Baird v. Bray

• Decision Date: 23 October 1916
• Docket Number: 207
• Citation: 189 S.W. 657,125 Ark. 511
• Parties: BAIRD v. BRAY
• Court: Arkansas Supreme Court

189 S.W. 657

125 Ark. 511

BAIRD v. BRAY

No. 207

Supreme Court of Arkansas

October 23, 1916

Certiorari to Garland Circuit Court; Scott Wood. Judge affirmed.

Judgment affirmed.

James E. Hogue, for petitioner.

The ordinance is void, being in conflict with the State Constitution, Art. 2, Sec. 18, and with the 14th Amendment of the Federal Constitution. It is also in direct conflict with that part of Section 5438, Kirby's Digest, which provides that "Any bona fide owner or proprietor of any hotel or boarding house may solicit patronage to his hotel or boarding house without being required to wear a badge or pay license therefor."

A. J Murphy, for appellee.

The statute, Kirby's Dig., § 5438, authorizes the city council to regulate soliciting to hotels, etc., by owners and proprietors as well as to regulate soliciting by hired drummers, the only exceptions in favor of owners being that they may not be required to wear badges or to pay license.

The presumption is that the council are the best judges of the enactment of the law, in the light of their familiarity with the mischief to be remedied. 64 Ark. 152. And unless it is void on its face, or the proof shows that it is an unreasonable regulation, the Court will presume that it is reasonable. 52 Ark. 312. See also 84 Ark. 522; 85 Ark. 465. The ordinance is not in conflict with Sec. 18, Art. 2, State Constitution, nor with the 14th Amendment, but is a proper exercise of police power. 85 Ark. 465.

MCCULLOCH, C. J. KIRBY, J, dissents.

OPINION

MCCULLOCH, C. J.

The petitioner, Dick Baird, was arrested for violation of an ordinance of the City of Hot Springs regulating drumming by proprietors of hotels, rooming houses, etc. A fine was imposed by a judgment of the police court, and petitioner obtained from the judge of the circuit court a writ of habeas corpus to inquire into the legality of his imprisonment under the judgment of conviction. The case was heard by the circuit judge on the return of the writ, and an order was made remanding the petitioner to the custody of the chief of police. The judgment is brought here, on certiorari, for review.

An attack is made on the validity of the ordinance, and that is the only question that we can consider, for we must indulge the presumption in this proceeding that there was evidence sufficient to sustain a finding as to a violation of the ordinance in question.

The ordinance reads as follows:

"Section 1. That hereafter it shall be unlawful for any owner or proprietor of any hotel, rooming house, boarding house, furnished apartment, or furnished cottage, to drum or solicit for his or her hotel, rooming house, boarding house, furnished apartment or furnished cottage on the streets of the city of Hot Springs, Arkansas, or in other public places except as hereinafter provided.

"Sec. 2. It shall be lawful for any one owner of a hotel, rooming house, boarding house, furnished apartment or furnished cottage to drum or solicit for his or her hotel, rooming house, boarding house, furnished cottage or furnished apartment at any place on the streets of the said city of Hot Springs, Arkansas, within fifty feet of his or her hotel, rooming house, boarding house, furnished apartment or furnished cottage.

"Sec. 3. Any soliciting or drumming as aforesaid at any place outside the fifty feet as aforesaid shall constitute a misdemeanor and any person convicted thereunder shall be fined in any sum not less than ten dollars, nor more than twenty-five dollars.

"Sec. 4. The word to 'drum' or to 'solicit' as used in this ordinance shall be construed to mean any word, deed, or act or acts, whereby such persons shall endeavor to persuade, induce, influence, or prevail upon any stranger or person who does not reside in this city to patronize any hotel, rooming house, lodging house or furnished apartment in this city or to visit any such hotel, rooming house, lodging house or furnished apartment with a view of patronizing or stopping at same."

The authority of the city of Hot Springs to pass the ordinance in question must be found, if at all, within the scope of the legislative delegation of power to municipal corporations "to regulate drumming or soliciting persons who arrive on trains, or otherwise, for hotels, boarding houses, bath houses or doctors; to license such drummers, and to provide that each drummer shall wear a badge plainly exposed to view, showing for whom and for what he is drumming or soliciting patronage, and to punish by fines any violation of this provision; provided, that any bona fide owner or proprietor of any hotel or boarding house may solicit patronage to his hotel or boarding house, without being required to wear a badge or pay license therefor." Kirby's Digest, Sec. 5438.

It will be observed that the ordinance under consideration is directed at the owners or proprietors themselves. Whether or not it also includes hired drummers, we need not stop to inquire. We assume, however, that there is another ordinance of the city regulating mere...