City of Little Rock v. Reinman-Wolfort Automobile Livery Co.

Decision Date24 February 1913
Citation155 S.W. 105,107 Ark. 174
PartiesCITY OF LITTLE ROCK et al. v. REINMAN-WOLFORT AUTOMOBILE LIVERY COMPANY
CourtArkansas Supreme Court

Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor reversed and dismissed.

Decree reversed and cause remanded.

Harry C. Hale and J. W. & J. W. House, Jr., for appellant.

1. The State has the right, under its police power, to prohibit the carrying on of a livery stable business within certain designated limits, and having such power it can delegate it to cities. 22 S.W. 470; 16 Mo.App. 131; 16 Wal. 62; 5 Am. St Rep. 331; 37 Am. Rep. 564; 41 Am. St. Rep. 630; 53 Id. 325; 91 Am. Dec. 472; 83 Id. 740; 90 Id. 278; 34 Id. 637; 33 Pa.St. 202; 18 O St. 563; 54 Wis. 376; 90 Am. Dec. 279; 90 S.W. 874; 83 Am Dec. 203; 26 Am. St. Rep. 664.

2. The power to pass this ordinance was delegated by the State. By section 5454, Kirby's Digest, the power was granted to regulate all livery stables; and the power to regulate includes the power to restrict to certain limits. 41 Am. St. Rep. 630, 633, and other authorities cited above.

The ordinance may be sustained as a delegation of power by the State to the city, by section 5648, Kirby's Digest, sub-div. 4, which provides that the city may prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health and safety. 49 Am. St. Rep. 227; 26 Id. 664; 30 Id. 214; 100 Ind. 575-578; 7 Cow. 606; 12 Wheat. 19; 4 Rob. 1; 90 Am. Dec. 281. See also Kirby's Dig. §§ 5437-8, 5454, 5461; 70 Ark. 12. When a city has by ordinance exercised the police power delegated to it by the State, it is as conclusive upon the courts as any legislative enactment, so long as such power involves a matter of discretion only, and not the fundamental law. 204 Ill. 456; 162 Ind. 399; 33 Mass. 442; 58 N.E. 551; 49 Am. St. Rep. 93; 197 F. 516; 26 Am. St. Rep. 659, 662, 666; 96 Ark. 199; 16 Wal. 62; 113 U.S. 703; 113 U.S. 27; 96 Am. St. Rep. 95, 97; 152 U.S. 136; 113 U.S. 27; 128 U.S. 1; 225 U.S. 623; 194 U.S. 361.

3. The chancery court had no jurisdiction to restrain the enforcement of the ordinance. 85 Ark. 230; 34 Ark. 375; 34 Ark. 559; 39 Ark. 412; 44 Ark. 139; 7 Ark. 520; 13 Ark. 630; 26 Ark. 649; 27 Ark. 97.

4. All reasonable presumptions will be indulged in favor of the validity of the ordinance. 88 Ark. 263; 52 Ark. 301; 64 Ark. 152; 63 A. 930; 107 N.W. 502; 105 N.W. 794; 42 N.E. 622.

Morris M. Cohn, for appellees; Baldy Vinson, of counsel.

1. The ordinance is discriminative and invalid in that it is made to apply to livery stables and not to sales stables, whereas, if there be any serious objection to either, the sales stables are more objectionable. 2 McQuillan, Mun. Corp. § 738; 48 Minn. 236, 51 N.W. 112; 75 Ark. 542; 184 U.S. 540; 165 U.S. 150.

It is unreasonable because it improperly discriminates between localities within which substantially the same conditions exist, and discrimination in that it forces the business into the residential section.

2. The penalties prescribed are beyond the charter powers of the city, rendering the whole ordinance void. 2 McQuillan, Mun. Corp. § 722; 94 N.C. 883; 27 N.J.L. 286.

3. A livery stable is not a nuisance per se. 85 Ark. 544; 64 Ark. 424; 87 Ark. 213; 93 Ark. 362, 367; 95 Ark. 545; 11 Humph. 406, 54 Am. Dec. 45. And before it can be suppressed it must be proved to be an irremediable nuisance in the particular case. 93 Ark. 362; 95 Ark. 545, 548. Such proof must be irresistible. Id; 92 Ark. 552-3.

Because a given occupation may become objectionable, it does not follow that it may be suppressed within the city or any business portion of it. 85 Ark. 554-5; 95 Ark. 548; 41 Ark. 526; 52 Ark. 23; 45 Ark. 336; 49 Ark. 165.

A city can not by legislation make a nuisance of a business or occupation which is not per se a nuisance. 92 Ark. 456; 64 Ark. 609; 41 Ark. 526.

Under the power to regulate the city may license, but may not tax. 43 Ark. 82; 52 Ark. 301; 83 Ark. 351; 93 Ark. 362. It follows that the city can not under the same power suppress or prohibit, since the power to regulate does not include the power to prohibit. 31 Ark. 462; 111 Cal. 46, 50; 95 N.E. 456; 250 Ill. 486; 44 Ill. 81, 83; 61 Md. 297, 308, 309; 124 Cal. 344, 349; 3 McQuillan, Mun. Corp. § 990. The city council could not, under this power, by anticipation, prohibit the carrying on of the business. Supra; 47 L. R. A. 652, 656. Nor prohibit the maintenance of a livery stable in a prescribed locality in the business part of the city. Supra; 34 P. 902; 19 Col. 179; 41 Am. St. Rep. 230; 27 So. 53; 46 Ia. 66; 98 Cal. 73; 30 Ore. 478.

This being a legitimate business, which could only become a nuisance by the act of the parties, to condemn it for a certain locality where other legitimate business is carried on, is to deprive appellees of their constitutional rights. 195 U.S. 223; 118 U.S. 356; 31 F. 680; 13 F. 229; 82 F. 623; 10 Wall. 497; 79 Ill. 26, 39; 46 Ia. 66; 26 F. 611; 127 S.W. 860.

The power to regulate does not include partial prohibition. 107 Mo. 1, 24-26; 34 P. 902; 47 L. R. A. 652-656; 85 Ark. 511; 83 Ark. 355.

4. The city having allowed the business to be established and maintained for many years at a great expense, is estopped to prohibit it. 92 Ark. 546; 5 Ga. 315; 79 Ill. 26, 39; 73 N.E. 1035; 214 Ill. 628, 642.

5. As to the matter of jurisdiction, see 88 Ark. 358; 35 Ark. 352; Martin's Decisions, 386, 402-3, 404-5; 223 U.S. 605, 620, 621; 195 U.S. 223, 241; 209 U.S. 145; 2 McQuillan, § 805; 4 Dillon, Mun. Corp. 1573; 2 Id. § 612, note 1; 74 Ark. 421; 34 Ark. 603, 609; 15 L. R. A. 604, and cases cited.

OPINION

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, towit: 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.

"Section 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.

"Section 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.

It is contended that the ordinance 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. 79, 54 L.Ed. 673, 30 S.Ct. 493, quoting from a former decision in Gundling v. Chicago, 177 U.S. 183, "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...

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