161 S.W.2d 186 | Ark. | 1942
Appellant, by appropriate action, questions the validity of 3 of ordinance No. 554 which was duly enacted by the council of the city of Hope, Arkansas. This section reads as follows: "It shall hereafter be unlawful for any person, firm or corporation to construct or have constructed any building to be used or occupied by any person without having such building connected with the sanitary sewer system of the city of Hope, Arkansas."
Municipal corporations derive their legislative powers from the general laws of the state. Article 12, 4, Constitution of Arkansas. In the City of Argenta v. Keath,
Section 9615 of Pope's Digest provides: "Nothing in this act shall be so construed as to authorize the board of health to order or compel the building of a sewer by one property owner over the property of another, or for a greater distance from his property through or into any street or alley than three hundred feet, to a place where a connection can be made with a sewer." *149
Appellant among other things alleged, as a fact, in his complaint that he had partially completed a residence on lot 3, block 5, Wallace Addition to the city of Hope, Arkansas, and that this lot is more than three hundred feet from any point where connection can be made with any city sewer. Demurrer alleging that the complaint did not state a cause of action was sustained. This appeal followed.
It is our view that the city council of Hope had clearly exceeded its legislative powers in the instant case and 3 of the ordinance in question is invalid. By this section of the ordinance, the city council attempts to do exactly what 9615, supra, says that it may not do, and that is that it may not require a property owner to connect with a sewer line unless the city provide sewer facilities within three hundred feet of his property. It is generally known that in many, if not all, municipalities of this state, there are outlying lots suitable for residence purposes more than three hundred feet from any sewer connection and it seems quite clear that the Legislature in enacting 9615, supra, of course, had such property in mind and had no intention of preventing the erection of residences on such lots.
In the instant case appellant seeks to erect a residence on a lot which he owns and which is more than three hundred feet from a sewer connection. Certainly it cannot be said that the building of a residence is a nuisance per se. It may become one by its use. In which event the city of Hope, under its police power, could abate such nuisance, but to say to appellant in advance of the completion of the building in question that he cannot finish it because he alleges in his complaint that he proposes to equip it with "toilet facilities of the outdoor type approved by the state Department of Health and to be built according to WPA specifications," is, we think, clearly an invasion of his constitutional rights. Unquestionably the city of Hope could force appellant, after he has erected his residence, to connect with its sewer when and if a sewer is provided within three hundred feet of appellant's lot. A city may regulate the construction of buildings (9619, Pope's Digest), but it *150 cannot prevent construction unless the proposed construction is per se dangerous to the public health and safety.
Section 9615, supra, of the general statutes, is clearly a valid enactment — within legislative powers — and comes within the rule announced by this court in the City of Helena v. Dwyer,
But, as indicated, the ordinance in question goes further than the state law authorizes. This court in Martin v. Hilb,
In Malone v. Quincy,
Having reached the conclusion that the trial court erred in dismissing appellant's complaint, the decree is reversed, and the cause remanded with directions to proceed in conformity with this opinion.