City of Little Rock v. Reinman

• Decision Date: 24 February 1913
• Citation: 155 S.W. 105
• Parties: CITY OF LITTLE ROCK et al. v. REINMAN et al.
• Court: Arkansas Supreme Court

155 S.W. 105

CITY OF LITTLE ROCK et al. v. REINMAN et al.

Supreme Court of Arkansas.

February 24, 1913.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by L. Reinman and another against the City of Little Rock and others. From a decree for complainants, defendants appeal. Reversed and remanded, with directions to dismiss complaint.

Harry C. Hale and J. W. & J. W. House, Jr., all of Little Rock, for appellants. Morris M. Cohn and Baldy Vinson, both of Little Rock, for appellees.

KIRBY, J.

This suit challenges the validity of the following ordinance of the city of Little Rock:

"Ordinance No. 1729.

"An ordinance to regulate livery stables.

"Whereas, 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 of Little Rock, therefore, be it ordained by the city council of the city of Little Rock:

"Section 1. That it shall be unlawful for any person, firm or corporation to conduct or carry on a livery stable business within the following area, to wit: Beginning at the intersection of Center street and Markham street, thence east on Markham street to Main street, thence south on Main street to Fifth street, thence west on Fifth street to Center street, thence north on Center street to Markham street, the place of beginning.

"Sec. 2. Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of misdemeanor and shall be fined in any sum not less than fifty ($50.00) dollars, nor more than one hundred ($100.00) dollars for each violation and each day any person, firm or corporation shall conduct or carry on a livery stable business within said limits shall be deemed a separate offense.

"Sec. 3. This ordinance shall take effect and be in force sixty (60) days after its passage."

From the decree declaring it invalid, an appeal was duly prosecuted. Is this a valid ordinance? It is contended that it is invalid, because: First. It prohibits the operation of a livery stable business, which is not per se a public nuisance within the area defined therein in which appellee's business is and has long been conducted, and deprives them of their property without due process of law. Second. It deprives them of the equal protection of the law, and is an unjust discrimination against them. Third. It fixes greater penalties for its violation than the city has power to impose.

The city derives its power from the state, and section 5454, Kirby's Digest of the statutes, provides: "They shall have the power to * * * regulate or prohibit the sale of all horses or other domestic animals, at auction in the streets, alleys, or highways, to regulate all carts, wagons, drays, * * * and every description of carriages which may be kept for hire and all livery stables. * * *"

The state has the right, under its police power, to make regulations relative to the carrying on of certain lawful pursuits, trades, and business; and as said by the United States Supreme Court in Williams v. Arkansas, 217 U. S. 88, 30 Sup. Ct. 493, 54 L. Ed. 673, 18 Ann. Cas. 865, quoting from a former decision in Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725: "Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country; and what such regulations shall be, and to what particular trade, business, or occupation they shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with, or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for federal interference." The state, in the exercise of its police power, has given to the city the power to regulate certain callings, pursuits, trades, and business, as specified in said section of the statutes.

The power to regulate gives authority to impose restrictions and restraints upon the trade or business regulated. "Regulate" means "to direct by rule or restriction, to subject to governing principles or laws." Webster's Dictionary. In City of Rochester v. West, 164 N. Y. 510, 58 N. E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659, the court said: "To regulate is to govern by, or subject to, certain rules or restrictions. It implies a power of restriction and restraint, not only as to the manner of conducting a specified business, but also as to the erection in or upon which the business is to be conducted." Cronin v. Peoples, 82 N. Y. 318, 37 Am. Rep. 564.

Judge Dillon says: "To regulate is to govern by, or subject to, certain rules or restrictions. It implies a power of restriction and restraint certainly within reasonable limits as to the manner of conducting a specific business, and also as to the building or erection in or upon which the business is to be conducted. By virtue of the power to regulate, it has been held that the city council may by ordinance prohibit the carrying on of a business within certain specified portions of the city. By virtue of a similar power, it has been held that it is within the authority of the common council reasonably to limit the manner by prohibiting one or more methods. * * *" 2 Dillon on Municipal Corporations (5th Ed.) § 665.

In Re Wilson, 32 Minn. 148, 19 N. W. 724, the court said: "Under a grant of police power to regulate, the right of municipal authority to determine where and within what limits a certain class of business may be conducted has been often sustained. For example, the place where markets may be held, butcher stalls or meat shops kept, * * * the limits within which certain kinds of animals shall not be kept, the distance from a church within which liquor shall not be sold," etc.

In City of St....