Dillon on Mun. Corp. Sec. 261. Horr & Bemis, Sec. 252, last paragrph. Emmett vs. Council Bluffs, 46 Iowa, 66. Pye vs. Peterson, 45 Texas, 312. State vs. Matt, 61 Md., 262. Davis vs. Clifton, 8 N. C. C. P., 236. Horr & Bemiss, Sec. 144.
The power cannot be given in general terms to abate that which comes under the general definition of a nuisance, in advance of a judicial determination. Dillon on Mun. Cor. Sec. 308; and in Gates vs. Milwaukee, 10 Wallace, 497, Judge Miller says: “This would place every house, every business, and all the property in the city at the uncontrolled will of the temporary local authority.” So the words “injury” and “annoyance,” used in Sec. 751, Mans. Dig. have been too often defined in like Charters to need further explanation here. It simply gives a power over nuisances, and does not mean any injury or any annoyance that sensitive or timid or nervous people may imagine or fear.
The bees must be per se a nuisance to justify this sweeping ordinance, under which, according to its letter, a man cannot live in Arkadelphia, if he owns bees, no difference where he keeps them; for personal property, wherever kept, is in law with the owner. In Harvey vs. Dewoody, 18 Arkansas, 252; where the Mayor and other town officers were sued in trespass for tearing down an old house which the owner had permitted to remain vacant and open, and to be used as a privy, until it became unhealthful and dangerous, an ordinance was passed to abate it. To a plea setting up the ordinance and facts on which it was based as a defense, on demurrer to this plea, it was held a good defense.
The counsel for Arkadelphia try to gather comfort from this case, but it would be parallel if the Des Arc Council had passed an ordinance requiring all wooden houses to be torn down, without regard to condition or occupancy, or compensation to the owner. We would then have a case like the sweeping ordinance prohibiting bees, and requiring their removal for public good, without compensation. Would a plea setting up an ordinance requiring all wooden buildings to be destroyed, have protected the officers in the Dewoody case?
I shall not attempt to follow the learned counsel, or review their authorities; as far as they have any bearing on the case, they sustain my position: 1. That the power is not given to prohibit bees by the statute. 2. That bees must at the time and place, and under all circumstances, be a nuisance, per se, or the ordinance violates property right, and is not sustained by law.
I have not stopped to criticise the manner in which the ordinance is brought in the record. It is the basis of the action, and by law must be filed, at least in the Circuit Court, for the Court cannot take judicial notice of it. It must be read at the trial, and brought on the record as the basis of the suit. Abbott’s Trial Evidence, page 770. Mans. Digest, Sec. 2,835.
I suppose, as no point is made in argument upon the motion of Appellant to dismiss the appeal, that it was thought to be unnecessary to argue it. Cardon’s testimony was taken upon that motion, to prove merely that an appeal was in fact prayed, and to make him amend his transcript, and the Court overruled the motion to dismiss the appeal.
Appeals from Mayor’s Courts regulated by Mansfield, Sec. 2,432, 2,425, 2,436, required nothing but a bond: Perrin ex parte, 41 Ark., 194, the jurisdiction of Justice of the Peace: appeal from Mayor taken in the same manner as from Justice. Mansfield, Sec. 797. This is a quasi criminal proceeding; if so, the appeal was rightly perfected. But if governed by civil code, then it is not to be dismissed for informality. Mansfield, 4,141 mode of appeal in civil case, 4,134, 4,135; and it was amendable. But all that was required was the filing of the bond, as the proceeding was criminal.
It is desired that the Court pass upon the question, however, for the profession are in great doubt as to what is meant by appeal from Mayor, as in case of Justice of Peace, as provided in Sec. 797. In view of the fact that there are two modes of appealing from a Justice—one by above Sections 2,432, 2,436, in criminal cases; the other in civil cases, by Sections 4,134, 4,135, (Mansfield,) which differs from the mode of appeal in criminal cases. I submit that when the Mayor sits in a misdemeanor case, whether for violating an ordinance, or a law, the appeal must follow criminal procedure. If he sits as a Justice of the Peace in a civil case, the appeal must be taken according to Sections 4,134, 4,135.
