Newton, Cir. Clk. v. American Security Company ( 1941 )

This action was begun by the appellee, American Security Company, a corporation, against Tom W. Newton, circuit clerk and ex-officio recorder of Pulaski county, Arkansas.

Appellee filed the following petition: "Petitioner, American Security Company, a corporation duly organized and existing under and by virtue of the laws of the State of Arkansas, for its cause of action against respondent, Tom W. Newton, the duly appointed, qualified, and acting circuit clerk and ex-officio recorder of Pulaski county, Arkansas, states: ``That petitioner is the owner of the south half (S 1/2) of the southwest quarter (SW 1/4) and the northwest quarter (NW 1/4) of the southwest quarter (SW 1/4) of section thirty-one (31), township one (1) north, range twelve (12) west, in Pulaski county, Arkansas.

"That petitioner has caused to be made a plat of the property hereinbefore described subdividing it into twenty-four separate tracts and has designated same as ``Southland Acres,' a subdivision in Pulaski county, Arkansas; that petitioner, in connection with the execution of said plat, has proposed to dedicate to the use of the general public forever a thirty-foot service road along the north side and a thirty-foot service road along the east side of said property; that the property adjoining petitioner's said property on the north and the property adjoining petitioner's said property on the east is undeveloped; that all of said thirty-foot service roads lie entirely on petitioner's property and could be properly dedicated as half roads or half streets; that a county road commonly known as the Base Line road adjoins petitioner's said property on the south; that a county road commonly known as Geyer Springs road adjoins petitioner's property on the west; that said Base Line road and said Geyer Springs road are each and both forty feet in width and twenty feet, or one-half of their width, is located on and across petitioner's said property; that each and both of said roads have existed and been in use as county roads for more than fifty years last past and that never has more than forty feet, twenty feet on petitioner's said property and twenty feet on adjacent property, been embraced in or used as such roads; that all of petitioner's said property is located within five miles of the corporate limits of the city of Little Rock, Arkansas. A copy of said proposed plat is attached hereto and made a part of this petition as exhibit ``A,' the original executed plat being held by petitioner for the inspection of the parties in interest and the orders of the court.

"That petitioner has tendered the original of said plat duly executed and acknowledged to respondent along with the proper fees for record in Pulaski county, Arkansas, as provided by law; that respondent has refused to accept said plat for record for the sole reason that it does not bear the approval of the City Planning Commission of the city of Little Rock, Arkansas; that both the City Planning Board of the city of Little Rock, Arkansas, and the County Planning Board of Pulaski county, Arkansas, refused to approve said plat of petitioner's property for the sole reason that said county roads, commonly known as Base Line road and Geyer Springs road, are only forty feet in width and have made as a condition precedent to their approval of said plat the dedication by petitioner as part of said county roads for the use of the general public as such two strips of land ten feet wide, one adjoining said Base Line road on the south of petitioner's property and the other adjoining said Geyer Springs road on the west of petitioner's said property; that nothing has been offered to petitioner as the owner of said property for meeting the requirement of said City and County Planning Commissions by dedicating said additional property to be used by the public as part of said county roads.

"That there is imposed upon and positively required by respondent a public duty to accept said plat of petitioner's property for record; that petitioner has no adequate remedy other than the issuance of a writ of mandamus to respondent directing the recording of said plat as provided by law.

"Wherefore, American Security Company, petitioner, prays that a writ of mandamus issue from this court to respondent, Tom W. Newton, circuit clerk and ex-officio recorder of Pulaski county, Arkansas, directing him to accept petitioner's said plat of its property for record and to record the same in the manner provided by law; for all costs herein expended and for all other proper and general relief."

The appellant filed answer denying each and every material allegation of the petition. The case was tried on the following agreed statement of facts: "The respective parties in this cause, hereby stipulate and agree that the facts are as follows: "That petitioner, American Security Company, is a domestic corporation with principal place of business at Little Rock; and respondent, Tom Newton, is the duly elected, qualified and acting circuit clerk and ex-officio recorder of Pulaski county; that petitioner is the owner of the S 1/2 of the SW 1/4 and the NW 1/4 of the SW 1/4 of section 31, township 1 north, range 12 west, in Pulaski county, Arkansas, which said land lies within 5 miles of the corporate limits of Little Rock.

"That petitioner made a plat of said property subdividing it into 24 separate tracts, designating same as ``Southland Acres,' a subdivision in Pulaski county, Arkansas; that in connection therewith petitioner proposed to dedicate to the public use the 30-foot service roads along the north and east sides, respectively, of said property; that the land adjoining said property, both on the north and east sides thereof, are undeveloped; and that said 30-foot service roads lie on petitioner's property and could be properly developed as half roads or half streets.

"That the county road commonly known as the Base Line road adjoins petitioner's said property on the south and the county road commonly known as Geyer Springs road adjoins said property on the west; that each of said roads is forty feet in width and that twenty feet or one-half of each is located on petitioner's property; that said Base Line road, with said width of forty feet, was established by an order of the Pulaski county court entered February 10, 1894.

"That an order was rendered by the Pulaski county court on October 20, 1921, declaring said Geyer Springs road to be a county road with a width of forty feet, which order stated that said Geyer Springs road had been and was then in use as a public road; that each and both of said roads have existed and been in use as public roads for more than fifty years last past and that never has more than forty feet, twenty feet on petitioner's said property and twenty feet on adjacent property, been embraced in or used as either of such roads; that said roads are now forty feet wide along petitioner's said property and in each direction from petitioner's said property.

"That on November 24, 1939, said County Planning Board adopted its master plan for county roads providing that all said roads (including the two roads involved herein) shall have a minimum width of sixty feet; that on February 1, 1940, said plan was filed with the respondent in accordance with the provisions of act 246 of the Acts of Arkansas of 1937, appearing in deed record No. 270.

"That on August 5, 1940, petitioner submitted said plat to the City Planning Commission of Little Rock which, pursuant to Pope's Digest, 2450, transmitted same to the Pulaski County Planning Board for its consideration and report; that said County Planning Board made its report back to said City Planning Board on August 20, 1940, disapproving of said plat because said Base Line and Geyer Springs roads, as laid out on the plat, were less than 60 feet in width, said report reciting in part: ``At the present time the Base Line road is an important connecting road between U.S. highway No. 70 and No. 167 in addition to serving a thickly settled rural community. The Geyer Springs road is also a very important farm-to-market road.

"``In order to have an orderly development of thickly populated rural areas that will meet future transportation problems, a minimum of 60 feet right-of-way is necessary.

"``It is recommended that this plat be revised to show an additional ten feet of right-of-way along the Base Line and Geyer Springs roads, or 30 feet as half the roadway width in order to conform to the 60-foot minimum standard.'

"That because petitioner refused to dedicate an additional 10 feet to be added to said roads, both the City and County Planning Commissions refused to approve said plat; that thereupon this respondent declined to accept said plat for recordation, although said plat was properly executed and acknowledged and the necessary fees for recording same were tendered therefor.

"That nothing has been offered to petitioner as the owner of said property for dedicating said additional ten-foot strips to be used by the public forever as a part of said county roads; that should petitioner dedicate said additional 10-foot strips the other one-half of said roads located on property adjacent to petitioner's property would now remain twenty feet in width and that said county roads in each direction from petitioner's property would now remain forty feet in width.

"That petitioner prior to submitting said plat to either the City or County Planning Commission had executed its bill of assurance providing that no building should be erected nearer than fifty feet from the front of the tracts in said subdivision which front was shown to extend to the edge of said forty-foot roads; that a building had been erected pursuant to said building line and that to dedicate an additional ten feet would cause a violation of said building restrictions unless an amendment were filed to said bill of assurance, which amendment it would be impracticable or impossible to obtain because of the necessity of non-residents interested in the property to execute same; that it would be expensive for petitioner to move its said house which is on a stone foundation.

"That after the judgment of the circuit court in this action the said plat of petitioner's property was recorded by respondent pursuant to such judgment and that conveyances are now being made by petitioner from and according to said plat which is of record."

The court granted the petition, stating in his order that said cause is submitted to the court upon the pleadings, exhibits and agreed statement of facts.

Motion for new trial was filed and overruled, and the case is here on appeal.

Section 2445 of Pope's Digest creates a County Planning Board and prescribes the functions and duties of said board. Section 9690 of Pope's Digest provides for the creation of the City Planning Commission.

It is alleged that the respondent, the clerk, has refused to accept petitioner's plat for the reason that it does not bear the approval of the City Planning Commission of the city of Little Rock; that both the City Planning Commission of the city of Little Rock, Arkansas, and the County Planning Board of Pulaski county, refused to approve said plat of petitioner's property.

The facts show that the petitioner, itself, made the plat and proposed to dedicate to the public use the 30-foot service roads along the north and east sides of said property. The evidence also shows that the County Planning Board adopted its master plan for county roads providing that all roads, including the two roads involved in this controversy, shall have a minimum width of 60 feet.

Section 3 of act 108 of 1929 as amended by 1 of act 295 of the Acts of 1937 provides for the adoption of the plan and also provides for a public hearing, and that the powers of this section shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted; that the legislature had the power to create the Planning Board and to provide rules and regulations for its government, there can be no doubt.

That the legislature had the power to create the Planning Board and to provide rules and regulations for its government, there can be no doubt.

Appellee first contends that the lower court was correct in holding that no authority existed for the action of the Planning Board because no provision was made for compensation to the landowner. Attention is called to 22 of art. 2 of the Constitution of the State of Arkansas which provides that private property shall not be taken, appropriated or damaged for public use without just compensation therefor. Of course one's property cannot be taken for public use without compensation, but the evidence in this case clearly shows that no one is attempting to take the property of appellee. The record shows that the appellee itself is seeking to take advantage of the County and City Planning Boards and undertaking to file a plat, and seeks by this proceeding to compel the clerk to record the plat, although when submitted to the Planning Boards, both the County and City Planning Boards refused to approve appellee's plat. There was no law requiring petitioner to file a plat, and if the appellee or the planning boards or anyone else sought to take or damage appellee's property without just compensation therefor, such persons would be prohibited from doing so. But there is nothing in the record in this case that indicates that anyone is seeking to take the property of appellee; no effort is made to take it. The law requires these boards to investigate and evidently they did so in this case. Yet there is nothing in this record tending to show what evidence they had and no evidence that they acted arbitrarily. There is no contention that the laws providing for these boards is unconstitutional or void.

Appellee contends also that the question is a moot question. After the circuit court issued its order directing the clerk to record the plat, the clerk proceeded to record it, and it is contended that thereafter petitioner sold property and made contracts with reference to the plat. The law provides a certain time within which an appeal may be taken in civil cases, and whoever acts before that time expires, does so with the knowledge that the judgment may be reversed and held void. There is nothing in this contention. While the clerk is the nominal party, yet the planning boards are the real parties in interest.

In discussing the constitutionality of zoning, ordinances, this court said in the case of City of Little Rock v. Sun Building Developing Co., 199 Ark. 333,134 S.W.2d 582: "Possibly the leading case on the subject, and the one most frequently cited, is that of Village of Euclid, et al., v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114,71 L. Ed. 303, 54 A.L.R. 1016. In that case Justice Sutherland said: ``Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.'"

If the law is valid, and there is no contention that it is not, then the planning boards were the ones designated to determine these questions. It is true they cannot act arbitrarily, but there is no contention here that they did so.

It has been uniformly held by this court that where boards are lawfully appointed and charged with the duty to investigate and determine certain facts, the court cannot substitute its judgment for the judgment of the board, and the judgment of the board provided for the purpose of ascertaining the facts is controlling unless there is evidence that it was arbitrarily exercised. Mo. Pac. Rd. Co. v. Williams, ante, p. 895, 148 S.W.2d 644; Jernigan, Commissioner, v. Loid Rainwater Co., 196 Ark. 251,117 S.W.2d 18; Lion Oil Refining Co. v. Bailey, 200 Ark. 436,139 S.W.2d 683; Dept. of Public Utilities v. The Ark.-La. Gas Co., 200 Ark. 983, 142 S.W.2d 213.

After the judgment of the circuit court, and within a few days, a motion for new trial was filed which was thereafter overruled, and in a very short time an appeal was granted to this court. It would be useless to have a planning board if, after it had investigated and reached its conclusion, the court, without any evidence at all and without any claim that the board acted arbitrarily, could set aside its judgment.

The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss the petition.