BEFORE HAWKINS, P.J., PRATHER AND BLASS, JJ.
PRATHER, JUSTICE, FOR THE COURT:
At issue in this appeal is whether a city ordinance enacted under the police power can withstand a challenge when it conflicts with a First Amendment protected interest.
The Great South Fair (the Fair), a Mississippi non-profit corporation, brought this injunctive action in the Chancery Court of Forrest County against the City of Petal (the City) challenging the constitutionality of a zoning ordinance passed by the City. The ordinance in question limited the operation of fairs within the City to not more than one consecutive day of operation. The Fair maintained that this ordinance effectively
closed it down altogether. Following testimony from both sides, the trial court issued an order denying the relief sought by the Fair. The Fair perfected its appeal to this Court and now asserts as error the following:
The chancellor erred in finding the subject ordinance to be a constitutional and legal exercise of police power.
The Great South Fair owns twenty-eight (28) acres of land along the Leaf River in what is now the city of Petal, Mississippi. The Great South Fair has operated fairs, (carnivals with mechanical rides) at this location on an annual or bi-annual basis since 1964, approximately ten (10) years before the City of Petal was incorporated. The fairs would typically last from seven (7) to ten (10) days at a time. As part of the fair, civic and/or religious groups participated in a variety of ways, raising money for their organizations in the process. The City also benefitted, by the collection of property, sales, and privilege taxes from the Fair.
The City of Petal was incorporated on April 5, 1974, and the property owned by the Fair became a part of the City. On or about September 4, 1984, the City adopted City Ordinance 1984 (59), which on its face restricts the operation of a carnival or fair that has one or more side shows or one or more mechanical rides to not more than one (1) consecutive day of operation. The Ordinance further provides that any person, corporation or organization which operates a fair for more than one consecutive day shall pay a fine of up to $500.00 and/or shall serve thirty (30) days in jail.
Evidence introduced at the hearing showed that the Ordinance effectively prohibits the operation of the Appellant's fairs/carnivals, which the appellant has operated for the past twenty (20) years, because it is impractical and unprofitable for the Fair to be set up and taken down after only one (1) day of operation. Likewise, the Fair is the only business or organization affected by the Ordinance.
On July 31, 1985, The Fair filed a complaint for a Temporary Restraining Order and Declaratory Judgment. On October 21, 1985, the Order was granted by the chancery court, thereby allowing the fair to operate. On August 21, 1986, an Agreed Order was entered by the court directing the City to issue a license to the Fair allowing it to operate for one year, or until the court decided to cancel the license. On October 16, 1986 a hearing was held, and on May 11, 1987 a Memorandum Opinion and Final Judgment was entered by the court, finding that the Ordinance in question was
valid, and denying the relief requested by the Fair.
DID THE TRIAL COURT ERR WHEN IT FOUND THE SUBJECT ORDINANCE TO BE A CONSTITUTIONAL AND LEGAL EXERCISE OF POLICE POWER?
The Fair alleges under this assignment of error that the Ordinance adopted by the City of Petal is violative of the City's police power, as contained in the Tenth Amendment of the United States Constitution, and of purported violations of the Fair's freedom of speech rights under the First Amendment of the United States Constitution, both made applicable to the States under the Fourteenth ...