Sander v. City of Blytheville

• Citation: 262 S.W. 23
• Decision Date: 19 May 1924
• Docket Number: (No. 386.)
• Parties: SANDER et al. v. CITY OF BLYTHEVILLE et al.
• Court: Supreme Court of Arkansas

262 S.W. 23

SANDER et al. v. CITY OF BLYTHEVILLE et al.

(No. 386.)

Supreme Court of Arkansas.

May 19, 1924.

Rehearing Denied June 9, 1924.

Appeal from Mississippi Chancery Court; Archer Wheatley, Chancellor.

Action by A. L. Sander and others against the City of Blytheville and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Costen & Harrison, of Blytheville, for appellants.

Max B. Reid, of Blytheville, for appellees.

WOOD, J.

On the 5th day of December, 1922, the city council of the city of Blytheville passed the following ordinance:

"Section 1. That all gasoline filling stations, gasoline pumps, oil tanks, water hydrants, air service appliances, or other automobile service equipment which is now erected, operated, and maintained, or which may hereafter be erected, operated, or maintained, upon the streets, alleys, or sidewalks within that portion of the city of Blytheville heretofore set out and designated as the fire limits, or within one block of any church or school building within the city of Blytheville, are hereby declared to be public nuisances, forbidden to operate, and hereby ordered abated, on or before January 1, 1923.

"Sec. 2. It shall, on and after January 1, 1923, be unlawful for any person, firm, corporation, or association of persons to erect, operate, or maintain upon the streets, alleys, or sidewalks within that portion of the city of Blytheville heretofore set out and designated as the fire limits, or within one block of any church or school building within the city of Blytheville, any gasoline filling stations, gasoline pumps, oil tanks, water hydrants, air service appliances, or any other automobile service equipment.

"Sec. 3. Any person, firm, corporation, or association of persons found guilty of violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and, upon conviction therefor, shall be fined the sum of $15; and each day's violation of this ordinance shall be deemed a separate offense, and be punishable accordingly.

"Sec. 4. That all ordinances, or parts of ordinances, in conflict herewith are hereby repealed, and this ordinance shall take effect and be in force from and after the first day of January, 1923."

This action was instituted by the appellants against the appellees, the mayor and chief of police of the city of Blytheville, to enjoin the enforcement of the above ordinance. They set out the ordinance in their complaint, and allege that they maintain a gasoline filling station within the fire limits of the city of Blytheville, as set out and defined in the ordinance. They allege that the tank for the gasoline is constructed underneath the city pavement, with all the safeguards and protection against fire, and that the gasoline pump connected with the tank does not extend into the street, but is located between the sidewalk and curb line of the street; that the water hydrant, oil tanks, and air service appliances are located at the front of their building between the sidewalk and curb line of the street, and are in no sense a public nuisance. They say that their station is not within several blocks of any public school or church. They set up that there are two gasoline filling stations within the heart of the city, and within the fire limits of the city, known as "drive-in" stations, so situated and so constructed as to subject the inhabitants of the city to much greater danger from fire than the filling station of appellant; yet the ordinance prohibiting the appellant from operating does not prohibit these drive-in stations from operating; and that the ordinance, therefore, arbitrarily destroys the business of the appellants, while protecting that of the stations mentioned, and gives the drive-in stations a monopoly on the gasoline business in the city of Blytheville; and that the ordinance thus deprives appellants of their property without due process of law, in violation of the Constitution of Arkansas (art. 2, § 8), and of the Fourteenth Amendment to the Constitution of the United States, and is therefore unreasonable, discriminatory, and void.

The appellees demurred to the complaint on the general ground that it did not state a cause of action. The appellants stood on the complaint, and the court entered a decree dismissing the complaint, from which is this appeal.

1. The question presented by this appeal is whether the ordinance under review is unconstitutional and void because it prohibits gasoline filling stations, gasoline pumps, oil tanks, water hydrants, air service appliances, or other automobile service equipment therein designated, on the streets, alleys, or sidewalks within the fire limits of the city of Blytheville. Under our Constitution, the General Assembly shall provide, by general laws, for the organization of cities and towns, and no municipal corporation shall be authorized to pass any law contrary to the general laws of the state. Article 12, §§ 3 and 4, Const. 1874.

Sections 7493 and 7494 of Crawford & Moses' Digest provide that municipal corporations shall have power to make and publish, from time to time, such by-laws or ordinances, not inconsistent with the laws of the state, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of the inhabitants thereof.

Section 7568 of the Digest confers upon municipal corporations the power —

"to lay off, open, widen, straighten, and establish, to improve, and keep in order and repair, * * * streets, alleys [and] public grounds."

Section 7607 provides that —

"the city council shall have the care, supervision, and control of all the public highways, bridges, streets, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair, and free from nuisance."

Section 7748 confers upon municipal corporations the power:

"First. To regulate the use of sidewalks, and all structures and excavations thereunder, and to require the owner or occupant of any premises to keep the sidewalks, in front or alongside the same, free from obstructions, and to build and maintain suitable pavement or sidewalk improvements there along, whenever the same...