Helena v. Wooten
| Decision Date | 13 March 1911 |
| Citation | 135 S.W. 828,98 Ark. 156 |
| Parties | HELENA v. WOOTEN |
| Court | Arkansas Supreme Court |
Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.
Judgment reversed and cause remanded.
W. G Dinning, for appellant.
The ordinance is a valid exercise of the powers granted by statute to the city council. Kirby's Dig. § 5648. It is not unreasonable. 88 Ark. 263; 52 Ark. 301; 64 Ark. 152; 146 N.C. 527; 60 S.E. 413; 20 L. R. A. (N. S.) 145; 26 L. R A. 340, 343; 53 A. 202; 55 A. 1132; 57 A. 267; 50 N.E. 256; 14 N.E. 451. It is clearly a police regulation and within the powers vested by law in the municipality. The fact that the awning was erected in accordance with the provisions of a former ordinance does not take away from the city the power to act under the later ordinance. A municipality cannot divest itself of its police powers. 72 Ark. 556, 564, 565; 202 Mo. 690; 100 S.W. 627.
Moore & Vineyard, for appellee.
1. The authority given under the statute upon which appellant relies is to prevent or remove obstructions upon the streets, sidewalks, etc., of a city, and the evident intention of the Legislature was to provide for the removal of any such encroachments or obstructions erected in violation of an ordinance prohibiting the same. Kirby's Dig., § 5648, subdiv. 3. The latter part of the section, "* * * or to punish for its continuance, after an order has been made by the city council or the police court for its removal or abatement," clearly shows the legislative intention. The ordinance in question does not require the removal of the awning in controversy, and there was no order by the city council or police court for its removal or abatement as required by statute.
2. The encroachments and obstructions prohibited by the statute are "* * * buildings, fences or structures of any kind, posts, trees or any other matter or thing whatever * * *." The latter clause, "or any other matter or thing whatever," under the well-established rule of statutory construction, refers to matters and things similar to those enumerated preceding said clause, and evidently refers to obstructions and encroachments which rest upon or are attached to the street or sidewalk. 17 N.W. 272; 15 Mich. 54; 4 Dillon, Mun. Corp. 730.
3. The awning was not a nuisance. "The power of regulation of real estate proprietors in the use and improvement of their property extends only to erection, alteration and repair." 28 Cyc. 736; 13 L. R. A. 481; 134 N.Y. 163; 69 N.J. 182.
4. The ordinance is unreasonable. It does not provide for the removal of awnings erected prior to its passage, neither does it provide for any notice to property owners who had previously, under authority of the former ordinance, erected awnings to remove the same.
G. A. Wooten was convicted in the police court of the city of Helena for "failure to remove awning as provided by ordinance No. 1426" of said city. He appealed to the circuit court, and on a trial de novo was acquitted. The city prosecutes this appeal to reverse the judgment rendered. The facts are agreed upon, and are substantially as follows: Wooten owns a brick building in that part of the city of Helena wherein it is made unlawful by the ordinance under which this prosecution was commenced to maintain or continue to use other than folding and adjustable awnings made of cloth or like material upon frames of wood or iron. There is now attached to the front of said building an awning that is not adjustable, and which is not such an awning as is required by said ordinance. The awning extends over a portion of Cherry Street within the district covered by said ordinance. At the time said awning was constructed there was an ordinance of the city making it lawful to construct same in the manner and of the materials of which said awning was constructed. Said awning was at the time of the commencement of the prosecution and is now in a good and safe condition. It is also admitted that in the event a fire should occur in the second story of said building, the awning might and probably would, to some extent, interfere with the work of the firemen in their effort to extinguish the flames. The chief of the fire department of the city testified that he had had many years' experience in that department, and knew that an awning such as the one now being used by Wooten on the building on Cherry Street interferes materially with the work of the fire department in its efforts to extinguish fires.
It is also agreed that Wooten was duly notified to remove the awning, but failed and refused to do so. The ordinance which he was charged with...
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