Emerson v. Town of McNeil

• Decision Date: 09 December 1907
• Citation: 106 S.W. 479
• Parties: EMERSON v. TOWN OF McNEIL.
• Court: Arkansas Supreme Court

Page 479

106 S.W. 479

EMERSON v. TOWN OF McNEIL.

Supreme Court of Arkansas.

December 9, 1907.

Error to Circuit Court, Columbia County; Charles W. Smith, Judge.

J. W. Emerson was convicted of a violation of an ordinance of the town of McNeil, and he brings error. Affirmed.

The ordinance is as follows:

"Section 1. Be it ordained by the council of the incorporated town of McNeil, that it shall be unlawful for any person or persons drumming or soliciting customers or patronage for any hotel, boarding house, restaurant, or hack line or passage, or for any other business, to stand upon or to occupy the gravel platform belonging to railroad company and drum or solicit customers or patronage for any hotel, boarding house, restaurant, or hack line or passage or other business, while the passenger trains are stopping at the depot in said town of McNeil.

"Sec. 2. Every person violating this ordinance shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than one nor more than five dollars for each offense."

Stevens & Stevens, for appellant.

HILL, C. J.

The town of McNeil passed an ordinance making it unlawful for any person to drum or solicit customers for any hotel, boarding house, restaurant, or hack line upon the depot platform belonging to the railroad company while passenger trains were stopping there. The ordinance will be set out in the statement. The evidence shows that prior to the enactment of this ordinance there had been serious annoyance to the traveling public by hackmen and hotel porters gathering at the steps of the train coaches and importuning passengers alighting therefrom. Whether this conduct had become dangerous or a public nuisance is not certain; but it is certain that it was a serious annoyance to the traveling public and the railway employés and to remedy the mischief the ordinance in question was passed. Trains only stop at this town from two to five minutes, and the ordinance only covers this period of time. Therefore it cannot be considered a prohibition of a lawful business and offensive to the rule announced in Thomas v. City of Hot Springs, 34 Ark. 553, 36 Am. Rep. 24.

Section 5438 of Kirby's Digest confers upon cities and incorporated towns the power "to regulate drumming or soliciting persons who arrive on trains, or otherwise, for hotels, boarding houses, bath houses or doctors." Section 5454 empowers them "to regulate all carts, wagons, drays, hackney coaches, omnibuses and ferries, and every description of carriages which may be kept for hire, and all livery stables," and "to regulate hotels and other houses for public entertainment." Under these powers, the municipality had the right to pass the ordinance in question. City of Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509; Hot Springs v. Curry, 64 Ark. 152, 41 S. W. 55. And the power conferred and as exercised is not obnoxious to, or an interference with, any common right, but is a proper exercise of the police power, and is universally sustained. McQuillan on Municipal Ordinances, §§ 28, 184; ...