Herring v. Stannus

• Citation: 275 S.W. 321
• Decision Date: 29 June 1924
• Docket Number: (No. 89.)
• Parties: HERRING et al. v. STANNUS et al.
• Court: Arkansas Supreme Court

Page 321

275 S.W. 321

HERRING et al. v. STANNUS et al.

(No. 89.)

Supreme Court of Arkansas.

June 29, 1924.

Rehearing Denied September 28, 1925.

Appeal from Pulaski Chancery Court; A. L. Hutchins, Chancellor.

Suit by Ada D. Stannus and others against W. J. Herring and others. Decree for plaintiffs, and defendants appeal. Reversed, and complaint dismissed.

Sam T. and Tom Poe and Louis Tarlowski, all of Little Rock, for appellants.

W. Floyd Terral and J. C. Marshall, both of Little Rock, for appellees.

SMITH, J.

An extraordinary session of the Forty-fourth General Assembly passed an act numbered 6, which was approved July 1, 1924, entitled, "an act to confer on cities of the first class power of regulating the character of buildings."

Sections 1 and 2 of this act read as follows:

"Section 1. It is recognized and hereby declared that the beauty of surroundings constitutes a valuable property right which should be protected by law, and that this is particularly true of residential sections where people have established their homes.

"Sec. 2. Cities of the first class are hereby authorized to establish zones limiting the character of buildings that may be erected therein, and that such zones may be of three classes: First, portions of the city where manufacturing establishments may be erected or conducted; second, portions of the city where business other than manufacturing may be carried on; third, portions of the city set apart for residences."

By section 3 it is provided that, when the city council shall have laid off such zones, it shall not be lawful for any one to construct or carry on, within a given zone, any business not authorized by the ordinance of the city establishing the zones, unless special permission is granted by the council of said city, or by a commission which it may create for the purpose of determining whether an exception shall be made in the particular instance, but that such exception shall be made only for good cause, and in case of abuse of this discretion by the council the adjacent property owners are given the right to appeal to the chancery court to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.

Section 4 authorizes the city council to limit the height of buildings in the zones created by it.

Pursuant to the authority conferred by this statute, the council of the city of Little Rock passed an ordinance numbered 3577, entitled "An ordinance regulating the building, construction, or erection of gasoline and oil-filling stations, automobile repair garages, store buildings, apartment houses, any other building for business purposes, and for other purposes."

The preamble to this ordinance reads as follows:

"Whereas, it appears to the city council of the city of Little Rock that the growth and population of this city makes it necessary for the purpose of promoting health, safety, morals, or the general welfare of the community to restrict the building of gasoline and oil-filling stations, automobile repair garages, apartment houses and all other buildings erected for business purposes within what is known as the residence district of the city of Little Rock; and

"Whereas, by legislative enactment recently adopted, cities of the first class are authorized to separate, if need be, business from residence property."

By section 1 of the ordinance it is made unlawful to build, construct, or erect —

"any gasoline and oil-filling station where gasoline and oil will be sold; to build, construct, or erect any automobile repair garage or any store building, or to erect any apartment house, or to erect or build for business purposes, any other building in what is commonly known as the residence district of the city of Little Rock outside of the fire limits hereinafter specified, until after having first filed an application with the city engineer for said permit along with all plans, specifications, and the payment of a fee of $5 to cover all costs of printing notices, etc., said fee to be paid to the city collector."

Section 2 requires the city engineer to publish notice of any application filed under section 1.

Section 3 provides that, after proof of publication of the application for the permit has been made, the engineer shall issue the permit, unless otherwise prohibited by law —

"except where petition is filed by one or more citizens, owners of property in the immediate vicinity protesting the issuance of said permit, and showing that if said permit is granted and said building is erected, the conduct of same will tend to decrease the value of property in the immediate vicinity for residence purposes, said petition to be subscribed and sworn to by the complaining property owner, or owners."

Section 4 reads as follows:

"Where one or more protests are filed with the city engineer against the building of any filling station, automobile repair garage, store house, apartment house or other business building, within the residence districts of Little Rock, within thirty days after the receipt of application for same, the city engineer shall refuse to grant said permit and refer same to the city council of the city of Little Rock, which shall, after a hearing upon petition for and against such building grant or refuse issuance of permit as it may deem best."

Section 5 defines the fire limits, referred to in section 1, and section 6 prescribes the penalty for a violation of the ordinance.

After the passage of the ordinance, it was amended by striking out the words "apartment house" wherever they appeared in the ordinance. After the passage of this ordinance, appellants made application for a permit to erect a filling station at the southwest corner of Wright avenue and Wolfe streets in the city of Little Rock, and protests were immediately filed by property owners in the vicinity. The matter was referred to the civic affairs committee of the city council, and this committee of the council unanimously recommended to the council that the permit be granted. This report was approved by the unanimous vote of the council, but was vetoed by the mayor. Later the council passed the resolution granting the permit over the veto of the mayor. Thereafter the property owners, who had protested against the issuance of the permit, filed this suit in the chancery court, in which they prayed that the issuance of the permit be enjoined. In this suit the provisions of the ordinance were set up, and it was alleged that no good cause had been shown as required by the ordinance for issuing the permit, and that the council had abused its discretion in granting it, and its cancellation was prayed.

Separate answers were filed by both the city and the petitioners for the permit. The answer of the city denied that the permit had been granted without good cause being shown. The answer of the petitioners for the permit likewise denied that the permit had been granted without good cause being shown and, in addition, alleged that the ordinance and the statute, under which it was passed, were both unconstitutional for various reasons which were set up. The court below held that both the ordinance and the statute were constitutional, and also held that the council of the city had abused its discretion in granting the permit, and decreed its cancellation, and enjoined petitioners from erecting the proposed filling station, and this appeal is from that decree.

The first question which naturally presents itself is the constitutionality of the statute and the ordinance passed pursuant thereto. Appellants insist that it is unconstitutional for the reasons that it operates to deprive them of their liberty and property without due process of law; that the ordinance takes private property for public use without compensation; that it abridges the privileges and immunities of citizens of the United States and denies them the equal protection of the law; that it attempts to make legal the taking of private property for public use without compensation, and assumes to delegate legislative powers to private persons. These grave questions have in cases comparatively recent engaged the attention of many courts under facts more or less similar to those of the instant case, and the cases passing upon these questions have, through the industry of respective counsel, been collated and cited. After considering these cases, the same differences of opinion are found to exist among the judges of this court as are reflected in the various opinions which we have consulted.

The automobile has brought into existence many problems incident to its operation, and it is recognized by all the courts that filling stations, where oil and gasoline may be obtained, have become public necessities. It is also generally recognized that these stations are proper subjects for regulation by the states and the cities and towns thereof in the exercise of the police power. The differences arise out of the manner in which and the extent to which these regulations may be extended. It is becoming more and more common to effect this regulation by means of zoning ordinances, under which filling stations are excluded from certain areas. It is also quite common for these zoning ordinances to exclude certain other buildings from the restricted areas.

A well-considered case on the subject is that of Spann v. City of Dallas, 111 Tex. 530, 235 S. W. 513, and in 19 A. L. R. 1387, this case is extensively annotated. A number of later cases, which have also been annotated, are there cited. In this case of Spann v. City of Dallas, the Supreme Court of Texas held an ordinance of the city of Dallas, which forbade the erection of a building as a store in the residence district, without the consent of neighboring property owners and the approval of the building inspector of the city, to be unconstitutional as depriving the owner of his property without due process of law. After citing, in the note...