Phillips v. Town of Oak Grove

• Decision Date: 07 May 1998
• Docket Number: No. 97-898,97-898
• Citation: 333 Ark. 183,968 S.W.2d 600
• Court: Arkansas Supreme Court
• Parties: Linda PHILLIPS and Marvin Phillips, Appellants, v. TOWN OF OAK GROVE, Arkansas and Jean Morgan, Mayor, Sam Jones, Alderman, Gary High, Alderman, Pat Davis, Alderwoman, Vicki Allen, Alderwoman, and Willard Standlee, Alderman, in Their Official Capacities as The Mayor and Town Council of The Town of Oak Grove, Arkansas, Appellees.

Page 600

968 S.W.2d 600

333 Ark. 183

Linda PHILLIPS and Marvin Phillips, Appellants, v.TOWN OF OAK GROVE, Arkansas and Jean Morgan, Mayor, Sam Jones, Alderman, Gary High, Alderman, Pat Davis, Alderwoman Vicki Allen, Alderwoman, and Willard Standlee, Alderman, in Their Official Capacities as The Mayor and Town Council of The Town of Oak Grove, Arkansas, Appellees.

No. 97-898.

Supreme Court of Arkansas.

May 7, 1998.

Stephen Lisle, Springdale, for Appellant.

Lewis E. Epley, Jr., Tim S. Parker, Eureka Springs, for Appellee.

THORNTON, Justice.

In 1987, the town of Oak Grove adopted Ordinance 20, which prohibits the keeping of swine or fowl for commercial purposes within the town limits.Appellants Marvin and Linda Phillips breed emus for sale on their property in Oak Grove.The appellees are the town of Oak Grove, the mayor, and members of the town council.When the Town charged them with violating the Ordinance, the Phillipses responded with a motion for summary judgment challenging the Ordinance's constitutional validity.Oak Grove counterclaimed, asking for a declaratory judgment that the ordinance was valid.The chancellor granted Oak Grove's motion for summary judgment, ruling that the Ordinance was a valid enactment that was rationally related to Oak Grove's legitimate-government concerns for the health, safety, and welfare of its citizens.We affirm the chancellor's ruling.

In attacking the constitutional validity of the Ordinance, the Phillipses raise the following three arguments on appeal: Oak Grove cannot prohibit a lawful business when it does not constitute a nuisance; an ordinance that classifies on the basis of commerce is an arbitrary exercise of Oak Grove's police power; and prohibiting all animals of the Aves class is overbroad for the purpose of preventing the encroachment of large-broiler houses into the Town.

Oak Grove is an incorporated town with a population of about 230 residents.In 1987, its town council passed Ordinance 20 in response to concerns arising from commercial fowl and hog operations in the Northwest Arkansas area.The stated purposes of the Ordinance are as follow:

WHEREAS, the Town of Oak Grove, Arkansas, is located in close proximity to areas of expanding commercial broiler houses and other commercial activities, and it is necessary to enact measures to protect the citizens of the Town of Oak Grove from the deleterious effects of such commercial activities if carried on within the town limits; and

WHEREAS, the Council of the Town of Oak Grove has determined that this Ordinance is necessary in order to protect the residents of the Town of Oak Grove from offensive or noxious odors, and

WHEREAS, the passage and approval of this Ordinance will improve and protect the order, peace, comfort, convenience, safety, general welfare, health and prevent injury from offensive or unhealthy matters[.]

This ordinance makes unlawful the "raising, keeping, growing, maintenance, husbandry or quartering of either swine or fowl within the town limits of the Town of Oak Grove, by any person for any commercial purpose."As defined in the ordinance, the term "fowl" includes all members of the zoological class "Aves," including chickens, turkeys, ducks, geese, quail, guineas, and other domestic or wild birds.The Ordinance expressly allows "limited activities strictly for personal consumption by an individual and not involving other parties."

The Phillipses purchased emus and began raising them for commercial purposes on their property within the town limits.Emus are members of the Aves zoological class and are second in size only to the ostrich, weighing in excess of one hundred pounds at maturity.In 1995, Mayor Morgan ordered the Phillipses to remove their emus from the town limits.When the Phillipses refused, Oak Grove filed a criminal misdemeanor action in municipal court for keeping emus in violation of Ordinance 20.The Phillipses countered by filing this action in chancery court seeking a declaratory judgment that the Ordinance was invalid.Oak Grove counterclaimed, asking for a declaratory judgment that the Ordinance was a valid, rationally related exercise of Oak Grove's power to enact laws for the general health, safety, and welfare of its citizens.Oak Grove suspended its criminal complaint pending the outcome of the chancery court decision.The chancellor granted Oak Grove's motion for summary judgment and this appeal ensued.

I.

Municipal corporations derive their legislative powers from the general laws of the state.Ark. Const. art. 12, § 4.A municipality has no powers except those expressly conferred by the legislature, and those necessarily or fairly implied as incident to or essential for the attainment of the purpose expressly declared.City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 336, 916 S.W.2d 95, 97(1996).

In Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W.2d 620(1956), we recognized the city's plenary duty to exercise its police power in the interest of the public health and safety of its inhabitants.Id. at 464-65, 290 S.W.2d at 622.The police power of the state is founded in public necessity and this necessity must exist in order to justify its exercise.Id.It is always justified when it can be said to be in the interest of the public health, public safety, public comfort, and when it is, private rights must yield to public security, under reasonable laws.City of Little Rock v. Smith, 204 Ark. 692, 695, 163 S.W.2d 705, 707(1942) (quoting Beaty v. Humphrey, 195 Ark. 1008, 115 S.W.2d 559(1938).The State has authorized the municipalities to legislate under the police power in Ark.Code Ann. § 14-55-102(1987).That section provides, "Municipal corporations shall have the power to make and publish bylaws and ordinances, not inconsistent with the laws of this state, which, as to them, shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof.

Under its grant of power, cities and incorporated towns can "[p]revent injury or annoyance within the limits of the municipal corporation from anything dangerous, offensive, or unhealthy and cause any nuisance to be abated within the jurisdiction given the board of health in § 14-262-102[.]Ark.Code Ann. § 14-54-103(1987).

In light of these statutes, the town of Oak Grove has the authority to legislate for the protection of the public health.The preamble to Ordinance 20 makes clear that Oak Grove is legislating under its police power when it states that its purpose is to protect the residents of the town from the deleterious effects of commercial broiler activities, to protect against offensive or noxious odors, and to protect the order, peace, comfort, convenience, safety, general welfare, health and prevent injury from offensive or unhealthy matters.The Phillipses private rights must yield, unless we find that Oak Grove has acted in excess of the authority conferred.

II.

The Phillipses argue first that the town of Oak Grove cannot prohibit a lawful business when it does not constitute a nuisance.The appellees, on the other hand, contend, and the chancellor agreed, that the controlling law is stated in City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95(1996).In Lowell, we declared that judicial review of a legislative enactment is limited to determining whether the legislation is arbitrary, capricious, and unreasonable.Id. at 339, 916 S.W.2d at 98.The legislation is not arbitrary if there is any reasonable basis for its enactment.Id.

The Phillipses argue that Arkansas law requires a municipality first to determine that an activity poses a threat to its citizens before it may regulate that activity under its police power.The crux of their argument is that there is no evidence that their emu farm is a nuisance or a threat, and that because it is a lawful business, Oak Grove does not have the authority to prohibit it.This argument has two parts, which we address seriatim.The first question is whether a municipality can regulate an activity that is not a nuisance under its police power, and the second question is whether a municipality can prohibit a lawful business.

A.

The Phillipses rely on Town of Arkadelphia v. Clark, 52 Ark. 23, 11 S.W. 957(1889) for the proposition that a nuisance must exist before the town can regulate under its police power.In a brief per curiam opinion, we stated that the ordinance prohibiting the keeping of bees within the city limits was invalid because it declared each act a nuisance and was therefore too broad.Id. at 25, 11 S.W. at 958.We said that bees may become a nuisance but whether they are so or not is a question to be judicially determined in each case.Id.Our decision in Clark stated that municipalities cannot legislatively declare some activity to be a nuisance.We did not address the question of public health and safety in that case.Contrary to the Phillipses' assertion, Clark does not hold that a municipality must first determine that an activity is a nuisance before it can regulate that activity under its police power.

In fact, the mere possibility of a public harm is sufficient basis for the municipality to regulate under its police power.The United States Supreme Court, in affirming an Arkansas Supreme Court decision, said that a "business lawful today may in the future, because of the changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good."Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 500, 39 S.Ct. 172, 63 L.Ed. 381(1919)aff'g127 Ark. 38, 191 S.W. 405(1917)(quotingDobbins v. Los Angeles, 195 U.S. 223, 238, 25 S.Ct. 18, 49 L.Ed. 169(1904)).

In Pierce Oil Corp., the City of Hope enacted an ordinance forbidding the storing of petroleum, gasoline,...