Page:Bee-keeping not a nuisance ... History of the lawsuit entitled Z. A. Clark vs. the city of Arkadelphia, Arkansas, and defended by the "National bee-keepers' union." (IA beekeepingnotnu00nati).pdf/4

4 invests them with no such quia timet jurisdiction.

Because bees may sting or annoy, therefore we prohibit. It would follow, that because cows may gore, dogs annoy the sensitive by barking or biting, or running mad, we will also prohibit them. Because vehicles may annoy, by raising dust, or making a noise, or animals may run away in harness, therefore we prohibit them. No such autocratic or despotic power is necessary to preserve the citizen from real harm and annoyance; and the Legislature could not prohibit the keeping of bees, and could not delegate such power under the Bill of Bights. For the right to acquire, possess, and protect property is secured by Section 2, Article 2, of the Constitution, beyond Legislative and municipal control: and bees are the subject of property. Nor can the citizen be destroyed or deprived of his life, liberty or property, except by the judgment of his peers, and the law of the land.

ib. Section 21. Nor shall property be taken or damaged for public use without just compensation. ib. Section 22. This property-right is also protected by the 14th Amendment to the United States Constitution. Stockton laundry case, 26 Federal Rep. 611. The last cited is a case in point. The general law regulating governments of cities, does not give every town council, when, in their judgment, they fear that the keeping of certain kinds of property may annoy or injure, to declare it an annoyance and prohibit it. It must be a nuisance, per se, like a mill-pond or slaughter-house. Many things annoy, and may injure, that are not nuisances, and cannot be prohibited. Bell ringing, vehicle running, steam-whistles, and railroad trains are often annoying: so are privies and stables. This would not give power to prohibit them, to prevent quia timet—the possibility of annoyance or injury. The viciousness of this ordinance will be manifest, if we keep in view the difference between the power to regulate and keep possession of property, in due bounds, which power is conceded—and the power to prohibit keeping property altogether.

These general clauses of the statute granting powers to towns are to be strictly construed, and this Court has repeatedly held ordinances void, which have been passed under a liberal construction of the general powers given. The first is Waters vs. Leech, 3 Arkansas, 114. Thus the right to regulate and license keeping of a dram-shop does not authorize them to prohibit. Tuck vs. Waldron, 31 Arkansas, 462. Saloam S. Springs vs. Thompson, 41 Arkansas, 456. Nor did the power to suppress gaming-houses empower a city to license them. State vs. Lindsey, 34 Arkansas; Goetler vs. State Use, etc., 45 Arkansas, 454—and the power given in the act did not give power to declare that which is not a nuisance per se, to be one—which was attempted. Little Rock vs. Ward, 41 Arkansas, 527. Even the Legislature cannot, by declaration, make anything what it is not. 3 S. W. Rep. 425. 12 Western Rep. 760. 11 Central Reporter, 219.

We may sum up this result: The power to regulate does not give the power to prohibit, though it does give power to license. Russellville vs. White, 41 Arkansas, 485; and that the power to prevent and abate nuisance, does not give power to declare that a nuisance which is not per se such; and no presumptions are indulged, in favor of the rightfulness of an ordinance. A City Council, with full power to declare a nuisance does so at its peril. Americus vs. Mitchell, 5 S. E. Reporter, 201. Persons abating a nuisance under a State law must show its existence. Newark & South Horse-Car Co. vs. Hunt, 11 Central Reporter, 219,. [sic]

In keeping with the decisions of our own court, to the effect that a City Council cannot by ordinance make that a nuisance which is not such: see the following authorities: Horr & Bemiss, Mun. Pol. Ord. Sec. 252. 24 M. J. Eq. 169.

There is a recent case decided by the Supreme Court of Michigan, in which a city attempted by ordinance, under penalty of one hundred dollars, to punish and prohibit the distribution of hand-bills and cards on any street or alley. The ordinance was held void, and that it was not a proper exercise of the power to clean streets, etc., and to prevent the incumbering of the same, and to regulate the manner in which the streets should be used, and to prohibit and prevent the flying of kites, and all practices, amusements, and doings therein having a tendency to frighten teams or horses, as dangerous to life or property. This was held void in case of People vs. Armstrong, by the Supreme Court of Michigan, Jan. 18, 1889, and is reported and commented on in the Albany Law Journal, March 9, 1889, with approval.

In that case there was much more pretense for the power than there is in this case; for bees are not