(dissenting). It seems to me that the reasoning of the opinion of the majority defeats the very conclusions reached. The council of a municipality is its legislative body, and, when acting within the authority and control conferred by the sovereign law making power, the exercise of its functions is as far beyond judicial interference as that of any’ other legislative body. We cannot question the motives of the law-makers. That is conceded. The city council possessed authority from the General Assembly of the State to enact an ordinance on the subject with which there was an attempt to deal. That, too, is conceded.
The ordinance undertakes to define what shall constitute the character of building, in plan of construction and material, which, in the judgment of the legislative body, will be reasonably- safe for the purpose for which it is to be used. The council exercised its judgment and ■discretion in determining what would constitute a reasonably safe building. The majority say that courts will not attempt to control the discretion of the council. Yet that is precisely what the court has done. It has substituted its judgment and discretion for that of the city council.
But it is said that the council attempted to define a fireproof building by providing merely for certain materials for the floors, ceiling and inside walls, and that this requirement does not make such a building wholly fireproof — that a building of a different construction, might be completely fireproof and still not conform to the requirements of this ordinance. Those are the only reasons given in the opinion for declaring the ordinance unreasonable and Void. The substance and effect of the ruling is, therefore, that the effort of the city council to provide for fireproof building must be declared abortive because such a building is not wholly fireproof, and that because the protection given from fire is not absolute the effort to give a certain measure of protection entirely fails. I cannot agree to such a process of reasoning. To do so is to disregard the judgment and discretion of the law-makers and substitute our own. Nor is it any sounder to say that the ordinance is void because a fireproof building can be constructed of other kinds of materials not in conformity with the requirements of the ordinance. The city council deals with the subject in a practical way with reference to the character of construction ordinarily in use. It does not deal with exceptional .cases. Some other kind of fireproof construction might be thought of, but that does not defeat the will of the law-makers in determining what will constitute a requirement which will afford reasonable protection. A police regulation is not defeated merely because a better way of correcting the evil might be discovered.
In delivering the opinion of the Supreme Court of the United States in the case of Ozan Lumber Company v. Union County National Bank of Liberty, 207 U. S. 251, Mr. Justice Peckham very appropriately said: “It is almost impossible, in some matters, to foresee and provide for every imaginable and exceptional case, and a Legislature ought not to -be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general' classification, and thereby denies to any person the equal protection of the laws. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things.” We have given expression to the same thought in some of our own decisions. Williams v. State, 85 Ark. 464; St. Louis, Iron Mountain & Southern Ry. Co. v. State, 102 Ark. 205.
There are many decisions of this court holding steadily to the view that when city councils act within the orbit of their legitimate general authority their acts cannot be declared to be void merely because the courts differ as to the propriety of the given regulation. It is sufficient to cite the following as settling the law so far .as applicable to the case now before us: Hot Springs v. Curry, 64 Ark. 152; Little Rock v. Reinman-Wolfort Co., 107 Ark. 174; Pierce Oil Corporation v. Hope, 127 Ark. 38.
It seems to me that the last case cited above goes much further in sustaining the authority of a city council than is necessary to go in the present case in order to uphold the validity of the ordinance now under review.
The Supreme Court of the United States in the case of Reinman v. Little Rock, which went up from this court (237 U. S. 171) laid down very clearly the rule which should govern in such cases as follows: “While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the law-making power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular' district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment. ’ ’