dissenting. I agree with the majority’s conclusions that municipal corporations may, under the police power, legislate for the protection of the public health and may also regulate lawful businesses that pose the possibility of harm. However, I strongly disagree with the determination that the Town of Oak Grove, and other towns and cities, can prohibit such businesses when a rational basis can be shown for the deprivation. In truth, what the majority’s decision has accomplished is nothing short of sending out a loud message that if municipalities want to get rid of what they wish to label an undesired activity, all they have to do is couch it in commercial terms. The message is wrong and its long-term consequences can lead to pernicious future municipal legislation.
The majority concedes that this court has often repeated the rule that a business, lawful in itself and not a nuisance per se, may be regulated but not prohibited. See Hackler v. City of Fort Smith, 238 Ark. 29, 377 S.W.2d 875 (1964) (citations omitted). However, the majority states that we have never applied this rule rigidly, since we have always analyzed ordinances that purport to prohibit lawful businesses under rational-basis review. The majority then cites many cases which it argues support this proposition. All of these cases, however, are factually distinguishable from the instant case, and instead they show the flaw in the majority’s logic. For example, in City of Morrilton v. Malco Theatres, Inc., 202 Ark. 100, 149 S.W.2d 55 (1941), we said that the power of the city council extended only to the right to regulate reasonably and did not include the power to prohibit the Maleo Theatres, or others, from conducting its lawful business. (Emphasis added.) Even more persuasive, this court in City of Morrilton added that the power to prohibit a lawful business has not been conferred upon municipalities. Id. Also, in Goldman & Co., Inc. v. City of North Little Rock, 220 Ark. 792, 249 S.W.2d 961 (1952), while we did uphold the regulatory ordinance in question after applying the rational-basis test, the ordinance did not go so far as the one we are presented with today.
In addition, the two cases given in support of the conclusion that prohibition of businesses will be tolerated in this state are also distinguishable. In Piggott State Bank v. State Banking Bd., 242 Ark. 828, 416 S.W.2d 291 (1967), the power to prohibit was specifically supported by statute and was a mere continuation of the authority to regulate the banking business. And in Wometco Servs., Inc. v. Gaddy, 272 Ark. 452, 616 S.W.2d 466 (1981), the ordinance was actually struck down on constitutional grounds — the restriction in question found to have gone too far.
This court should be reminded that municipal regulation of industries, businesses, trades and occupations is not without its limitations. It is limited by public policy to promote the growth of commerce and industry. McQuillin Mun Corp § 24.323 (3rd Ed). While I recognize that, at times, there is a fine line between what constitutes a regulation and what is a prohibition, the ordinance in this case is nothing but a sweeping prohibition not supported by our statutes or case law.
I respectfully dissent.
Newbern, J., joins this dissent.