THE ffiMERICar* BBB JOURNSt. 



407 



was not, tlien its presence in a town 

 could not be proliibited bj' anj- law. 



Before proceeding to argue the case, 

 we call attention to the statement of 

 Counsel, at page 9 of their Brief, that 

 it is a matter of common knowledge 

 that they are liable to sting children, 

 etc. It is not a matter of common 

 knowledge, because it is not true ; un- 

 less children molest them at their hives, 

 or catch them. But because a domes- 

 tic insect may sting or hurt under 

 some circumstances, no more makes it a 

 nuisance — jier sc — and liable to prohi- 

 bition, than the fact that a horse may 

 kick, may run away in harness and 

 kill a child ; or an ox may gore persons 

 with its horns, would make these ani- 

 mals nuisances per se. 



I venture the assertion that there is 

 not a town or city in the United States 

 where bees are not kept. I know 

 they are now kept in Little Rock, and 

 have ever been. My nearest neighbors 

 have them. I have kept them in m}' 

 yard while rearing a family of chil- 

 dren, and I cannot recall any instance 

 of an injury from bees. I speak this 

 in the line of common knowledge, 

 which the Court must recognize. 



I can recall the kick of a pony, and 

 a cow running over a child — shall 

 keeping of horses and cows be forbid- 

 den by ordinance ? And while bees 

 have been kept for centuries in towns, 

 it is an argument in their favor that 

 Arkadelphia is the first on record to 

 forbid them. I respectfully submit 

 that while the Court must judicially 

 know the habits of all animals, the 

 " little busy bee " should have a chance 

 with the cow, the horse, the sportive 

 dog, the gentle, purring cat, and even 

 the festive chicken cock. On a par 

 with counsel's skunk-farm story — a 

 pure fiction of Bill Nye. 



I may be allowed to refer to the fact 

 that last year two instances are given 

 in newspapers, one authentic at Hot 

 Springs, one elsewhere, not so well 

 established — where children were 

 killed by a chicken cock attacking 

 them. For this reason can the keeping 

 of chickens be forbidden ? The bee 

 has no such record of homicidal or in- 

 fanticidal results. Will these instances, 

 or the fighting of mother-hens over 

 their broods, make chickens per se 

 nuisances ? Unless bees, under all 

 circumstances, however kept and tend- 

 ed, and in any quantities however 

 small are per se nuisances — this ordi- 

 nance cannot be sustained ; for it does 

 not regulate the quantity, or manner 

 of keeping, or make the keeper re- 

 sponsible, as in case of other danger- 

 ous animals, and punishable for conse- 

 quences, but assumes to destroy prop- 

 erty in them in Arkadelphia altogether, 

 or compel a man to leave his home and 

 buy another, or quit his business. 



The provision of Sections 751 to 764, 

 Mansfield, does not give the city of 

 Arkadelphia power to take a man's 

 property for public use, without com- 

 pensation, under the power to prevent 

 injury or annoyance. Section 751 in- 

 vests them with no such quia timet 

 jurisdiction. 



Because bees may sting or annoy, 

 therefore we prohibit. It would fol- 

 low, that because cows may gox-e, dogs 

 annoy the sensitive by barking or bit- 

 ing, or running mad, we will also pro- 

 hibit them. Because vehicles may an- 

 noy, by raising dust, or making a noise, 

 or animals may run away in harness, 

 therefore we prohibit them. No such 

 autocratic or despotic power is neces- 

 sary to preseiTe the citizen from real 

 harm and annoyance ; and the Legisla- 

 ture could not prohibit the keeping of 

 bees, and could not delegate such 

 power under the Bill of Rights. For 

 the right to acquire, possess, and pro- 

 tect property is secured by Section 2, 

 Article 2 of the Constitution, beyond 

 Legislative and municipal control ; and 

 bees are the subject of property. Nor 

 can the citizen be destroyed or de- 

 prived of his life, liberty or property, 

 except by the judgment of his peers, 

 and the law of the land. 



ib. Section 21. Nor shall property 

 be taken or damaged for public use 

 without just compensation. ib. Sec- 

 tion 22. This property-right is also 

 protected by the 14th Amendent to the 

 United States Constitution. Stockton 

 laundry case, 26 Federal Rep. 611. The 

 last cited is a case in point. The gen- 

 eral law regulating governments of 

 cities, does not give every town coun- 

 cil, when, in their judgment, thej-fear 

 that the keeping of certain kinds of 

 property may annoy or injure, to de- 

 clare it an annoyance and prohibit it. 

 It must be a nuisance, per se, like a 

 mill-pound or a slaughter-house. Many 

 things annoy, and may injure, that are 

 not nuisances, and cannot be pro- 

 hibited. Bell ringing, vehicle run- 

 ning, steam-whistles, and railroad 

 trains are often annoying ; so are 

 privies and stables. This would not 

 give power to prohibit them, to pre- 

 vent quia tiiiitt — the possibility of an- 

 no3-ance or injury. The viciousness of 

 this ordinance will be manifest, if we 

 keep in view the difierence between 

 the power to regulate and keep posses- 

 sion of property, in due bounds, which 

 power is conceded — and the power to 

 prohibit keeping property altogether. 



These general clauses of the statute 

 granting powers to towns are to be 

 strictly construed, and this Court has 

 repeatedly held ordinances void, which 

 have been passed under a liberal con- 

 struction of the general powers given. 

 The first is Waters vs. Leech, 3 Arkan- 

 sas, 114. Thus the right to regulate 



and license keeping of a dram-sliop 

 does not authorize them to prohibit. 

 Tuck vs. Waldron, 31 Arkansas, 462. 

 Saloam S. Springs vs. Thompson, 41 

 Arkansas, 456. Nor did the power to 

 suppress gaming-houses empower a 

 city to license them. State vs. Lind- 

 sey, 34 Arkansas ; Goetler vs. State 

 Use, etc., 45 Arkansas, 454 — and the 

 power given in the act did not give 

 power to declare that which is not a 

 nuisance per sc, to be one — whicli w;is 

 attempted. Little Rock vs. Ward, 41 

 Arkansas, 527. Even the Legislature 

 cannot, bj- declaration, make anything 

 what it is not. 3 S. W. Rep. 42a. 12 

 Western Rep. 760. 11 Central Re- 

 porter, 219. 



We may sum up this result : The 

 power to regulate does not give the 

 power to prohil)it, though it does give 

 power to license. Russellville vs. 

 White, 41 Arkansas, 485 ; and that the 

 power to prevent and abate nuisance, 

 does not give power to declare that a 

 nuisance which is not per se such ; and 

 no presumptions are indulged in favor 

 of the rightfulness of an ordinance. A 

 City Council, with full power to de- 

 clare a nuisance does so at its peril. 

 Araericus vs. Mitchell, 5 S. E. Reporter, 

 201. Persons abating a nuisance un- 

 der a State law must show its exis- 

 tence. Newark & South Horse-Car 

 Co. vs. Hunt, 11 Central Reporter 219. 



In keeping with the decisions of our 

 own court, to the efi'ect that a City 

 Council cannot by ordinance make 

 that a nuisance which is not such : see 

 the following authorities : Horr & 

 Bemiss, Mun. Pol. Ord. Sec. 252. 24 

 N. J. Eq. 169. 



There is a recent case decided by 

 the Supreme Court of Michigan, in 

 which a city attempted by ordinance, 

 under penalty of one hundred dollars, 

 to punish and prohibit the distribution 

 of hand-bills and cards on any street 

 or alley. The ordinance was held void, 

 and that it was not a proper e.'cei'cise 

 of the power to clean streets, etc., and 

 to prevent the incumbering of the 

 same, and to regulate the manner in 

 which the streets should be used, and 

 to prohibit and prevent the flying of 

 kites, and all practices, amusements, 

 and doings therein having a tendency 

 to frighten teams or horses, as danger- 

 ous to life or property. This was Held 

 void in case of People f*'. Armstrong, 

 by the Suiireme Court of Michigan, 

 Jan. 18, 1889, and is reported and 

 commented on in the Albani/ Laic Jour- 

 nal, March 9. 1889. with approval. 



In that case there was much more 

 pretense for the power than lliei'e is in 

 this case ; for bees are not named — and 

 the power is claimed here under the 

 n-eneral power to prevent injury or 

 annovance, etc. Mansfield's Digest, 

 Sec. 751. 



