Meyer v. Seifert
| Decision Date | 12 December 1949 |
| Docket Number | No. 4-9018,4-9018 |
| Citation | 216 Ark. 293,225 S.W.2d 4 |
| Parties | MEYER et al. v. SEIFERT et al. |
| Court | Arkansas Supreme Court |
Wm. Gibson and M. F. Elms, Stuttgart, for appellees.
Appellant G. A. Meyer on behalf of himself and other property owners filed this bill in equity for a mandatory injunction to require the removal of a non-fireproof building erected by defendants Seifert and Mahle, under a permit granted by the other defendants (City of Stuttgart, Ark., and the Mayor, City Clerk, and Aldermen of said city, in their official capacities) within a fire zone in which the erection of such buildings was prohibited by city ordinances. The Chancery Court refused to issue the injunction, and plaintiff appeals.
City Ordinances Nos. 277 and 386 of the City of Stuttgart clearly prohibit the erection of the frame building here involved at the place where it was erected. The first question 1 before us is whether the 'permit' relied upon by defendants, authorizing the erection of the building as and where it was erected, is valid. The ordinances in their relevant clauses contain nothing except a flat prohibition against non-fireproof construction. In other sections Ordinance No. 277 sets up procedures for the issuance of permits for exceptional construction of certain special types within fire zones, but there is nothing in either ordinance that authorizes anybody--either the City Council, the Mayor, or any other official or body--to make exceptions to its general prohibition against the erection of frame buildings such as the one now in question within the 'fire limits' specified by the ordinances. The 'permit' relied upon by defendants was approved by a resolution passed by majority vote of the City Council at a regular meeting, the resolution not being in the form of nor enacted as an ordinance.
The general zoning law of Arkansas () contains a provision (in section 19-2806) whereby the city council or a commission created by it may grant special permission for exceptions in particular instances. Another enactment appearing in Ark.Stats., 1947, sections 19-2802 and 19-2803, authorizes cities to prohibit the erection of buildings within their limits except after issuance of permits in the manner prescribed by the city council. The Stuttgart fire zone ordinances, however, were not enacted under the authority of either of these statutes, and the permit procedures authorized by them are irrelevant here. See City of Stuttgart v. Strait, 212 Ark. 126, 205 S.W.2d 35. These ordinances were enacted under the authority conferred upon cities to guard against destruction of buildings from fire, by Ark.Stats., 1947, section 19-2801. This statute sets out no procedure whatever for issuance of permits. It does not prohibit cities from enacting fire zone ordinances containing provisions for issuance of permits in cases deemed exceptional; rather, it leaves the matter up to each city. There is nothing in the statute that prescribes a method for issuance of permits for exceptions if a city does not wish to authorize exceptions.
May a city council, when neither the ordinance nor the basic statute authorizes permits for exceptions to the ordinance, nevertheless by resolution grant such permits? We believe not. The problem is not unlike that presented by any general law, one prohibiting arson, for example. If the lawmaking body chooses to include no exceptions in the law, and no provision for authorizing exceptions, then permits to violate it cannot be granted by anybody, not even by the very lawmaking body that enacted the law. The law can be changed or set aside only by a new enactment having the same or greater quality and dignity.
Numerous cases involving city ordinances so hold, 'It is well settled that an ordinance cannot be repealed, or amended, or suspended by a resolution.' People ex rel. Raymond v. Latham, 203 Ill. 9, 67 N.E. 403, 408. In G. W. Mart & Son v. City of Grinnell, 194 Iowa 499, 187 N.W. 471, 473, a theatre owner sought to avoid an ordinance prohibiting Sunday shows, relying in part on a resolution passed by the city council allowing him to operate on Sunday. The court rejected the argument, saying State ex rel. Loeb v. Jordan, 149 La. 312, 89 So. 15, held that a city council resolution discharging a municipal employee in a manner contrary to a general city ordinance was ineffectual. Ristine v. Clements, 31 Ind.App. 338, 66 N.E. 924, 927, held that a liquor store permit granted by a town council without compliance with the terms of an ordinance previously adopted by the council was invalid, using this language: And see Stratton v. Warrensburg, 237 Mo.App. 280, 167 S.W.2d 392. It is our conclusion that these decisions are sound, and that the permit issued by the Stuttgart city council in violation of its general ordinances was invalid.
A second contention urged by the defendants is that equity is without power, or should not exercise the power, to enjoin maintenance of the prohibited structure. The argument is that the ordinance prescribes criminal punishments, making violation a misdemeanor punishable by fine of not less than $10 nor more than $100 for each day of violation, and that this remedy is exclusive. That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity's action to enjoin it.
In one of the most publicized cases that ever arose in Arkansas, Chancellor Martin enjoined the holding at Hot Springs of a world championship heavyweight prizefight between James J. Corbett an...
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