Linda Phillips and Marvin Phillips v. Town of Oak Grove, Arkansas et al.

Linda PHILLIPS and Marvin Phillips v. TOWN OF
OAK GROVE, Arkansas, and Jean Morgan, Mayor,
Sam Jones, Alderman, Gary High, Alderman, Pat
Davis, Alderwoman, Vicki Allen, Alderwoman,
and Willard Standlee, Alderman, in Their
Official Capacities as the Mayor and Town
Council of the Town of Oak Grove, Arkansas

97-898                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 7, 1998


1.   Municipal corporations -- powers of -- expressly conferred by
     legislature. -- Municipal corporations derive their
     legislative powers from the general laws of the state; a
     municipality has no powers except those expressly conferred by
     the legislature and those necessarily or fairly implied as
     incident to or essential for the attainment of the purpose
     expressly declared. 

2.   Municipal corporations -- exercise of police power -- when
     justified. -- A city has a plenary duty to exercise its police
     power in the interest of the public health and safety of its
     inhabitants; the police power of the State is founded in
     public necessity, and this necessity must exist in order to
     justify its exercise; it is always justified when it can be
     said to be in the interest of the public health, public
     safety, public comfort, and when it is, private rights must
     yield to public security, under reasonable laws; the State 
     authorized the municipalities to legislate under the police
     power in Ark. Code Ann.  14-55-102 (1987). 

3.   Municipal corporations -- Ark. Code Ann.  14-54-102(1987) --
     power granted. -- Under the grant of power of Ark. Code Ann.
      14-55-102(1987), cities and incorporated towns can prevent
     injury or annoyance within the limits of the municipal
     corporation from anything dangerous, offensive, or unhealthy
     and cause any nuisance to be abated within the jurisdiction
     given the board of health.  

4.   Municipal corporations -- power granted -- appellee town could
     legislate for protection of public health. -- In light of
     statutory authority, appellee town had the authority to
     legislate for the protection of the public health; the
     preamble to the ordinance made clear that appellee was
     legislating under its police power when it stated that its
     purpose was to protect the residents of the town from the
     deleterious effects of commercial broiler activities, to
     protect against offensive or noxious odors, and to protect 
     order, peace, comfort, convenience, safety, general welfare,
     health, and prevent injury from offensive or unhealthy
     matters.
  
5.   Municipal corporations -- regulation under police power --
     mere possibility of public harm is sufficient basis for. --
     The mere possibility of a public harm is sufficient basis for
     the municipality to regulate under its police power; the
     United States Supreme Court, in affirming an Arkansas Supreme
     Court decision, said that a business lawful today may, in the
     future, because of a changed situation, the growth of
     population, or other causes, become a menace to the public
     health and welfare, and be required to yield to the public
     good.

6.   Municipal corporations -- lawful business that poses
     possibility of harm can be regulated even if ordinance
     excludes operation of business within city limits -- ordinance
     here does so. -- A lawful business that poses the possibility
     of harm can be regulated, even if the effect of the ordinance
     excludes the operation of the business within the city limits;
     here, an emu farm is a lawful business, and it is subject to
     all appropriate laws relating to farm animals; the express
     language of the ordinance acts as a complete bar to the
     commercial keeping of fowl and swine within the town limits.

7.   Municipal corporations -- "regulation versus prohibition" rule
     not rigidly applied -- appellee may regulate and prohibit
     commercial swine and fowl businesses under its police power
     unless such deprivation without rational basis. -- The supreme
     court has repeatedly used the "regulation versus prohibition"
     rule, but without rigid application; the rational-basis test
     is applied to ordinances that purport to prohibit lawful
     businesses under the police power; the police power of the
     state extends to the regulation or even the prohibition of the
     business except on such terms as the state may prescribe; the
     State may regulate business that affects public health,
     safety, and welfare, but it may not deprive an individual of
     his right to conduct lawful business unless it can be shown
     that such deprivation is reasonably related to the State
     interests sought to be protected; here the appellee town may
     regulate and even prohibit commercial swine and fowl
     businesses under its police power unless it can be shown that
     there is no rational basis for the deprivation.

8.   Constitutional law -- equal protection clause does not require
     that all persons be dealt with identically -- application of
     rational-basis test. -- The issue was not, as appellant
     attempted to argue, whether the legislation allowed difference
     in treatment of activities generally similar in character, but
     whether there was a rational basis for the difference; the
     equal protection clause does not require that all persons be
     dealt with identically, only that classifications rest on real
     rather than feigned differences, that the distinctions have
     some relevance to the purpose for which the classification is
     made, and that the treatment be not so disparate as to be
     wholly arbitrary; when examining the distinction, the supreme
     court considers whether any rational basis exists that shows
     the possibility of a deliberate nexus with state objectives. 

9.   Constitutional law -- rational-basis test -- burden of proof -
     - presumption of validity. -- The party alleging that
     legislation is arbitrary has the burden of proving that there
     is no rational basis for the legislative act, and regardless
     of the evidence introduced by the moving party, the
     legislation is presumed to be valid and will be upheld if the
     court finds a rational basis for it.  

10.  Municipal corporations -- distinction based on keeping fowl
     for commercial or private purposes -- rational nexus for
     distinction apparent. -- Upon observing the usual presumption
     of constitutional validity, the supreme court concluded that
     there was a rational nexus between the ordinance's stated
     purposes to protect the peace, health, safety, comfort, and
     welfare of the public, and its distinction between keeping
     fowl for commercial operations and limited activities for
     personal consumption; the private keeping of birds would have
     a less harmful effect on the public's health.    

11.  Municipal corporations -- equal protection allows legislation
     that recognizes degrees of evil -- appellee did not act
     arbitrarily, capriciously, or unreasonably in enacting
     ordinance. -- The law of equal protection allows legislation
     that recognizes degrees of evil; the supreme court could not
     say that the appellee acted arbitrarily, capriciously, or
     unreasonably when it chose to prevent the keeping of fowl for
     commercial purposes within the town limits, while permitting
     limited activities strictly for private consumption.

12.  Constitutional law -- appellant's argument without merit --
     classification does not fail rational-basis review because in
     practice it results in some inequality.-- The appellants'
     argument that a rational basis did not exist when the town
     could have accomplished its purposes through zoning
     ordinances, or numerical restrictions, minimum property sizes,
     and concentration limits, was without merit; under rational-
     basis review, the United States Supreme Court has held that
     the courts are bound to accept a legislature's generalizations
     even when there is an imperfect fit between means and ends; a
     classification does not fail rational-basis review because it
     is not made with mathematical precision or because, in
     practice it results in some inequality.

13.  Appeal & error -- erroneous application of law by chancellor
     will result in reversal -- no error in law or fact found in
     chancellor's ruling. -- On appellate review of legislative
     enactments, the supreme court will not reverse a chancellor's
     finding of fact unless it is clearly erroneous; however, if a
     chancellor erroneously applies the law and the appellant
     suffers prejudice, the erroneous ruling is reversed; here, the
     chancellor found that keeping a large number of birds within
     the town limits constituted a threat to the peace, health,
     safety, comfort, and welfare of the town's residents; the
     supreme court could not say that the chancellor committed
     error in his judgement, either in fact, or in law when he
     ruled that the ordinance was rationally related to a
     legitimate governmental purpose. 

14.  Municipal corporations -- appellant's assertion without merit
     -- court's role not to discover actual basis for legislation -
     - court considers whether rational basis for law exists. --
     Appellant's assertion that prohibiting all animals of the Aves
     class was overbroad for the purpose of preventing the
     encroachment of large-broiler houses and hog farms into the
     town, and that the town did not even contemplate emu farms
     when they enacted the ordinance, was without merit; an
     enterprise may not ostensibly threaten the problems that led
     to the enactment of the ordinance; the Supreme Court has
     stated that the mere fact that the ordinance may embrace some
     innocent objects, that of itself neither invalidates the law
     nor removes the objects from the grasp of the law; it is not
     the supreme court's role to discover the actual basis for the
     legislation, but rather to consider if any rational basis
     exists that demonstrates the possibility of a deliberate
     nexus; here the court could reasonably conceive that the emu
     operation may grow and present the same concerns for the
     health, safety, and welfare of town residents as large-poultry
     operations.  


     Appeal from Carroll Chancery Court; Donald R. Huffman,
Chancellor; affirmed.
     Lisle Law Firm, P.C., by:  Stephen Lisle, for appellants.
     Epley, Epley & Parker, Ltd., by:  Lewis E. Epley, Jr. and Tim
S. Parker, for appellees.

     Ray Thornton, Justice.
     In 1987, the town of Oak Grove adopted Ordinance 20, which
prohibits the keeping of swine or fowl for commercial purposes
within the town limits.  Appellants Marvin and Linda Phillips breed
emus for sale on their property in Oak Grove.  The appellees are
the town of Oak Grove, the mayor, and members of the town council. 
When the Town charged them with violating the Ordinance, the
Phillipses responded with a motion for summary judgment challenging
the Ordinance's constitutional validity.  Oak Grove counterclaimed,
asking for a declaratory judgment that the ordinance was valid. 
The chancellor granted Oak Grove's motion for summary judgment,
ruling that the Ordinance was a valid enactment that was rationally
related to Oak Grove's legitimate-government concerns for the
health, safety, and welfare of its citizens.  We affirm the
chancellor's ruling.
     In attacking the constitutional validity of the Ordinance, the
Phillipses raise the following three arguments on appeal:  Oak
Grove cannot prohibit a lawful business when it does not constitute
a nuisance; an ordinance that classifies on the basis of commerce
is an arbitrary exercise of Oak Grove's police power; and
prohibiting all animals of the Aves class is overbroad for the
purpose of preventing the encroachment of large-broiler houses into
the Town.
     Oak Grove is an incorporated town with a population of about
230 residents.  In 1987, its town council passed Ordinance 20 in
response to concerns arising from commercial fowl and hog
operations in the Northwest Arkansas area.  The stated purposes of
the Ordinance are as follow:
          WHEREAS, the Town of Oak Grove, Arkansas, is located in
     close proximity to areas of expanding commercial broiler
     houses and other commercial activities, and it is necessary to
     enact measures to protect the citizens of the Town of Oak
     Grove from the deleterious effects of such commercial
     activities if carried on within the town limits; and
          WHEREAS, the Council of the Town of Oak Grove has
     determined that this Ordinance is necessary in order to
     protect the residents of the Town of Oak Grove from offensive
     or noxious odors, and
          WHEREAS, the passage and approval of this Ordinance will
     improve and protect the order, peace, comfort, convenience,
     safety, general welfare, health and prevent injury from
     offensive or unhealthy matters[.]
     This ordinance makes unlawful the "raising, keeping, growing,
maintenance, husbandry or quartering of either swine or fowl within
the town limits of the Town of Oak Grove, by any person for any
commercial purpose."  As defined in the ordinance, the term "fowl"
includes all members of the zoological class "Aves," including
chickens, turkeys, ducks, geese, quail, guineas, and other domestic
or wild birds.  The Ordinance expressly allows "limited activities
strictly for personal consumption by an individual and not
involving other parties."
     The Phillipses purchased emus and began raising them for
commercial purposes on their property within the town limits.  Emus
are members of the Aves zoological class and are second in size
only to the ostrich, weighing in excess of one hundred pounds at
maturity.  In 1995, Mayor Morgan ordered the Phillipses to remove
their emus from the town limits.  When the Phillipses refused, Oak
Grove filed a criminal misdemeanor action in municipal court for
keeping emus in violation of Ordinance 20.  The Phillipses
countered by filing this action in chancery court seeking a
declaratory judgment that the Ordinance was invalid.  Oak Grove
counterclaimed, asking for a declaratory judgment that the
Ordinance was a valid, rationally related exercise of Oak Grove's
power to enact laws for the general health, safety, and welfare of
its citizens.  Oak Grove suspended its criminal complaint pending
the outcome of the chancery court decision.  The chancellor granted
Oak Grove's motion for summary judgment and this appeal ensued.
                               I.
     Municipal corporations derive their legislative powers from
the general laws of the state.  Ark. Const. art. 12,  4.  A
municipality has no powers except those expressly conferred by the
legislature, and those necessarily or fairly implied as incident to
or essential for the attainment of the purpose expressly declared. 
City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 336,
916 S.W.2d 95, 97 (1996).  
     In Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W.2d 620 (1956), we recognized the city's plenary duty to
exercise its police power in the interest of the public health and
safety of its inhabitants.  Id. at 464-65, 290 S.W.2d  at 622.  The
police power of the state is founded in public necessity and this
necessity must exist in order to justify its exercise.  Id.  It is
always justified when it can be said to be in the interest of the
public health, public safety, public comfort, and when it is,
private rights must yield to public security, under reasonable
laws.  City of Little Rock v. Smith, 204 Ark. 692, 695, 163 S.W.2d 705, 707 (1942) (quoting Beaty v. Humphrey, 195 Ark. 1008, 115 S.W.2d 559 (1938).  The State has authorized the municipalities to
legislate under the police power in Ark. Code Ann.  14-55-102
(1987).  That section provides, "Municipal corporations shall have
the power to make and publish bylaws and ordinances, not
inconsistent with the laws of this state, which, as to them, shall
seem necessary to provide for the safety, preserve the health,
promote the prosperity, and improve the morals, order, comfort, and
convenience of such corporations and the inhabitants thereof."
     Under its grant of power, cities and incorporated towns can
"[p]revent injury or annoyance within the limits of the municipal
corporation from anything dangerous, offensive, or unhealthy and
cause any nuisance to be abated within the jurisdiction given the
board of health in  14-262-102[.]  Ark. Code Ann.  14-54-103
(1987)." 
     In light of these statutes, the town of Oak Grove has the
authority to legislate for the protection of the public health. 
The preamble to Ordinance 20 makes clear that Oak Grove is
legislating under its police power when it states that its purpose
is to protect the residents of the town from the deleterious
effects of commercial broiler activities, to protect against
offensive or noxious odors, and to protect the order, peace,
comfort, convenience, safety, general welfare, health and prevent
injury from offensive or unhealthy matters.  The Phillipses private
rights must yield, unless we find that Oak Grove has acted in
excess of the authority conferred.
                               II.
     The Phillipses argue first that the town of Oak Grove cannot
prohibit a lawful business when it does not constitute a nuisance. 
The appellees, on the other hand, contend, and the chancellor
agreed, that the controlling law is stated in City of Lowell v. M
& N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996).  In
Lowell, we declared that judicial review of a legislative enactment
is limited to determining whether the legislation is arbitrary,
capricious, and unreasonable.  Id. at 339, 916 S.W.2d  at 98.  The
legislation is not arbitrary if there is any reasonable basis for
its enactment.  Id. 
     The Phillipses argue that Arkansas law requires a municipality
first to determine that an activity poses a threat to its citizens
before it may regulate that activity under its police power.  The
crux of their argument is that there is no evidence that their emu
farm is a nuisance or a threat, and that because it is a lawful
business, Oak Grove does not have the authority to prohibit it. 
This argument has two parts, which we address seriatim.  The first
question is whether a municipality can regulate an activity that is
not a nuisance under its police power, and the second question is
whether a municipality can prohibit a lawful business.  
                               A.
     The Phillipses rely on Town of Arkadelphia v. Clark, 52 Ark.
23, 11 S.W.2d 957 (1889) for the proposition that a nuisance must
exist before the town can regulate under its police power.  In a
brief per curiam opinion, we stated that the ordinance prohibiting
the keeping of bees within the city limits was invalid because it
declared each act a nuisance and was therefore too broad.  Id. at
25, 11 S.W.  at 958.  We said that bees may become a nuisance but
whether they are so or not is a question to be judicially
determined in each case.  Id.  Our decision in Clark stated that
municipalities cannot legislatively declare some activity to be a
nuisance.  We did not address the question of public health and
safety in that case.  Contrary to the Phillipses' assertion, Clark
does not hold that a municipality must first determine that an
activity is a nuisance before it can regulate that activity under
its police power.
     In fact, the mere possibility of a public harm is sufficient
basis for the municipality to regulate under its police power.  The
United States Supreme Court, in affirming an Arkansas Supreme Court
decision, said that a "business lawful today may in the future,
because of the changed situation, the growth of population or other
causes, become a menace to the public health and welfare, and be
required to yield to the public good."  Pierce Oil Corp. v. City of
Hope, 248 U.S. 498, 500 (1919) aff'g 127 Ark. 38, 191 S.W.2d 405
(1917) (quoting Dobbins v. Los Angeles, 195 U.S. 223, 238 (1904)). 
     In Pierce Oil Corp., the City of Hope enacted an ordinance
forbidding the storing of petroleum, gasoline, and other oil
products within three hundred feet of any dwelling, beyond certain
small quantities specified.  Pierce Oil Corp., 248 U.S.  at 499. 
The appellant in that case was engaged in the business of selling
petroleum oil and gasoline and had tanks on the right of way of a
railroad in the city.  Appellant presented evidence that an
explosion was impossible and that the location of the tanks did not
endanger nearby buildings.  He alleged that he could not store the
tanks in the city without violating the ordinance.  He claimed that
the ordinance was arbitrary, unnecessary, and unreasonable, and
that the enforcement would deprive him of his property without due
process of law in violation of the Fourteenth Amendment of the
United States Constitution.   
     Notwithstanding the Fourteenth Amendment or the absence of
pleaded facts showing a nuisance, the Court held that a state may
prohibit the sale of dangerous oil products; and it may make the
place where they are kept or sold a criminal nuisance.  Pierce Oil
Corp., 248 U.S.  at 499-500.  With approval, the Court noted our
declaration that a court may take judicial notice that disastrous
explosions have occurred for which no satisfactory explanations
have ever been offered.  Id. at 500.  Observing that "[t]he
unexpected happens," the Court recognized that combustion was
possible, and that the ordinance undertook to limit its effects. 
Id.  More to the point, the California supreme court said, 
     "A city clearly has power to pass general police regulations
     to prevent nuisances, and such power is not limited to the
     suppression of those things which are nuisances per se . . ..
. . .
     Whenever a thing or act is of such a nature that it may become
     a nuisance, or may be injurious to the public health, if not
     suppressed or regulated, the legislative body may, in the
     exercise of its police powers, make and enforce ordinances to
     regulate or prohibit such act or thing although it may never
     have been offensive or injurious in the past.  
Ex parte Mathews, 214 P. 981, 983, 191 Cal. 35 (1923), reh'g denied
209 P. 220 (1923) (internal citation omitted).
     Under our holding in Pierce Oil Corp., a lawful business that
poses the possibility of harm can be regulated, even if the effect
of the ordinance excludes the operation of the business within the
city limits.  In the present case, an emu farm is a lawful
business; and it is subject to all appropriate laws relating to
farm animals.  Ark. Code Ann.  2-32-101 (Repl. 1996).  Unlike the
Pierce Oil Corp. ordinance, the express language of the Oak Grove
ordinance acts as a complete bar to the commercial keeping of fowl
and swine within the town limits.
                               B. 
     We have repeated often that a business, lawful in itself and
not a nuisance per se, may be regulated but not prohibited.  We
know of no cases, however, that apply this rule with the rigidity
that the Phillipses request.  Rather, we have always considered
whether the legislation is otherwise arbitrary, capricious, and
unreasonable; and we uphold the enactment if there is any rational
basis for its enactment.  See Hackler v. City of Fort Smith, 238
Ark. 29, 377 S.W.2d 875 (1964); Goldman & Co., Inc. v. City of
North Little Rock, 220 Ark. 792, 249 S.W.2d 961 (1952) (upholding
an ordinance that prohibited junkyards within a limited district in
the city; noting that the ordinance was not arbitrary or
unreasonable when the business contemplated by appellant tended to
constitute a safety and health hazard to the welfare of the
people); City of Morrilton v. Malco Theatres, Inc., 202 Ark. 100,
149 S.W.2d 55 (1941) (holding that the city had the power to
regulate reasonably, but could not prohibit appellee from operating
more than one picture show; stating that the court may consider the
effect of the ordinance in practical application, but that after
the business has been authorized and the owner has incurred
expense, the city has power only to regulate and not prohibit its
use); Arkansas R.R. Comm'n  v. Castetter, 180 Ark. 770, 22 S.W.2d 993 (1929) (recognizing that no individual can be deprived of the
right to engage in lawful business in any manner he sees proper so
long as he does not use such right in a manner to injure others);
Balesh v. Hot Springs, 173 Ark. 661, 293 S.W. 14 (1927) (holding
that the city could not prohibit, but could regulate the sale of
merchandise by auction; noting that the Legislature may not
arbitrarily interfere with private business, or impose unusual or
unnecessary regulations upon lawful occupations).  
     The Phillipses rely on Hackler, a case in which the ordinance
prohibited blasting or use of explosives in quarrying operations
located within the city limits of Fort Smith.  Hackler, 238 Ark. at
29, 377 S.W.2d  at 875.  In that case, appellants produced
convincing evidence at trial that blasting could be done safely by
having small quantities of the blasting agent set off in a series,
rather than in one large explosion.  Id. at 32, 377 S.W.2d  at 877. 
We first noted that a quarry operation was a lawful business and
that it was not a nuisance per se, and as such, it could be
regulated but not prohibited.  Id. at 33, 377 S.W.2d  at 876.  We
then held that the city did not have the power to absolutely
prohibit blasting at rock quarries within the city when it was
shown that the blasting could easily be regulated.  Hackler, 238
Ark. at 33, 377 S.W.2d  at 877.     
     In Hackler, while we stated the "regulation versus prohibition
rule" distinctly, we did not apply the rule rigidly.  Instead, we
considered the appellant's expert-witness testimony that blasting
could be done safely.  The expert testified that he had placed a
seismograph near the quarry and measured the vibrations from
blasting done with small quantities of explosives.  Hackler, 238
Ark. at 32, 377 S.W.2d  at 877.  The seismographic readings verified
that a person standing within 60 feet of the point of explosion
experienced no harm, and that the nearest dwellings were about 250
feet from the quarry.  Id.  In reversing the chancellor's decision
to uphold the ordinance, we found, in effect, that there was no
rational basis for prohibiting the activity when appellants proved
that blasting could be done safely within the city limits.       
     After the Hackler case in 1964, our decisions have made even
more clear our application of the rational-basis test to ordinances
that purport to prohibit lawful businesses under the police power. 
In Piggott State Bank v. State Banking Bd., 242 Ark. 828, 416 S.W.2d 291 (1967), after declaring that the banking business is
closely related to the public welfare and within the police power
of the state, we said that the power extends to the regulation or
even the prohibition of the business except on such terms as the
state may prescribe.  Id. at 831-32, 416 S.W.2d  at 294.  Likewise,
in Wometco Servs., Inc. v. Gaddy, 272 Ark. 452, 616 S.W.2d 466
(1981), in invalidating an ordinance that contained a one-year
residency requirement before a vendor could be licensed to conduct
business in Arkansas, we said that the State may regulate business
that affects public health, safety, and welfare; but it may not
deprive an individual of his right to conduct lawful business
unless it can be shown that such deprivation is reasonably related
to the State interests sought to be protected.  Id. at 456, 616 S.W.2d  at 468-69.  In light of these decisions, the town of Oak
Grove may regulate and even prohibit commercial swine and fowl
businesses under its police power unless it can be shown that there
is no rational basis for the deprivation.
                              III.
     The Phillipses contend next that, even if we apply the
rational-basis test, an ordinance that classifies on the basis of
commerce is an arbitrary exercise of Oak Grove's police power. 
They note that, under the provisions of the Ordinance, it is
unlawful to keep birds for commercial purposes, yet it is lawful to
keep the same number or even greater numbers of birds for personal
use.  They argue that an ordinance that classifies on the basis of
profit is arbitrary and, therefore, void.
     The issue is not whether the legislation allows difference in
treatment of activities generally similar in character, but whether
there is a rational basis for the difference.  See J.W. Black
Lumber Co., Inc. v. Arkansas Dept. of Pollution, 290 Ark. 170, 172-
73, 717 S.W.2d 807, 809 (1986).  The equal protection clause does
not require that all persons be dealt with identically, only that
classifications rest on real rather than feigned differences, that
the distinctions have some relevance to the purpose for which the
classification is made, and that the treatment be not so disparate
as to be wholly arbitrary.  Id. at 173, 717 S.W.2d  at 809.  When
examining the distinction, we consider whether any rational basis
exists that shows the possibility of a deliberate nexus with state
objectives.  Allen v. State, 327 Ark. 350, 358, 939 S.W.2d 270,
274.
     The party alleging that legislation is arbitrary has the
burden of proving that there is no rational basis for the
legislative act, and regardless of the evidence introduced by the
moving party, the legislation is presumed to be valid and is to be
upheld if the court finds a rational basis for it.  City of Lowell,
323 Ark. at 340, 916 S.W.2d  at 99.      
     Ordinance 20 prohibits the keeping of fowl for commercial
purposes, yet allows "limited activities strictly for personal
consumption by an individual and not involving other parties." 
Observing the usual presumption of constitutional validity, we can
conclude that there is a nexus between a classification based on
commerce and the legislative concern for the peace, health, safety,
comfort, and welfare of the public.  Commercial-broiler houses have
been expanding in the area surrounding Oak Grove.  To protect the
citizens of the town from deleterious effects of these types of
commercial activities, Oak Grove, following valid procedures,
enacted this Ordinance.  
     We can reasonably conceive that the term, "commercial,"
connotes large volume.  To be sure, the dictionary definition of
the term confers a meaning of "large scale," or "large market." 
See Merriam Webster's Collegiate Dictionary 231 (10th ed. 1993).  The local
authorities may well have concluded that a farmer who keeps a small
number of emus for commercial purposes will likely expand his
business as he prospers, quantitatively adding to the bodily waste
product from these animals, which smells, decays, attracts pests,
and can cause disease.  See City of Springdale v. Chandler, 222
Ark. 167, 168-69, 257 S.W.2d 934, 935 (1953) (observing that it
might be arbitrary to prevent the keeping of few hens at a place
where it would not be arbitrary or unjust to prevent the keeping of
thousands of chickens).  If that judgment is correct, then the
private keeping of birds would have a less harmful effect on public
health.  A rational nexus is apparent, therefore, between Oak
Grove's stated purposes and the distinction based on commercial
(large) or private (small) operations.
     The law of equal protection has never mandated that either all
evils be extinguished, or none at all.  Rather, it allows
legislation that recognizes degrees of evil.  See J.W. Black Lumber
Co., Inc. v. Arkansas Dept. of Pollution, 290 Ark. 170, 717 S.W.2d 807 (1986).  We cannot say that Oak Grove acted arbitrarily,
capriciously, or unreasonably when it chose to prevent the keeping
of fowl for commercial purposes within the town limits, while
permitting limited activities strictly for private consumption.
     The Phillipses argue that a rational basis did not exist when
the town could have accomplished its purposes through zoning
ordinances, or numerical restrictions, minimum property sizes, and
concentration limits.  We find no merit in this argument.  Even if
Oak Grove could have written the Ordinance with greater precision,
under rational-basis review, the United States Supreme Court has
held that we are bound "to accept a legislature's generalizations
even when there is an imperfect fit between means and ends." 
Heller v. Doe, 509 U.S. 312, 321 (1993).  The Court said further,
"A classification does not fail rational-basis review because it is
not made with mathematical [precision] or because, in practice it
results in some inequality."  Id.  See also, Pierce Oil Corp.,
infra, 248 U.S.  at 500.       
     On appellate review of legislative enactments, we will not
reverse a chancellor's finding of fact unless it is clearly
erroneous.  City of Lowell, 323 Ark. at 339, 916 S.W.2d  at 97.  We
do not give the same deference to a chancellor's conclusion of law. 
Id.  If a chancellor erroneously applies the law and the appellant
suffers prejudice, the erroneous ruling is reversed.  Id.  Here,
the chancellor found that keeping a large number of birds within
the town limits constituted a threat to the peace, health, safety,
comfort, and welfare of the town's residents.  We cannot say that
the chancellor committed error in his judgement, either in fact, or
in law when he ruled that the ordinance was rationally related to
a legitimate-government purpose. 
                               IV.
     As their final point on appeal, the Phillipses assert that
prohibiting all animals of the Aves class is overbroad for the
purpose of preventing the encroachment of large-broiler houses and
hog farms into the town.  The Phillipses argue that Oak Grove did
not even contemplate emu farms when they enacted the Ordinance. 
They contend that because their emus have not been found to be a
nuisance, the zoological classification of Aves is overinclusive. 
     In support of their position, the Phillipses rely on Town of
Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969) for the
proposition that the town's purpose can be accomplished by enacting
an ordinance that directly prohibits the objectionable operation. 
In Dyess, the town passed an ordinance that required all businesses
in town to close from midnight to 4:00 a.m. to prevent teenagers
and other youth from causing disturbances late at night.  We
invalidated the ordinance, stating that the same purpose could be
accomplished by prohibiting the objectionable conduct of the youth
rather than making lawful businesses close.  
     Dyess is inapplicable to the facts before us.  In that case,
the businesses were not creating the disturbances that the town
sought to address, and we held that the sweep of the ordinance went
too far beyond the necessities of the situation.  In this case, it
is the commercial raising of fowl that creates the danger to the
public health, and the Ordinance addresses that danger directly.
     Rather, we respond with Justice Holmes's opinion in Pierce Oil
Corp., where he acknowledged that an enterprise may not ostensibly
threaten the problems that led to the enactment of the ordinance. 
Pierce Oil Corp., 248 U.S.  at 500.  Justice Holmes commented that
the mere fact that the ordinance may embrace some innocent objects,
that of itself neither invalidates the law nor removes the objects
from the grasp of the law.  Id. at 500-01.  It is not our role to
discover the actual basis for the legislation, but rather to
consider if any rational basis exists that demonstrates the
possibility of a deliberate nexus.  Johnson, 306 Ark. at 505, 816 S.W.2d  at 587.  We can reasonably conceive that the emu operation
may grow and present the same concerns for the health, safety, and
welfare of Oak Grove residents as large-poultry operations.  
     In summary, we conclude that Ordinance 20 is not arbitrary,
capricious, or unreasonable, but that it is a legitimate exercise
of reasonable regulation by the town of Oak Grove.  The Phillipses
failed to show that there was no rational basis for the enactment. 
Consequently, we hold that the town of Oak Grove acted within its
lawful discretion in prohibiting the keeping of swine or fowl for
commercial purposes within the town limits, and the chancellor's
finding that there was a rational basis was not clearly erroneous.
     Affirmed.
     Newbern and Glaze, J.J., dissent.


     Tom Glaze, Justice, 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
Malco 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.