North Little Rock v. Rose

• Decision Date: 14 October 1918
• Docket Number: 168,169
• Citation: 206 S.W. 449,136 Ark. 298
• Parties: NORTH LITTLE ROCK v. ROSE
• Court: Arkansas Supreme Court

206 S.W. 449

136 Ark. 298

NORTH LITTLE ROCK v. ROSE

No. 168,169

Supreme Court of Arkansas

October 14, 1918

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

Affirmed.

Hal Norwood, R. E. Wiley and J. F. Wills, for appellant.

1. The subject-matter of the ordinance is within the terms of the powers delegated to cities by statute. Kirby's Digest §§ 5438, 554, 5439, 5461, 5468.

2. The ordinance is not unreasonable and arbitrary. It is an exercise of explicit power reposed in cities by statute to promote the public safety. 127 Ark. 38, 43-4; 101 Id. 223; note to Ann. Cas. 1916 B, 502. Operating moving pictures involves a constant threat against public safety, that of fire and panic. 128 Md. 129; 97 A. 227; 117 Md. 373; Ann. Cas. 1913 E, 1300; 144 N.W. 835. See also 218 N.Y. 212; 112 N.E. 717; 146 N.Y. 341; 2 Dillon, Mun. Corp. (5 ed.), § 677; 67 Ark. 424; 239 U.S. 394.

3. The ordinance is general, bearing on all alike situated. Such precautions are uniformly upheld. 127 Ark. 38; 117 Md. 373; 144 N.W. 835; 119 P. 953; 28 Cyc. 741. The choice of means is for the legislative body, not the courts. 197 U.S. 11; 216 Id. 358. It is not discriminatory. 113 Id 703.

4. The fact that appellees will suffer some injury does not make the ordinance unreasonable. 35 Ark. 357; 18 Id. 252; 239 U.S. 394; 216 Id. 358; 127 Ark. 38; 123 Id. 285; 107 Id. 174; 2 Dillon, Mun. Corp. (5 ed.), § 665.

5. The ordinance was not intended to create a monopoly in favor of any picture show. But the motives inducing legislation can not be inquired into. 113 U.S. 27; 113 Id. 1145; 88 Ark. 263; note to Ann. Cas. 1912 A, 716, and 1917 B, 834; 143 Mich. 104; Ann. Cas. 1917 B, 833. See also 101 Ark. 223-7. The ordinance is valid.

Rose, Hemingway, Cantrell & Loughborough, for appellees.

1. The ordinance is unreasonable, arbitrary and oppressive and therefore void. 2 Dillon on Mun. Corp. (5 ed.), §§ 589, 590-1-2-3-6; 3 Ark. 110-115.

2. It was not passed under express authority and is unreasonable. 2 Dillon on Mun. Corp., § 600; 93 Ill. 381; 172 S.W. 581; 132 Id. 184-6; 146 P. 950-4; 133 Id. 754.

3. The motives of the council can be inquired into. 2 Dillon on Mun. Corp., § 580; 96 S.W. 201-5; 195 U.S. 223; 118 Id. 356; Horr & Bemis on Mun. Ord., § 127; 151 F. 879, 882, 892; 107 Mo. 198, 203; 28 N.E. 812, 814; 18 Oh. St. 262.

4. The ordinance discriminates between picture shows and other places for public exhibition. Cases supra; 43 Ark. 42.

SMITH, J. MCCULLOCH, C. J., dissenting.

OPINION

SMITH, J.

On December 13, 1917, appellee, Geo. B. Rose, filed a complaint in the Pulaski Chancery Court, which contained substantially the following allegations: That he owned No. 221 Main street, in North Little Rock, formerly known as Argenta; that the building there located had been rented for mercantile purposes, but a room thereof was afterwards used as a moving picture show, and that in making the alterations to adapt the room to this new purpose the sum of $ 1,500 had been expended. The principal item represented by this sum was the installation of a fire-proof steel room for the use of the operator of the moving picture machine in giving the exhibitions. This room was shown to be not only fire-proof itself, but to be so constructed that fire could not be communicated from it to other portions of the building in case any explosion might occur in this fire-proof room. The moving picture lessee failed, and the room became vacant, and during this vacancy the council passed the following ordinance:

"Ordinance No. 396.

"An ordinance regulating the operation of moving picture shows or theaters within the city of Argenta, Arkansas.

"Be it ordained by the city council of the city of Argenta:

"Section 1. That it shall be unlawful to operate any moving picture show or theater within the city of Argenta, in any building except one of approved fire-proof construction. Such show room or theater shall have concrete floors and reinforced concrete ceiling or suspended metal lath and plastered ceiling suspended from the concrete slab. The walls of said building shall be standard brick walls or walls constructed of vitrified tile, gypsum block or similar noncombustible material.

"Section 2. Every building or room used for a picture show or theater shall be provided with front and rear exit doors to provide ready means of exit for the patrons of said show, and said exit doors shall open outward or be double-acting doors, opening both outward and inward. No such exit doors shall be fastened or obstructed in any manner so as to interfere with the opening of the same from inside during the progress of a performance, or while any spectators or patrons are in said building or room.

"Sec. 3. The operating room or booth containing the moving picture machine shall be of approved or standard fire-proof construction and arrangement. Said operating room or booth shall have a sufficient opening for ventilation, which must be vented by metal pipe for exhausting the hot air and gases generated in operating the machine, which conductor, pipe or ventilation pipe shall lead to outside of building for conducting hot air and gases outside of said building.

"Sec. 4. Any moving picture show or theater operating in violation of this ordinance shall be subject to closure by the chief of police, and, in addition thereto, any owners, proprietor or lessee of any such show or theater violating any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than $ 10 nor more than $ 100, and each day during which this ordinance is violated shall constitute a separate offense. Passed May 8, 1916."

After the location of the army post near North Little Rock, a demand arose for moving picture theaters, but appellee's building did not conform to the requirements of section 1 in certain particulars, and its use for that purpose became unlawful under the terms of the ordinance. The room conformed to sections 2 and 3 of the ordinance, but did not conform to section 1, in that it did not have concrete floors and reinforced concrete ceiling, or suspended metal lath and plastered ceiling suspended from the concrete slab, and it was alleged that to make the room conform to the ordinance in the particulars stated would involve an expenditure of a sum of money so large as to make the cost confiscatory and prohibitive.

It was alleged that the ordinance had been passed for the purpose of giving a monopoly of the moving picture business to one Rosenbaum, who owned a moving picture theater in North Little Rock, and whose building conformed to the requirements of the ordinance in the particulars in which appellee's failed, and that the ordinance was unreasonable and arbitrary, and an injunction was prayed against the enforcement of its penalties.

The answer contained a general denial of these allegations, and alleged that the ordinance had been passed pursuant to specific statutory authority and directions, and that, as the ordinance was not unconstitutional, its reasonableness was not a proper subject for review by the courts.

The testimony of the witnesses was taken at the bar of the court, and there was much testimony tending to support the allegation that the ordinance had been passed for the purpose of giving Rosenbaum a monopoly of the moving picture business. But under our view of the law it becomes unnecessary to determine whether the testimony supported the allegations in that particular or not. The court below found that it did, and held the testimony competent as bearing upon the question of the reasonableness of the ordinance, and entered a decree enjoining the enforcement of the ordinance.

In opposition to the view that the courts may pass upon the reasonableness of the ordinance, the case of Hot Springs v. Curry, 64 Ark. 152, 41 S.W. 55, and similar cases are cited. It was held in the case mentioned that when an ordinance is upon its face within the terms of the express statutory power, the courts ought not to interfere with it on the ground of unreasonableness, and it was said of the ordinance there under review that it appeared upon its face to be valid, and there was no evidence that it was unreasonable, and that unless the contrary appears on the face of the ordinance, or is established by proper evidence, the court will presume it reasonable. Citing Fayetteville v. Carter, 52 Ark. 301.

The law on this subject is stated in Dillon on Municipal Corporations (5 ed.), section 600, as follows: "Where the Legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the Constitution, an ordinance passed pursuant thereto can not be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the Legislature distinctly says may be done can not be set aside by the courts because they may deem it to be unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid."

The section is quoted with approval in numerous opinions of different courts in passing upon the right of courts to review municipal ordinances, and is a statement of the generally accepted view which the courts have entertained.

It is insisted that the Legislature of this State has in terms conferred the authority to pass ordinances of the...