Owens v. Atkins

• Decision Date: 03 March 1924
• Docket Number: 202
• Parties: OWENS v. ATKINS
• Court: Arkansas Supreme Court

259 S.W. 396

163 Ark. 82

OWENS v. ATKINS

No. 202

Supreme Court of Arkansas

March 3, 1924

Appeal from Pope Circuit Court; J. T. Bullock, Judge; affirmed.

Judgment affirmed.

Robert Bailey and Edward Gordon, for appellants.

The town council could not, by ordinance or otherwise, permit the closing of the public streets or the use of them for any purpose other than that for which they were dedicated. 50 Ark. 472, 473; 19 Wend. 659; 22 Ia. 351; 7 Ohio 354; 2 Dillon of Municipal Corporations, 3d ed., §§ 650, 651, and authorities cited; 42 Ark. 102; 40 Ark. 83; 77 Ark. 227; Id. 576; 89 Ark. 177; 111 Ark. 549; 135 Ark. 437; 112 Ark. 207; 147 Ark. 292.

E A. Williams, for appellee.

1. Every necessary fact that goes into making a case of purpresture is lacking in this case. Counsel have fallen into error and failed to distinguish between purpresture and temporary closure, the right of cities and towns to erect temporary barriers. 13 R. C. L. 224; 42 L. R. A. (N. S.) 480; 19 R. C. L. 783.

2. The conduct of the defendants was such as to constitute a trespass, and punishable at the common law, even though we have no statute on the subject. 1 Clark & Marshall's Law of Crime, 45.

OPINION

WOOD, J.

The school building and grounds in the town of Atkins occupy one block, on the east side of which is located the school building and a small playground, and on the west side there is located what is known as a park or baseball ground, on the northeast portion of which is a grandstand. In order to afford sufficient space for the playing of baseball on the school grounds, it became necessary to use the street running east and west along the south side and also the street running north and south along the west side of the school property. It was also necessary that certain private property be used as a part of the ball ground. The town council of Atkins granted to the school board of the school district the right to close up the streets mentioned during the game which lasted one and a half hours two days in the week. The school board leased the private property, and on the east side, south of the school building, they placed a fence in panels and wagon sheets, closing the street on the east and joining with the property leased of Mrs Campbell on the south. On the north from the school building another panel fence connected with the grandstand and the fence. across the street. The fence was so constructed that it could be taken down immediately after each game, and stacked away. On the west and southwest there were ropes stretched across the streets so as to completely inclose this space used as a ball park. No one could enter this park, thus inclosed, without either crawling under the ropes and sheets, or going around the end of same on to the private property, over which the school board had control.

One day, when a game of baseball was in progress, Bleve Scott came into the park, without paying, and, instead of going to the grandstand, he took his stand in the street running east and west on the south. In this position he interfered with the game, and, upon his refusal to pay and take his seat in the grandstand, or go outside of the park, he was arrested and fined by the mayor, sitting as a justice of the peace, for the offense of trespass. A short time thereafter he returned, in company with E. Owens. They went in on the west side and took their stand on the sidewalk, where those who paid their admission fee were not allowed to remain, and where they would interrupt the game. Upon their refusal to pay or move out of the way, at the request of the marshal of the town, acting under the auspices of the school board, warrants were issued charging them with trespass, and they were arrested and tried before a jury in the mayor's court, sitting as a justice of the peace, and fined in the sum of $ 10.

There was testimony on behalf of the town tending to prove that the presence of Scott and Owens at the places indicated had a tendency to disturb the crowd and to interfere with the game of ball. The marshal requested them, two or three times, to move, and offered to loan them the fifty cents charged for entering the grounds, and even to give them the fifty cents if they would move and take their places in compliance with the rules of the school board. There was testimony to the effect that the streets temporarily inclosed were not main business streets of the town, but residence streets; that no main thoroughfare leading out of the town was closed up at all. Owens and Scott were there to take in the ball game. One of them said that he did not have any money to pay the entrance fee that day. The other one had the money, and refused to pay. They both asserted that they had a right to use the street in the manner in which they were using same, and to stand there to watch the game.

They appealed to the circuit court, where the cases were consolidated for trial, and were submitted to a jury. The court instructed the jury, in effect, that the punishment for trespass was a fine of not more than $ 100, and that the only issue for the jury to determine was as to the amount of the fine; that the defendants, under their own statement, were guilty of trespass. The defendants asked the court to instruct the jury that the defendants had a perfect right to be on the streets of Atkins, and that, while on the streets they were not guilty of trespass, and that the town had no right to close the streets except for public safety or public health. The court refused these prayers, to all of which rulings of the court the defendants...