Thomas Gabriel Newman

“ The last cited is a case in point. The general law regulating governments of cities, does not give every town council, when, in their judgment, they fear that the keeping of certain kinds of property may annoy or injure, to declare it an annoyance and prohibit it. It must be a nuisance, per se, like a mill-pond or slaughter-house. ”

“ 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 per se 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 them; for personal property, wherever kept, is in law with the owner. ”

“ No such autocratic or despotic power is necessary to preserve the citizen from real harm and annoyance; and the Legislature could not prohibit the keeping of bees, and could not delegate such power under the Bill of Bights. For the right to acquire, possess, and protect 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 deprived of his life, liberty or property, except by the judgment of his peers, and the law of the land. ”

“ Many things annoy, and may injure, that are not nuisances, and cannot be prohibited. 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 difference between the power to regulate and keep possession of property, in due bounds, which power is conceded—and the power to prohibit keeping property altogether. ”

“ I say to them, show your express power to prohibit keeping bees, or any other animal, or insect, for fear somebody may get hurt, and I will surrender the case, and even waive the constitutional question. There is no such express power given; that is the full extent to which the decisions go. If a power is expressly given by the Legislature, within the Constitution, the decision of the Council, that the power should be exercised by ordinance, is final. ”

“ In the Supreme Court.
Messrs. Crawford & Crawford, attorneys for the city, argued in favor of the validity of the ordinance. Their argument may be summed up thus:
In Huckenstein’s Appeal, 70 Penn., St., 102, s. c., 10, Am. Rept, 669, supra, it was said, “If a man lives in town, of necessity he must submit to the consequences of the obligations of trades, which may be carried on in his immediate neighborhood, which are actually necessary for trade and commerce, also for the enjoyment of the inhabitants of the town.” ”

“ Unless bees, under all circumstances, however kept and tended, and in any quantities however small are per se nuisances—this ordinance cannot be sustained; for it does not regulate the quantity, or manner of keeping, or make the keeper responsible, as in case of other dangerous animals, and punishable for consequences, but assumes to destroy property in them in Arkadelphia altogether, or compel a man to leave his home and buy another, or quit his business. ”

“ The provisions of Sections 751 to 764, Mansfield, does not give the city of Arkadelphia power to take a man’s property for public use, without compensation, under the power to prevent injury or annoyance. Section 751 invests them with no such quia timet jurisdiction.
Because bees may sting or annoy, therefore we prohibit. It would follow, that because cows may gore, dogs annoy the sensitive by barking or biting, or running mad, we will also prohibit them. Because vehicles may annoy, by raising dust, or making a noise, or animals may run away in harness, therefore we prohibit them. ”

“ In the Circuit Court.
The Circuit Court convened in July, 1888, and the Hon. Sam. W. Williams, of Little Rock, was added to the attorneys for the Union. Our attorneys, Judges S. W. Williams, Witherspoon, Murray and McMillan, made a motion to dismiss the case against Z. A. Clark, because the ordinance of the city of Arkadelphia, on which the prosecution was founded, is void and in violation of law.
Then Judge S. W. Williams read section after section of law, in Z. A. Clark’s favor, showing that a man’s right to hold property is paramount to all Legislative power ”

“ 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 et seq., which recognizes fully the right to keep animals subject to responsibility (on scienter) for injuries by those known to be of vicious character. ”

“ In that case there was much more pretense for the power than there is in this case; for bees are not and the power is claimed here under the general power to prevent injury or annoyance, etc. Mansfield’s Digest, Sec. ”