293 S.W. 14 | Ark. | 1927
H. E. Balesh brought this suit in equity against the city of Hot Springs and the mayor and the chief of police thereof to enjoin them from interfering with him in the sale of his merchandise at auction.
According to the allegations of his complaint, which are sustained by the proof, the plaintiff is a resident of the city of Hot Springs, Garland County, Arkansas, and has been engaged in business in that city for several years. His merchandise consists chiefly of oriental goods, china, linen, antiques, and other art goods, which he disposes of, for the most part, by auction. He sells very little of his merchandise at private sale, and conducts his auction sales, for the most part, in person.
In November, 1926, the city of Hot Springs, by its city council, passed an ordinance making it a misdemeanor to sell goods, wares or merchandise by auction in the city of Hot Springs. This ordinance was passed pursuant to 7753 of Crawford Moses' Digest, which reads as follows: "Cities of the first class are given authority to prohibit or permit, under such regulations as they may determine, the sale of merchandise by auction, except judicial sales and foreclosure sales held in the daytime."
The chancery court upheld the constitutionality of the act and the ordinance based on it, and dismissed the complaint of the plaintiff for want of equity. The case is here on appeal. (after stating the facts). Counsel for the plaintiff attacks the constitutionality of the act under which the ordinance prohibiting him from selling his goods, wares or merchandise at auction was passed, on the ground that it is in violation of 2 of our Bill of Rights, which reads as follows: "All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying *663 and defending life and liberty; of acquiring, possessing and protecting property and reputation; and of pursuing their own happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." This section was substantially taken from the Declaration of Independence.
In Butchers' Union Co. v. Crescent City Co.,
"The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The eight to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright."
In Lawton v. Steele,
The business of auctioneering is a lawful and useful one, and is as old as the law of sale. 2 R.C.L., 2, pages 1116 and 1117; 6 C.J., pages 821 and 822; and 3 Am. Eng. Enc. of Law, pages 488 and 489. It is universally held that the Legislature has the power to prohibit auctioneering except through licensed auctioneers, and it may also make other regulations which are reasonable and not wholly arbitrary. Dornberg v. Spokane,
The nearest case in point to which our attention has been directed is that of Robinson v. Wood,
We have no case in this court directly on the question, but the views announced above are in accord with the reasoning in Replogle v. Little Rock,
We have not attempted to set out all the proof made in the case at bar, but there is nothing in the record even suggesting any reason for the passage of the act under consideration. We are of the opinion that the statute under consideration is an unreasonable interference with the freedom of trade, and the Legislature had no powder to pass an act prohibiting an occupation which has already been regarded as a legitimate one, although it may be made the subject of reasonable regulation under the police power of the State.
It follows that the decree of the chancery court must he reversed, and the cause must be remanded with directions to grant a permanent injunction in favor of the plaintiff, as prayed for in his complaint. It is so ordered. *666