155 S.W.2d 719 | Ark. | 1941
This case involves the constitutionality, of ordinance no. 5959 of the city of Little Rock, passed July 29, 1940, the title of which is: "An ordinance amending ordinance 5745 providing for the collection of garbage, waste, trash and refuse in the city of Little Rock, providing for inspection of premises, fixing a schedule of fees for said services, providing a penalty for the violation hereof, providing for disposition of any surplus of fees collected under this amendment, repealing all ordinances in conflict herewith, and for other purposes."
The appellant, W. A. Geurin, was convicted in the municipal court of the city of Little Rock for a violation of this ordinance. He prosecuted an appeal to the circuit court of Pulaski county where the case was tried in May, 1941, both parties waiving a jury, and agreeing to try said cause before the court sitting as court and jury. Said cause was submitted to the court upon the transcript from the Little Rock Municipal Court and upon oral evidence. After hearing the evidence and argument of counsel, the court found the defendant guilty as charged. The court affirmed the judgment of the Little *105 Rock Municipal Court and assessed a fine of $5, suspending said fine until the further orders of the court. From that judgment, this appeal is prosecuted.
It is contended by the appellant that the ordinance is void because it levies an illegal tax and makes failure to pay this illegal tax a criminal offense. Appellant states that ordinances of cities and towns depend for their validity on the authority granted by the Legislature. This is true. The Legislature, however, has granted to cities the power to prevent injury or annoyance within the limits of the corporation from anything dangerous, offensive or unhealthy. Section 9589, Pope's Digest.
This court said in the case of Bowers v. City of North Little Rock,
Questions of this kind have been before this court many times, and it has always been held that the city has the power to provide by proper ordinance for the removal, at suitable intervals, of garbage, waste, trash, and refuse. Of course, the ordinance must be reasonable.
As was said in the case of Dreyfus v. Boone,
This court, in the case of Duckworth v. State,
It would have been impossible for the city council, at the time it passed this ordinance, to have known exactly what the expense of collecting the garbage, etc., would amount to. It is the duty of the council in passing any ordinance to make a fair, reasonable estimate, and if, when it has done this, the amount collected happens to be in excess of the necessary amount, the ordinance would not for that reason be void.
Appellant contends that the ordinance is void because it provides for imprisonment for debt. We do not agree with appellant in this contention. It provides for punishment for the violation of law, just as it is provided if one is charged with false pretenses, in which *107 case he is not imprisoned for debt, but for a violation of the law.
Appellant says the ordinance imposes excessive fines and cruel and unusual punishment. It is somewhat difficult to say what punishments are cruel and unusual within the meaning of the Constitution, but certainly the ordinance here involved provides for no punishment which could be termed "cruel and unusual."
The New Jersey Supreme Court said: "In a limited sense, anything is cruel which is calculated to give pain or distress. And, since punishment imports pain or suffering to the convict, it may be said that all punishments are in some sense cruel. But, of course, the Constitution does not mean that crime for this reason is to go unpunished. On the contrary, it plainly contemplates that crime can only be effectively deterred by inflicting some sort of pain or suffering upon the convicted offender." State v. Tomasi,
"It also has been held that, while a constitutional provision prohibiting cruel and unusual punishment was intended to prohibit torture and agonizing punishment, it was never intended to abridge the selection by the lawmaking power of such kind of punishment as it deemed most effective in the suppression of crime." 24 C.J.S., Criminal Law, p. 1186, 1978.
In 15 Amer. Juris., 173, it is stated: "However, it is said that a punishment authorized by statute is never held cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community."
The question of laws passed under the police power has been before the courts of this country many times, and it would be impossible and serve no useful purpose to undertake to review all of them. This court has had occasion to pass on the question several times. Brewster v. Pine Bluff,
"The police power is as old as the civilized governments which exercise it. The states existed before the Constitution of the United States, and they possessed the police power before the adoption of that organic document. Moreover, it has been held many times that the Constitution supposes the pre-existence of the police power, and must be construed with reference to that fact. . . . Moreover, it has been said that the very existence of government depends on it, as well as the security of the social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property."
One of the most important fields of legislation that may be enacted under the police power is that of regulations in the interest of public health. If a city could not enact laws of this sort to protect the health of its citizens, any kind of disease might be permitted to spread among the inhabitants, resulting in great damage. It would be useless to undertake to review, or even collect, *109 the many authorities on this subject; but it is generally held that measures of this nature may be enacted.
It is our conclusion that the ordinance is valid, and the judgment of the circuit court is affirmed.