§ 422 (355). Proof of Ordinances. When not specially regulated by charter or statute, the proof of ordinances must be by the production of the originals or the books in which they are registered, as these are the primary evidence.1 Printed copies, or authenticated copies, are often made competent evidence by the legislature.

§ 423. Presumption of Validity. - Where authority to pass an ordinance on a given subject was conditioned that it should be first

submitted to the voters of the municipality and adopted by a majority vote, in a prosecution for a breach thereof it was held that the further provision of the charter, that an ordinance might be proved by a copy thereof duly certified, &c., did not dispense with the necessity of proving that the ordinance was submitted to the voters and adopted, and that it had been published as required by law, the only effect of the charter provision being to dispense with the production of the original ordinance by making the certified copy evidence.1

1 Schott v. The People, 89 Ill. 195 (1878). Scholfield, J., adds: "Municipal corporations exercise only delegated and limited powers, and, in the absence of express statutory provisions to that effect, courts are authorized to indulge in no

presumptions in favor of the validity of their ordinances. If in conformity with the express or necessarily implied grant of the charter, they are valid; otherwise not."

CHAPTER XIII.

MUNICIPAL COURTS.

Municipal Courts in England and at Common Law.

§ 424 (356). At Common Law. -A municipal corporation may, at common law, enjoy the franchise of holding a court; and corporation or municipal courts, which were local or inferior tribunals, were not uncommon. They were treated as the tribunals of the corporation; but since courts of justice are for the public benefit, words in a charter permitting the corporation to hold a court are imperative. Such public right cannot be lost by a non-user; and therefore the mere disuse, for two hundred years, of a court granted to a corporation by charter is no answer to a rule for a mandamus commanding them to hold it, though it was alleged that there were no sufficient funds for the purpose.3

§ 425. Jurisdiction; Parties; Jurors. The common-law doctrine respecting municipal courts was settled to be that the municipal corporation could bring no action therein against a stranger where the effect would be to benefit the corporation or increase its funds, for that would be to make the corporation itself both judge and party, which an inflexible and fundamental maxim of the common law prohibited; and the same principle was considered to operate to disqualify corporators to sit as jurors in such cases; but this objection did not apply when both parties were corporators.*

§ 426. Existing Borough Courts.—The English Municipal Corporation Act of 1835 provides for the establishment of borough courts,

1 Inst. 114; 4 Inst. 78, 224; Cro. Jac. 313; Haddock's Case, Sir Thomas Raymond, 435.

2 Rex v. Mayor, &c. of Hastings, 5 B. & Ald. 692, n. The language of the charter was "that the mayor may for the pur. pose hereafter have and hold and have power to hold a court of record," and it was held that these words, though per missive in form, were imperative, and that the corporation was bound to hold

the court for the benefit of the inhab. itants. 1b.; Grant on Corp. 34.

3 Rex v. Mayor, &c. of Wells, 4 Dowl. P. C. 562.

Hesketh v. Braddock, 3 Burr. 18561868; cited infra, sec. 431, note; Grant on Corp. 194; London v. Wood, 12 Mod. 674; 1 Salk. 398; Bosworth v. Budgen, 7 Mod. 461; Reg. v. Rogers, 2 Ld. Raym. 778; Willc. on Corp. 157, 165. See infra, sec. 431.

defines their jurisdiction and powers, makes burgesses or citizens competent jurors, contains an express provision that no witness or magistrate shall be incompetent or disqualified by reason of his being liable to contribute to the fund of the corporation, and regulates in general the proceedings therein for violation of by-laws or ordinances, and the collection and enforcement of penalties.1

It may, however, be observed that under the act the power to make by-laws is limited, and does not extend to acts criminal in their nature, and which are punishable by criminal statutes in force throughout the realm.

American Corporation Courts; Constitutional Provisions.

§ 426 a. Introductory Observations. Here, as elsewhere, the composite type of the usual American municipality in its local and private, as well as its general and public character, distinctly reveals itself. Although often material it is not always easy to trace the line of demarcation. To ascertain and define it as applicable to this chapter we have to resort to the construction which well-known provisions of Magna Charta relating to personal rights and liberty have received in Great Britain and here, and to the legislative enactments and polity in both countries, and in this country to special constitutional provisions relating thereto, and to the powers and jurisdiction of the judicial tribunals. The subject is obviously important. Statutory provisions concerning the constitution and powers of the municipal government and those of the local tribunals, especially provisions authorizing summary proceedings in municipal courts without trial by jury and without the usual formulae of an adversary proceeding in the superior judicial tribunals, have frequently been found to be in conflict with organic provisions to secure fundamental rights of property and the liberty of the citizen. Summary powers, properly defined and limited, are essential to the well-being of local communities, and when thus limited and defined are perfectly consistent with the liberty of the citizen, that is, liberty regulated by law, which is the only true liberty. These limits must be sought largely in the polity, practice and traditions, and in the judicial judgments in England and in this country relating thereto, in

1 5 and 6 Wm. IV. chap. lxxxvi, secs. 90, 91, 118-134, 270-341 (1835). Mr. Justice Stephen traces the history of Borough Courts prior to the act of 1835, and states the changes made by that act. Hist. Criminal Law, vol. i. chap. iv. p. 116 et seq. He also summarizes the legis

lation authorizing the infliction of summary penalties of different kinds upon a great variety of offenders, ending in the Summary Jurisdiction Act of 1879 (42 & 43 Vict. chap. 49). Ib., chap. iv. p. 122. Post, sec. 337 et seq.

the light of which constitutional provisions must be construed. Some pains have therefore been taken to exhibit in the text the material doctrines of our jurisprudence on these subjects, and in the notes to furnish the reader with the data for full research, critical consideration, and the formation of his own conclusions.

§ 427 (357). Creation, Jurisdiction, and Powers. In this country it is usual to provide in the charter or organic act of a municipal corporation for a local or special tribunal, called by different names, such as the mayor's court, recorder's court, city court, and the like; and which is invested with jurisdiction over complaints and prosecutions for the violation of the ordinances of the corporation, and often, for public convenience, with special civil and limited criminal jurisdiction under the laws of the State. It is competent for the legislature to provide for the establishment of these inferior courts, and to invest them with such measure of power and jurisdiction as may be deemed expedient, if no provision of the Constitution of the particular State be infringed.1 It may also abolish them.2

1 State v. Mayor of Charleston, 12 v. State, 18 Ala. 521 (1821), holding the Rich. (S. C.) Law, 480; State v. Helfrid, 2 Nott & McCord (S. C.), 233 (1820); infra, sec. 432, note; Callahan v. New York, 66 N. Y. 656; People v. Curley, 5 Col. 412.

Constitutional provisions concerning the establishment and powers, local, civil, and crminal, of Inferior Courts: The power conferred on police magistrate to issue process against the body of an offender is constitutional. Brown v. Jerome, 102 Ill. 371. The legislature has no power to confer upon local municipal courts a jurisdiction which is exclusive of that which, by the Constitution, is given to another court. Montross v. State, 61 Miss. 429. Full discussion of legislative power to create inferior courts, and define jurisdiction. Callahan v. New York, 66 N. Y. 656; Gray v. State, 2 Harring. (Del.) 76 (1835). Mayor's court an inferior court within meaning of State Constitution. Ib.; Egleston v. City Council, 1 Mill Const. (S. C.) 45. As to official character of city recorder. Ib.; Schroder

v. City Council, 2 Const. R. 726; s. c. 3 Brev. 533; post, sec. 430; Tesh v. Commonwealth, 4 Dana (Ky.), 522; Nugent

city court of Mobile, which is invested with criminal jurisdiction, and from whose judgment an appeal lies, to be constitutional, and defining meaning of inferior court. Perkins v. Corbin, 45 Ala. 103 (1871), holding that a city court is an inferior court within the meaning of the Constitution, which may be created and abolished at the pleasure of the legislature, and that the abolition of the court carries with it the office of the Judge. New Orleans v. Costello, 14 La. An. 37; Myers v. People, 26 Ill. 173; Davis v. Woolnough, 9 Iowa, 104; People v. Wilson, 15 Ill. 389; State v. Maynard, 14 Ill. 419; Beesman v. Peoria, 16 Ill. 484; Holmes v. Fihlenburg, 54 Ill. 203 (1870); Van Swartow v. Commonwealth, 24 Pa. St. 131 (1854); Tierney v. Dodge, 9 Minn. 166; St. Peter v. Bauer, 19 Minn. 327 (1872); infra, sec. 432, note; Burns v. La Grange, 17 Texas, 415 (1856); Slattery, In re, 3 Ark. 484; Ib. 561; Graham v. State, 1 Pike (1 Ark.), 171; Floyd v. Eatonton Comm'rs, 14 Ga. 354 (1853); Hill v. Dalton, 72 Ga. 314; State v. Gutierrez, 15 La. An. 190; Muscatine v. Steck, 7 Iowa, 505; Richmond Mayoralty

2 Boyd v. Chambers, 78 Ky. 140; State v. Henshaw, 76 Cal. 436 (1888).