 24
• Parties: CITY OF MALVERN v. COOPER
• Decision Date: 21 April 1913
• Court: Arkansas Supreme Court

156 S.W. 845

108 Ark. 24

CITY OF MALVERN v. COOPER

Supreme Court of Arkansas

April 21, 1913

Appeal from Hot Spring Chancery Court; J. P. Henderson, Chancellor reversed.

Decree reversed and remanded.

Henry Berger, for appellant.

1. There is no statutory or charter provisions requiring municipalities to hold their sessions on any particular day but the city council of appellant elected to hold its monthly sessions on the first Thursday in each month, which in August, 1909, fell on the fifth day of the month. The ordinance in question bears date August 5, 1909, as appears by the ordinance record book of the city. This is prima facie evidence of the legal existence of the ordinance and its contents. 90 Ark. 292. And the burden is on the defendant to overcome this evidence. Kirby's Dig., § 3066; 53 Ark. 368.

The council was not confined to the ordinance alone to require the building of the sidewalk. The city had authority to proceed under ordinance, resolution or order, or under all these methods. 88 Ark. 601.

2. The police power specially delegated to the city by the statute authorizes it not only to require property owners to build sidewalks, but also to rebuild them and to designate the materials out of which they are to be rebuilt. Kirby's Dig., § 5542.

The police power of the State may, in the absence of any constitutional restrictions upon the subject, be delegated to the municipalities, to be exercised by them within their corporate limits. 53 Ark. 373; 13 Ore. 538; 90 Cal. 617; 103 Tenn. 421; 183 U.S. 13.

Where express power is given to a municipality to enact ordinances of a certain kind, and an ordinance is enacted which, upon its face, is purely within the terms of the express power the court will not interfere on the ground of unreasonableness, but is restricted to consider the constitutionality of the act granting the power. 64 Ark. 154. Here the ordinance appears on its face to be valid, and there is no evidence that it is unreasonable. 52 Ark. 301.

3. There is no merit in the contention of appellee that the action of the city council in ordering the rebuilding of the sidewalks in accordance with its ordinance without a trial or proceeding of some kind or an opportunity afforded him to be heard, was without authority of law and in violation of his right as a property owner. Every property owner holds subject to such general regulations as are necessary to the common good and general welfare. 7 Cush. 84; 2 Story on Const. § 1954; Dillon, Mun. Corp., § 93; 7 Cow. (N. Y.), 349; 12 Pick. 184; 11 Met. 55; 12 Me. 403. Appellee can not complain because the city required him to take up the old walk, which, the proof showed, had been down for twenty-five years, even though it had been put down pursuant to a previous ordinance requiring same, or by permission or acquiescence. 146 N.C. 527; 98 Ark. 159. See also 88 Ark. 597; 87 Ark. 85-92; 59 Ark. 494.

Wm. R. Duffie and Andrew I. Roland, for appellees.

1. Appellant could not properly show by parol testimony that the ordinance was in fact enacted on August 5, instead of August 6, the date the record shows. 21 Am. & Eng. Enc. of L. (2 ed.), 9; 24 Id. 193; 22 Ark. 119; 1 Elliott on Ev. 728; 105 S.W. 678; 35 S.W. 696; 1 Smith, Mun. Corp., § 389; Id. § 313; 61 Ark. 36; 94 Ark. 499.

2. Section 2 of the ordinance in question provides that the sidewalks and curbing be constructed as to grade "according to the grade which shall be established by an engineer employed by the city for this purpose," etc. In so far as the city delegates its authority in this respect to the city engineer, the ordinance is void, and his acts in the exercise of such delegated power are void. 96 S.W. 852; 123 Cal. 192, 55 P. 768; 3 S.D. 309; 53 N.W. 182; 11 Ill.App. 283; Dillon, Mun. Corp., §§ 96, 97; 35 Fla. 446; 43 Mo. 352; Id. 395; 46 Mo. 100; 116 Mo. 248.

3. The burden of proving service of the notice to property owners provided for by the ordinance rested upon the appellant. A mere statement by the street commissioner that he gave notice as prepared by the city attorney, is not sufficient proof that such notice was actually served. 68 Ark. 238; 70 Ark. 427; 68 Ark. 548; 71 Ark. 133; 33 Col. 487; 3 Ann. Cas. 674, 676.

4. Appellee being the owner in fee of the property abutting on the sidewalk, retains the fee of the street and all the rights of property therein, subject only to the right of the public to use the same as a street or sidewalk. 24 Ark. 102; 51 Ark. 491; 77 Ark. 579; 50 Ark. 466; Elliott on Roads, § 886; 13 Cyc. 492.

The city, in tearing up the sidewalk already existing against the protest of the property owner, was a mere trespasser, and the subsequent building of the sidewalk without notice and without an ordinance properly passed, was but a further trespass in a series. 24 Ark. 102; 2 Ark. 45; 25 Ark. 436; 36 Ark. 268; 28 Am. & Eng. Enc. of L. (2 ed.), 584; Id. 576; 66 Ark. 175.

OPINION

SMITH, J.

This is a suit by the city of Malvern, a city of the second class, against W. H. Cooper and A. I. Roland to recover the sum paid by the city for the construction of a concrete walk, built by this city, abutting the property of appellees. The proof on the part of the city tended to show that the council passed an ordinance on the 5th day of August, 1909, requiring all owners of real property abutting on Main street in said city, between South First and South Fourth streets, or Page avenue, to construct sidewalks as provided for in said ordinance. That on and prior to the 7th day of November, 1910, the appellee, W. H. Cooper, was the owner of certain lots on Main street, between First and Fourth streets, but had failed to construct the walks in accordance with the provisions of said ordinance, and that a written notice to construct the walks within twenty days had been given him, and upon his continued failure and refusal to build the walks and after the lapse of more than thirty days after the service of the notice to construct them, the city, through its street committee, contracted with one Charles Bryant to construct said sidewalk in the manner provided for in said ordinance, which contract was ratified and confirmed by the city council and in accordance with said contract, the said Bryant built the walk at a cost of $69.25, which sum was paid to the said Bryant by the city of Malvern. That subsequently Cooper sold to A. I. Roland a part of one of said lots.

The city prayed judgment for this sum and for a penalty of six per cent and interest at the rate of 6 per cent, and that the whole amount thereof be declared a lien on said property and that the same be sold to satisfy said lien.

The answer denied the material allegations of the complaint and raised the following issues:

(a) That there was no ordinance; (b) nor any grade established; (c) nor any notice given the abutting property owners; (d) that section 5542 of Kirby's Digest, which it was claimed, gave the city the authority to pass the ordinance under which it had proceeded in the construction of the walk, applied only where no original sidewalk existed, but did not apply where the property owner already had a sidewalk, and that a property owner who had a sidewalk equal to the one which the city proposed to require (which appellee had) was entitled to a day in court, before determining whether his walk should be torn up and destroyed and the property owner required to build another.

Under its police power, the Legislature of the State has the authority to pass laws permitting its cities to pass ordinances for the construction of walks and to prescribe the kind which the property owners therein shall build, and when the cities have exercised this power by the passage of by-laws and ordinances, property owners therein are under the duty of complying therewith, and the failure to obey can not be excused by such a showing as is here attempted to be made, that the property owner had a good and sufficient walk. The provisions of section 5542 of Kirby's Digest, so far as they relate to the authority of a city to pass an ordinance similar to the one under consideration, is as follows:

"In order to better provide for the public welfare, safety, comfort and convenience of the inhabitants of cities of the first and second class, the following enlarged and additional powers are hereby conferred upon said cities, viz: The council of any such city, by ordinance, resolution or order shall have the power to compel the owners of any property abutting on its streets or public squares to build, rebuild, maintain and repair foot pavements or sidewalks, improvements and curbing there along, and to designate the kind of sidewalk and curbing improvements to be made, the kind of material to be used, the specifications to be followed, and the time within which such improvement is required to be completed."

Thus it is seen that the power is conferred not only to require walks to be built, but also to be rebuilt and to be maintained and repaired according to prescribed specifications.

The ordinance passed pursuant to the above section will not be set out in full because of its length, but it may be said in answer to appellee's objection (b) that no grade was established; that the ordinance provides with great particularity and certainty how the walk may be constructed and to what grade and of what composition.

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