State Bee-Keepers Association. 77 



must be a nuisance, per se, like a mill-pond or slaughter-house. Many 

 things annoy and may injure, that are not nuisances and cannot be pro- 

 hibited. Bell-ringing, vehicle running, steam-whistles and railroad trains are 

 often annoying, so are privies and stables. This would not give power to 

 prohibit them, to prevent quia timet — the possibility of annoyance or injury. 

 The viciousness of this ordinance will be manifest if we keep in view the dif- 

 ference between the power to regulate and keep possessicn 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 construction of the general powers given. 

 The first is Waters vs. Leech, 3 Arkansas, 114. Thus the right to regulate 

 and license keeping of a dram-shop 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. Lindsey, 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 ^^r se, to be one — which was attempted. 

 Little Rock vs. Ward, 41 Arkansas, 527. Even the legislature cannot, by 

 declaration, make anything what it is not. 3 S. W. Rep. 425 12 Western 

 Rep. 760. II Central Reporter, 219. 



"We may sum up this result: The power to regulate does not give the 

 power to prohibit, 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 ordi- 

 nance. A city council, with full power to declare a nuisance does so at its 

 own peril. Americus vs Mitchell 5 S. E. Reporter, 201. Persons abating 

 a nuisance under a State law must show its existence. Newark and South 

 Horse Car Co. vs. Hunt, 11 Central Reporter 219. 



"In keeping with the decision of our court, to the effect that a city coun- 

 cil cannot by ordinance make that a nuisance which is not such; see the fol- 

 lowing authorities: Horr & Bemiss, Mun. Pol. Ord. Sec. 252. 24 N.J. 

 Esq., 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 exer- 

 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 dangerous 

 to life or property . This was held void in case of People vs Armstrong, by 



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