In the Circuit Court.
The Circuit Court convened in July, 1888, and the Hon. Sam. W. Williams, of Little Rock, was added to the attorneys for the Union. Our attorneys, Judges S. W. Williams, Witherspoon, Murray and McMillan, made a motion to dismiss the case against Z. A. Clark, because the ordinance of the city of Arkadelphia, on which the prosecution was founded, is void and in violation of law.
Then Judge S. W. Williams read section after section of law, in Z. A. Clark’s favor, showing that a man’s right to hold property is paramount to all Legislative power; and any attempt to take away such right is unconstitutional.
After which, Judge Hearn stated that he had lived a long time in Arkadelphia, and that bees had been kept there all the time, and that he had not heard any complaint until this case came up. He added that the case would go to the Supreme Court, no matter in which way it was decided in his Court, and he wanted to be found on the right side when decided in the Supreme Court.
He then sustained the motion of the attorneys for the Union, to dismiss the case, and he declared the ordinance of the city “illegal and void!” The city attorney gave notice of appeal to the Supreme Court, which was heard on June 22, 1889.
In the Supreme Court.
Messrs. Crawford & Crawford, attorneys for the city, argued in favor of the validity of the ordinance. Their argument may be summed up thus:
In Huckenstein’s Appeal, 70 Penn., St., 102, s. c., 10, Am. Rept, 669, supra, it was said, “If a man lives in town, of necessity he must submit to the consequences of the obligations of trades, which may be carried on in his immediate neighborhood, which are actually necessary for trade and commerce, also for the enjoyment of the inhabitants of the town.” However convenient for Appellee to own, keep and raise bees in the City of Arkadelphia, it cannot be contended that the business is at all necessary for trade and commerce, the enjoyment of property, or for the benefit of the inhabitants of the city. His business can be carried on just as successfully at a distance from the city, without interfering with the comfort and convenience of its inhabitants.
Bill Nye, in a recent communication to the press, tells of a Mr. Joseph Lininger, near Huntington, Ind., who has established there a “Skunk ranch,” and is doing a very profitable business in that line. Should he conclude to move his ranch into the City of Arkadelphia, he could object to having his business declared a nuisance, with as much show of right, as the Appellee maintains.
“There is no common right to do that, which, by a valid law, or ordinance, is prohibited; and courts will not declare an authorized ordinance void because it prohibits what otherwise might lawfully be done.”
It was contended that this ordinance is invalid, because, instead of regulating the keeping of bees, it prohibited the business altogether. We can see how the City could regulate the keeping of goats, dogs, hogs and cows, but it would be impossible to pass an ordinance allowing bees to be kept within the corporation, and at the same time regulate the business so as to prevent them from flying abroad. You cannot build a wall high enough to keep the bee from ranging. Suppose an ordinance should be passed, allowing the owning, keeping and raising of bees in the city, but prohibiting any one, under the penalty of a fine, from allowing his bees to fly in the streets, or trespass upon other people’s premises. Such an ordinance, with the condition annexed, would deprive Appellee of the claimed right, and would be a kind of Legislative juggling that would
“Keep the word of promise to the ear,
And break it to the hope.”
The ordinance in this case would not have been a whit better if it had allowed every citizen to keep one or more hives of bees. If one hive would not be a nuisance, how many would be? Where is the line to be drawn? We contend that the City Council ought to be, and is, the only proper judge, and its action will be final, unless it has clearly exceeded its authority in the passage of the ordinance.
