Hackler v. City of Fort Smith, 5-3305

• Decision Date: 27 April 1964
• Docket Number: No. 5-3305,5-3305
• Citation: 377 S.W.2d 875,238 Ark. 29
• Parties: James M. HACKLER et al., Appellants, v. CITY OF FORT SMITH et al., Appellees.
• Court: Arkansas Supreme Court

Page 875

377 S.W.2d 875

238 Ark. 29

James M. HACKLER et al., Appellants, v. CITY OF FORT SMITH et al., Appellees.

No. 5-3305.

Supreme Court of Arkansas.

April 27, 1964.

Bethell & Pearce, Ft. Smith, A. F. House, Little Rock, for appellant.

G. Byron Dobbs and Thomas Harper, Ft. Smith, for appellee.

McFADDIN, Justice.

This suit is an attack by appellants ¹ on the validity of Ordinance 2421 of the City of Fort Smith, which ordinance reads:

'ORDINANCE NO. 2421

'AN ORDINANCE PROHIBITING BLASTING IN ROCK QUARRIES WITHIN THE CITY LIMITS OF FORT SMITH.

'BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF FORT SMITH:

'SECTION 1. No blasting or use of explosives in quarrying operations in rock quarries located in the city limits of Fort Smith shall be permitted.

'SECTION 2: Violation of this ordinance shall constitute a misdemeanor and shall be punishable by a fine not to exceed $1000.00, or imprisonment in the city jail not to exceed six months, or both such fine and imprisonment.

'SECTION 3: Whereas, there is immediate danger to lives and property of the people of Fort Smith arising out of the use of explosives and blasting in rock quarries in the City of Fort Smith and an emergency exists, and this ordinance being necessary for immediate protection and safety shall be in force from and after its passage and approval.

'PASSED AND APPROVED this 6 day of August, 1963.

'/s/ Robert R. Brooksher, Mayor

'ATTEST: /s/ Carl R. Atkins,

City Clerk.'

The plaintiffs below (appellants here) alleged that Mr. Hackler owned a rock quarry located in the City of Fort Smith; that after the adoption of said ordinance the plaintiff, Mississippi Valley Engineering & Construction Company, contracted to mine and remove stone from the Hackler quarry; that the only way to mine the stone was by blasting; that the ordinance, insofar as it prohibited blasting, was void for a variety of reasons, one of which was that it absolutely prohibited the use of explosives in quarrying operations, rather that merely regulated the use of explosives. The prayer of the complaint was to enjoin the City of Fort Smith and its named officials from an enforcement of the said ordinance against the appellants.

Shortly after the filing of the complaint the Chancery Court issued a temporary injunction against the enforcement of the ordinance, and permitted blasting to continue at the quarry in a regulated manner until final hearing. At the close of the plaintiffs' case on final hearing, the City filed a demurrer to the evidence of the plaintiffs. The demurrer was sustained, the temporary injunction was cancelled, and the complaint was dismissed. From that decree there is this appeal, in which the appellants urge three points, being:

'I. Ordinance 2421 is invalid because it is arbitrary and unreasonable, and deprives the appellants of their property without due process of law.

'II. Ordinance 2421 is discriminatory and deprives the appellants of equal protection of the law.

'III. Ordinance 2421 is invalid because it conflicts with State law and regulations permitting the regulated use of explosives.'

We find it unncessary to consider the second and third points because the first point is decisive of this appeal. The ordinance is void because it is a prohibitory ordinance and not a regulatory ordinance. In Bennett v. City of Hope, 204 Ark. 147. 161 S.W.2d 186, this Court said:

'Municipal corporations derive their legislative powers from the general laws of the State. Art. 12, § 4, Constitution of Arkansas. In the City of Argenta v. Keath, 130 Ark. 334, 197 S.W. 686, 687, L.R.A.1918B, 888, we said: 'A municipal corporation has no powers except those expressly conferred by the Legislature, and those necessarily or fairly implied as incident to, or essential for, the attainment of the purposes expressly declared.''

The statutory authority under which the City of Fort Smith was attempting to act in adopting the ordinance 2421 is found in Ark.Stat.Ann. § 19-2303 (Repl.1956), and reads:

'They [municipal corporations] shall have power to prevent injury or annoyance within the limits of the corporation, from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated within the jurisdiction given the board of health in section 5203 [§ 82-204], to regulate the keeping and transportation of gunpowder, dynamite, and other combustibles, and to provide or license magazines for the same; * * *.'

In Bennett v. City of Hope, supra, we said: 'Power to regulate does not include power to prohibit.' In Town of Arkadelphia v. Clark, 52 Ark. 23, 11 S.W. 957, the City of Arkadelphia had declared the owning, keeping, or raising of bees in the City of Arkadelphia to be a nuisance and had prohibited the same. In holding that ordinance to be void, this Court said:

'Neither the keeping, owning, or raising of bees is in itself a nuisance. Bees may become a nuisance in a city, but whether they are so or not is a question to be judicially determined in each case. The ordinance under consideration undertakes to make each of the acts named a nuisance, without regard to the fact whether it is so or not, or whether bees in general have become a nuisance in the city. It is therefore too broad, and is invalid.' ²

In Jones v. Kelley Trust Co., 179 Ark. 857, 859, 18 S.W.2d 356, we held that the operation of a quarry and rock crusher was a lawful business and that it was not a nuisance per se. In Balesh v. Hot Springs, 173 Ark. 661, 293 S.W. 14, we held...