and the power is claimed here under the general power to prevent injury or annoyance, etc. Mansfield’s Digest, Sec. 751.
An ordinance of Grand Rapids, which forbade the marching, parading, riding, or driving upon public streets with musical instruments, banners, figs, torches, flambeaux, or while singing or shouting, without the Mayor’s permission, was void, as prohibiting a thing lawful in itself, and leaving it to an unregulated official discretion. See Frazee’s ease, 63 Michigan, 396.
All ordinances arbitrary in their terms, and unreasonable, and unnecessarily abridging private rights, are void. 1 Dillan Municipal Corporation, Sec. 253. Clinton vs. Phillips, 58 Illinois, 102. Kip vs. Patterson, 26 N. J. Law 298. Commissioner vs. Gas Co., 12, Pen. St. 318. Commonwealth vs. Robertson, 5 Cush. 438.
This ordinance not only docs not come within the power granted, but it is also unreasonable and unwarranted; either is sufficient to make it void. Lynn vs. Freemason Building Assoction, 9 Central Reporter, 860.
Municipalities only have such powas are expressly granted to them, such as are necessary to carry those powers into effect. United States vs. Ludlow, 9 Central Reporter, 517. Johnson vs. District of Columbia, 9 Central Reporter, 653. It is well settled that the general power to prevent annoyance does not give power to declare everything which may annoy or arouse the fears of the sensitive—a nuisance. Nor does the existence of that fact give power to prohibit. See authorities above cited.
It is equally well settled that a city cannot under general power, declare that a nuisance which is not so in fact. Des Plaines vs. Poyer, 12 Western Reporter, 760. Stockton Laundry Case, 26 Federal Reporter, 611—where it is held that an ordinance is unconstitutional and void which forbid a laundry in the heart of the city; yet a drying up of stinking soap-suds might become dangerous to health, and annoy, and infected clothing would be more frequent than bee-stings. See also 9 Pacific Reporter, 141.
Mr. Wood, in his work on Nuisance, in the index at page 1021, refers to bees with a reference to title—Dangerous Animals. Under that head, at page 1025, he refers to cases of animals which, by their owners, may be known to injure, referring to page 871 et seq., which recognizes fully the right to keep animals subject to responsibility (on scienter) for injuries by those known to be of vicious character.
Strangely enough, of all the cases cited, not an instance of injury by “the little busy bee,” or the silk-worm is found: showing how harmless these little insects really are. The habits of the bee lead it to wood, field, and orchard, for pasture, and if it enters a house it is because carelessness has left some sweet uncovered, and exposed, to attract it, and rarely then does it enter a house. Those who thus invite it, are guilty of contributory negligence, and have no right to complain.
I am employed in this case by the National Bee-Keepers’ Union and this is probably, about the only known case in America or England, where a town has attempted to prohibit bee-culture; and this is a test case to determine the extent of their powers. The burden of showing the nuisance is on the city. Bailey’s onus probandi, 233, ib. page 460.
A city ordinance cannot be leveled at a mere private nuisance to one or more persons. The nuisance must be public and general in character, and must be an actual nuisance. Horr & Bemiss, Sec. 252, 254. 4 Blackstone’s Commentaries, 167. 1 Bishop Crim. Law. Sec. 243. Wood on Nuisance, pages 24, 25, 26, 80, 81, 82. Dillon on Municipal Corporation, Sec. 308.
I undertake to say from a knowledge of the habits of the bee, that it would be impossible for it to become more than a private nuisance, for which the person injured has his remedy, as in case of injury from a vicious animal. The nuisance must not only be public and actual, but substantial. “It is not a mere trifling annoyance with which the law deals in public nuisances,” but “real, substantial injuries, that are calculated to offend the sense of men of simple tastes and habits.” Conveniences are not balanced. Wood on “Nuisance,” page 81.
Even in those acts which are admittedly nuisances, an ordinance is void and unreasonable, where it trenches on private rights and property without corresponding public necessity. Thus, while slaughter-houses may be regulated, an ordinance is void which prohibits one from killing an animal on his own premises, unless in a slaughter-house an attempt to drive everybody to one
