Page:City of Little Rock v. Reinman-Wolfort Automobile Livery Co.pdf/4

Rh 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