"The administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal bylaws proper, the establishment of gas works or water works, the construction of sewers, and the like, are matters which pertain to the municipality as distinguished from the state at large." 25 Thus, a municipal board of police is clearly an agency of the state government, and not of the municipality, and therefore belongs to the first class above mentioned.26 But on the other hand, a statute which has the effect of placing in the hands of a board of public works, who are to be appointed by the legislature, the exclusive control of the streets, bridges, police and fire departments, etc., in cities subject to its provisions, without the consent of those to be affected thereby, infringes upon the inherent right of the citi zens to local self-government and is unconstitutional."7

POWERS OF MUNICIPAL CORPORATIONS.

189. The powers vested in a municipal corporation are restricted to the following three classes:

(a) Those expressly granted to it in its charter, or in constitutional or statutory provisions applicable to it.

(b) Those granted by necessary or fair implication from the terms of the same instruments.

(c) Those which are necessary to enable it to exercise its granted powers and effect the objects of its incorporation.

"A municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,-not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, 26 People v. Hurlbut, 24 Mich. 44. 27 State v. Denny, 118 Ind. 382, 21 N. E. 252.

25 1 Dill. Mun. Corp. § 58.

and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby or by some legislative act applicable thereto. All acts beyond the scope of the pow ers granted are void. Much less can any power be exercised or any act done which is forbidden by the charter or statute." 28

But besides the powers enumerated in the charter, there are certain implied powers which belong to municipal corporations merely in virtue of their status as public corporations. These are such as are necessary to enable the corporation to exercise its enumerated powers and to carry out the objects of its incorporation, and they are considered as inherent in the corporation because it must be presumed that they were within the contemplation of the incorporating power, which would not have granted a charter without the means to carry on a corporate existence. For example, a city incorporated by the legislature has the capacity to sue and be sued in its corporate name, as one of its ordinary and essential powers; and it is not necessary in pleading for such a corporation to aver its legal capacity to sue.29 So, also, the power to remove a corporate officer from his office is one of the common-law incidents of all corporations, including municipal corporations.3°

BY-LAWS OF MUNICIPAL CORPORATIONS.

190. Municipal corporations are invested with subordinate powers of government, including the power to enact by-laws or ordinances which, within their sphere, shall have the force of law.

191. Municipal by-laws or ordinances, to be valid, must be

(a) Consistent with all laws of a higher nature.

(b) Authorized by the charter or a statute.

28 1 Dill. Mun. Corp. § 89. And see Spaulding v. City of Lowell, 23 Pick. (Mass.) 71; Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 361.

29 City of Janesville v. Milwaukee & M. R. Co., 7 Wis. 484. 80 Richards v. Clarksburg, 30 W. Va. 491, 4 S. E. 774.

(c) Reasonable.

(d) Impartial.

(e) Certain.

192. The legislative power vested in a municipality cannot be delegated, but must be exercised by the municipality through its appointed agencies.

Power to Enact By-Laws.

Since municipal corporations are agencies of government, operating within a limited sphere, and since the regulations which they may establish will generally come into the closest relation with the conduct of the citizens, it is eminently proper that they should be invested with adequate powers to make ordinances in matters of police. All those matters which concern the public safety, comfort, health, or morals, are best regulated, in their more minute details, by the people of each community for themselves. And the general policy of our institutions is to intrust a large measure of discretion, in these particulars, to the several municipalities. Thus, in the absence of specific constitutional restrictions, it is competent for the legislature of a state, by a general incorporation law or by a particular charter, to empower a municipality to make ordinances, operative within its limits, for the regulation or licensing of the traffic in intoxicating liquors, although the subject may already be provided for by the general laws of the state. And a municipal charter or its by-laws may thus either expressly or by necessary implication, supersede the general laws on the subject, within the limits of the corporation.31 Conformity with Higher Laws.

The power of a municipal corporation to enact by-laws or ordinances is subject to the limitation that they must not conflict with any provision of the constitution of the United States, any treaty, any act of congress, any provision of the constitution of the state, or any provision of the general statutes of the state. All these are laws of a superior nature, to which the inferior must conform. A municipal by-law repugnant to any of them is ultra vires

31 Davis v. State, 2 Tex. App. 425; Com. v. Fredericks, 119 Mass. 199; State v. Harper, 42 La. Ann. 312, 7 South. 446.

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and can have no efficacy. Moreover, as we have seen, the powers of a municipality are limited to those granted in its charter or in statutory provisions applicable to it. It will, of course, follow that a by-law not authorized to be passed by either the plain terms or necessary implications of such charter or statute is invalid.

Reasonableness.

The validity of municipal ordinances may also depend upon their reasonableness. But here it is necessary to distinguish between such as are enacted under a specific grant of power and such as are passed under a general or implied grant. "Where the legisla ture in terms confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed in pursuance thereof cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental powers of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid." 33 To illustrate, an ordinance prohibiting the opening of streets for the purpose of laying gas mains, between the 1st of December and the 1st of March, is a reasonable regulation; but an ordinance prohibiting gas companies from opening a paved street, at any time, for the purpose of laying pipes from the main to the opposite side of the street, is unreasonable and void. An ordinance regulating the keeping and retailing of gunpowder, or other dangerous substances, is valid, if it makes no unreasonable discriminations against persons or classes

82 City of Burlington v. Kellar, 18 Iowa, 59; Pesterfield v. Vickers, 3 Cold. (Tenn.) 205; Philadelphia & R. R. Co. v. Ervin, 89 Pa. St. 71.

83 Ex parte Chin Yan, 60 Cal. 78; 1 Dill. Mun. Corp. § 328; Coal-Float v. City of Jeffersonville, 112 Ind. 15, 19, 13 N. E. 115.

34 Commissioners, etc., of Northern Liberties v. Northern Liberties Gas Co.. 12 Pa. St. 318.

36

of persons." But all by-laws or ordinances of municipal corporations which are in restraint of trade, or which tend to create monopolies, are void, unless they are distinctly justifiable as police regulations. Thus, ordinances in relation to public markets are. not valid if they make unreasonable restrictions, or operate to restrain trade, or tend to create a monopoly." The same is true of an ordinance which attempts to restrain persons from employing others in a lawful business beyond certain limits.3

Impartiality.

38

Municipal ordinances must be impartial. For instance, an ordinance which gives to one sect or religious denomination privileges which it denies to others violates the constitution and is void. So, an ordinance which prevents one citizen from engaging in a particular kind of business in a certain locality, under a penalty, while another is permitted to engage in the same business in the same locality, is unreasonable and void.40 Again, a municipality may provide modes of punishment for offenders against its police ordinances, by general ordinances affecting all persons alike, but has no power to single out any individual, and denounce his trade, occupation, or conduct."1 And so, a city ordinance exacting a license fee for selling goods, which fixes one rate of license for selling goods which are within the city or in transit to it, and another and much larger license for selling goods which are not in the city, is invalid, as being unjust, unequal, oppressive, and in restraint of trade.42

Certainty.

41

It is next required of municipal ordinances that they shall be definite and certain.43 This requirement is specially important if the ordinance is penal; that is, enjoining or prohibiting the doing

85 Williams v. City Council, 4 Ga. 509.

36 City of Chicago v. Rumpff, 45 Ill. 90; Hayes v. City of Appleton, 24 Wis. 542.

37 City of Bloomington v. Wahl, 46 Ill. 489; Bethune v. Hughes, 28 Ga. 560. 38 Ex parte Kuback, 85 Cal. 274, 24 Pac. 737.

39 City of Shreveport v. Levy, 26 La. Ann. 671.

40 Tugman v. City of Chicago, 78 Ill. 405.

41 Board of Councilmen of Baton Rouge v. Cremonini, 36 La. Ann. 247.

42 Ex parte Frank, 52 Cal. 606.

43 San Francisco Pioneer Woolen Factory v. Brickwedel, 60 Cal. 166.