80 Ark. 333 | Ark. | 1906
This appeal questions the constitutionality of the act of the General Assembly approved April 1, 1901, entitled “An act to make lawful a certain kind of fence in certain portions of Miller County.” The first three sections are the ones under fire, and will be set out by the Reporter in the statement of facts.
The first point made is that the act is in contravention of section 18 of article 2 of the Constitution — the equal privileges and immunities clause. This contention was decided against the appellant in a similar case, State v. Smith, 71 Ark. 478.
The next point is that the act is repugnant to section 25, article 5, of the Constitution — the provision that no special law shall be enacted where a general law can be made applicable. From Boyd v. Bryant, 35 Ark. 69, to Waterman v. Hawkins, 75 Ark. 120, there has been a uniform holding that this provision is merely cautionary to the Legislature, and is not a provision en-forcible by the courts.
The next allegation is that the act violates section 8 of article 2 of the Constitution in regard to the due process of law therein guarantied, in that no public officer is provided or judicial proceeding to carry out the remedies which are authorized to be pursued. Practically the same argument is made against this clause that was made against a city ordinance in Ft. Smith v. Dodson, 46 Ark. 296. That argument was met by a quotation from the Supreme Court of Kansas, which is therein approved, as follows: “When nothing is attempted to be imposed upon the owner of the stock as damages or penalty, but only the reasonable cost of taking up, impounding and keeping the same, and suffident notice is provided for, and the ordinance authorized by the city charter, it is believed that. no court ever held the law or the ordinance founded thereon to be unconstitutional or invalid, although the sale may not be made under judicial process, although there may be no provision for a judicial investigation, except the general remedies to determine whether the law or the ordinance has been complied with, and although the notice provided for may not be a personal notice, but only a notice by publication or by posting.”
This answers every objection that is urged to this section.
Counsel attempt to differentiate the decisions sustaining the powers of cities by ordinance to impound and sell stock from the authority of the General Assembly to authorize the same in a given portion of the State, and say that, in the first place, the powers of cities is derived from section 3 of article 12 of the Constitution, and in the second place the power given to the cities and towns is an exercise of the police powers of the State, whereas the statute under consideration is not.
Section 3 of article 12 of the Constitution is a mere general delegation to the Legislature of the authority to provide by general law for the organization of cities and their classification, and incorporated towns, and restrict their powers of taxation, assessment, borrowing money and contracting debts, so as to prevent the abuse of such powers, and it does not purport to confer upon the cities any power itself, nor give the General Assembly any authority to confer greater power upon cities than it may confer elsewhere. All of the power of the State, not withdrawn by the Federal or State Constitution, rests in the General Assembly, and the fact that the General Assembly has delegated some of that power to the cities does not alter the nature of the power. These decisions, like the Dodson case and many others from other States along the same line, are decisions, not on a question of delegated power, but on a question of due process, and exactly the same reason will sustain them, whether the power is delegated to a city and exercised by it, or whether it comes from the primary source of power, the General Assembly of the State itself.
As to the second contention on this ground, that it is an exercise of the police power of the State, that depends on the definition of “police power.” Broadly speaking, the police power it all of the power of the State which has not been delegated to the general government and which is not restricted by the Constitution. While it is true that there are many definitions of that power and differentiations of the powers of the State, yet it is wholly immaterial what a power may be called, so long as it is known to exist. The General Assembly has all power for general legislation which is not delegated to the general government and which is not inhibited by the Federal or State Constitution. This is not an inhibited matter.
Judgment affirmed.
