Rock v. Rock

• Decision Date: 06 February 1904
• Citation: 79 S.W. 785,72 Ark. 195
• Parties: LITTLE ROCK v. NORTH LITTLE ROCK
• Court: Arkansas Supreme Court

79 S.W. 785

72 Ark. 195

LITTLE ROCK v. NORTH LITTLE ROCK

Supreme Court of Arkansas

February 6, 1904

Appeal from Pulaski Chancery Court, JESSE C. HART, Chancellor.

Suit by the city of Little Rock and others against the town of North Little Rock and others, to restrain proceedings for the annexation of a portion of the city to defendant town. The chancellor sustained a demurrer to the bill, and plaintiffs have appealed. The facts are stated by the court as follows:

STATEMENT BY THE COURT.

In 1903 the legislature passed an act entitled "An act to amend the laws in relation to Municipal Corporations," which contains the following provisions:

"Section 1. That any municipal corporation, or any part thereof, may be annexed and made part of any other municipal corporation located within one mile of the municipal corporation to which the same is to be annexed, in whole or in part, but before such annexation shall be made or declared, the council or board of aldermen of either the corporation to which said other territory is to be annexed, or that which is to be so annexed in whole or in part, shall order an election, after giving thirty days notice thereof by publication once a week in a newspaper, if one be published or circulated in said territory, and by printed posters posted in conspicuous places in said territory, the giving of which notice shall be proved by the affidavit of two or more persons cognizant of the fact that such notice has been duly given. But no such election shall be ordered by such council or board of aldermen until petitions asking that said election shall be held have been filed with such board or council, signed by a majority of the qualified electors in said territory to be annexed and that to which the annexation is to be made respectively, that is, said majority of petitioners shall be required from each of said respective parts separately considered, and not a majority resident in the combined territory as it would be after the consolidation or annexation had been affected. Said petitions shall be accompanied by a map or a plat showing plainly the territory to be annexed, and the said council or board shall not order such election, notwithstanding such petitions may be filed unless it shall appear that the boundaries of the corporation thus to be formed by annexation or consolidation as aforesaid will promote the convenience and welfare of the people of said combined territory, and be susceptible of making a compact and proper municipal corporation."

The act then proceeds to declare that, unless a majority of all the votes cast is in favor of the annexation or consolidation the proposition shall be deemed to be rejected, but, if a majority be in favor thereof, the council shall so declare and place the same on its records, and thereafter the consolidated territory and the inhabitants thereof shall constitute a municipal corporation under the name of the corporation to which the annexation is made. It is unnecessary to set out the remainder of the statute, which has reference mainly to the manner of holding the election. Under this statute the town council of the town of North Little Rock, on the 18th day of June, ordered that an election be held on the 21st day of July, 1903, submitting to the voters of the incorporated town of North Little Rock and to the voters of the Eighth ward of the city of Little Rock the proposition as to whether the territory now embraced in the Eighth Ward of that city should be annexed to the town of North Little Rock. Thereupon the city of Little Rock, the mayor and members of the city council and certain other citizens and owners of property in the city of Little Rock filed a complaint in the chancery court of Pulaski county alleging that the statute in question was unconstitutional and void for several reasons stated in the complaint; that, unless the town of North Little Rock be restrained from proceeding further under said statute, the election would be held, and that the town would assume jurisdiction over the Eighth Ward of the city of Little Rock; that the result would be that both the city and the town would be attempting to exercise jurisdiction over the same territory; and that great confusion and uncertainty as to the validity of licenses, privileges, and franchises granted by either corporation in said ward would exist, to the irreparable injury of the city and state. Wherefore they prayed that an injunction be granted restraining the town from any further proceedings under the act and from in any way assuming jurisdiction over the territory embraced in the Eighth Ward.

The town of North Little Rock and other defendants appeared by attorney, and filed a demurrer to the complaint, stating that the complaint did not state facts sufficient to constitute a cause of action or to entitle plaintiffs to the relief asked.

After consideration thereof the chancellor sustained the demurrer, and dismissed the complaint for want of equity, and the plaintiffs appealed.

Affirmed.

Ashley Cockrill, W. L. & W. J. Terry, Morris M. Cohn, for appellants.

The act is void because its passage was obtained in a fraudulent and surreptitious manner. 2 Ark. 260; 25 Ark. 556; 35 Ark. 205; 35 Ark. 331; 17 Ark. 512; 1 Big. Fraud, 86-100; Const. 1874 art. 5, § 22. The act empowers appellee to annex only such material part of Little Rock as is represented by the governing body. 23 Am. & Eng. Enc. Law, 361; 144 U.S. 47; 143 U.S. 457; 25 Ark. 104; 174 U.S. 47; 37 Ark. 495; 34 Ark. 263; 11 Ark. 44; 3 Ark. 285; 48 Ark. 307; 56 Ark. 495; 58 Ark. 414, 438; 66 Ark. 466. The act is unconstitutional. Rose, Const. 25; 49 Ark. 528; 166 U.S. 226; 167 U.S. 409; 170 U.S. 243; 165 U.S. 578; 43 Cal. 331; 31 Ark. 494; 21 Ind. 370; 30 Ark. 677; 13 Wall. 166; 169 U.S. 466; Const. 1874, art. 2, § 22; 54 Ark. 140; Hare, Am. Const. § 22; 148 U.S. 186; 85 F. 723; 56 F. 352; 67 Ark. 30; 34 Ark. 105; 56 Ark. 148; 47 Ark. 283; 4 Wheat, 518; 140 U.S. 333; 155 Ill. 441; 33 N.E. 695; 26 La.Ann. 478; 30 Ib. 190; 166 N.Y. 1; 28 Mich. 228; 54 Tex. 153; 31 Pa.St. 175; 3 Hill, 531; Cooley, Taxation, 688; 47 N. J. Law, 93; 47 Ark. 283; 67 Ark. 30; 56 Ark. 148; 1 Ark. 181; 31 Pa.St. 175; 28 Mich. 240; 166 U.S. 233; 13 Ark. 198; 15 Ark. 43; 51 Ark. 235; 36 Ark. 166; 4 P. 800; 58 Ark. 428; 69 Ark. 516; 1 Dill, Mun. Corp. § 68a; 75 Ill. 153; 184 Ill. 717; 33 Ark. 497; 52 Ark. 430; 100 U.S. 514. The act is in violation of § 12, art. 11 and §§ 2, 3. 4 and 6 of art. 13, Const. 1874. 36 Ark. 75; 85 Ala. 144; 83 Ill. 590; 183 Ill. 419; 20 Oh. St. 37; 31 Id. 608; 46 Id. 276; 132 Pa.St. 275; 113 Id. 176; 20 A. 886; 15 A. 272; 68 Am. St. 579. Also violates art. 7, § 28. 33 Ark. 508, 191; 43 Ark. 67; Cooley, Const. Lim. 140; 22 P. 616; 40 Ark. 548; 36 Ark. 466; 26 Ark. 464; 37 Ark. 364. Also violates Const. 1874, art. 5, § 23. 52 Ark. 290; 49 Ark. 131; 61 Ark. 622; 13 Mich. 481; 88 N.W. 171; 66 P. 478; 64 P. 764; 41 Ala. 9; 6 Ind. 31; 71 N.W. 995; 21 Mich. 236; 61 Ark. 625; 163 Ill. 414. Art. 5, § 1, Const. 1874, is violated. Cooley, Const. Lim. 140; 35 Ark. 69; 40 Ark. 290; 56 Ark. 110; 85 Ala. 144; 19 P. 63; 79 Pa.St. 317; 55 Ind. 515; 29 Mich. 451; Dill, Mun. Corp. 112; 4 Wheat, 518; Smith, Mun. Corp. § 431; Tied. Corp. § 56; 51 Md. 465; 56 Ark. 202; 43 Ark. 324; 49 Ark. 518; 52 Ark. 529; 56 Ark. 110. The ordinance and order sought are void for unreasonableness. 134 U.S. 418; 169 U.S. 366; 137 U.S. 245; 49 Ark. 199; 87 Mo. 396; 68 Mo. 544.

James P. Clarke, Rose, Hemingway & Rose, and Blackwood & Williams, for appellee.

The motives and purposes for which a bill was passed cannot be inquired into. 36 Kan. 42; 44 Oh. St. 348; 11 Ind. 431; 30 Id. 514; 33 Pa.St. 278; 39 Cal. 202; 2 Cal. 168; 22 La.Ann. 545; 30 Cal. 266; 8 Ind. 303; 92 N.Y. 139; 44 Oh. St. 358; 128 N.Y. 345; 89 Tenn. 487; 15 Lea, 634; 41 N.Y. 137; 11 Ind. 424; 13 Mich. 485; 130 U.S. 319; 102 U.S. 472; Cooley, Const. Lim. 225. The effect of the demurrer: 89 Tenn. 495; 39 Cal. 201; 44 Ark. 550; 51 Ark. 566. The act does not take property from the city without due process of law, and no injustice is done. 35 Ark. 61; 33 Ark. 506; 52 Ark. 432; 16 Mass. 75; 68 Ark. 90; 86 Ill. 616; 104 U.S. 78; 1 Beach Pub. Corp. § 398; 101 U.S. 29; 120 U.S. 68; 56 Ark. 148. The constitution is not violated. 23 Am. & Eng. Enc. Law, 148; 37 Minn. 322; 8 Cal. 417; 40 N.E. 503; 50 Kan. 508; 19 A. 972; 40 N.E. 508; 40 Oh. St. 98; 17 Cal. 547; 42 N.J.L. 435; 50 Kas. 508; 38 Kas. 590; 52 Ohio St. 419. Due notice was given. 92 U.S. 801; 52 Ark. 538; 115 U.S. 321; 149 U.S. 30; 13 R. I. 50; 84 Va. 861; 2 Mich. 560; 63 Ia. 718; 17 W.Va. 812; 80 Ia. 626; 189 U.S. 383; 36 Ark. 184. The legislature had authority. 21 Ark. 49; 36 Ark. 139; 37 Ark. 369; 33 Ark. 575; 27 Ark. 421; Cooley, Const. Lim. 142; 38 Ark. 82; 21 Ark. 41; 42 Kan. 435; 33 Ark. 513; 43 Ark. 327; 27 Ark. 421; 24 Ia. 445. The act is not in violation of § 23, art. 5 of the constitution. 61 Ark. 622; 31 Ark. 263; 47 Ark. 48; 49 Ark. 134; 52 Ark. 326; 64 Ark. 469; 45 Ark. 400; 17 Wis. 631; 52 Ark. 329; 47 Ark. 476. There is no conflict with § 1, art. 5, Const. 1874. 52 Oh. St. 419; 4 Mont. 174; 43 Ia. 252; 80 Ia. 626; 43 Ark. 327; 54 Ark. 321; 56 Ark. 202; 20 Fla. 344; 33 Ark. 497; 43 Ark. 324; 52 Ark. 430; 68 Ark. 83; Cooley, Const. Lim. 151; 36 N.Y. 72; 56 Ark. 110; 104 Ill. 653; 29 Kas. 672; 54 Ark. 321; 55 Ind. 515; 35 Ark. 56; 80 Ia. 620; 36 N.W. 816; 40 N.E. 508; 43 Ark. 329; 189 U.S. 383; 56 Ark. 203; 56 Ark. 110; 52 Ohio St. 508; 38 Miss. 652; 104 Ill. 653; 29 Kas. 672. The ordinance is not unreasonable. 44 N.W. 1031; 8 Enc. P. & P. 830; 6 Am. & Eng. Enc. Law, 1029; 23 P. 652; 24 P. 1110; 35 S.W. 1112; 19 S.E. 398, 21 S.E. 738; 39 P. 974; 35 A. 858; 16 P. 298; 143 U.S. 693; 67 N.W. 1037.

Ashley Cockrill, W. L. & W. J. Terry, and Morris M. Cohn...