These cases are consolidated in this court by consent; No. 5058 being an appeal from a decree perpetually enjoining Hughes, as mayor of Gravétte, and his successors in office, from enforcing the provisions of Ordinance No. 41 of said town; and No. 5469 is an appeal by the town.from a judgment in its favor for $170 for damages sustained by reason of improper crossing of the public streets by the appellee railroad company. The ordinance in question will be set out by the Reporter in the statement of facts. It is practically a copy of sections 6681-6684, Kirby’s Digest, with this change only: wherever the said sections refer .to public roads and highways, this ordinance refers to streets and alleys, and assimilates the proceedings to require the railroad to construct crossings over roads and highways to streets and alleys, substituting the city officials for the county and road district officials. The penalty for a violation of it is the same. In the injunction suit, upon no other evidence than the ordinance itself, upon the issues made as to its validity, the chancellor held that the town had no authority or power to enact it, and enjoined the mayor and his successors from enforcing or attempting to enforce it. This was error.
In Fitzgerald v. Saxton, 58 Ark. 494, this court held that where municipal corporation limits are extended, the jurisdiction and control of the county over highways in such territory is determined, and the city immediately becomes possessed of the same. The control in the easement for the public in streets and alleys is in the town, just as the easement in county highways is in the county. Under the general powers conferred on municipal corporations in section 5438, Kirby’s Digest, and the general power over streets and alleys conferred by section 5456, and the power conferred by sections 5460 and 5461, to prescribe by ordinance for the carrying into effect of the powers conferred, it was within the power and authority of the town council to pass this ordinance, as it is not inconsistent with the laws of the State, but in entire accord therewith. Van Buren v. Wells, 53 Ark. 368; Hot Springs v. Curry, 64 Ark. 152; Texarkana v. Leach, 66 Ark. 40. The parties to this appeal agree that the decree was not intended to prohibit the enforcement of the ordinance, but merely its enforcement by prosecutions in the mayor’s court, which was also one of the issues presented. Be that as it may, it does not so read. However, the proper method of the enforcement of the ordinance for matters arising out of the transaction complained of is a question eliminated from this case by the subsequent action of the town, as developed in case No. 5469, consolidated in this court with No. 5088.
The town appealed from the injunction decree, and that case is the one just discussed, but shortly after the rendition of the decree the town brought suit in Benton Circuit Court against the railroad company on two causes of action — one for the penalties claimed to have accrued under this ordinance, amounting to $20,000, and the other for damages in the same amount for wrongfully and unlawfully entering the streets,- “digging up, carrying away, obstructing and plowing down the same.” This latter paragraph on demurrer was stricken out, leaving the .complaint claiming $20,000 for penalties; but the paragraph claiming such penalties also alleged that, without condemnation proceeding and without consent of the town, the railroad “dug up, crossed over and appropriated” to its own use certain streets, thereby impairing the public utility and public use and convenience of the streets, to the damage and injury of the town. Instead of concluding with a prayer for damages in consequence thereof, it concluded with prayer for the penalties, but alleged the-amount thereof was “to the plaintiff’s damages.”
Issue was taken on the validity of the ordinance, and as to the sufficiency of notice under it, and the answer charged that the street crossings complained of could have been put into repair at trifling expense, and that the town had brought suit for the penalties “as a big speculation,” and denied the damage and inconvenience to the public by reason of the crossings. A great deal of testimony was adduced upon these issues, and some upon no issues, but the manifest intention of the town’s evidence was to prove,, not only penalties, but damages, and a large amount of testimony was adduced as to the cost of reconstructing the streets, the necessity of bridging Main street and the cost thereof. The result was that the chancellor found in favor of the town for $170 as the amount required to construct proper crossings on the streets in controversy. This course of the town in suing for, seeking and recovering damages was entirely inconsistent with its proceedings to enforce penalties for the same cause. It is not always the case that a suit for damages and one for penalties are inconsistent; but where the penalty is claimed as the damage, and recovery is sought of it as measuring the damage, clearly there can be no recovery of both.
Furthermore, the town, having elected to sue in circuit court for the penalties, instead of standing upon its asserted rights to recover in mayor’s court, cannot now complain of being deprived of such asserted right. Therefore, the liability of the company to these penalties, and the forum in which to enforce them, are eliminated from this case.
When the findings were settled in this damage-penalty suit by striking out various parts of the railway company’s answer, leaving the issues as herein outlined, then follows this entry: “Whereupon this cause is transferred to equity, to which the plaintiff excepts.” There was not a vestige of chancery jurisdiction disclosed by the pleadings. The suit then pending, and as it was' treated by the parties, was one for damages, as contemplated by sections 2959-2961 and 2903-2905, Kirby’s Digest. This was, as are all such cases, one peculiarly within the province of a jury. There was no ground for a transfer to equity, and it was error to have done so, and-the town at the time excepted. 'The chancery case is reversed, with directions to dissolve the perpetual injunction against the mayor and his successors from enforcing the ordinance in question, but with leave to appellee herein to amend its complaint, if so advised, to have the mayor and the town enjoined from enforcing the ordinance in so far as seeking recovery for penalties for the matter covered in the damage suit, only leaving the future operation of the ordinance free of' restraint. In the suit for damages the judgment is reversed, the cause is remanded with directions to transfer the same to the circuit court, there to proceed as from the point where the transfer was ordered.
Mr. Justice Battle did not participate.