220 S.W.2d 430 | Ark. | 1949
In 1943 the City of Fordyce enacted an ordinance designed to regulate garages, filling stations, and bus or truck depots. Section 3 of the ordinance requires that a permit be procured as a condition precedent to the right to build a structure for any of the uses mentioned, or for converting all existing structure to such use. Violation is a misdemeanor punishable by fine not to exceed $50, each unauthorized day of operation being a separate offense.
Mrs. Fay Clyde Dunn owns a lot on Fourth and Graham streets, and in June 1948 filed with the Recorder her request for permission to construct and operate a filling station on the property. When the application was presented to the City Council, the Recorder was directed to publish notice that a hearing would be had June 28. By unanimous action of all Councilmen who participated the application was denied. Alderman Leroy Turner did not vote.
This appeal is from a Chancery Court decree enjoining the Council from enforcing the ordinance as to Mrs. Dunn, and authoring her "to construct, as she sees proper, a filling station on the property in question."
The Chancellor expressly found that the Council had acted honestly and in good faith, "with the public interest in mind," and in response to its best judgment, but had exceeded its authority "under this ordinance."
It will be observed that the Court did not hold the ordinance void. The opinion seems to have been that, granting the City's right to regulate, power was lacking under the ordinance to prohibit erection of the building in the circumstances disclosed by the proof. *278
A City's right to promulgate and enforce ordinances of the tenor here questioned was sustained in Van Hovenberg v. Holman,
In his summation of issues in the case at bar, Judge Haynie commented: "I believe this property is just across the street from another filling station, and [the application for a permit] should not be considered entirely on the ground of residential interests. From all of the testimony and circumstances shown, the building up of Fordyce will probably extend westward."
Whether location of the filling station on the lot owned by appellee would be a well-disposed transaction in respect of City interests was a matter to be determined by the municipality's governing body; and unless an abuse of discretion be shown, Courts will not arrest its acts. See McQuillin on Municipal Corporations, Vol. 1, 380, (2d Ed. rev., p. 1068).
In Herring v. Stannus,
So here, the question being one involving discretion, and the Council having acted on a record showing sharp differences of opinion, and the Chancellor having found that it acted in the utmost good faith and that the unanimous vote of all who participated was in response to the better judgment of each, the act must stand unless the Council, in changed circumstances, should again consider the matter.
The decree is reversed.