slaughter-house. Treford vs. People, 14 Michigan, 41. Cannot compel removal of a steam engine from a city; not per se a nuisance. Baltimore vs. Palecke, 49 Md. 217. 33 American, 239. Nor can a city require the owner of a theater to pay a police officer for attendance at every performance. Waters vs. Leech, 3 Ark. 110. In the last cited case Judge Dickinson, delivering the opinion of this Court, says: “The corporate powers are not only limited, but must be reasonably exercised in sound discretion, and not only strictly within the limits of the Charter, but in perfect subordination to the Constitution, and the general laws of land, and the rights dependent thereon.”
In short, I refer the Court to Horr and Bemiss on municipal police ordinance, Sec. 131, for a full review of this point.
Where the instances are given wherein unreasonable ordinances and those in violation of private rights are given, the ordinances must accord with the Federal Constitution and laws, and with the Legislation of the State.
It is misleading to follow English decisions, because in that country municipal power rests often upon proscription, a source not recognized here. Horr & Bemis, Sec. 123.
We do not dispute that if there was express power given to enact an ordinance of a certain kind, if constitutional, the discretion or propriety of enacting it, is left to the judgment of the Council, and its decision is final. Horr & Bemiss, Sec. 128. But here is no “express power” given by law to forbid bees: but merely a general power to prevent “annoyance,” “injury,” etc. Whether an ordinance is within the terms of the power, and is reasonable, the courts must determine, and have determined in this State, and elsewhere, again and again.
So much for the contention of counsel—that the action of the City Council was final; invoking a correct principle applied to a wrong state of facts. I say to them, show your express power to prohibit keeping bees, or any other animal, or insect, for fear somebody may get hurt, and I will surrender the case, and even waive the constitutional question. There is no such express power given; that is the full extent to which the decisions go. If a power is expressly given by the Legislature, within the Constitution, the decision of the Council, that the power should be exercised by ordinance, is final. Yet this is invoked to bolster up this sweeping anti-bee ordinance: about as much akin to the question as a Choctaw Treaty to a Psalm of David.
You cannot stable bees like a horse, but the Court must judicially know to do that, would destroy their value as property, and the Court will judicially know that unless the owners of houses, groceries, etc., are careless in leaving attractions for them, they will not annoy them; and if they do so attract them by carelessness, they cannot complain. The bee, even with these attractions, prefers to pasture among forests, fields, and amidst flowers; so much so, that its habits are crystallized in song, and made subject of poetic simile.
If the people of Arkadelphia will keep the sugar and molasses barrels closed, and the grocers will keep their premises clean, no bee of Clark’s will visit them; and from the well-known habits of the housewives of Arkadelphia—in perfect order and cleanliness, having no superiors—no bee visits a private house there; and hurting young fruit and the like, as suggested in the ordinance, raises a suspicion that here is a pretext, and behind the ordinance is a concealed motive. Was it that Clark was making too much out of honey and bees? or was he competing too sharply with somebody?
The power given cities must harmonize with constitutional property rights, and must be reasonable and lawful, and not contravene common right. Dillon on Mun. Corp. Sec. 258, 259. And “wherever an ordinance seeks to alter a well-settled and fundamental principle of the common law,” or to establish a rule interfering with the rights of individuals, or the public, the power to do so must come from plain Legislative enactment.” Taylor vs. Griswold, 2 Green, N. J., 222. Dillon on Municipal Corp. Sec. 55 and Note.
I have already shown that by no possibility can the power be derived from the powers contained in Mansfield’s Digest, Sec. 751; which is nothing but a power to punish or abate a public nuisance, and while the named and defined powers are very full, we look in vain for any power or authority to abate or remove bees, as such; nor would it be constitutional if there was such a statute. It is only when bees by the place or manner of keeping, or the like, become a public nuisance, and to that extent, and no further, does the general power go.
