CHAPTER XII.

MUNICIPAL ORDINANCES OR BY-LAWS.

S 243. This subject will be considered under the following heads:

1. Definition, General Nature, and Common Law Requisites of Ordinances-secs. 244-264.

2. Of the Signing, Publication, and Recording-secs 265-269.

3. Of the Power to impose Fines, Penalties, and For feitures-secs. 270-287.

290.

4. On Whom Binding, and Notice thereof-secs. 288

5.

Ordinances Relating to the Licensing, Taxing, and Regulation of Amusements and Occupations, including the Sale of Intoxicating Liquors-secs. 291-299.

302.

6. Ordinances Relating to Public Offences-secs. 300

7.

Ordinances Relating to the Public Health, Safety and Convenience; Herein of Hospitals, Cemeteries, and Burials; Nuisances; Markets and Inspection Regulations : Dangerous Occupations and Practices; and of the Police Power and General Welfare Clauses in Charters-secs. 303340.

8. Mode of Enforcing Ordinances: Herein of Actions and Prosecutions, and their Nature; Mode of Pleading Ordinances; Requisites of Complaints to Enforce Orainances; Construction, Defences, Evidence, &c.-secs. 341355.

Definition, General Nature, and Common Law Requisites of Ordinances.

$244. Definition.-Under the general term of ordinances have been sometimes included all the regulations by which a corporation is governed, including special charter or statute regulations, as well as by-laws. In this country, the term ordinance is not usually applied, if ever, to charters

o: acts of the legislature respecting municipal corporations, regulating their powers and mode of action, but is limited in its application to the acts, in the nature of local laws, passed by the proper assembly or governing body of the corporation. Indeed, in general and professional use, the term ordinance is almost, if not quite, equivalent in mean ing to the term by-law, and is the word most generally used to denote the by-laws adopted by municipal corporations. According to Lord Coke, the word by or bye signifies a habitation, and thence a by-law in England, and a by-law or ordinance in this country, may be defined to be the law of the inhabitants of the corporate place or district, made by themselves or the authorized body, in distinction from the general law of the country or the statute law of the particular State.'

1 Willc. 73; 2 Kyd, 95, 98.

Definition and Nature of Ordinances or By-Laws.—In a case in Massachusetts, denying to towns in that state power, under the statute, to prohibit by ordinance the sale of intoxicating liquor, Mr. Chief Justice Shaw observed that the term "by-law" has a limited and peculiar meaning, and is used to designate such ordinances or regulations which a corporation, as one of its legal incidents, has power to make with respect to its own members and its own concerns. In respect to municipal and quasi corporations, this meaning has been somewhat extended, but even here the word is used to designate such ordinances and regulations as have reference to legitimate and proper municipal or corporate purposes. There is a broad distinction between the power of a public corporation to make "by-laws" and the general power to make "laws;" authority to make the former does not include the power to legislate upon general subjects. Commonwealth .

Turner, 1 Cush. 493. A municipal by-law, according to the definition of a distinguished English judge, is a rule obligatory over a particular district, not being at variance with the general laws of the realm, and being reasonable and adapted to the purposes of the corporation; and any rule or ordinance of a permanent character which a corporation is empowered to make, either by the common or statute law, is a by-law. Per Parke, B., 19 Law J. (N. S.) Q. B. 135.

Resolutions and Ordinances Discriminated.-A resolution is an order of the council of a special and temporary character; an ordinance prescribes a permanent rule of conduct or government. Blanchard v. Bissell, 11 Ohio St. 96, 103, per Scott, J. Where the charter commits the decision of a matter to the council and is silent as to the mode, the decision may be evidenced by a resolution, and need not necessarily be by an ordinance. State v. Jersey City, 3 Dutch. (N. J.) 493, 1859. A resolution has ordinarily the same effect as an ordinance, as both are legislative acts. Sower v. Philadelphia, 35 Pa. St. 231,

§ 245. Authority Delegated to Municipalities-Nature of Ordinances --Repeal.--Although the proposition that the legislature of a State is alone competent to make laws is true, yet it is also settled that it is competent for the legislature to delegate to municipal corporations the power to make by-laws and ordinances,' which, when authorized, 1860; Gas Company v. San Francisco, 6 Cal. 190. Where the power to make ordinances and by-laws is general, and no form in which these shall be enacted or passed is prescribed, it was held that an ordinance containing a prohibition and annexing a penalty was valid, notwithstanding it purported by its terms to be a resolution. In substance it was an ordinance or regulation, and the form in which it was passed did not make it void. Municipality v. Cutting, 4 La. An. 335, 1849. By one section of the charter, the council was authorized to make " by-laws, ordinances, resolutions, and regula tions," and by another "by-laws and ordinances" were to be submitted to the mayor for his approval, and it was held that there was no such distinction as to require that "by-laws and ordinances " must, and "regulations and resolutions" need not, be submitted to the mayor, to be approved by him. Kepner v. Commonwealth, 40 Pa. St. 124. The words " regulation," "resolution," and "ordinance," as used in the charter, defined by Lourie, C. J. Ib.

Mode of Exercising Power.-Where the power to do certain acts or pass certain ordinances is conferred upon the council, but the particular mode of exercising the power is not prescribed, this may be done by ordinance, and any mode may be adopted which does not infringe the charter or general law of the land. Thus, for example, power was given to a city "to levy and collect a special tax," not specifying the mode of collection; held that an ordinance requiring the mayor to enforce the collection of the tax by suit, in the nature of an action for debt, was valid, as it did not violate the charter or the general law. Cincinnati v. Gwynne. 10 Ohio, 192; Markle v. Akron, 14 Ohio, 586, 1846. Prescribed mode essential. Crosse v. Morristown, 18 N. J. Eq. 305. Post, chap. XIX.

1 Perdue v. Ellis, 18 Geo. 586, 1855; St. Paul v. Coulter, 12 Minu. 41, 1866; Commonwealth v. Duquet, 2 Yeates (Pa.), 493; Hill v. Decatur, 22 Geo. 203; State v. Clark, 8 Fost. (N. H.) 176, 1854; Milne v. Davidson, 5 Martin (La.) 586. 1827; Marble v. Akron, 14 Ohio, 586, 590, 1846; Mayor, &c. v. Morgan, 7 Martin (La. O. S.) 1, per Martin, J.; Trigally v. Memphis, 6 Coldw. (Tenn.) 382, 1869; Metcalf v. St. Louis, 11 Mo. 103, 1847. In Strauss v. Pontiac, 40 Ill. 301, 1866, the Supreme Court held that a provision in a town charter forbidding any person from doing a certain act, fixing the amount of fine, and prescribing the penalty, was a complete enactment of itself; that an ordinance to the same effect was void, and that a party could be prosecuted only under the charter, and not under the ordinance. In view of the general authority given in the same charter to make all ordinances necessary to carry into effect the powers granted in the charter, the correctness of this decision may admit of fair debate, although

have the force, as to persons bound thereby, of laws passed by the legislature of the State.'

$246. Ordinances being among the most important and solemn acts of a corporation, it is essential to their validity that they shall be adopted by the proper body, duly assembled, and in the manner prescribed by the charter. What is necessary to constitute a valid corporate meeting, and the manner of performing valid corporate acts, are subjects treated of in another chapter." When the mode of enacting ordinances is prescribed, it must be pursued. Thus, if the charter provides that no by-law shall be passed unless introduced at a previous regular meeting, this is a restriction on the power, and must be observed; and, accordingly, an ordinance for opening a street was

it is undoubtedly true that no ordinance is necessary where the prohibition in the charter is complete, the penalty fixed, and the remedy prescribed. Ashton v. Ellsworth, 48 Ill. 299.

Heland v. Lowell, 3 Allen, 407, 1862; Church v. City, &c., 5 Cow. 538 1826; St. Louis v. Boffinger, 19 Mo. 13, 15, per Gamble, J.; St. Louis v. Bank, 49 Mo. 574; Jones v. Ins. Co., 2 Daly (N. Y.) 307; McDermott . Board of Police, 5 Abb. Pr. R. 422, 1857. A city council is “ a miniature general assembly, and their authorized ordinances have the force of laws passed by the legislature of the state." Per Scott, J., Taylor v. Carondelet (forfeiture clause in lease). 22 Mo. 105, 1855. In Hopkins v. Mayor of Swansea, 4 M. & W. 621, 640, Lord Abinger said: "The by law has the same effect within its limits, and with respect to the persons upon whom it lawfully operates, as an act of parliament has upon the subjects at large." Valid ordinances of corporations are as binding on the corporators and inhabitants of the place as the general laws of the state upon the citizens at large. Milne v. Davidson, 5 Martin (La.) 586, 1827. And, therefore, it has been held, that contracts between the inhabitants of a city in violation of the express provisions of a valid ordinance of a municipal corporation are illegal, and cannot be enforced. Milne v. Davidson (lease of house for private hospital), 5 Martin (La.) 586, 1827; Heland ». Lowell, 3 Allen, 407, 1867; but compare Baker v. Portland, 58 Maine, 199; S. C., 10 Am. Law Reg. (N. S.) 559, and see Judge Redfield's note. The courts will not enjoin the passage of unauthorized ordinances, and will ordinarily act only when steps are taken to make them available. Chicago v. Evans, 24 Ill. 52, 1860; Smith v. McCarthy, 56 Pa. St. 359. But if a party is injuriously affected by an ordinance, he may have its validity judicially determined before it is attempted to be executed. State v. Paterson, 34 N. J. Law, 163. State v. Jersey City, Ib. 31, 390, 1870.

adjudged void, on the ground that the name of one of the commissioners was changed without laying the ordinance over until another meeting. Municipal ordinances otherwise valid, may, like an act of the legislature, be adopted to take effect in future and upon the happening of a contingent event."

§ 247. In the absence of required record evidence of the passage of an ordinance, it is not competent to establish its adoption by extrinsic testimony; but where unanimity is necessary to legal authority to make an order, and an order is entered, it will be presumed, when the contrary does not appear, that it was made with the required unanimity.*

$248. Courts will not, in general, inquire into the motives of members of the council in passing ordinances.' But in Ohio, in a case where the legislature chartered a gas company, reserving the power of control, and subsequently empowered the city council to regulate the price of gas, the court considered the intention to be to limit the company to a fair and reasonable price, and that it must be fairly exercised, and if, in the colorable exercise of the power, a majority of the members, for a fraudulent purpose, combined to fix the price at a rate at which they knew it could not be made and sold without loss, their action would not

1 State v. Bergen, 33 N. J. Law, 39, 1868, distinguished from State v. Jersey City, 2 Dutch. 448, where the variance was immaterial. Construction of similar restriction requiring previous publication. In re Douglass, 46 N. Y. 42; Matter of N. Y., &c. School, 47 N. Y. 556; Dubuque v. Wooton, 28 Iowa, 571.

Baltimore v. Clunet, 23 Md. 449, 1865; Railway Company v. Baltimore, 21 Md. 93, 1863; State v. Kirkley, 29 Md. 85, 1868. Ante, sec. 23.

3

Covington . Ludlow, 1 Met. (Ky.) 295, 1858.

204 n., 234; post, sec. 269.

4

See ante, secs. 238,

Lexington v. Headley, 5 Bush (Ky.) 508, 1869; Covington v. Boyle, 6 Bush (Ky.) 204, 1869; McCormick v. Bay City, 23 Mich. 457, 1871; see Steckert v. East Saginaw, 22 Mich. 104; post, sec. 639.

Freeport v. Marks, 59 Pa. St. 253; Buell v. Ball, 20 Iowa, 282 (collateral action between third persons).