ARK. BENTON V.. PHILLIPS. - 961
BENTON v. PHILLIPS. • 4-4067 Opinion delivered December 9, 1935. 1. MUNICIPAL CoRPORATiONS—iONING ORDINANCE.-"Ads 192b, •NO. 108; reqUiring cities- of the fir§t and §eCond class to file the plan . of;a zoning ordinance with all maps, plats, charts and-descriptive matter with the .city clerk and a copy thereof certified by / the city clerk to be filed with the, county recorder, held mandatory. 2. MUNICIPAL CORPORATIONS—L iONING ORDINANCE.—Where a city • failed to comply with the requirements of Acts 1929, No. 108, in regard to filing maps,. plats, charts and descriptive matter. of a zoning ordinance, the city was , not .authorized to enforce such ordinance. • -- Appeal from Saline 'Chancery . - Court ; -Sam W. Vitr-: ratt, Chancellor ; affirmed.' Suit by L. A. Phillips and others against the .city Benton and others wherein A. S. : Henley and others intervened.. Froth an, adverse decree defendant§ have appealed. Ernest Briner, fOrappellant. Sid J. Reid and Arthur C. Thomas, for aPpellees. HUMPHREYS, J. This suit was brought aPpellees, 'Who owned lots 8, 9 and 12 in block 7, in Nerth Benton, in the 'citY* of Beiiton, Arkansas, against appellants' to preVent them from interfering -with the constrUctiOn 'Of an lee plant and other bn§iness buildings on said propertY under the provision's of ordinance' No;'1, zoning this' and other property as strictly reSidential property, which was passed by the city council on February 26, 1935, 'alleging that the ordinance * WaS 'void for 'several reasons,' among them the failure to comply with act 108 of 1929 of the Acts of Arkansas authorizing cities of the second class to pass zoning ordinances.-- Appellants filed an answer 'to the cOmplaint, denying the invalidity of- the. ordinance, :J. An.interventionwas filed by A. S. Henley and-a number . 'of the other property owners in ,the 'vicinity of said property, alleging that the construction of an ice .plant on said property and the operation thereof woUld 'be a nuisance and result in irreparable damage .to the inter-
962 BENTON v. . PHILLIPS.. [191 veners in the enjoyment of .their homes as well as the value thereof. A demurrer to the intervention was filed and overruled. In the course of the trial, the appellants offered evidence to sustain , the allegations contained -in the intervention, which the "court excluded. The . record . does not disclose whether an answer was filed to the intervention, so it is perhaps pending as an independent proceeding for further action by the court. The court then 'proceeded to' hear the case upon. the sole issue of whether the ordinance was invalid, and found that it was, and rendered a decree restraining appellants from interfering with appellees in the erection and construction of said ice manufacturing plant and the peaceful enjoyment of their property, from . which decree is this appeal. The undisputed evidence shows that, in passing tho zoning ordinance, the city of Benton,failed to file the plan together with all maps, plats, charts and descriptive Mat., ter in the office of the city clerk, and a certified copy thereof by the city clerk in the office of the recorder of Saline County. The only authority cities of the 'second class have to pass zoning ordinances is , that conferred upon them by act 108 of the Acts of 1929. -Of cOurse, in exereising this-special authority, they must comply. with the act in order to render their ordinances valid relative to zoning the city. Section 4 of said act reads as .follows : "The plan, and any amendment, change, addition to or alteration thereof, together with all maps, plats, charts and descriptive matter, shall be filed in the office of the city clerk, and a copy thereof, certified by the city clerk, shall be filed in the office of the recorder of the county in which the city is located." The purpose of this provision was to give every one notice of the plan so that they might Make suggestions and objections thereto as -well as to acquaint every one purchasing lots with the us'e to which they might be put. In placing restrictions _of this kind upon the use of real estate, notice was necessary and should have been given
in the manner prescribed in the act conferring the power to do so upon cities. It is necessarily a mandatory provision in the Iaw, and must be followed in the passage of the zoning ordinance. Having failed to coniply with the act in the passage of the zoning ordinance, same is void, and the decree is .correet, and must.be . and is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.