Trigg v. Dixon
Decision Date | 31 October 1910 |
Citation | 131 S.W. 695,96 Ark. 199 |
Parties | TRIGG v. DIXON |
Court | Arkansas Supreme Court |
Appeal from Miller Chancery Court; James D. Shaver, Chancellor reversed.
Decree reversed and cause dismissed.
J. F Simms, for appellant.
1. The city had the authority to pass the ordinance in question. Kirby's Digest, §§ 5438, 5528-29, 5648, par. 4. The term "butcher" or "butcher shop" is embraced in the word "market." 73 Mich. 661. It is unreasonable to assume that the Legislature had only in view the regulation and superintendence of public markets, in the technical sense of the word, as distinguished from "butcher shops." 58 Pa.St. 119; 60 Pa.St. 445; 20 Am. Law Reg. (N. S.) 473, and note; 1 Dill., Mun. Corp. (4 ed.), par. 380; 28 Cyc. 734, and note 36; 60 Mo.App. 365. Power to "establish and regulate markets," even when standing alone, implies authority to prohibit elsewhere than at duly established markets the sale of articles falling within the exercise of the police power. 3 Johns. (N. Y.) 418; 10 Wend. 100; 82 N.Y. 318; 21 Tex.App. 71; 10 Bush 643; 44 Mo. 547. The power to regulate includes the power to license. 41 Ark. 485; 43 Ark. 82; 88 Ill. 221; 20 Am. Rep 545. All reasonable presumptions are indulged in favor of the validity of an ordinance. 88 Ark. 301; 52 Ark. 301; 64 Ark 152. And where an ordinance is passed which would be invalid if intended for one purpose and valid if intended for another, the presumption, in the absence of a clear showing to the contrary, is that it was intended for the lawful purpose. 36 Pa. S.Ct. 598; 230 Ill. 80; 82 S.E. 615.
2. The license fee is reasonable, taking into consideration the regulation and inspection provided for and in contemplation of the ordinance. 26 Pa. S.Ct. 343; 70 Ala. 361; 2 Am. & Eng. Corp. Cases, 23; 52 Ark. 301; 7 So. 885; 23 Am. St. Rep. 558; 9 L. R. A. 69.
Appellees by this suit seek to enjoin the appellant from enforcing an ordinance of the city of Texarkana. The ordinance is as follows:
Texarkana is a city of the first class, and has within its corporate limits fifteen retail butcher shops. H. W. Trigg, as chief of police, attempted to enforce the provisions of said ordinance. Appellees are among the number engaged in and carrying on the business of butchers in said city, and are subject to the terms of said ordinance. They refused to comply with the terms of the ordinance on the ground that it was void and should not be enforced because it shows on its face that it is an ordinance passed to raise a revenue for said city, and was not passed for the regulation of said business; and because the sum of $ 50 per annum is an unreasonable exaction for said purpose. Hence, as above stated, appellees brought this action in chancery to enjoin appellant from enforcing said ordinance. The decision of the chancellor was in their favor, and from the decree entered an appeal has been duly prosecuted.
We hold that the ordinance is valid. Under section 5438 of Kirby's Digest, cities and towns have the power "to establish and regulate markets;" and under section 5648, subdivision 4, cities of the first class have authority "to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health or safety," etc. Under the power to regulate, a city may make proper police regulations as to the mode in which the business shall be carried on. Dillon on Municipal Corporations (4 ed.), § 358.
Regulations in respect to the selling of fresh or butcher's meats have relation to health and disease. Kinsley v. Chicago, 124 Ill. 359, 16 N.E. 260; Dillon on Municipal Corporations, § 396.
In the case of St. Paul v. Colter, 12 Minn. 41, 90 Am. Dec. 279, the court said: "It occurs to us that if there is any kind of business transacted in a city 'which is liable in and of itself to become a nuisance or injurious...
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