408 



THE MMERICJEIf mU© JQ^RHMEf. 



An ordinance of Grand Rapids, which 

 forbade the marching, parading, rid- 

 ing, or driving upon public streets witli 

 musical instruments, banners, flags, 

 torches, flambeaux, or while singing, 

 or shouting, without the Mayor's per- 

 mission, was void, as prohibiting a 

 thing lawful in itself, and leaving it to 

 an unregulated official discretion. See 

 Frazee's case, 63 Michigan, 396. 



All ordinances arbitrary in their 

 terms, and unreasonable, and unneces- 

 sai'ily abridging private rights.are void. 

 1 Dillon Municipal Corporation, Sec. 

 253. Clinton vs. Phillips, 58 Illinois, 

 102. Kip vs. Paterson, 26 N. J. Law 

 298. Commissioner vs. Gas Co., 12 

 Penn. St. 318. Commonwealth vs. 

 Robertson, 5 Cush. 438. 



This ordinance not only does not 

 come within the power granted, but it 

 is also unreasonabh and unwarranted ; 

 either is sufBcient to malce it void. 

 •liynnvs. Freemason Building Associa- 

 tion, 9 Central Reporter, 360. 



Municipalities only have such powers 

 as are expressly granted to them, or 

 such as are necessary to carrj' those 

 jjowers into eflect. United States vs. 

 Ludlow, 9 Central Reporter, 517. 

 Johnson vs. District of Columbia, 9 

 Central Reporter, 653. It is well set- 

 tled that the general power to prevent 

 annoyance does not give power to de- 

 clare everything whicli may annoy or 

 arouse the fears of the sensitive — a nui- 

 sance. Nor does the existence of that 

 fact give power to prohibit. See au- 

 thorities 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 Re- 

 porter, 760. Stockton Laundry Case, 

 26 Federal Reporter, 611 — where it is 

 held that an ordinance is unconstitu- 

 tional and void which forbid a laundry 

 in the heart of the city ; yet a drying 

 up of stinking soap-suds might become 

 dangei-ous to health, and annoy ; and 

 infected clothing would be more fre- 

 quent 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 — Danger- 

 ous 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 ct seq., 

 ■which recognizes fully the right to 

 keej) animals subject to responsibility 

 (on scienter) for injuries by those known 

 to be of vicious character. 



Strangely enougli, 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 or- 

 chard, 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 guilt}' of contributory negli- 

 gence, and have no right to complain. 



I am employed in this case by the 

 American Union of Bee-Keepers, of 

 Chicago, Ills. ; and this is the only 

 known case in America or England, 

 where a town has attempted to pro- 

 hibit bee-culture ; and this is a test case 

 to determine the extent of their pow- 

 ers. The burden of showing the nui- 

 sance is on the city. Bailey's onus 

 probandi, page 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 its 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 tosayfrom 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 remedj', 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 nui- 

 sances," but " real, substantial in- 

 juries, that are calculated to offend the 

 sense of men of simple tastes and 

 habits." Conveniences are not bal- 

 anced. Wood on "Nuisance," page 81. 



Even in those acts which are ad- 

 mittedlj- nuisances, an ordinance is 

 void and unreasonable, where it 

 trenches on private rights and prop- 

 erty without corresponding public 

 necessitj'. 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 slaughter house. 

 Treford vs. People, 14 Michigan, 41. 

 Cannot compel removal of a steam en- 

 gine from a city not per se a nuisance. 

 Baltimore vs. Palecke, 49 Md. 217. 33 

 American, 239. Nor can a city re- 

 quire the owner of a theater to paj' 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 

 povvei's are not only limited, but must 

 be reasonal)ly exercised in sound dis- 

 cretion, 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 tlie Court to Horr 

 and Bemiss on municipal police ordi- 

 nance. 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 Englisli 

 decisions, because in that country 

 municipal power rests often upon pro- 

 scription, a source not recognized here. 

 Horr & Bemiss, Sec. 123. 



We do not dispute that if there was 

 express power given to enact an ordi- 

 nance of a certain kind, if constitu- 

 tional, 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," "in- 

 jury," 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 

 elsewhei'e, again and again. 



So much for the contention of coun- 

 sel — that the action of the City Coun- 

 cil was final ; invoking a correct prin- 

 ciple applied to a wrong state of facts. 

 I say to them, show j-our express 

 power to prohibit keeping bees, or any 

 other animal, or insect, for fear some- 

 body may get hurt, and I will surren- 

 der the case, and even waive the con- 

 stitutional question. There is no such 

 express power given ; that is the full 

 extent to which the decisions go. If a 

 power is expressl}' given by the Legis- 

 lature, 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 tliat, would destroy their value as 

 property, and the Court will judicially 

 know that imless the owners of houses, 

 groceries, etc., are careless in leaving 

 attractions for them, they will not an- 

 noy tliem ; and if they do so attract 

 them by carelessness, they cannot com- 

 plain. The bee, even with these at- 

 tractions, 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 Arkadel- 



