Little Rock v. Pfeifer

• Decision Date: 07 December 1925
• Docket Number: 37
• Citation: 277 S.W. 883,169 Ark. 1027
• Parties: LITTLE ROCK v. PFEIFER
• Court: Arkansas Supreme Court

277 S.W. 883

169 Ark. 1027

LITTLE ROCK v. PFEIFER

No. 37

Supreme Court of Arkansas

December 7, 1925

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

A B. Cypert, and Rose, Hemingway, Cantrell & Loughborough, for appellant.

Coleman Robinson & House, for appellee.

OPINION

MCCULLOCH, C. J.

Pursuant to statute (act No. 6, extraordinary session 1924) authorizing cities Of the first class to establish zones for building purposes, the city council of Little Rock passed an ordinance establishing fire limits and providing that it shall be unlawful to erect any gasoline and oil-filling station or any automobile repair garage or any store-building, or to erect 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, etc." The ordinance provides for publication of notice of application for permit, that protests of owners of property in the vicinity may be made to the city council, and that where such protests are filed "the city engineer shall refuse to grant said permit and refer same to city council of the city of Little Rock, which shall, after a hearing upon the petition for and against such building, grant or refuse issuance of permit as it may deem best." The statute which authorizes the ordinance provides that, in case of abuse of discretion by the council in granting the permit, the adjacent property owners may appeal to the chancery court to protect their property from depreciation by reason of the erection of the building over their protests.

Appellees were the owners of a vacant lot fronting north on Prospect Avenue in that portion of Little Rock known as Pulaski Heights, and, desiring to erect a brick building thereon to be used for business purposes, applied to the city engineer for a permit, which was granted. This occurred the day after the ordinance was passed by the city council, but before the same was published in accordance with the statute. Thereafter, the city council revoked the permit, on protest of owners of adjacent property before any work had been done on the construction of the building, but after the contract had been let and other expenses incurred by appellees. This action was instituted by appellees in the chancery court against the officers of the city to prevent them from interfering with the construction of the building, and they asked for an injunction. On final hearing of the cause by the chancery court, the relief prayed for by appellees was granted.

The protest against the construction of the building by appellees was made by numerous owners of adjacent property--persons owning and occupying residences. The contention is that the locality in question is a residence district, and that the construction of a building for business purposes would be in violation of the ordinance of the city. On the other hand, it was contended by appellees that the locality had already become a business district in which they had a right to construct a building for business purposes, and that the city had no power to curtail that right by refusing the permit.

In the recent case of Herring v. Stannus, ante p. 244, the ordinance now under consideration and the statute authorizing it were both fully considered and the validity of each sustained. In that case there was involved a permit to erect a gasoline station, and the decision was confined to the validity of the statute and ordinance so far as they affected a structure of that kind but the court concludes now that the decision in that case necessarily upholds the...