City of Mountain Home v. Ray
| Decision Date | 26 April 1954 |
| Docket Number | No. 5371,5371 |
| Citation | 223 Ark. 553,267 S.W.2d 503 |
| Parties | THE CITY OF MOUNTAIN HOME v. RAY. |
| Court | Arkansas Supreme Court |
Emery D. Curlee, Mountain Home, for appellant.
H. J. Denton, Cotter, Ivan Williamson, Ben B. Williamson, Mountain View, for appellee.
O. H. Ray owns land adjoining College street in the City of Mountain Home. The area was formerly a 40-acre tract, but in 1940 and 1941 Ray constructed thirty-one buildings, including a store. Following Norfork Dam developments and an influx of domestic and out-of-state tourists and vacationers the city's growth was accelerated to such an extent that a sewage system was required. It was installed under Act 132 of 1933.
Appellee was directed to connect his occupied property with this system--a system financed through issuance of revenue bonds. At the time notice was given (March, 1953) twenty-eight of Ray's houses were vacant. The proprietor's contention was that he had septic tanks, that water was supplied from wells, and in other respects the premises were in a sanitary condition.
Ordinance No. 107 directs the owners of all improved property within the district susceptible of service to make sewer connections if this can be done without running pipes more than 200 feet. Section 27 of the ordinance authorizes issuance of written notice commanding compliance within two weeks. Disobedience is a misdemeanor punishable by fine of not less than two nor more than ten dollars, each day's failure or refusal constituting a separate offense.
The construction, operation and maintenance of the system shall be supervised by a sewer committee, but this committee acts under control of the city council 'to such extent as may be provided in the ordinance or resolution appointing the committee'. Only §§ 26 and 27 of Ordinance No. 107 are in the record.
Ray refused to connect his property with the sewer system and was fined $88 and cost amounting to $17.50. While the appeal bond states that the trial proceedings were in the court of J. C. Watson, a justice of the peace for Whiteville Township, the judgment is signed by J. C. Watson as acting mayor. The defendant was informed that the fine and cost would be set aside if compliance with the order to connect occurred within two weeks. An appeal was taken before this period expired.
Circuit court found §§ 26 and 27 'to be invalid and unenforcible in this case'. There is an express disclaimer by the city of any purpose to procure enforcement of the fine and cost. The municipality's fear is that with the two ordinance sections deleted its remedies under Act 132 are neutralized, hence a decision on the city's power to compel sewer connections is imperative.
An initial contention by the appellee is that J. C. Watson, being a justice of the peace, could not be designated to sit as mayor because Act 284 of 1941, from which the claimed authority derives, became local legislation when five counties were exempted from its provisions. The Act was construed in Harris v. City of Harrison, 211 Ark. 889, 204 S.W.2d 167, but the point here pressed was not raised.
By reference to Act 284 it will be seen that two sections of Pope's Digest are dealt with. Section 9798 containing the proviso exempting the five counties mentioned in § 1 of Act 284 was Act 368 of 1921. Section 2 of Act 284--the legislation containing the language thought by appellee to be void for constitutional reasons[223 Ark. 556] --amended § 9809 of pope's digeSt, and 9809 is § 48 of an Act of March 9, 1875. The exemption of the five counties is a part of the Act of 1921, and brought forward into § 1 of Act 284 as originally written; hence it is no part of § 2 Pope's Digest section No. 2.
Appellee's next contention is that the right of appeal from circuit court has not been conferred by statute, hence there is nothing before the court. By § 4 of art. 7 of the constitution this court's appellate jurisdiction is coextensive with the state. We are expressly given a general superintending control over all inferior courts of law and equity. In aid of this appellate jurisdiction power is conferred to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and other remedial writs, 'and to hear and determine the same'. It is true that the Supreme Court's appellate jurisdiction is to be exercised under such restrictions as may from time to time be prescribed by law. Here it is argued that there is no express right of appeal to this court.
Pretermitting a discussion of the effect of Ark.Stats. § 27-2101, it is abundantly clear that we have held that in civil matters all final orders or judgments of circuit or chancery courts are appealable. In St. Louis & N. A. R. Co. v. Mathis, 76 Ark. 184, 91 S.W. 763, 766, (opinion on rehearing) Mr. Justice McCulloch said: . 1
In Missouri Pac. R. Co. v. Conway County Bridge District, 134 Ark. 292, 204 S.W. 630, 631, Chief...
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Stern v. Halligan
...have routinely rejected constitutional challenges to mandatory connection requirements. See, e.g., City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (Ark.1954); Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (Idaho 1953) (collecting cases); Township of Bedford v. Bates, ......
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...parking a medium truck. Zoning ordinances may be judicially enforced by either civil or criminal proceedings. City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (1954). Civil enforcement, the most common form, is usually by actions for injunctions or declaratory judgments. In those ......
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State ex rel. Lown v. City of Iowa Falls
...we think are persuasive. Probably others might be added, e. g.: Bigler v. Greenwood, Utah, 254 P.2d 843, 846; City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503, 506; Fristoe v. City of Crowley, 142 La. 393, 76 So. 812, L.R.A.1918C, The decision of the trial court is affirmed. All J......