Wenderoth v. City of Fort Smith

• Decision Date: 01 November 1971
• Docket Number: No. 5--5673,5--5673
• Citation: 251 Ark. 342,472 S.W.2d 74
• Parties: Collier WENDEROTH and Nancy Wenderoth, Appellants, v. CITY OF FORT SMITH, Ark., and Grand Investments, Inc., Appellees. WESTARK RETIREMENT HOMES, INC., Appellant, v. CITY OF FORT SMITH, Ark., and Lawrence D. Farrar et al., Appellees.
• Court: Arkansas Supreme Court

Page 74

472 S.W.2d 74

251 Ark. 342

Collier WENDEROTH and Nancy Wenderoth, Appellants, v. CITY OF FORT SMITH, Ark., and Grand Investments, Inc., Appellees.

WESTARK RETIREMENT HOMES, INC., Appellant, v. CITY OF FORT SMITH, Ark., and Lawrence D. Farrar et al., Appellees.

No. 5--5673.

Supreme Court of Arkansas.

Nov. 1, 1971.

Harper, Young & Smith, and Pearce, Robinson & McCord, Fort Smith, for appellants.

Daily, West, Core & Coffman, and Hardin, Jesson & Dawson, and Shaw & Ledbetter, Fort Smith, for appellees.

HOLT, Justice.

The appellants, in these consolidated cases, appealed to the circuit court from the enactment of rezoning ordinances by the appellee city's Board of Directors. These ordinances rezoned certain properties adjacent to appellants. Their objections are that the rezoning is countrary to the characteristics of the neighborhood and detrimental to them and to their properties. The rezoned properties are located within the city limits and are owned separately by the appellees Grand Investments, Inc. and Lawrence D. Farrar, et al. Upon motions of the appellees, the circuit court dismissed these appeals on the basis that Ark.Stat.Ann. § 19--2830.1 (Repl.1968), which permits an appeal de novo to the circuit court from the enactment of rezoning ordinances by a city's legislative body, is unconstitutional because in violation of Article 4 of our state constitution. The sole issue, therefore, on appeal concerns the validity of this statute.

Appellants contend for reversal that the statute does not contravene Article 4 which is that provision in our constitution providing for separation of powers between the executive, legislative, and judicial branches of government. Article 4 of our constitution reads:

§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate each of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.

Ark.Stat.Ann. § 19--2830.1, pertaining to building and zoning regulations, provides:

In addition to any remedy now provided by law, appeals from final action taken by the administrative, quasi judicial, and legislative agencies concerned in the administration of this Act may be taken to the Circuit Court of the appropriate county, wherein the same shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.

The procedure provided for in this act was before us in three other cases. City of Little Rock v. Leawood Property Owners Ass'n, 242 Ark. 451, 413 S.W.2d 877 (1967); Arkansas Power & Light v. City of Little Rock, 243 Ark. 290, 420 S.W.2d 85 (1967); Wright v. City of Little Rock, 245 Ark. 355, 432 S.W.2d 488 (1968). However, in neither of those cases was the constitutionality of this act considered.

We think the court was correct, in the case at bar, in holding the statute unconstitutional. The legislative power of the people is vested in the general assembly with the right of the initiative and referendum reserved to the people. Amendment 7, § 1. Although the power to enact laws is vested in our General Assembly, we have long recognized that our legislature can delegate to numicipal corporations the legislative power to enact ordinances. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904). There we said that: '* * * there is nothing better settled than that the Legislature may delegate to a town council legislative authority over the municipal affairs of the town.' Therefore, when a city exercises the power conferred upon it by our state legislature, the city is acting in a legislative capacity which is coequal with the power of the legislature itself. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). There we said that when a municipality exercised the delegation of this legislative authority, the courts cannot take away the discretion vested in the city's legislative body. See, also, 16 Am.Jur.2d 466, §§ 223 and 504, § 255.

In the case at bar we are likewise of the view that this statute cannot empower the judiciary to take away the discretionary powers vested by our legislature in the city's legislative body to enact zoning and rezoning ordinances. The provisions of this statute provide for a trial de novo, including the right of a trial by jury, in reviewing the legislative action of the city. On appeal the issue would be tried entirely anew, the same as if the city's governing board had not acted. City of Little Rock v. Leawood Property, supra. By this method of appellate review do novo there is attempted to impose upon the circuit court a function of a nonjudicial character in a matter that is exclusively within the discretion and legitimate power of the city's legislative body. The result would be to substitute the judgment of the circuit court for that of a municipal law-making body. This is contrary to Article 4 of our constitution which prohibits intrusion by the judiciary upon the legislative domain.

In Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (Ala.1961) the identical question was presented as is now before us. In holding a similar statute unconstitutional the court said: 'The limitation of judicial review grows out of the character of the proceedings involved. That the enactment of zoning ordinances is a legislative function and not a judicial one is well established and should need little citation of authority.' Further: '* * * Also, the amendment to a comprehensive zoning ordinance or a rezoning of a certain area, as was done in the instant case becomes a part of the existing comprehensive ordinance and, a fortiorari, is a legislative act.' See, also, Robberts v. McCollum, 215 Ga. 174, 109 S.E.2d 744 (1959); Hunt v. McCollum, 214 Ga. 809, 108 S.E.2d 275 (1959); California Co. v. State Oil & Gas Bd., 200 Miss. 824, 27 So.2d 542, 28 So.2d 120 (1946). In City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951), in respect to separation of powers, we find this pertinent language: 'It would have been beyond the power of the Legislature to grant a trial do novo in the sense of foisting upon a court and jury the performance of non-judicial functions, that is to say in the sense of permitting the court of jury to substitute their own judgment for that of the civil service commission when the latter had exercised purely an executive function.'

However, zoning regulations and ordinances are not immune to appellate review. Our chancery courts have the power to grant relief in appropriate proceedings when a zoning ordinance is arbitrary, capricious, or unreasonable. Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925); City of Little Rock v Fausett & Co. Inc., 222 Ark. 193, 258 S.W.2d 48 (1953); Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W.2d 706 (1966). See, also, 23 Ark.L.Rev. 22 (1969). On this restricted basis our chancery courts have reviewed the validity of zoning ordinances. In other words, the enactment of zoning ordinances is a legislative function subject only to appellate review to determine whether the city's legislative body acted arbitrarily, capriciously, or unreasonably in the enactment of the ordinance.

As the act before us is written, it clearly authorizes the circuit court or jury to substitute its judgment and discretion for that of a legislative agency of the state and to unllify its action. In Little Rock Ry. & Elec. Co. v. Dowell, supra, 101 Ark. at p. 227, 142 S.W. at p. 166, we said:

'* * * It is only an arbitrary abuse of the power which the courts...