Helena v. Dwyer

• Decision Date: 13 November 1897
• Citation: 42 S.W. 1071,64 Ark. 424
• Parties: HELENA v. DWYER
• Court: Arkansas Supreme Court

42 S.W. 1071

64 Ark. 424

HELENA v. DWYER

Supreme Court of Arkansas

November 13, 1897

Appeal from Phillips Circuit Court HANCE N. HUTTON, Judge.

Judgment affirmed.

R. W Nichols, for appellant.

The determination of the council that anything is detrimental to public health is conclusive, unless it vitiates express statute or constitutional law. 1 Dillon, Mun. Corp. § 144, and cases cited. The town council had power to pass the ordinance in question, because it is a sanitary regulation. 1 Gill, 264; 11 S.E. 545; S. C. 8 L. R. A. 854; 94 U.S. 147; 67 Ill. 37; 33 Cal. 279; 19 Ga. 323; 85 U.S. 138. The ordinance is not a restraint on trade, but a lawful regulation of it. The council is given power by statute to pass such laws. Sand. & H. Dig., §§ 5132, 5146, 5313.

Tappan & Porter, for appellees.

The board of health had no authority to declare the sale of pork detrimental to the citizens of Helena. Sand. & H. Dig § 5203. The ordinance is a restraint on trade, and is void. Dillon, Mun. Law, §§ 253, 256 and 257 (2 Ed.); 85 Am. Dec. 285. The burden of proof is on the municipality to sustain its authority to enact the ordinance. 72 Am. Dec. 94, 96; 69 Am. Dec. 588; 34 Am. Dec. 627, and notes; 51 Am. Dec. 465.

OPINION

BATTLE, J.

The city counsel of Helena enacted the following ordinance:

"Whereas the municipal board of health of Helena, Arkansas, at a regular meeting, held on the 30th day of April, 1880, declared the sale of fresh pork detrimental to the health of the citizens of Helena; therefore, be it ordained by the mayor and council of the city of Helena:

"Section 1. That it shall not be lawful for any person or persons to sell, or offer to sell, within the city any fresh pork, or sausage made thereof, between the first day of June and October in each year.

"Section 2. That any person or persons violating this ordinance shall be fined in a sum not less than five dollars nor more than twenty-five dollars," etc.

Is the ordinance valid? In determining the extent of the power of a city council to pass ordinances for the protection of the public health, much assistance can be derived from what has been held to be the limitations upon such power of the state, for it cannot be truthfully said that the state can grant to a municipal corporation greater power than it possesses.

The police power of the state is very broad and comprehensive, and can be exercised to promote the health, comfort, safety and welfare of society. Its limits have not been definitely defined. It is not, however, without its limitations. In Re Jacobs, 98 N.Y. 98, the court said: "If this were otherwise, the power of the legislature would be practically without limitation. In the assumed exercise of the police power in the interest of the health, the welfare or the safety of the public, every right of the citizen might be invaded, and every constitutional barrier swept away. Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act, and see whether it relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law."

In Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205, 8 S.Ct. 273, the court said: "The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty--indeed, are under a solemn duty--to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution." To the same effect other courts have held. Watertown v. Mayo, 109 Mass. 315; Powell v. Pennsylvania, 127 U.S. 678, 32 L.Ed. 253, 8 S.Ct. 992.

The constitution of the state declares that "all men are created free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." (Art. 2, § 2.) In Powell v. Pennsylvania, 127 U.S. 678, 32 L.Ed. 253, 8 S.Ct. 992, Mr. Justice Field said: "With the gift of life there necessarily goes to every one the right to do all such acts, and follow all such pursuits, not inconsistent with the equal rights of others, as may support life and add to the happiness of its possessor. The right to pursue one's happiness is placed by the Declaration of Independence among the inalienable rights of men, with which all men are endowed, not by the grace of emperors or kings, or by force of legislative or constitutional enactments, but by their Creator; and to secure them, not to grant them, governments are instituted among men. The right to procure healthy and nutritious food, by which life may be preserved and enjoyed, and to manufacture it, is among these inalienable rights, which, in my judgment, no state can give and no state can take away except in punishment for crime. It is involved in the right to pursue one's happiness."

In The People v. Marx, 99 N.Y. 377, 2 N.E. 29, the court, in speaking of the section of the constitution which declares that 'no state shall deprive any person of life, liberty or property, without due process of law," said: "These constitutional safeguards have been so thoroughly discussed in recent cases that it would be superfluous to do more than refer to the conclusions which have been reached, bearing upon the question now under consideration. Among these no proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. * * * The term 'liberty,' as protected by the constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the employment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. In the language of Andrews J., in Bertholf v. O'Reilly (74 N.Y. 509), the right to liberty embraces the right of man 'to exercise his faculties and to follow a lawful avocation for the support of life.'" Upon this doctrine the court held that the provision of an act "prohibiting the manufacture or sale, as an article of food, of any substitute for butter or cheese produced from pure, unadulterated milk or cream is unconstitutional, inasmuch as the prohibition is not limited to unwholesome or simulated substitutes, but absolutely prohibits the manufacture or sale of any compound designed to be used as a substitute for butter or cheese, however wholesome, valuable or cheap it may be, and however openly and fairly the character of the substitute may be avowed and published."

In Powell v. Pennsylvania, 127 U.S. 678, 32 L.Ed. 253, 8 S.Ct. 992, a statute of the state of Pennsylvania was involved. It provided: "No person firm, or corporate body shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk or cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her, or their possession, with intent to...