Hot Springs v. Curry

41 S.W. 55, 64 Ark. 152, 1897 Ark. LEXIS 26

Opinion

Hughes, J.,

(after stating the facts.) The circuit court adjudged the ■ defendant not guilty “because section 4 of said ordinance was unreasonable and void.” The ordinance was enacted in accordance with the terms of an express proviso by the act of the general assembly, in which it is provided that “they (the council) shall have power” “to regulate drumming or soliciting persons who arrive on trains, or otherwise, for hotels, boarding houses, bath houses or doctors; to license such drummers, and to provide that each drummer shall wear a badge plainly exposed to view, showing for whom, and for what he, is drumming or soliciting patronage, and to punish by fine any violation of this provision.” Sand. So H. Dig., § 5132.

“If an express power is given to a corporation to enact ordinances of a certain kind, the legislature thereby trust to the discretion of the council to determine just how far they shall go within the limits imposed; and there is every presumption that the council are not only actuated by pure motives, but that they are so familiar with the mischief to be remedied, and with defects of the prior regulations, as to be the best possible judges of the necessity for the enactment of the new law, and of the extent to which it is advisable to exercise the power granted. The council, and not the court, is the repository of this public trust, and it should be a plain case indeed to justify the latter in interfering with the determination of the council, or of questioning either their motives or the cogency of their reasons for enacting the ordinance. Surely, when an ordinance is, upon its face, purely within the terms of an express power, the court ought not to interfere on the ground of unreasonableness. It is restricted to consider the constitutionality of the act granting the power.” Horr & Bejnis, Mun. Pol. Ord. § 128.

The ordinance in question appears on its face to be valid, and there is no evidence that it is unreasonable, and unless the contrary appears on tW face of the ordinance, or is established by proper evidence, the court will presume it reasonable. Fayetteville v. Carter, 52 Ark. 312.

The ordinance does exceed the limits of the power granted by the act of the legislature. There is no pretence that the act is unconstitutional. The circuit court erred in holding section 4 of the ordinance “unreasonable and void.”

The judgment is reversed, and the cause remanded for a new trial.