CHAPTER XII. MUNICIPAL ORDINANCES OR BY-LAWS. § 306 (243). Subject outlined. This subject will be considered under the following heads: 1. Definition, General Nature and Common-Law Requisites of Ordinances secs. 307-330. 2. Of the Signing, Publication, and Recording-secs. 331-335. 3. Of the Power to impose Fines, Penalties, and Forfeitures secs. 336-353. 4. On Whom Binding, and Notice thereof-secs. 354-356. 5. Ordinances relating to the Licensing, Taxing, and Regulation of Amusements and Cccupations, including the Sale of Intoxicating Liquors secs. 357-365. 6. Ordinances relating to Public Offences secs. 366-368. 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. 369-407. 8. Mode of enforcing Ordinances: Herein of Actions and Prosecutions, and their Nature; Mode of pleading Ordinances; Requisites of Complaints to enforce Ordinances; Construction, Defences, Evidence, &c. secs. 408-422. Definition, General Nature, and Common-Law Requisites of Ordinances. § 307 (244). Definition. Under the general term of "ordinances" have been sometimes included all the regulations by which a corporation is itself 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, or acts of the legislature respecting municipal corporations regulating their powers and mode of action, but is limited in its application to the acts or regulations, in the nature of local laws, passed by the proper assembly or gov erning body of the corporation. Indeed, in general and professional use the term "ordinance" is almost, if not quite, equivalent in meaning 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 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 "bylaw" 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 v. Turner, 1 Cush. (Mass.) 493. See also Taylor v. Lambertville, 43 N. J. Eq. (16 Stew.) 107. "It means a local law prescribing a general and permanent rule." Elliott, J., Citizens' Gas. & M. Co. v. Elwood, 114 Ind. 332 (1887). 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 bylaw. Per Parke, B., Gosling v. Veley, 19 L. J. (N. s.) Q. B. 135. Resolutions and Ordinances discriminated. - A resolution is an order of the council of a special and temporary char acter; an ordinance prescribes a perma nent 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; Merch. Union B. Wire Co. v. Chicago, B. & Q. Ry. Co., 70 Iowa, 105; Butler v. Passaic, 44 N. J. L. 171. But if the organic law requires an act to be done by ordinance, or if such requirement is implied by necessary inference, a resolution is not sufficient. Newman v. Emporia, 32 Kan. 456; Hunt v. Lambertville, 45 N. J. L. (16 Vroom) 279 (a resolution granting authority to build a sewer set aside). Resolution or vote held equivalent to formal ordinance in a case where the latter was not expressly required by the charter or statute. Merch. Union B. Wire Co. v. Chicago, B. & Q. R. Co., 70 Iowa, 105. In State v. Bayonne, 6 Vroom (35 N. J. L.), 335, resolutions and ordinances are discriminated, and the latter said to require more solemnity than the former. A resolution adopted by a city council, not approved by the mayor, and not published in the manner required by the charter, has not the effect of an or dinance. Central v. Sears, 2 Col. 588 (1875). The legislative powers of a city council, as in fixing the compensation of city officers (it was held, construing the charter), must be exercised by ordinance, when this is intended to be permanent. 1b. A resolution has ordinarily the same effect as an ordinance, as both are legisla tive acts. Sower v. Philadelphia, 35 Pa. St. 231 (1860); Gas Co. v. San Francisco, § 308 (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, with appro 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 ordi. nance or regulation, and the form in which it was passed did not make it void. Municipality v. Cutting, 4 La. An. 335 (1849). Where a city has power, by charter, to make "ordinances, rules, resolutions, and by-laws," which are required to be passed by the vote of a majority of the council and signed by the mayor, any form of procedure may be adopted if it appears upon the record in a permanent form, as, by a record in the minutes of an oral motion with the vote thereon. Green Bay v. Brauns, 50 Wis. 204. By one section of the charter the council was authorized to make "by-laws, ordinances, resolutions, and regulations," 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 44 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. 1b. How construed. The charter of a city bears the same general relation to the ordinances of a city that the Constitution of a State bears to its statutes, and the general rules applicable to unconstitutional statutes may be applied in construing ordinances. Quinette v. St. Louis, 76 Mo. 402. v. Jersey City (building sewers), 3 Dutch. (N. J.) 493; Ib. 185, 196; State v. Jersey City (signature of mayor), 1 Vroom (30 N. J. L.), 148; State v. Trenton, 7 Vroom (36 N. J. L.), 499, 503. Instances where an ordinance was held essential. State v. Bayonne (grading street), 6 Vroom (35 N. J. L.), 335; Ib. 205; Cross v. Morristown (alteration of width of street and sidewalk), 3 C. E. Green (N. J.), 305; State v. Bergen (appointment of commis sioners to assess damages), 4 Vroom (33 N. J. L.), 39, 72; Paterson v. Barnet, 46 N. J. L. (17 Vroom) 62; ante, sec. 258, note; sec. 270, note. 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. Cross v. Morristown, 18 N. J. Eq. 305; Anderson v. O'Conner, 98 Ind. 168; post, chap. xix. 1 Perdue v. Ellis, 18 Ga. 586 (1855); St. Paul v. Coulter, 12 Minn. 41 (1866); Commonwealth v. Duquet, 2 Yeates (Pa.), 493; Hill v. Decatur, 22 Ga. 203; State v. Clark, 8 Fost. (28 N. H.) 176 (1854); Milne v. Davidson, 5 Martin, N. s. (La.) 586; Markle v. Akron, 14 Ohio, 586, 590 (1846); Mayor, &c. v. Morgan, 7 Martin, N. s. (La.) 1, per Martin, J.; Trigally v. Memphis, 6 Coldw. (Tenn.) 382 (1869); Metcalf v. St. Louis, 11 Mo. 103 (1847). That such a power may be delegated to was intended to be a delegation of legisla tive power, and that, while the principle of local government authorizes the grant of limited powers of local legislation to mu nicipalities, the power of general State legislation cannot be so delegated. See also Bowles v. Landaff, 59 N. H. 164, and Gould v. Raymond, Ib. 260. Council may order sewer to be built by a committee. Collins v. Holyoke, 146 Mass. 298 (1888). See Dorey v. Boston, 1b. 336, 339, and cases. Ante, secs. 97, 289. priate sanctions, which, when authorized, have the force, in favor of the municipality and against persons bound thereby, of laws passed by the legislature of the State. A penalty imposed by an ordinance municipal corporations is admitted even in those States which deny the validity of what are known as Local Option Laws. Wall, In re, 48 Cal. 279 (1874); s. c. 17 Am. Rep. 425; ante, sec. 44, note; Gloversville v. Howell (local option as to sale of intoxicating liquors), 70 N. Y. 287 (1877); Gilbert Elevated Railway Co., In re, 70 N. Y. 361 (1877); Covington v. East St. Louis, 78 Ill. 548 (1875). In Strauss v. Pontiac, 40 Ill. 301 (1866), the Supreme Court held that a provision in a town charter forbidding any person to do 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 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. The subject of the power of the legislature to delegate the legislative function to municipalities was considered in an able opinion by Chief Justice Doe, in State, ex rel. v. Hayes, 61 N. H. 264, 314 (1881), in which he reviews the authorities in extenso. The facts, briefly stated, were that the legislature had submitted a proposition as to whether an act authorizing share holders in corporations to cast all their votes for one candidate for director or to distribute them among two or more candidates, should become a law, to the vote of the people of the State, voting in their several towns and wards. The election having been held and the law having been declared adopted and put into effect, the validity of the proceeding was tested by quo warranto proceedings against one who had been declared elected a director of a railroad company. It was held that the act 1 Heland v. Lowell, 3 Allen (Mass.), 407 (1862); Brick Presb. Church v. City, &c., 5 Cow. 538; 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 v. Board of Police, 5 Abb. Pr. (N. Y.) 422 (1857); Mason v. Shawneetown, 77 Ill. 533 (1875); Des Moines Gas Co. v. Des Moines (city of), 44 Iowa, 508; s. c. 24 Am. Rep. 756, citing text; State v. Tryon, 39 Conn. 183 (1872); Indianapolis v. Indianapolis Gas Co., 66 Ind. 396, citing text; Bearden v. Madison, 73 Ga. 184; St. Johnsbury v. Thompson, 59 Vt. 300; Starr v. Burlington, 45 Iowa, 87. 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); St. Louis v. Foster, 52 Mo. 513 (1873). 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 cor. porations 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 N. s. (La.) 586. 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 authorized by the legislature for the doing of certain specified acts amounts to a prohibition, and the prohibited acts become thereby unlawful.1 § 309 (246) Ordinances must be adopted by Proper Body and in the Prescribed Mode. - 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. for private hospital), 5 Martin, supra (1827); Heland v. Lowell, 3 Allen (Mass.), 407 (1867); but compare Baker v. Port land, 58 Me. 199; s. c. 10 Am. Law Reg. (N. s.) 559, and see Judge Redfield's note. And see also Heeny v. Sprague, 11 R. I. 456 (1877); s. c. 23 Am. Rep. 502, holding that no private action for damages impliedly exists in favor of a person injured by a breach of duty imposed by a municipal by-law against the person who violated the by-law. A distinction between by-laws and statutes suggested and discussed by Durfee, C. J.; see Johnson v. Simonton, 43 Cal. 242 (1872). 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; Des Moines Gas Co. v. Des Moines (city of), 44 Iowa, 505 (1870); s. c. 24 Am. Rep. 756, distinguishing Davis v. Mayor, 14 N. Y. 506; People v. Sturtevant, 9 N. Y. 263. Ante, sec. 197, note; post, chap. xxii. 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). But see Sheridan v. Colvin, 78 Ill. 237. The jurisdiction of every council is not only to be confined to the municipality the council represents, but is to be exercised, when not otherwise provided for, by by-law. When a corporation is duly erected, the law tacitly annexes to it the power of making by-laws or private statutes. This power is included in every act of incorporation; for, as is quaintly observed by Blackstone, "as natural reason is given to the natural body for the gov What is necessary to constitute erning it, so by-laws or statutes are a sort of political reason to govern the body politic." 1 Bl. Com. 476. Though the power to make by-laws is unquestionably an incident of every corporation, it is rarely left to implication; but is usually, as in the present case, conferred by the express terms of the act of parliament. A by-law is a rule obligatory over a particular district, not being at variance with the general laws, and being reasonably adapted to the purposes of the corporation. Gosling v. Veley et al., 19 L. J. (N. s.) Q. B. 135. Hopkins v. Swansea, 4 M. & W. 621; The Queen v. Osler, 32 Upper Can. Q. B. 324. The courts upon general principles recognize judicially what municipal councils are competent to do, and hold that it is not necessary for them to recite in a by-law all that is requisite to show that they have proceeded regularly in passing it. Grierson v. Ontario, 9 Upper Can. Q. B. 623; Fisher v. Vaughan, 10 Upper Can. Q. B. 492; The King v. Harrison, 3 Burr. 1328; Methodist Prot. Church v. Baltimore, 6 Gill (Md.), 394; Stuyvesant v. New York, 7 Cow. (N. Y.) 588; Harr. Munic. Manual, 4th ed. 1 Johnson v. Simonton (swill milk ordinance of San Francisco), 43 Cal. 242 (1872). Thus a city ordinance, duly au thorized, imposing a penalty for feeding distillery slops to cows, and also for vending the milk of cows so fed, amounts to an authoritative prohibition in both respects; and the acts thus prohibited are illegal. Ib. The code of Iowa (sec. 489), requires that "no ordinance shall contain more than one subject, which shall be clearly expressed in its title." Under it an ordinance entitled " Remulating the use and sale of intoxicating liquors" was declared |