City of De Queen v. Fenton

• Decision Date: 10 April 1911
• Parties: CITY OF DE QUEEN v. FENTON et al.
• Court: Arkansas Supreme Court

136 S.W. 945

CITY OF DE QUEEN v. FENTON et al.

Supreme Court of Arkansas.

April 10, 1911.

Appeal from Sevier Chancery Court; Jas. D. Shaver, Chancellor.

Suit by the City of De Queen against W. O. Fenton and others. A demurrer to the complaint was sustained and the suit dismissed, and complainant appeals. Affirmed.

Abe Collins, for appellant. Otis T. Wingo, for appellees.

FRAUENTHAL, J.

This was a suit brought by the city of De Queen, seeking to enjoin the defendants below from permitting stock and cattle owned by them from running at large within the limits of said city. In the complaint it was alleged that two ordinances had been passed by the proper authorities of said city, prohibiting the running at large of cattle and other stock within its corporate limits. One of these ordinances declaring it to be unlawful for the owner of such stock or cattle to allow same to run at large in said city, and providing for penalizing the owner and impounding said stock or cattle; and the other ordinance declaring the running at large of such stock or cattle within said city to be a nuisance, and imposing a fine upon the owner. The complaint further alleged that the defendants resided outside of said city, and knowingly permitted their stock and cattle to run at large within the limits thereof in violation of said ordinances, thereby creating a public nuisance. It was alleged that the ordinances were difficult of enforcement, and that under the statutes of the state the defendants' cattle could not be impounded because the defendants resided outside of the city, and for these reasons it alleged that the city had no adequate remedy to protect its citizens against the depredations of these cattle and stock, and on this ground it based its right to obtain an injunction against the defendants.

The defendants interposed a demurrer to this complaint upon the grounds (1) that it did not state facts sufficient to constitute a cause of action, and (2) that the chancery court was without jurisdiction in the matter. The court sustained said demurrer and dismissed the complaint. Did the court err in sustaining said demurrer?

By virtue of the statutes of this state, cities and towns are empowered to prevent the running at large within their corporate limits of stock and cattle, and to provide for the impounding of same. Kirby's Digest, §§ 5450, 5451. Ordinances passed by municipal corporations providing for the exercise and enforcement of these statutory provisions are valid police regulations. Ft. Smith v. Dodson, 46 Ark. 296, 55 Am. Rep. 589; McKenzie v. Newton, 89 Ark. 564, 117 S. W. 553.

The violation of such ordinances is an infraction of the criminal law, and the police courts of cities and towns are the proper forums in which to pursue a criminal prosecution for the violation thereof.

A chancery court has no criminal jurisdiction, and will not exercise its powers solely to enforce criminal laws. A complete and adequate remedy for the violation of the criminal statutes of the state and of municipal ordinances is afforded by the courts of law, and those courts have full power to pass upon the scope and validity of such laws and ordinances. It has been held by this court that the chancery court has no jurisdiction to restrain acts solely because they are criminal. State v. Vaughan, 81 Ark. 117, 98 S. W. 685, 7 L. R. A. (N. S.) 899, 118 Am. St. Rep. 29; Lyric Theater v. State, 136 S. W. 174.

From the allegations of the complaint it appears that there are two ordinances of the city of De Queen prohibiting the acts complained of. Criminal prosecution can therefore be instituted against the defendants for these acts, which it is alleged are violations of these ordinances. If these ordinances have in fact and in law been violated by the defendants, there can be no legal difficulty in enforcing them.

But it is urged that by ...