Carpenter v. Little Rock

Hart, J., (after stating the facts.) These two cases were submitted by consent upon the same abstracts and briefs, and considered by the court at the same time. Section 5461 of Kirby’s Digest, commonly known as the general welfare clause, gives to municipal corporations the power to make and publish such by-laws and ordinances, not inconsistent with the laws of the State, as to them shall seem necessary to provide for the safety, preserve the health, etc., of such corporations and the inhabitants thereof. Section 5648 of Kirby’s Digest provides that, in order to better provide for the public welfare, comfort and convenience of their inhabitants, certain enlarged and additional powers are conferred upon cities of the first class. Subdiv. 4 of the section authorizes such cities “to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health or safety.” The importance of securing to a community pure and wholesome food has led to the very general enactment of statutes and ordinances regulating the sale of such products. Impure and adulterated foods, especially milk and meats, are a prolific source of disease and a menace to the public health. Therefore, it is generally held that ordinances regulating the sale of milk and fresh meats are a valid exercise of the police power delegated to cities to protect health and prevent fraud. Many of the authorities on the subject are cited by counsel for appellee in their briefs, and many more will be found in the case notes to the following: St. Louis v. Messing, (Mo.) 1 L. R. A. (N. S.) 918, 4 Am. & Eng. Ann. Cas. 112; Commonwealth v. Wheeler, (Mass.) 18 Am. & Eng. Ann. Cas. 319; New Orleans v. Charouleau, (La.) 15 A. & E. Ann. Cas. 46; St. Louis v. Schuler, (Mo.) 1 L. R. A. (N. S.) 928; St. Louis v. Grafeman Dairy Co., 1 L. R. A. (N. S) 936; North American Cold Storage Co. v. Chicago, 211 U. S. 306, 15 A. & E. Ann. Cas. 276. But counsel for appellants contend that the power delegated to cities to enact such ordinances under the sections of the statute above referred to was taken away by the passage of act No. 372 by the General Assembly of 1911. The act reads as follows: “Section 1. That hereafter it shall be unlawful for any city council, member of an incorporation, corporation, city officer, or any other person either in an incorporated city or elsewhere, to hinder, or to interfere, or to impose a tax or a license, or to obstruct in any manner whatsoever, a,ny person in the selling or the offering for sale any fruits, vegetables, or any products of the farm, including meats from domestic animals or live stock. “Sec. 2. The benefits of this act shall accrue only to those who produce the above mentioned articles of produce and offer them for sale, either in person or through a legally authorized agent. “Sec. 3. All laws and parts of laws in conflict with this act are hereby repealed. “Sec. 4. This act, being necessary for the immediate peace, health and safety of the people of the State of Arkansas, is to take effect and to be in force from the date of passage. “Approved May'31, 1911.” There is no express repeal of the sections of the statutes under which the ordinances in question were passed, and repeals by implication are not favored. “To produce this result, the two acts must be upon the same subject, and there must be a plain repugnancy between their provisions; in which case the latter act, without the repealing clause, operates, to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then the latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first.” Coats v. Hill, 41 Ark. 149. It is manifest that the act of May 31,1911, does not cover the whole subject of the power of cities to prevent and regulate the carrying on of any trade, business or vocation of a tendency ■ dangerous to the morals, health or safety of the inhabitants thereof, and there is no indication that the Legislature intended to abandon the'policy of delegating to cities its police power in this respect. The question then is, is there such a manifest repugnancy between the statutes that the latter operates as a repeal of the former? It is not plain just what object the Legislature had in view when it passed the statute in question. The statute forbids the imposition of a tax or license. It was already the settled law of the State that no tax could be imposed upon an occupation; and that a license for revenue as well as regulation could not be required. Stamps v. Burk, 83 Ark. 351; Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509; Helena v. Miller, 88 Ark. 263; 96 Ark. 199. We have uniformly held that the power to regulate includes the power to license; and that the license fee demanded is not a tax upon an occupation, but a compensation for issuing the license, for keeping the record, and for municipal supervision over the business. Judge Dillon says: “To regulate is to govern by or subject to certain rules or restrictions. It implies a power of restriction and restraint certainly within reasonable limits as to the manner of conducting a specific business, and also as to the building or erection in or upon which the business is to be conducted. By virtue of the power to regulate it has been held that the city council may by ordinance prohibit the carrying on of a business within certain specified portions of the city. By virtue of a similar power, it has been held that it is within the authority of the common council reasonably to limit the manner by prohibiting one or more methods. By the weight of authority, although the decisions are not uniform, another form of regulation which may be prescribed by virtue of the power to regulate is the power to require a license to follow particular trades or occupations with an accompanying prohibition in the event of failure to procure the license.” 2 Dillon on Municipal Corporations, (5 ed.), § 665. Our own cases are cited to sustain the latter proposition. The language of the statute under consideration is “to hinder, or to interfere, or to impose a tax, or a license, or obstruct in any manner whatsoever.” We think the Legislature intended by the act to prevent municipal corporations from passing an ordinance requiring a license as a prerequisite to carrying on the business, and from hindering or obstructing the persons mentioned in the statute in the manner or method of selling their produce. That is to say, in the present case, the city could not demand a license as a means of regulating the business, and could not pass an ordinance preventing producers from going about the streets of the city to sell their products, or to otherwise limit or restrict them as to the time, place or method of making such sales. We do not think, however, that the stat-' ute took away all the powers of the city in respect to the regulation of the sale of meats and milk. It still has the power to enact ordinances to prevent or regulate the sale of impure articles of food. The purpose of the ordinances is to protect the inhabitants of the city from the sale of impure milk and meats. The city has the power to do this. As a means to the end in view, it is necessary to have proper inspection of the milk and meat before it is sold, and the fee required to be paid the inspector is not required as a license or prerequisite to the right of the seller to carry on his business, but it is to cover the cost of inspection. It is a fee for services rendered by the inspector. The charge is made for specific services rendered by the inspector to the seller, and the inspection fees are not in the nature of a license fee, as that word is used in the statute. Norfolk v. Flynn, 101 Va. 473, 99 Am. St. Rep. 918. The sections of the ordinance under which this suit is instituted are held to be valid and are severable from the other provisions of the ordinance. Therefore we have not examined and discussed all the provisions of the ordinance, and do not pass upon the validity of those not called in question by this action. In the case of Vinsant v. Knox, 27 Ark. 276, it was held that the style of the laws as provided by sec. 19, art. 5 of the Constitution is essential to the validity of an act. The act under'consideration is “Be it enacted by the People of the State of Arkansas. ” The views already expressed render it unnecessary for us to decide whether the style of laws passed by the General Assembly has been changed by the amendment to our Constitution providing for the initiative and referendum. The decree will be affirmed.