84 Ark. 552 | Ark. | 1907
The town of McNeil passed an ordinance making it unlawful for any person to drum or solicit customers for any hotel, boarding-house, restaurant or hack-line upon the depot platform belonging to the railroad company while passenger trains were stopping there. The ordinance will be set out in the statement.
The evidence shows that, prior to the enactment of this ordinance, there had been serious annoyance to the traveling public by haclcmen and hotel porters gathering at the steps of the train coaches and importuning passengers alighting therefrom. Whether this conduct had become dangerous or a public nuisance is not certain, but it is certain that it was a serious annoyance to the- traveling public and the railway employees, and to remedy the mischief the ordinance in question was passed. Trains only stop at this town from two to five minutes, and the ordinance only covers this period of time. Therefore it can not be considered a prohibition of a lawful business and offensive to the rule announced in Thomas v. Hot Springs, 34 Ark. 553.
Section 5438 of Kirby’s Digest confers upon citiés and incorporated towns the power “to regulate drumming or soliciting persons who arrive on trains, or otherwise, for hotels, boarding houses, bath houses or doctors.” Section 5454 impowers them “to regulate all carts, wagons, drays, hackney coaches, omnibuses and ferries, and every description of carriages which may be kept for hire, and all livery stables,” and “to regulate hotels and other houses for public entertainment.” Under these powers, the municipality had the right to pass the ordinance in question. Fayetteville v. Carter, 52 Ark. 301; Hot Springs v. Curry, 64 Ark. 152. And the power conferred and exercised is- not obnoxious to, or an interference with, any common right, but is a proper exercise of the police power, and is universally sustained. McQuillin on Municipal Ordinances, § § 28, 184; St. Paul v. Smith, 27 Minn. 364; Veneman v. Jones, 118 Ind. 41.
The fact that the .platform upon which they were forbidden to solicit customers at this interval was the property of the railroad company does not affect the power. McQuillin says: “Ordinances regulating iiackmen, etc., while they are in and about landings, depots and stations, are valid, although the property of such places is not that of the city, or, strictly speaking, public property of any kind.” McQuillin on Municipal Ordinances, § 28.
The deputy town marshal made affidavit charging the appellant with having violated the ordinance in question, and it was insisted in the mayor’s court, in the circuit court, and here, that the action should have been dismissed because the prosecutor did not make bond for costs as required by section 2476 of Kirby’s Digest. The question is, whether said section applies 'to actions for violations of town ordinances in municipal courts. A similar question was twice before the Supréme Court of Illinois, and each time it was held that such a statute did not apply to prosecutions for violations of municipal ordinances. Lewiston v. Proctor, 23 Ill. 533; Quincy v. Ballance, 30 Ill. 185. McQuillin says: “Violations of municipal police regulations are not usually regarded as crimes, as that term i’s used in our law.” McQuillin on Municipal Ordinances, § 333.
The whole statute on this subject (sections 2476-80) shows that it is intended for prosecutions under the criminal laws of the State. There is nothing in its terms to support the theory that it applies to prosecutions for violations of municipal ordinances, and it can not be extended to them by analogy or construction. Violations of municipal ordinances are only quasi crimes, and the distinction between them and violations of the State’s criminal laws may be found in McQuillin, Municipal Ordinances, § 333; 1 Dillon, Mun. Corp. (4 Ed.), 411, 412.
Appellant objects to certain instructions given, -and to the refusal to give certain instructions asked by him; but he fails to set out in his abstract the instructions sought to be reviewed. As stated by Chief Justice Cockrirr in Koch v. Kimberling, 55 Ark. 547: “His exception on that score has not impressed him as being serious enough to require him to point out the error by setting out the prayers in his abstract in accordance with the rules. We therefore take it as a waiver of the objection:” See also similar applications of the same principal in Shorter University v. Franklin, 75 Ark. 571; Carpenter v. Hammer, 75 Ark. 347.
Judgment affirmed.