City of Little Rock v. Reinman-Wolfort Automobile Livery Co.

by the Arkansas Supreme Court

Supreme Court of Arkansas

107 Ark. 174

CITY OF LITTLE ROCK et al.  v.  REINMAN—WOLFORT AUTOMOBILE LIVERY COMPANY.

Appeal from Pulaski Chancery Court
Opinion delivered February 24, 1913.

1. LIVERY STABLES—RIGHT OF MUNICIPAL CORPORATION TO REGULATE.—Under section 5454 of Kirby's Digest, which provides that cities shall have the power to regulate livery stables, a municipal corporation may pass an ordinance excluding any person or corporation from carrying on a livery stable business within a certain defined area, within the corporate limits. (Page 179.)
2. LIVERY STABLES—SUBJECT TO REGULATION BY CITY.—While a livery stable is not a public nuisance per se, and conducting same is recognized as a legitimate and necessary business, a city ordinance prohibiting the operation of livery stables within a certain defined area is proper and does not deprive the owners of their property without due process of law. (Page 181.)
3. MUNICIPAL CORPORATIONS—RIGHT TO REGULATE LIVERY STABLES.—A city ordinance prohibiting the carrying on of a livery stable business within a certain limited area, is not unreasonable or an improper restraint upon a lawful trade or business, nor an improper restraint upon the lawful and beneficial use of private property, nor an arbitrary or unjust classification of business for the purpose of regulation, nor is it unjustly discriminative. (Page 182.)
4. MUNICIPAL CORPORATIONS—REGULATION OF LIVERY STABLES.—A city ordinance excluding livery stables from certain defined territory, does not amount to a prohibition of the business, nor is it necessary to show that the business, as conducted, amounts to a nuisance before it becomes subject to the provisions of the ordinance regulating it. (Page 182.)
5. CITY ORDINANCE—EXCESSIVE PENALTY.—Although a city ordinance may impose a penalty for the continuance of the offense in excess of the amount prescribed by section 5466 of Kirby's Digest, it is not invalid for that reason since it is also provided by section 5467 of Kirby's Digest, that, in a prosecution under such an ordinance, judgment will be rendered for such amount only as the act authorizes. (Page 184.)

Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor; reversed and dismissed.

Argument for appellant

Harry C. Hale and J. W. & J. W. House, Jr., for appellant.

1. The State has the right, under its police power, to prohibit the carrying on of a livery stable business within certain designated limits, and having such power it can delegate it to cities. 22 S.W. 470; 16 Mo. App. 131; 16 Wall. 62; 5 Am. St. Rep. 331; 37 Am. Rep. 564; 41 Am. St. Rep. 630; 53 Id. 325; 91 Am. Dec. 472; 83 Id. 740; 90 Id. 278; 34 Id. 637; 33 Pa. St. 202; 18 O. St. 563; 54 Wis. 376; 90 Am. Dec. 279; 90 S.W. 874; 83 Am. Dec. 203; 26 Am. St. Rep. 664.

2. The power to pass this ordinance was delegated by the State. By section 5454, Kirby's Digest, the power was granted to regulate all livery stables; and the power to regulate includes the power to restrict to certain limits. 41 Am. St. Rep. 630, 633, and other authorities cited above.

The ordinance may be sustained as a delegation of power by the State to the city, by section 5648, Kirby's Digest, sub-div. 4, which provides that the city may prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health and safety. 49 Am. St. Rep. 227; 26 Id. 664; 30 Id. 214; 100 Ind. 575-578; 7 Cow. 606; 12 Wheat. 19; 4 Rob. 1; 90 Am. Dec. 281. See also Kirby's Dig. §§ 5437–8, 5454, 5461; 70 Ark. 12. When a city has by ordinance exercised the police power delegated to it by the State, it is as conclusive upon the courts as any legislative enactment, so long as such power involves a matter of discretion only, and not the fundamental law. 204 Ill. 456; 162 Md. 399; 33 Mass. 442; 58 N.E. 551; 49 Am. St. Rep. 93; 197 Fed. 516; 26 Am. St. Rep. 659, 662, 666; 96 Aik. 199; 16 Wall. 62; 113 U.S. 703; 113 U.S. 27; 96 Am. St. Rep. 95, 97; 152 U.S. 136; 113 U.S. 27; 128 U.S. 1; 225 U.S. 623; 194 U.S. 361.

3. The chancery court had no jurisdiction to restrain the enforcement of the ordinance. 85 Ark. 230; 34 Ark. 375; 34 Ark. 559; 39 Ark. 412; 44 Ark. 139; 7 Ark. 520; 13 Ark. 630; 26 Ark. 649; 27 Ark. 97.

4. All reasonable presumptions will be indulged in favor of the validity of the ordinance. 88 Ark. 263; 52 Ark. 301; 64 Ark. 152; 63 Atl. 930; 107 N.W. 502; 105 N.W. 794; 42 N.E. 622.

Argument for appellees

Morris M. Cohn, for appellees; Baldy Vinson, of counsel.

1. The ordinance is discriminative and invalid in that it is made to apply to livery stables and not to sales stables, whereas, if there be any serious objection to either, the sales stables are more objectionable. 2 McQuillan, Mun. Corp. § 738; 48 Minn. 236, 51 N.W. 112; 75 Ark. 542; 184 U.S. 540; 165 U.S. 150.

It is unreasonable because it improperly discriminates between localities within which substantially the same conditions exist, and discrimination in that it forces the business into the residential section.

2. The penalties prescribed are beyond the charter powers of the city, rendering the whole ordinance void. 2 McQuillan, Mun. Corp. § 722; 94 N.C. 883; 27 N.J.L. 286.

3. A livery stable is not a nuisance per se. 85 Ark. 544; 64 Ark. 424; 87 Ark. 213; 93 Ark. 362, 367; 95 Ark. 545; 11 Humph. 406, 54 Am. Dec. 45. And before it can be suppressed it must be proved to be an irremediable nuisance in the particular case. 93 Ark. 362; 95 Ark. 545, 548. Such proof must be irresistible. Id; 92 Ark. 552–3.

Because a given occupation may become objectionable, it does not follow that it may be suppressed within the city or any business portion of it. 85 Ark. 554–5; 95 Ark. 548; 41 Ark. 526; 52 Ark. 23; 45 Ark. 336; 49 Ark. 165.

A city can not by legislation make a nuisance of a business or occupation which is not per se a nuisance. 92 Ark. 456; 64 Ark. 609; 41 Ark. 526.

Under the power to regulate the city may license, but may not tax. 43 Ark. 82; 52 Ark. 301; 83 Ark. 351; 93 Ark. 362. It follows that the city can not under the same power suppress or prohibit, since the power to regulate does not incluie the power to prohibit. 31 Ark. 462; 111 Cal. 46, 50; 95 N.E. 456; 250 Ill. 486; 44 Ill. 81, 83; 61 Md. 297, 308, 309; 124 Cal. 344, 349; 3 McQuillan, Mun. Corp. § 990. The city council could not, under this power, by anticipation, prohibit the carrying on of the business. Supra; 47 L.R.A. 652, 656. Nor prohibit the maintenance of a livery stable in a prescribed locality in the business part of the city. Supra; 34 Pac. 902; 19 Col. 179; 41 Am. St. Rep. 230; 27 So. 53; 46 Ia. 66; 98 Cal. 73; 30 Ore. 478.

This being a legitimate business, which could only become a nuisance by the act of the parties, to condemn it for a certain locality where other legitimate business is carried on, is to deprive appellees of their constitutional rights. 195 U.S. 223; 118 U.S. 356; 31 Fed. 680; 13 Fed. 229; 82 Fed. 623; 10 Wall. 497; 79 Ill. 26, 39; 46 Ia. 66; 26 Fed. 611; 127 S.W. 860.

The power to regulate does not include partial prohibition. 107 Mo. 1, 24-26; 34 Pac. 902; 47 L.R.A. 652–656; 85 Ark. 511; 83 Ark. 355.

4. The city having allowed the business to be established and maintained for many years at a great expense, is estopped to prohibit it. 92 Ark. 546; 5 Ga. 315; 79 Ill. 26, 39; 73 N.E. 1035; 214 Ill. 628, 642.

5. As to the matter of jurisdiction, see 88 Ark. 358; 35 Ark. 352; Martin's Decisions, 386, 402-3, 404-5; 223 U.S. 605, 620, 621; 195 U.S. 223, 241; 209 U.S. 145; 2 McQuillan, § 805; 4 Dillon, Mun. Corp. § 1573; 2 Id. § 612, note 1; 74 Ark. 421; 34 Ark. 603, 609; 15 L.R.A. 604, and cases cited.

[Opinion of the Court by Justice WILLIAM F. KIRBY.]