Summary
closing all businesses at 10:00 p.m.
Summary of this case from Cash Inn of Dade, v. Metropolitan Dade CtyOpinion
No. 39253.
November 1, 1954.
1. Municipalities — ordinance regulating hours of private business — invalid.
A municipality cannot arbitrarily and unreasonably regulate hours of private business under guise of promoting the public health or general welfare of the community, and a municipal ordinance making it a criminal offense to operate any business establishment within corporate limits of municipality after ten o'clock p.m. in absence of showing that ordinance was necessary for preservation of good order and peace of municipality and to prevent injury to, or destruction of, public or private property was invalid. Sec. 3411, Code 1942.
Headnote as approved by Arrington, J.
APPEAL from the circuit court of Neshoba County; W.E. McINTYRE, Judge.
Clayton Lewis, Philadelphia, for appellant.
I. Cafe businesses in general as matters of public policy are not subject to municipal regulations unless the power is specially delegated. Regulations which arbitrarily interfere with freedom of trade, discriminate between residents and non-residents, or unreasonably limit hours of sale are void.
II. Any ordinance of a municipality undertaking to prohibit or abate nuisances, which extends beyond the power conferred by statute, is void. Municipalities are without authority to prohibit or abate a condition upon the ground that it is a nuisance, unless in truth and in fact it be a nuisance. Desporte v. City of Biloxi, 136 Miss. 542, 100 So. 387; Town of Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297.
III. Ordinances must be reasonably consistent with general law, and not destructive of lawful business. King v. City of Louisville, 207 Miss. 612, 42 So.2d 813; Knight v. Johns, 161 Miss. 519, 137 So. 509; Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801.
Sanford Alford, Philadelphia, for appellee.
I. Regulations by municipalities of the hours during which specified businesses may be conducted have been declared reasonable and constitutional, where there is a patent relationship between the regulations and the protection of the public health, safety, morals, or general welfare, as where the business is of such character that the public health or morals are likely to be in danger if it is carried on during the late hours of the night. It has been held that under a general grant of power in a municipal charter to regulate business houses, the municipality has the power to close such places at midnight, or earlier. Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 725; Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801; 37 Am. Jur. 960.
On October 16, 1951, the municipality of Philadelphia, Mississippi, undertook, by ordinance, to make it a criminal offense for any person, association of persons, partnerships, or corporations to operate or permit to be operated "any business establishment" within the corporate limits of the municipality after ten o'clock P.M., and imposing a penalty of not more than $100.00 and thirty days in jail, or both such fine and imprisonment, for violation of said ordinance.
The ordinance then provides that any person who desires to keep his place of business open later than ten o'clock P.M. can make written application to the mayor and aldermen for such permission, and the mayor and aldermen will determine, "in their discretion," whether the "public convenience and necessity requires the said business to remain open after said time."
Appellant operated a cafe within said city. On the night of August 11, 1953, the county fair being in progress, she kept her cafe open until 10:50 o'clock P.M. She was convicted of violating said ordinance and fined $20.00. She appeals from that conviction and sentence.
(Hn 1) She says the ordinance is invalid. In that we think she is correct. Section 3411, Mississippi Code of 1942, as amended, empowers municipalities to make all regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, or destruction of, public or private property, but it is not shown that there is any causal relationship between this sweeping ordinance and the objects set out in said section. The ordinance does not undertake, in terms, to state there is any such relationship, nor is it shown that any such exists. "A municipality has no authority, under its police power to regulate arbitrarily and unreasonably the hours of private business, conducted in a reasonable manner, under the guise of promoting the public health or general welfare of the community." 37 Am. Jur., p. 960, par. 307. This ordinance would prohibit all lawyers, doctors, and other business men keeping their offices open after ten o'clock at night. No drug store could remain open after that hour. The ordinance is void under Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801, and the principles set forth in King v. City of Louisville, 209 Miss. 612, 42 So.2d 813.
The fact that one might apply for a permit does not change the result. The ordinance itself undertakes, in affirmative terms, to charge a crime. The duty is upon the municipality to charge a crime — not upon the accused to make of himself an exception. And especially is there no duty upon a citizen, as a prerequisite to his right to conduct a lawful business, to show that "public convenience and necessity requires the said business to remain open after said time." And the power to successfully carry such a burden would seldom exist, for the ordinance expressly states that whether public convenience and necessity exist are matters with the "discretion" of the officials.
Reversed and appellant discharged.
Roberds, P.J., and Lee, Holmes and Ethridge, JJ., concur.