Williams v. State

• Citation: 108 S.W. 838,85 Ark. 464
• Parties: WILLIAMS v. STATE
• Decision Date: 09 March 1908
• Court: Arkansas Supreme Court

108 S.W. 838

85 Ark. 464

WILLIAMS v. STATE

Supreme Court of Arkansas

March 9, 1908

Appeal from Garland Circuit Court; W. H. Evans, Judge; affirmed.

Affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

1. The guaranty of life, liberty and pursuit of happiness secures to the citizen the right to pursue any calling not injurious to the public, and protects him against all interference with his business not in the lawful exercise of the police power. This power is limited to those things essential to the safety, health, comfort and morals of the community. Any act seeking to restrict the liberty of a citizen in matters that do not fall within the scope of the police power of the State, as thus defined, is unconstitutional and void. 64 Ark 424; 127 U.S. 692; 58 Ark. 407,; 111 U.S. 757; 123 U.S. 623; 152 U.S. 137; 165 U.S. 589; 198 U.S. 57; 193 U.S. 334; 190 Ill. 28; 98 N.Y. 108; Id. 105; 155 Ill. 88; 15 Fed Cas. 652; 98 Cal, 73; Tiedeman, Lim. Pol. Power, § 102; 89 N.Y.S. 193; 36 W.Va. 856; 33 W.Va. 179; 147 Ill. 66; 157 N.Y. 116; 2 Hare's Am. Const, Law, 777; Cooley's Const. Lim. (6 Ed.), 738.

2. In its application to this case, it is a mere begging of the question to say that the act only prevents appellant from soliciting custom for his boarding house, and does not interfere with his right to conduct it. The effect of the act is to stifle competition, operating as it does in favor of the large hotels and long established boarding houses, which have become known, and against the newer establishments seeking to enter and maintain themselves in the business. The right to advertise and to solicit custom is an essential incident to business, so essential that its denial is destruction of the business. 120 U.S. 489, approved in 128 U.S. 129; 129 U.S. 143; 153 U.S. 289; 136 U.S. 104; 187 U.S. 622; 57 Ark. 24; 91 Tenn. 673; 20 S.W. 201; 98 Tenn. 258; 39 S.W. I; 9 Wyo. 497; 35 P. 473; 70 Miss. 559; 13 So. 227; 50 La.Ann. 579; 23 So. 904; 126 Ind. 472; 137 Ill. 536; 55 O. St. 222; 187 Pa.St. 16, etc. See also 205 U.S. 100; 185 Ill. 139; 73 Mich. 288.

3. The contention that the act may be justified on the ground that it applies only to persons traveling on railroads, and that it tends to secure the comfort of other passengers, is untenable. It is an invasion of the right of freedom of speech. Cooley's Const. Lim. (6 Ed.), 510-518.

4. The act deprives the citizen of the equal protection of the law. 118 U.S. 368; 165 U.S. 150; 174 U.S. 96; 13 F. 733; 24 Am. Dec. 512; 183 U.S. 79; 184 U.S. 555; 75 Ark. 545; 72 Ark. 358; 185 Ill. 139; 65 Conn. 478; 117 Ill. 294; 155 Ill. 88; 141 Ill. 171; 147 Ill. 66.

William F. Kirby, Attorney General, and Wood & Henderson, for appellee.

The act only amounts to a regulation of the business of drumming for hotels, etc., to the extent of prohibiting it on the trains, cars, and at the depots of railroads and common carriers. Under the police power of the State, the Legislature has the right to enact such a law. 6 Words & Phrases Judicially Defined, 5425, "Police Power." In the exercise of this power the States have always regulated certain kinds of business and absolutely prohibited others. The power to prohibit any business which is dangerous to public safety, health or morals has never been denied, and the power to regulate any business in which the public is interested is also sustained. 8 Cyc. 1114-15, notes 71 and 89; 94 U.S. 113; Cooley's Const. Lim. (5 Ed.), 737, 739; 104 Ala. 261; 9 Rose's Notes, U. S. Rep. 21-45; 47 Ark. 126; 43 Ark. 83; 34 Ark. 603; 52 Ark. 301; 64 Ark. 152; 70 Ark. 221; 77 Ark. 506; ante p. 396.

It is conceded that railroad companies have the right to prohibit the following of one's private business on their trains and depot grounds. 3 Thompson on Negligence, § 3104; 67 Ark. 401; 31 Ark. 50. If the law gives to the railroads this right, certainly the sovereign State from which the law emanates can prohibit it. Equal protection can not be said to be denied when the law operates alike upon all persons and property similarly situated. 78 Am. St. Rep. 229, and notes; 49 Ark. 291; Id. 325; 52 Ark. 529; 44 Ark. 167; 58 Ark. 407. If there is any doubt as to the constitutionality of an act, that doubt must be resolved in favor of its validity. 32 Ark. 131; 94 U.S. 113.

MCCULLOCH, J. WOOD, J., dissenting.

OPINION

MCCULLOCH, J.

Appellant Williams is the keeper of a boarding house in the city of Hot Springs, and he appeals to this court from a judgment of conviction for drumming on a railroad train for his boarding house, in violation of a statute enacted by the General Assembly April 30, 1907. The section of this statute which it becomes important to consider is as follows.

"Section 1. That it shall be unlawful for any person or persons, except as hereinafter provided in section 2 of this act, to drum or solicit business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner on the train, cars or depots of any railroad or common carrier operated or running within the State of Arkansas. Any person or persons plying or attempting to ply said vocation of drumming or soliciting, except as provided in section 2 of this act, upon the trains, cars, or depots of said railroads or common carriers, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty ($ 50) nor more than one hundred dollars ($ 100) for each offense." Acts 1907, p. 553.

The title of the statute is "An act for the protection of passengers, and for the suppression of drumming and soliciting upon railroad trains and upon premises of common carriers."

The constitutionality of the statute is attacked on the grounds (1) that it is an unlawful restriction upon the liberty of action and inherent rights of the citizen in the pursuit of lawful business, and (2) that it deprives the classes of citizens therein named of the equal protection of the law in that it is an unjust discrimination against them.

Both points of attack upon the statute involve a consideration of the State's exercise of the police power, its scope and limitations--a fruitful subject of discussion in all the courts of the country. While it is admitted by all that this power is incapable of precise definition, and that its lines of delimitation are not clearly marked, yet the abundance of discussion on the subject found in the numerous decisions of courts of last resort leaves us not without chart and compass for the ascertainment of its general scope. Happily we are not without precedents in the decisions of this court.

The Supreme Court of the United States in a recent case said: "We hold that the police powers of a State embrace regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. * * * And the validity of a police regulation, whether established directly by the State or by somebody acting under its sanction, must depend upon the circumstances of each case and the character of the regulation, whether arbitrary or reasonable and whether really designed to accomplish a legitimate public purpose." Chicago, B. & Q. Ry. Co. v. Drainage Com'rs, 200 U.S. 561, 592. In a still later case that court announced the same doctrine and upheld, on the ground that it was a regulation designed to promote the general prosperity, a statute of the State of Idaho which prohibited the herding and grazing of sheep within two miles of the dwellinghouse of a landowner. Bacon v. Walker, 204 U.S. 311, 51 L.Ed. 499, 27 S.Ct. 289. The court said: "We do not enter, therefore, into the discussion whether the sheep industry is legitimate and not offensive. Nor need we make extended comment on the two-mile limit. The selection of some limit is a legislative power, and it is only against the abuse of the power, if at all, that the courts may interpose. But the abuse must be obvious. It is not shown by quoting the provision which expresses the limit. The mere distance expresses nothing. It does not display the necessities of a settler on the public lands. It does not display what protection is needed, not from one sheep or a few sheep, but from a large flock of sheep, or the relation of the sheep industry to other industries. These may be considerations which induced the statutes, and we can not pronounce them insufficient on surmise or on the barren letter of the statute."

These cases are cited to show that the exercise of the police power is not limited to regulations to promote the public health, morals or safety, and that it may be so extended to such regulations as will promote the public convenience and general prosperity.

The same principle controlled this court in upholding the statute known as the screen law for the protection of miner. McLean v. State, 81 Ark. 304, 98 S.W. 729. The following cases may be examined with profit in determining the scope of this power: Ohio Oil Co. v. Indiana, 177 U.S. 190, 44 L.Ed. 729, 20 S.Ct. 576; Clark v. Nash, 198 U.S. 361, 49 L.Ed. 1085, 25 S.Ct. 676; Plessy v. Ferguson, 163 U.S. 537, 41 L.Ed. 256, 16 S.Ct. 1138.

This court has sustained a statute prohibiting physicians from soliciting patients through drummers. Thompson v. Van Lear, 77 Ark. 506, 92 S.W. 773; Burrow v. Hot Springs, ante p. 396. That statute was sustainable on different grounds, however--that of protection of public health and morals, though the same arguments are made against its validity as against the statute now under consideration.

In Emerson v. McNeil, 84 Ark. 552, 106 S.W 479, the court sustained a town ordinance making it unlawful for any person to solicit customers for any...