XH© aMERIC^RJH BEE JOURrfRXr. 



409 



•"^' n> * -^^^^^Aat^ A^i A^lA^^ 



phia — in perfect order and cleanliness, 

 having no superiors — no boo visits a 

 private liouse tliere ; 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 sharplj- with somebody ? 



The power given cities ;uust harmo- 

 nize 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 ])ublic, 

 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 tlie power be derived 

 from the powers contained in Mans- 

 field'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 verj' 

 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. 

 Dillon on Mun. Corp. Sec. 261. Horr 

 & Bemiss, Sec. 252, last paragraph. 

 Emmett vs. Council Blufl's,46 Iowa, 66. 

 Pve vs. Peterson, 45 Texas, 312. State 

 vs. Matt, 61 Md., 292. Davis vs. Clif- 

 ton, 8 N. C. C. P. 236. Horr&Bemiss, 

 Sec. 144. 



The power cannot be given in gen- 

 eral terms to abate that whicli comes 

 under the general definition of a nui- 

 sance, in advance of a judicial de- 

 termination. 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 propertj- in the 

 citj- 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 j)erse 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 



tliem ; for personal property wherever 

 kept is in law with the owner. In 

 Harvey vs. Dewood}-, 18 Arkansas, 

 252 ; where the Mayor and other town 

 officers were sued in trespass for tear- 

 ing down an old house which the 

 owner had permitted to remain vacant 

 and (ipen, and to lie used as a privy, 

 until it became unlioalthful and danger- 

 ous, 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 Arkadelplfia try to 

 gather comfort from this ease, but it 

 would be parallel if the Des Arc Coun- 

 cil had passed an ordinance requiring 

 all wooden houses to be torn down, 

 without regard to condition or occu- 

 panc}', or compensation to the owner. 

 We would then have a case like the 

 sweeping ordinance prohibiting bees, 

 and requiring the removal for the pub- 

 lic good, without compensation. Would 

 a plea setting up an ordinance requir- 

 ing all wooden buildings to be de- 

 stroyed, have protected the officers in 

 the Dewoodj" case ? 



I shall not attempt to follow the 

 learned counsel, or review their au- 

 thorities ; as far as they have an}- bear- 

 ing on the case, tliey sustain my posi- 

 tion : 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 prop- 

 erty 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. Mansfield's Digest, Sec. 

 2,835. 



I suppose, as no point is made in 

 argument upon the motion of appel- 

 lant to dismiss the appeal, that it was 

 tliought to be unnecessary to argue it. 

 Cardon's testimony was taken upon 

 that motion, to prove merely that an 

 appeal was in factpr.ayed, and to make 

 him amend his transcript, and the 

 Court overruled the motion to dismiss 

 the appeal. 



Appeals from Mayor's Courts regu- 

 lated by Mansfield, Sec. 2,432, 2,435, 

 2,436, required nothing but a bond ; 

 Tcrnn ex parte. 41 Ark., 194, the juris- 

 diction 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 tlie bond, as the pro- 

 ceeding was criminal. 



It is desired that the Court pass upon 

 the question, however, for the profe.*- 

 sion 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 ditiers from the mode 

 of appeal in criminal cases. I submit 

 that when the IMayor sits in a misde- 

 meanor 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 accord- 

 ing to Sections 4,134, 4,135. 



[For editorial remarks on the fore- 

 going Argument, see page 403. — Ed.] 



UNSEALED BROOD. 



To Prevent the Swarms from 

 Decamping. 



TF?-fffe7i for the American Rural Home 



BY G. M. DOOLITTLE. 



Will unsealed brood prevent swarms 

 from decamping ? is a question often 

 asked, and one which is often an- 

 swered in the affirmative. I claim that 

 it will, under certain conditions, while 

 under other conditions it is no preven- 

 tive whatever, but, on the contrary, 

 rather increases the tendency of 

 swarms to decamp. Since this plan of 

 giving unsealed brood — to make 

 swarms stay in the hive in which they 

 were put — was given to the public, I 

 have closely watched tlie bee-papers 

 for reports, and I find that more re- 

 ports are given of swarms going away 

 where brood is so given, tlian of those 

 where the writer thought that the 

 brood helped his swarms to stay in the 

 hives that they were hived in. 



Previous to' 1871, I had never clip- 

 ped any of my queens' wings, and I 

 was often fearful that my new swarms 

 might desert the hives that they were 

 pla'ced in. During the spring of that 

 year, I read that a frame of unsealed 

 brood placed in the hive at the time of 

 hivin"', was a sure preventive of a 

 swarm's decamping. This was read 

 with enthusiasm, as here was a plan 

 by which my fears could be entirelj- 

 removed. Consequently, when my 

 first swarm issued, I hastened to get a 

 frame of brood in all stages which also 

 contained .some honey to start tlicni in 

 housekeeping, as Elisha Gallup, that 



