Reinman v. City of Little Rock
PLAINTIFFS in error filed their bill of complaint in the Pulaski county chancery court, a state court of general chancery jurisdiction, praying an injunction against the city of Little Rock, its mayor and other officers, to restrain them from enforcing an ordinance passed by the city council to regulate livery stables. The ordinance recites that "the conducting of a livery stable business within certain parts of the city of Little Rock, Arkansas, is detrimental to the health, interest, and prosperity of the city;" and it is ordained that it shall be unlawful to conduct or carry on that business within the area bounded by Center, Markham, Main, and Fifth streets, under penalties prescribed. Plaintiffs include a firm that conducts a livery and sale stable business, and a corporation that carries on a general livery stable business, within the de- [p173] fined area. It is averred that the businesses are and have been for many years conducted in brick buildings, in a proper and careful manner, and without complaint as to sanitary conditions; that plaintiffs, during the progress of their business, have been compelled to enter into leases for the grounds and improvements, and to construct brick buildings at great cost, useful for no other purpose, and that these and other large expenditures made for improvements will be lost if they are compelled to cease to do business there; that there is no other available site in the city where such business can be profitably carried on and where plaintiffs have assurance that they may remain without molestation; that these matters are matters of public notoriety, and the establishment of the business in that locality has been encouraged by the city, and upon the strength of such encouragement the buildings were constructed and expenditures made; that the passage of the ordinance was procured by named parties (not made defendants) who desired to purchase the property of plaintiffs; that plaintiffs have tried to obtain another location for their business outside of the prohibited district, but are unable to do so except with extravagant outlay which they are unable to make; and that the action of city council in prohibiting the carrying on of any livery stable business in the locality mentioned is unreasonable, discriminatory, not warranted by law or the charter of the city, and in contravention of those provisions of the 14th Amendment respecting due process of law and the equal protection of the laws. A verifying affidavit and a copy of the ordinance were attached as exhibits.

Defendants demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer and granted a temporary restraining order. Defendants answered, denying the material averments of the bill, and asserting that the ordinance was passed in good faith [p174] for the purpose of promoting the health and prosperity of the citizens, and in the belief that said livery stables in said district were conducive to sickness and inconvenience and ill health to the citizens, and were damaging to the property in that vicinity; also, "that said district composes the greatest shopping district in the entire state of Arkansas; that it contains the largest and best hotels in the state, and the district encompasses the most valuable real estate in the entire state; that said stable business is conducted in a careless manner, and that it is nothing unusual in connection with said sale stables to have from fifty to one hundred head of horses and mules driven through the principal streets to said stables; that there is always an offensive odor coming from said stables, to the great detriment of the tenants in the property adjoining and the shoppers who go within this district, and hotel guests; that said stables being in such densely populated part of the city produce disease, making that section extremely unwholesome," etc.

Plaintiffs excepted and also demurred to the answer as insufficient in law to raise an issue of fact upon the authority assumed by the city to pass the ordinance, and as stating no facts sufficient to constitute a defense. The cause was then heard upon the complaint and exhibits, the answer and the demurrer; the demurrer was sustained, and, defendants declining to plead further, it was decreed that the temporary restraining order be made perpetual.

Defendants appealed to the supreme court of Arkansas, which court, on February 24, 1913, made a decree reversing the decree of the lower court, with costs, and remanding the cause with directions to dismiss the complaint for want of equity. The decree of reversal recited: "This cause came on to be heard upon the transcript of the record of the chancery court of Pulaski county, and was argued by solicitors, on consideration whereof it is the opinion of the court that there is error in the proceedings and [p175] decree of said chancery court in this cause, in this: Said court erred in granting the relief prayed for in the complaint, whereas the same is without equity and should have been dismissed." It was therefore ordered and decreed that the decree of the chancery court be reversed, "and that this cause be remanded to said chancery court with directions to dismiss the complaint of the appellees for want of equity." Upon the same day an opinion was filed in the supreme court, expressing the grounds of the decision. 107 Ark. 174, 155 S.W. 105.

Thereafter, a petition for rehearing was filed, and by leave of the court was submitted at a later date with a supporting brief. Among the averments of the petition were the following: "That the effect of the ruling of this honorable court is to deprive the appellees of the opportunity of presenting evidence to sustain those of the allegations of the complaint as are denied by the said answer, for the said ruling orders the dismissal of the said complaint, and does not remand the cause so that appellees may present evidence to sustain the allegations of their bill of complaint bearing on the question whether said ordinance and permit system does or does not amount to a deprivation of property and a denial of the equal protection of the laws, within the provisions of the 14th Amendment to the Constitution of the United States, as well as the provisions of the Constitution of the state of Arkansas. That unless the appellees are given an opportunity to introduce evidence as aforesaid, the said answer may be taken as conclusive against them; that upon the finding that said demurrer was improperly sustained the cause should have been remanded to take evidence as to the said constitutional questions, including the use and abuse of the said permit system by said city." The petition for rehearing was taken under advisement, and at a later date overruled, without opinion. The present writ of error was then sued out.

[p176] Mr. Morris M. Cohn for plaintiff in error.

Mr. J. Merrick Moore for defendant in error.

MR. JUSTICE PITNEY, after making the foregoing statement, delivered the opinion of the court.
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