ARK.] LEWIS V. A. HIRSCH & 1 CO., INC. 209 LEWIS V. A. HIRSCH & COMPANY, INC. 4-4151
Opinion delivered February 10,.1936. MUNICIPAL CORPORATIONS-VIOLATION OF FIRE ORDINANCE-INJUNCTION. —A citizen and takpayer who does not show that his property will be damaged by construction of a building in violation of a fire zone ordinance is not authorized to sue to enjoin its construction. Appeal from Phillips Chancery Court ; A. L. Hutch, ins, .Chancellor ; affirmed. Suit by W. W. Lewis against A. Hirsch & Company, Inc., and others. Complaint dismissed and plaintiff appeals. Jo M. Walker, for appellant. W. G. Dinning, fol. ; appellee. MEHAFFY:, J. The town of .Marvell is a mmilcipal corporation duly organized under the laws of the State of Arkansas. In 1916 the tbwn council . adopted a fire ordinance which provided, among other, things, that thic outer walls of all buildings constructed in the restricted area should the constructed of brick and mortar or stone and mortar. This suit was brought by appellant against the appellees alleging that they are the owners of certain lots within the fire zone, upon which • they are about to construct a building in violation of the terms of the .fire ordinance, and asked that a restraining order be fs-sued to prevent the construction of this building in violation of the fire ordinance.
210 LEWIS. v. A. HIRSCH & CO., INC: [192 • The appellees filed answer %admitting they ,were about to construct-the building-in, violation of the terms of the ordinance, but, alleged that they had obtained a permit from the, mayor and pity council.. . . Appellant filed demurrer to this answer, which was overruled, and the court . held. ,that . the., appellant was without authority to bring this suit; that appellant had a full and adequate remedy at 'law, and his . complaint was dismissed. This appeal , is , prosecuted to reverse the decree of the chanCery court.. An amendment to the complaint was filed alleging, among other things, that it is the duty of the mayor and council to enforce the terms of . said , ordinance, but they, in utter disregard of their duty, have refused and still refuse to enforce the ordinance, and for that reason this suit was, .brought lv appellant ,as a citizen and taxpayer of Said town. Section 1 of the . brdinance , made itunlaWfa to erect or construet or Cause tO, be erected br cOnstructed buildings,. unless the . outer walls be made of stone and mortar or brick and mortar, within the limits described in the Ordince. • ' ..'•' -'• Section 2 of the ordinance prohibited the erection of: . any. liouse• or tenement within the limits unless the Walls be of the.materials mentioned in§ 1, and.certain sizes and dimensions. Section 5 of the ordinance proyided thatany person violating the ordinance . sho.uld be . fined • in any ,sum not less than five . dollars ,nor more than, twenty-five dollars for ea. ,h offense and each day cOnstitnted a . separate offense. . , The appellant did not 'claim . to cnv . n any property, and did notclaim either in , his pleading or s ;evidence, that bp was . daniaged , in any -way. •; He brings, , the suit .as a taxpayer for himielf .,•,. . The .following stipulation was_ entered into "It is agreed:by . andlpetween attorney . for . the plaintiff and the attorney for..the defendant,: that, ordinance No. 14, .attached fas an exhibit :to- the complaint, in, this cause, is a true, and correct . Coprof an ordinance adopted by the city council and approved:by.the Mayor of Vthe
ARK.] LEWIS V: A. .HIRSCH & CO., INC. 211 town of Marvell, Arkansas, on'the date shown; and that the same has not been repealed, amended or modified and is now in force and effect ; , and that the defendant, Freda Hirsch, •is the owner : of lots •No: 38; and 89 in that part of the town of Marvell knoWn•as the 'original town of Marvell, and that said two ; lots are situated . within the boundaries , of • the limits fixed,.by the ' Ordinance . •af ore-said .. ?'' . • • . , EVidence was ,introduedd, tending, to show, that ,if , the ordinance was . enforced it would .confiscate.the property, and several permits had bmi..graptedhy ! the . city council to erect: buildings in this section of . the town : in v.iolation of . the ordinance. : The evidence, shows, that one; application was' presented by the ,appellant.!!:The evidence :tends to show that 'to .. erect . buildings in ,compliance , with the ordinance in ihis section of the . town Would .be so expensive that tile rents would not justify . such bnildings. It fs • • ontehad by the aPpellant. that his— 'deinurter tO . ,' aPpellee's ansWer • shetiliF have been' stistained , beCause appellee admitted 'in the 'answer that Freda.Hitsch Was • the the'preinises'deseribed and * '8 about to donStruct bUildiniS' in violation 'of the ordinance, "and that her sole defense was that a permit had been granted by • thd : toWn"anthoritieS : .; '116 : calls attentiOn to the- case Of ' Griffin v.' lant'On, .8 was not a suit for injun 1! 5 Ark: '89, 107 . S. W.' 380. 'That ction,'bUt a suit by . a' taxpayer' fo • compel a State officer tO aoeimint foi and pay' into the gtate and , county ._ treasuries *the fees and • emoltunents of his office • excess 'Of $5,000, the : maximum allotted, under 'the. Constitutioit The , court - stated :that it did not • deem, • it necessary . to discuss at • 'length the . ques-•tion. of •apPellant's 'right' to maintain the' suit ; that 'his right • depedded .upOn . whether 'or: not the provision. of -the. Constitution Was self-executing ; that if the , court .had .reached the . .conclusion that ,it was. self,executing i • a; majority..of :the judges .are 'of the• opinion'that, • since there was no method expressly pointed out by' the 'Constitution for ..enforcing the proyision,. a citizen and . taxpayer 'could .bring. :suit after the refusal. of , the prosecuting attorney to: do . so. • . . ••
212 LEWIS V. A. HIRSCH & CO., INC. [192 Appellant next calls attention to Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175. We find nothing in this case that supports the contention of the appellant. This was a suit to prevent the misappropriation of funds .to recover misappropriated funds. ' Appellant calls attention , to 32. 0. J. 48, § 27. The section referred to by appellant states the law to be that equity will grant injunctions to restrain an attempted wrong whenever it clearly appears that in no other proceeding can public or private interests be fully protected, and that the writ will issue at the instance of a private individual who shows he may suffer financial injury if :the contemplated wrong is not enjoined. The section immediately folloWing the one relied on by appellant states as follows : "It is sufficient to show -that he suffered a, special injury different from that suffered by the public at large." Section 29 of the . same volume is as follows : "Subject to some limitations hereafter considered, in order to entitle a person to injunctive relief whether prohibitory or mandatory in its nature, he must establish as against the defendant an actual and substantial injury; and -this is true whether the injury is single or continuous." Appellant also calls attention to 13 R. C. L. 329. There is nothing in the_ authority referred to that supports the.contention of the appellant. Appellant calls attention to the case of Merriman-v. Paving Ca., 142 N. C. 539, 55 5, E. 366, 8 L. R. A. (N. S.). 574. The corporation involved in that case was a private corporation, but the court said: "The right to bring and the 6ecasion of bringing such actions arises only when and because the proper corporate Officers will not, for some improper consideration, diScharge their duties as they should do: But stockholders, as such, may not bring such actions at their pleasure and have their rights aS individuals growing out of the corporation settled and administered." Before • a taxpayer as such -can bring a suit to enjoin a municipal corporation, he must show that he suffers special damages, and he must show that he has
ARK.] 913 • no adequate remedy at law. We said in the case of Swaim v. Morris, 93 Ark. 362, 125 S. W. 432: "But if the_ ordinance is valid 'under the above statute, then the remedy at . law is adequate and complete. For the or-• dinance provides for a fine of $200 for each day during which the ordinance is violated, and fOr an abatement Of the nuisance. So that resort to injunctive relief is entirely nnhecessary and improper." . The general rule is that an injunction will not be issued at the instance of a private individual to restrain the' violation of a municipal ordinance unless the individual can show that his property will be specially damaged. 19 R. L. 77. In the case at bar the appellant does not attempt to show that his property will be damaged. In fact, he does not show that he owns any property in the town. The decree 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.