{ "id": 1586162, "name": "Newbold v. Stuttgart", "name_abbreviation": "Newbold v. Stuttgart", "decision_date": "1920-11-01", "docket_number": "", "first_page": "544", "last_page": "548", "citations": [ { "type": "official", "cite": "145 Ark. 544" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "98 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "142 La. 932", "category": "reporters:state", "reporter": "La.", "opinion_index": -1 }, { "cite": "35 Ark. 352", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873840 ], "opinion_index": -1, "case_paths": [ "/ark/35/0352-01" ] }, { "cite": "40 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897236 ], "opinion_index": -1, "case_paths": [ "/ark/40/0017-01" ] }, { "cite": "135 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "105 Ark. 506", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1346993 ], "opinion_index": 0, "case_paths": [ "/ark/105/0506-01" ] }, { "cite": "40 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 444, "char_count": 8027, "ocr_confidence": 0.51, "pagerank": { "raw": 1.8869475226059457e-07, "percentile": 0.7284608098773326 }, "sha256": "621713f46e44c9f408a9bf8e3f94b1ca1f86a94329bf2b76ac2fb63e2fda372d", "simhash": "1:9dd7d60796aedd63", "word_count": 1379 }, "last_updated": "2023-07-14T15:14:49.216602+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Newbold v. Stuttgart." ], "opinions": [ { "text": "Wood, J.\nThe appellant instituted this action against the appellees, the city of Stuttgart, its mayor and chief of police, to enjoin them from enforcing an ordinance purporting to extend the fire limits of the city. The appellant alleged that the appellee city is a city of the first class, its council consisting of six members ; that when the ordinance in question was attempted to be passed five aldermen were present; that the mayor and one alderman were absent; that one of the aldermen was chosen to preside and did not vote, and that of the remaining four aldermen three voted for the ordinance and one voted against it; that the rule requiring an ordinance to be read on three different days was suspended, three aldermen voting for and one against such suspension; that the ordinance was read three times at that session and was declared passed on the vote as above recited; that the ordinance, as thus passed, extended the fire limits of the city so as to embrace a lot which the appellant had leased for a period of five years; that the appellant was the owner of a frame building beyond the fire limits of the city, which he was attempting to move to the lot above mentioned in order to continue his business there; that he had partially \u2019moved the building on to the lot when Hammond, as mayor, and C. C. MeAlester, as ohief of police of the city, pretending to act under the purported ordinance, prevented him from moving his building on to the lot before mentioned. Appellant alleged that the value of the building was $1,000; th\u00e1t he was unable to continue his regular business and occupation, as he desired to do; that, unless the appellees were restrained from interfering with the placing of his building on the lot mentioned, appellant would suffer great and irreparable injury, not susceptible of compensation by an action at law; that appellant had already been arrested and fined under the purported ordinance.\nThe above are substantially the allegations of the complaint, the prayer of which was for a perpetual injunction.\nThe appellees demurred to the complaint on the ground that it did not state a cause of action. The court sustained the demurrer. The appellant stood upon his complaint. The court thereupon entered a decree dismissing the same for want of equity, from which decree is this appeal.\nTwo questions are presented. First, was the purported ordinance valid? Second, if not valid, did appellant nevertheless have a complete and adequate remedy at law?\n1. Section 5473 of Kirby\u2019s Digest concludes as follows: 4 4 To pass any by-law or ordinance, resolution or order, a concurrence of a majority of the whole number of members elected to the council shall be required. \u2019 \u2019 The above section was- a part of section 29 of the act of March 9, 1875.\nSection 5481 of Kirby\u2019s Digest provides in part as follows:\n4 4 All by-laws and ordinances of a general or permanent nature shall be fully and distinctly read on three different days, unless two-thirds of the members composing the council shall dispense with the rule.\u201d The above section was'a part of section 86 of the act of March 9, 1875. \u2022\nThe purported ordinance was passed in violation of these statutes, and it is therefore void. The provisions of the above statute are mandatory. 1 Dillon\u2019s Municipal Corps., \u00a7\u00a7 530-576; 19 Rul. Case Law, p. 891; see also, 11 McQuillin\u2019s Municipal Corp., \u00a7 607; Cutler v. Russellville, 40 Ark. 107; Oglesby v. Fort Smith, 105 Ark. 506-511.\nSection 5601 of Kirby\u2019s Digest provides as follows: \u201cThe aldermen elected for each city shall annually on the next Monday after their election assemble and organize the city council; a majority of the whole number of aldermen shall be .necessary to constitute a quorum for the transaction of business.\u201d\nThe above section, as well as sections 5602 and 5603, correspond to section 3274 of Gantt\u2019s Digest.\nIt is unnecessary for us to determine in this action whether or not section 5601, supra, is in conflict with section 5473 of Kirby\u2019s Digest, for, if there be conflict, section 5473, being the last enactment on the subject, must control. Likewise section 5481, supra, is the last enactment on the subject, and is the statute applicable to this ordinance. Under section 5481 of Kirby\u2019s Digest, it requires two-thirds of the members composing the council, that is those who are elected to the council, to dispense with the law requiring all by-laws and ordinances of a general or permanent nature to be fully and distinctly read on three different days. The purported ordinance was one of a' general and permanent nature.\n2. The next question is: Has the chancery court jurisdiction? In attempting to enforce the invalid or di-, nance, the appellees were interfering with the appellant\u2019s property rights. In the absence of a valid ordinance prohibiting it, he had a right to move his house upon the lot, which he had leased and to pursue his avocation, which was a lawful one, in his own way without interference from the appellees. The appellees had no right to cause him to abandon this location for another, or to prevent him from following his business on the lot he had selected for that purpose. Local Union No. 313 v. Stathakis, 135 Ark. 89-93. Their interference with his rights was in the nature of a continuing trespass, for which the appellant had no complete and adequate remedy at law. 4 Pomeroy\u2019s Equity Jurisprudence, sections 1338, 1357.\nIn a note to the latter section it is said: \u2018 \u2018 The legal remedy is not adequate simply because a recovery of pecuniary damages is possible. It is only adequate when the injured party can, by one action at law, recover damages which constitute a complete and certain relief for the whole wrong\u2014a relief virtually as efficient as that given by a court of equity. \u2019 \u2019 See, also, 22 Cyc. 891. See, also, 4 Pom. Eq. Jur. \u00a7 1777; 2 Dillon, Mun. Corp., \u00a7 582.\nThe decree is therefore reversed and the cause -is remanded with directions to enter a decree perpetually enjoining the appellee's as prayed in appellant\u2019s complaint.", "type": "majority", "author": "Wood, J." } ], "attorneys": [ "J. E. Bay and Geo. G. Leivis, for appellant.", "Geo. M. Chayline, for appellees." ], "corrections": "", "head_matter": "Newbold v. Stuttgart.\nOpinion delivered November 1, 1920.\n1. Municipal corporations\u2014majority op council to pass ordidinances.'\u2014Kirby's Digest, \u00a7 5473, requiring a majority of the members elected to a city council to pass an ordinance, an ordinance passed by less than that majority is void.\n2. Municipal corporations\u2014reading op ordinances.\u2014Kirby\u2019s Digest, \u00a7 5481, requiring by-laws or ordinances of a general or permanent nature to be read on three different days, is mandatory, and an ordinance passed in violation thereof is void unless two-thirds of.the members composing the council dispense with the rule.\n3. Statutes\u2014implied repeal.\u2014If there is a conflict between \u00a7\u00a7 5601 and 5473, Kirby\u2019s Digest, the latter section, being the last enactment on the subject, must control.\n4. Municipal corporations\u2014ordinances \u201cop general and permanent nature.\u201d\u2014An ordinance purporting to extend the fire limits of a city is \u201cof a general and permanent nature,\u201d within Kirby\u2019s Digest, \u00a7 5481.\n5. Injunction\u2014enforcement of void ordinance.\u2014The mayor and chief of police of a city of the first class will be enjoined from enforcing a void ordinance extending the fire limits, and from preventing plaintiff from moving a house on a lot within such extended limits.\nAppeal from Arkansas Chancery Court; John M. Elliott, Chancellor;\nreversed.\nJ. E. Bay and Geo. G. Leivis, for appellant.\n1. The ordinance was void. It was not duly passed by a majority of the council, nor were the rules suspended requiring a reading on three separate days. K. & G. Dig., \u00a7 6502; 40 Ark. 17; Dillon on Mun. Corp. (5 ed.), \u00a7 530; 19 E. C. L. 891; 55 L. E. A. 614; 28 Cyc. 335; K. & C. Dig., \u00a7 6510.\n2. Injunction the proper remedy. 35 Ark. 352; Dillon on Mun. Corp. (5 ed.), \u00a7 582; 142 La. 932; 4 Pomeroy, Eq. Jur., p. 4133, \u00a7 1777; 3 A. L. E. 955.\nGeo. M. Chayline, for appellees.\nThe chancery court had no jurisdiction. The validity or invalidity of an ordinance is purely a legal question. 22 Cyc. 892; 98 Ark. 524-5." }, "file_name": "0544-01", "first_page_order": 568, "last_page_order": 572 }