Opinion
No. 37329.
November 14, 1949.
1. Municipalities — ordinances — misdemeanors.
A city has the power to pass an ordinance making any act which amounts to a misdemeanor under State laws, an offense against the municipality.
2. Municipalities — ordinances — fireworks.
The statute which prohibits the explosion of fireworks in any unincorporated town or village within 300 yards of a railroad depot, cotton or hay warehouse or cotton yard has no application to incorporated municipalities.
3. Municipalities — ordinances — misdemeanors — unreasonable — no State statute.
A municipal ordinance making an act an offense against the municipality is invalid when it is unreasonable and no State statute makes the act an offense against the State.
4. Municipalities — ordinances — power to adopt — limitations upon.
Municipalities have only such authority to adopt ordinances as is granted by the State, and in every such power there is an implied restriction that the ordinances shall be reasonable, consistent with the general law and not destructive of a lawful business.
5. Municipalities — lawful business — merchant having fireworks for sale.
A merchant having fireworks in his possession or control for sale is engaged in a lawful business.
6. Municipalities — delegated powers, how exercised.
The powers delegated to municipalities by statute are to be exercised in conformity to, and consistent with the general laws of the State and are to be construed most strongly against a power or right claimed but not clearly given, and an ordinance prohibiting a properly conducted lawful business, the subject of a license tax, is void.
7. Municipalities — ordinances — regulation — prohibition.
Statutes which permit the regulation of various sorts of lawful business do not authorize the prohibition of such business in such manner as to destroy it, regulation being one thing and prohibition another thing entirely.
8. Municipalities — ordinance prohibiting keeping of fireworks for sale, void.
An ordinance which makes it unlawful for any person to sell, barter, exchange or give away fireworks, such as firecrackers and the like, or to have the same in his possession or under his control within the municipality is void.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Winston County; J.P. COLEMAN, Judge.
J. Hoy Hathorn, for appellant.
Quoting from the case of Knight, Chief of Police v. Johns, 161 Miss. 519, 137 So. 509, wherein our court had before it the question of the source and extent of the power of a municipality to pass an ordinance as well as the requirement of reasonableness, we find the following quotation, to-wit:
"Municipalities have only such authority to adopt ordinances as is expressly or impliedly given them by the State, and we are referred to no statute under which they are authorized to regulate hours of labor; but assuming, for the purpose of the argument, that they have the authority so to do, this ordinance cannot be upheld thereunder. 'Into every . . . power given a municipality to pass by-laws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general law, and not destructive of a lawful business.' Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526, 527, 19 L.R.A. (N.S.) 637, 19 Ann. Cas. 103."
Appellant submits that there are only three statutes under which the appellee could contend that authority for the passing of such an ordinance, as is here involved, was granted to the City of Louisville, Mississippi, and those sections are as follows: Section 3411, Code 1942, which is the general police power granted to municipalities; Section 3435, Code 1942, which is the general authority granted to municipalities to control fires; and Section 3447, Code 1942, further granting the municipality certain powers to regulate fire hazards.
Appellant urges that Section 3411 does not authorize municipalities to prohibit the possession, sale, etc. of fireworks in the exercise of the police power granted under this section. In this connection, we urge that the possession, sale, etc. of fireworks is recognized in our State as being a lawful act, and one for which our State law exacts a privilege tax therefor, being Section 9696-77, Code of 1942. We, also, urge that the possession, sale, etc. of fireworks is neither per se nor per accidens a nuisance. We insist that under the authority of this section the City of Louisville, Mississippi, at the most could only have authority to regulate the possession, storage, sale, etc. of fireworks, and then some justification for such regulation would have to be shown to exist.
Our court has passed on the proposition wherein the distinction has been made in the authority to regulate as having been taken by the municipality to have meant the power to prohibit, and in the case of Dart v. City of Gulfport, 147 Miss. 534, 113 So. 441, wherein this court passed on a very similar question involved in a zoning ordinance.
And next in order, Section 3435, we note that the authority granted under this section deals specifically with fire districts within a municipality and to establish fire departments, systems and to regulate such established systems, to regulate and establish certain districts within the municipality, and to regulate the storage of combustible materials within such limits, and to regulate certain manufacturers engaged in manufacturing products causing fires or being injurious to health, etc., and authorizing the employment of personnel to administer the regulations established. We note in consideration of this section, that all of the authority granted thereunder is to regulate and certainly no authority therein is granted to declare the entire corporate limits of the City of Louisville, Mississippi, to be a fire district or that the possession, etc. of fireworks would be injurious to health or safety of the citizenship in the entire city limits of the City. We, therefore, urge that under the authority of the case of Dart v. City of Gulfport, supra, the power to prohibit could not have been inferred from the authority granted under this section by the most weird stretch of our imagination.
And next in order, Section 3447 deals with combustible and inflammable materials therein specifically enumerated, but under which section, we frankly admit, that fireworks would fall as one of the items intended to have been covered by such statute. In this connection, however, we call the court's attention to the specific verbiage of the statute, "to regulate", and certainly for the reason given under the two preceding sections of the Code, and under the authority of the construction of such statutes by our court in the case of Dart v. Gulfport, supra, and in the case of Johnson v. Town of Philadelphia, 94 Miss. 34, 47 So. 526, and Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, no power to prohibit the possession, sale, etc. of fireworks in the entire corporate limits of the City of Louisville, Mississippi, was granted by this section.
In connection with and in consideration of the above three sections of the Code and under which all of the authority granted to the appellee to control the commodity here undertaken to be controlled is granted, we call the court's attention to the verbiage of the ordinance itself, wherein the Mayor and Board of Aldermen of the City of Louisville, Mississippi, undertook to make it unlawful for any person, firm or corporation to sell, barter, exchange, or give away, or to have in his, her, or their possession or under his, her or their or its control firecrackers, etc; that under such an ordinance, if valid, every youngster would be branded as a criminal having in his possession fireworks on the 4th of July or on any of our other holidays that we may righteously or unrighteously celebrate with fireworks. Certainly the Legislature in passing the sections above referred to did never so intend that entirely within the corporate limits of the municipalities of our State that the possession of fireworks would be made a criminal act. We, therefore, respectfully urge that said ordinance is invalid, palpably so; that there is no authority granted by statute to municipalities to prohibit the possession of fireworks in a municipality either for the prevention of fire, protection of human life, safety or health; we frankly admit, however, that boards in the exercise of sound discretion might be justified in regulating the possession, sale, storage, etc. of such explosives within certain areas or within close proximity to such designated areas as might be likely to cause fire, injury to health, or to endanger the safety of the inhabitants of such municipality, but respectfully submit that a municipality undertaking to prohibit entirely within its corporate limits the possession of such fireworks, goes far beyond the intent and purview of the statute and far beyond the intent, purview, and purpose the Legislature had in mind at the time of the passing of such statute.
In presenting the second assignment of error on the unconstitutionality of the ordinance involved, although we are frank to admit that we think the case hinges on the argument presented in support of our first assignment of error, and that the constitutionality of an ordinance or statute would not be passed on by this court unless necessary in the determination of said cause, yet in view of the palpable trespass upon the due process clause of our constitution, and in being an unreasonable and unlawful restraint of trade, we respectfully urge that for said reasons the ordinance herein involved is unconstitutional and unauthorized and falls clearly within the category of violating rights and privileges belonging to the citizens and not intended to have been usurped by any municipality, our State or Federal Government.
We call the court's attention to the case of Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801, wherein this court had before it the question of the rights of a municipality to pass an ordinance designating the closing hour of business houses therein at a certain hour, with certain exceptions, under the exercise of its police power, and wherein the court held that the language of the ordinance exceeded the authority of the statute, and constituted an unwarranted exercise of the power conferred upon a municipality, and resulting in the deprivation of the property rights of the citizens thereof without due process of law, and further that said ordinance was an unreasonable restraint of trade, not per se or per accidens a nuisance.
We, therefore respectfully urge that the ordinance appealed from is invalid, void on its face, in that it exceeds the authority granted to municipalities in such cases; that said ordinance is unconstitutional in that it is an unreasonable and unwarranted restraint of trade; that it deprives the appellant, and other citizens, of valuable property rights without due process of law, and that the possession, sale, etc. of fireworks being recognized by our State as a lawful act or business is not per se or per accidens a nuisance, and in fact no condition is even alleged in the ordinance itself undertaking to establish such fact as a reason or basis for the enactment of such an ordinance.
Strong Smith, for appellee.
We have been unable to find any decisions of our Supreme Court directly in point, however, we would like to direct the court's attention to the case of Hartman v. May, decided by the Supreme Court and reported in 168 Miss. 477, 151 So. 737, 93 A.L.R. 1408, where this court, in discussing the authority of municipalities to enact ordinances under the police power, said: "In the exercise of the power and authority granted to make regulations to secure the general health, and prevent the introduction and spread of contagious or infectious diseases, much must be left to the judgment and discretion of municipal authorities, and the presumption is in favor of the reasonableness and propriety of regulations enacted in pursuance of such grant of power."
We think the case of Chappell, et al. v. City of Birmingham, decided by the Supreme Court of Alabama and reported in 181 So. 906 is directly in point and authority for appellee's position, here.
In that case, the City of Birmingham passed an ordinance prohibiting the keeping, storing, using, manufacturing, sale or handling of fireworks within the City of Birmingham or within three miles of the city limits of said City. Chappell and others filed a bill against the City of Birmingham to enjoin the enforcement of said ordinance, contending that said ordinance was invalid. The Supreme Court of Alabama, in holding said ordinance to be a valid exercise of the police powers of the City, on page 907, said: "In the exertion and application of the police power there is to be observed the sound distinction as to useful and harmless trades, occupations and businesses and as to businesses, occupations and trades recognized as hurtful to public morals, public safety, productive of disorder or injurious to public good. In applying it to the class last mentioned it may be exerted to destroy. Western Union Telegraph Co. v. City of Decatur, 16 Ala. Appl. 679, 81 So. 199; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L.R.A. 209, 110 Am. St. Rep. 43; Tiedeman's Limitations of Police Power, 273, 277, 278.
"It is a matter of common knowledge, of which the courts take notice, that the press at large, and especially health and medical journals, have for years agitated the prohibition of the sale and use of fireworks in pyrotechnical display in the celebrations of holidays, for sound reasons; also matters of common knowledge, that such indiscriminate use results in economic waste, encourages extravagance in the young, constitutes a menace to the life, limb and health to the users and their associates, increases the hazard and loss by fires, and constitutes a common public nuisance, which should be prohibited by law.
"We entertain no doubt, therefore, that it was and is within the competence of the municipality, acting through its legislative body, to ordain, establish and enact the ordinance in question, under the police power, as a measure of public safety, public health and economy, and its enactment does not impinge the provisions of #89 of the Constitution of 1901."
The appellant in his brief takes the position that the fact a privilege tax is imposed by the Privilege Tax Laws of the State of Mississippi on fireworks, bears out his contention that the ordinance is void.
We do not believe that the fact that the State Privilege Tax Code levies a privilege tax upon the sale of fireworks could be of any comfort to the appellant in this case. Section 9676 of the Code of 1942 provides: "Unlawful business not legalized. — The issuance of a privilege license, or the payment of a tax required therefor, shall not make lawful any business, employment, transaction, article or device, or the operation thereof, contrary to any statute of this state, or any ordinance of any municipality thereof."
Section 9696-215 provides: "Unlawful business not legalized — The issuance of a privilege license, or the payment of a tax, required therefor, shall not make lawful any business, employment, transaction, article, or device, or the operation thereof, contrary to any statute of this State, or any ordinance of any municipality thereof." See Atkins v. State, decided by the Supreme Court of Mississippi and reported in 178 Miss. 804, 174 So. 52.
The Board of Mayor and Aldermen of the City of Louisville adopted the following ordinance:
"Section 1. Be it ordained, by the Board of Mayor and Aldermen of the City of Louisville, Mississippi, that it shall be unlawful for any person, firm, or corporation to sell, barter, exchange or give away or to have in his, her, or their possession or under his, her, their or its control firecrackers, roman candles, torpedoes, sky-rockets, or any other explosives commonly called fireworks within the City of Louisville, Mississippi.
"Section 2. Be it further ordained, that any person, firm, or corporation violating any of this ordinance, shall upon conviction thereof, be punished by a fine of not less than $50.00 nor more than $100.00 or by imprisonment in the city jail not less than 10 days nor more than 30 days, or both such fine and imprisonment."
Appellant, a merchant of the city who, among other things, dealt in fireworks in the City of Louisville, was arrested on an affidavit charging violation of this ordinance, in the following language: "C.E. King did wilfully and unlawfully have in his possession and under his control firecrackers, roman candles, explosives, commonly called fireworks in the City of Louisville, Winston County, Mississippi, against the ordinances of the City of Louisville, State of Mississippi."
He was tried and fined in the Mayor's Court, and upon appeal to the Circuit Court was convicted, and again fined, and has appealed here. There is an agreed statement of facts in the record: that the procedure in the passage of the ordinance was regular; that appellant did have in his possession and under his control in his place of business in the City of Louisville, on the date named in the affidavit, and exhibited therein for sale, firecrackers, roman candles, and explosives commonly called fireworks; that the city contends the ordinance to be a valid, binding and legal ordinance and a reasonable regulation of police power in the prevention of fire hazards, and in controlling of nuisances, and is proper under the police power of the City of Louisville, and that the defendant presents his motion to quash to the Court.
In an opinion dictated into the record by the trial judge, he said: "The city claims only that the defendant had these fireworks in his possession. Therefore, the whole case turns on whether or not the City of Louisville has the constitutional power as an incorporated municipality to prohibit all possession of firecrackers and roman candles within the municipality. If this ordinance is unconstitutional clearly the defendant should be acquitted. If it is constitutional, the defendant admits that he did have the fireworks in his possession."
Thereupon, the court overruled the motion to quash, accordingly, and fined the appellant as stated, supra. However, the ordinance was attacked on other grounds than its lack of constitutional sanction. Among such grounds are, that the affidavit does not charge an offense punishable by the City of Louisville; that the City of Louisville does not have the authority to pass an ordinance prohibiting the possession, sale, etc. of fireworks; that the ordinance, in undertaking to outlaw the possession, sale, etc. of fireworks is void on its face for the reason that the possession, sale, etc. of fireworks is not per se a nuisance; the possession, sale, etc. of fireworks being recognized by statute as being lawful in this state, the said municipal authorities were without authority to prohibit the possession, sale, etc. of fireworks; and, that such ordinance is not authorized by statute, either Section 3447, Code 1942, or any other section, granting municipalities authority in this connection.
Section 3411, Code 1942, is the statute authorizing the municipalities to adopt "ordinances prohibiting within the corporate limits the commisson of any act which amounts to a misdemeanor under the laws of the state." This statute further provides that a municipality may make all needful police regulations (italics supplied) necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property; to regulate or prohibit (italics supplied) any mill, laundry or manufacturing plant from so operating whereby the soot, cinders, or smoke therefrom, or the unnecessary noises thereof, may do damage to or interfere with the use or occupation of public or private property. It is to be noted that this section of the Code permits only two kinds of prohibition, one against mills, laundries, and manufacturing plants, in the instances enumerated, and the other against commission of state misdemeanors in the city limits adopted by ordinance as also misdemeanors against the municipality. We have held that (Hn 1) a city has power to pass an ordinance making any act amounting to a misdemeanor, under the state laws, an offense against the municipality. Rosetto v. City of Bay St. Louis, 97 Miss. 409, 52 So. 785; Richards v. Town of Magnolia, 100 Miss. 249, 56 So. 386.
This state has no statute, which we have been able to find, or which has been called to our attention, which makes it a misdemeanor for "any person, firm, or corporation to sell, barter, exchange or give away or to have in his, her, their possession or under his, her, their, or its control firecrackers, roman candles, torpedoes, sky-rockets, or any other explosives commonly called fireworks." (Hn 2) The only statute in the Code dealing expressly with prohibition of fireworks is Section 2156, Code 1942, which provides that it shall be unlawful to explode any "firecrackers, roman candles, sky-rockets or any kind of fireworks in any unincorporated town or village (italics supplied) in this state, within three hundred yards of any railroad depot, and cotton or hay warehouse or any cotton-yard." A violation is made a misdemeanor. Obviously, this statute does not justify the ordinance of the City of Louisville under consideration before us. Louisville is an incorporated municipality. Even the foregoing section does not prohibit sale or possession of fireworks altogether, but only regulates their explosion within certain areas of the unincorporated town or village. It is to be borne in mind that the ordinance in the case at bar absolutely prohibits the sale, possession, or control of fireworks by any person, firm, or corporation throughout the municipality.
The assignment of errors on the appeal claims that the trial court erred in holding the ordinance valid; erred in pronouncing it constitutional; and erred in finding appellant guilty. On the issue of constitutionality, the case of Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801, is cited by appellant, but appellee does not discuss the matter. Since in our opinion the (Hn 3) ordinance is invalid for the reason that it is unreasonable, and is not authorized by any state statute making the offense therein described a misdemeanor against the state, we avoid the necessity of decision of the constitutionality of the ordinance.
Let us first consider the question, is this ordinance a reasonable exercise of authorized municipal police power? (Hn 4) Municipalities have only such authority to adopt ordinances as is granted them by the State. In determining this matter, we have held that "'Into every . . . power given a municipality to pass by-laws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general law, and not destructive of a lawful business.' Johnson v. Town of Philadelphia, 94 Miss. 34, 47 So. 526, 527, 19 L.R.A., N.S., 637, 19 Ann. Cas. 103." Knight, Chief of Police v. Johns, 161 Miss. 519, 137 So. 509, 510.
(Hn 5) Is a merchant, having fireworks in his possession or under his control, for purposes of sale, engaged in a lawful business? We think so for two reasons, first, no state law prohibits it; and, second, a privilege tax is levied thereon by Section 9696 — 77, Code 1942, which supersedes Section 9508, Code 1942. The appellee argues that this is insufficient to make it a lawful business because of Section 9696, Code 1942, as brought forward in supplement as Section 9696 — 215. The latter provides that, "The issuance of a privilege license, or the payment of a tax required therefor, shall not make lawful any business, employment, transaction, article or device, or the operation thereof, contrary to any statute of this state, or any ordinance of any municipality thereof." In support of this contention, appellee cites the slot machine case, Atkins v. State, 178 Miss. 804, 174 So. 52. However, the opinion of this Court pointed out that under Section 821, Code 1930, it was unlawful to operate any slot machine or similar devices, the one involved in that case being adjudicated to be a gambling device. There is no state law prohibiting possession of fireworks, and there is no municipal ordinance of the City of Louisville prohibiting same, unless we uphold the ordinance set out, supra, which we have stated we could not do.
Moreover, appellant cites Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518, dealing with the then operation of billiard tables and poolrooms, wherein we held that such operation was not wrong per se; and by Section 3778, Code 1906, was made the subject of a license or privilege tax; and, therefore, Code 1906, Section 3340, giving municipalities power to regulate and suppress them, authorized their prohibition only when so conducted as to become a nuisance, even though Section 3893 did provide that the payment of a license or privilege tax shall not legalize any business. Furthermore, we there declared that (Hn 6) powers delegated by the Legislature to municipalities are intended to be exercised in conformity to, and consistent with, the general laws of the State, and are to be construed most strongly against a power or right claimed but not clearly given, and an ordinance prohibiting a properly conducted lawful business, the subject of a license tax is void. See also Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297, 12 L.R.A. 528, 24 Am. St. Rep. 281; Ex Parte O'Leary, 65 Miss. 80, 3 So. 144, 7 Am. St. Rep. 640; City of Jackson v. Newman, 59 Miss. 385, 42 Am. Rep. 367; Knight, Chief of Police v. Johns, 161 Miss. 519, 137 So. 509.
Volume 37, Am. Jur., Municipal Corporations, Section 165, states that, "Applying the principle specifically, it has often been held that a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized, permitted, or required, or authorize what the legislature has expressly forbidden." In the case of City of Amory v. Yielding, 203 Miss. 265, 34 So.2d 726, we held that a municipality by ordinance cannot validly expand or contract the application of a statute defining a misdemeanor. It is constantly to be borne in mind that this ordinance makes a municipal misdemeanor out of something which is not so classed by any state statute, and hence not authorized by Section 3411, Code 1942, granting municipalities power "to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state."
(Hn 7) This ordinance, furthermore, is not a regulation, but a city-wide prohibition of a lawful business. Appellant claims it is authorized by Section 3435, Code 1942, which authorizes ordinances for prevention and extinguishment of fires. An examination of this section reveals it is regulatory, and makes no reference to fireworks. Or by Section 3447, Code 1942, governing municipal regulations to prevent fires. This latter statute grants a city the power to " regulate the storage of powder, pitch, turpentine, resin, hemp, hay, cotton, and all other combustible and inflammable materials . . ." (Emphasis ours.) The ordinance before us regulates nothing, but prohibits a legitimate business. The basic ingredient of fireworks is "powder", but that is only a part of the completed article, and even in dealing with the highly explosive commodity, "powder", the legislature has seen fit to empower only municipal regulation of storage. Appellee also relies on Section 3401, Code 1942, dealing with municipal regulations regarding general health, and to prevent, remove and abate nuisances. Since the Legislature has not prohibited the possession of fireworks, they are not mala prohibita, and since of themselves alone they are harmless, they are not mala in sese, we think the foregoing statutes do not authorize this prohibitory ordinance. Prohibition is not regulation but destruction. We said in Moore et al. v. Grillis, 205 Miss. 865, 39 So.2d 505, 509: "Regulation, it seems to us, is one thing, but prohibition of doing a thing, thereby eliminating the practice to be regulated, is another thing entirely."
Appellee cites Chappell, et al. v. City of Birmingham, 236 Ala. 363, 181 So. 906, wherein the Alabama Supreme Court is in apparent disagreement with us, but basing our opinion upon the Mississippi authorities to which we have referred above, we adhere to our views. In our discussion of regulation, as distinguished from prohibition, we are not to be taken as thereby forecasting what view we will take as to any ordinance, other than the one now before us.
(Hn 8) We hold that this ordinance is void, because it is not in conformity to, and consistent with, the general law of the state; is unreasonable; and prohibits (so far as this record shows) a properly conducted lawful business, the subject of a license tax. Crittenden v. Town of Booneville, supra.
We are therefore constrained to reverse the judgment of the circuit court and discharge the appellant.
Reversed and appellant discharged.