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the people by the State constitution have prohibited the State government from doing, it cannot do indirectly through the local governments.
2. Municipal by-laws must also be in harmony with the general laws of the State, and with the provisions of the municipal charter. Whenever they come in conflict with either, the by-law must give way. The charter, however, may expressly or by necessary implication exclude the general laws of the State on any particular subject, and allow the corporation to pass local laws at discretion, which may differ from the rule in force elsewhere. But in these cases the control of the State is not ex
cluded if the legislature afterward see fit to exercise it; (* 199] nor will conferring a power upon a * corporation to pass
by-laws and impose penalties for the regulation of any specified subject necessarily supersede the State law on the same subject, but the State law and the by-law may both stand together if not inconsistent. Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority, be imposed for its commission by municipal bylaws, and the enforcement of the one would not preclude the enforcement of the other.4
1 Wood v. Brooklyn, 14 Barb. 428; be made applicable to particular porMayor, &c. of New York v. Nichols, tions of a city only, and yet not be in4 Hill, 209; Petersburg v. Metzker, valid. Goddard, Petitioner, 16 Pick. 21 Ill. 205; Southport v. Ogden, 23 504; Commonwealth v. Patch, 97 Conn. 128; Andrews v. Insurance Mass. 222, per Hoar, J.; St. Louis e. Co., 37 Me. 256 ; Canton v. Nist, 9 Weber, 44 Mo. 547. Ohio, n. 8. 439; Carr v. St. Louis, 9 8 City of St. Louis v. Bentz, 11 Mo. 191; Commonwealth v. Erie and Mo. 61; City of St. Louis v. Cafferata, Northeast Railroad Co., 27 Penn. St. 24 Mo. 97; Rogers v. Jones, 1 Wend. 339; Burlington v. Kellar, 18 Iowa, 261; Levy v. State, 6 Ind. 281; 59; Conwell v. O'Brien, 11 Ind. 419; Mayor, &c. of Mobile v. Allaire, 14 March v. Commonwealth, 12 B. Monr. Ala. 400. 25. See Baldwin v. Green, 10 Mo. 4 Such is the clear weight of an410; Cowen v. West Troy, 43 Barb. thority, though the decisions are not 48; State v. Georgia Medical Society, uniform. In Rogers v. Jones, 1 38 Geo. 629; Pesterfield v. Vickers, Wend. 261, it is said: “But it is said 3 Cold. 205; Mays v. Cincinnati, 1 that the by-law of a town or corporaOhio, N. 8. 268; Wirth v. Wilming- tion is void, if the legislature have ton, 68 N. C. 24.
regulated the subject by law. If the 2 State v. Clarke, 1 Dutch. 54; State legislature have passed a law regulatv. Dwyer, 21 Minn. 512; Covington ing as to certain things in a city, 1. v. East St. Louis, 78 III. 548; Coulter- apprehend the corporation are not ville v. Gillen, 72 Ill. 599. Peculiar thereby restricted from making furand exceptional regulations may even ther regulations. Cases of this kind
3. Municipal by-laws must also be reasonable. When- [* 200] ever they appear not to be so, the court must, as a mat
have occurred and never been ques- wholly disconnected, and the prosecutioned on that ground; it is only to tion at the suit of each proceeds upon notice a case or two out of many. a different hypothesis; the one conThe legislature have imposed a pen- templates the observance of the peace alty of one dollar for servile labor on and good order of the city; the other Sunday; the corporation of New York has a more enlarged object in view, bave passed a by-law imposing the the maintenance of the peace and penalty of five dollars for the same dignity of the State.” See also offence. As to storing gunpowder in Mayor, &c. of Mobile v. Rouse, 8 New York, the legislature and corpo- Ala. 515; Intendant, &c. of Greensration have each imposed the same boro'o. Mullins, 13 Ala. 341; Mayor, penalty. Suits to recover the penalty &c. of New York v. Hyatt, 3 E. D. have been sustained under the corpo- Smith, 156 ; People v. Stevens, 13 ration law. It is believed that the Wend. 341; Blatchley v. Moser, 15 ground has never been taken that Wend. 215; Levy v. State, 6 Ind. there was a conflict with the State 281; Ambrose v. State, 6 Ind. 351; law. One of these cases is reported Lawrenceburg v. Wuest, 16 Ind. 337; in 12 Johns. 122. The question was Amboy v. Sleeper, 31 III. 499; St. open for discussion, but not noticed.” Louis v. Bentz, 11 Mo. 61; St. Louis In Mayor, &c. of Mobile v. Allaire, v. Cafferata, 24 Mo. 94; Shafer v. 14 Ala. 400, the validity of a munici- Mumma, 17 Md. 331; Brownville v. pal by-law imposing a fine of fifty Cook, 4 Neb. 101; State v. Ludwig, dollars
, for an assault and battery com- 21 Minn. 202. On the other hand, it mitted within the city, was brought was held in State v. Cowan, 29 Mo. in question. Collier, Ch. J., says, p. 330, that where a municipal corpora103: “ The object of the power con- tion was authorized to take cogniferred by the charter, and the pur- zance of and punish an act as an pose of the ordinance itself, was uot offence against its ordinances which to punish for an offence against the was also an offence against the gencriminal justice of the country, but eral laws of the State, and this power to provide a mere police regulation, for was exercised and the party punished, the enforcement of good order and be could not afterwards be proceeded quiet within the limits of the corpo- against under the State law.
• The ration. So far as an offence has been constitution,” say the court, “ forbids committed against the public peace that a person shall be twice punished and morals, the corporate authorities for the same offence. To hold that have no power to inflict punishment, a party can be prosecuted for an act and we are not informed that they under the State laws, after he has have attempted to arrogate it. It been punished for the same act by the is altogether immaterial whether the municipal corporation within whose State tribunal has interfered and ex- limits the act was done, would be to ercised its powers in bringing the overthrow the power of the General defendant before it to answer for the Assembly to create corporations to aszault and battery ; for whether he aid in the management of the affairs has there been punished or acquitted of the State. For a power in the is alike animportant.
The offence State to punish, after a punishment against the corporation and the State had been inflicted by the corporate We have seen are distinguishable and authorities, could only find a support
ter of law, declare them void.1 To render them reasonable, they
should tend in some degree to the accomplishment of the [* 201] objects for which the corporation * was created and its
powers conferred. A by-law, that persons chosen annu
in the assumption that all the proceed- should be agreed upon. It was held ings on the part of the corporation that the city of New York had no were null and void. The circum- power to prohibit under a penalty the stance that the municipal authorities sale of such hay without inspection; have not exclusive jurisdiction over this being obviously inconsistent with the acts which constitute offences the statute which gave a right to sell within their limits does not affect the if its regulations were complied with. question. It is enough that their Mayor, &c. of New York v. Nichols, jurisdiction is not excluded. If it 4 Hill, 209. exists, — although it may be concur- 1 2 Kydon Corporations, 107; rent, - if it is exercised, it is valid Davies v. Morgan, 1 Cromp. & J. 587; and binding so long as it is a consti- Chamberlain of London v. Compton, tutional principle that no man may be 7 D. & R. 597; Clark v. Le Cren, 9 punished twice for the same offence.”' B. & C. 52; Gosling v. Veley, 12 This case seems to be supported by Q. B. 317; Dunham v. Rochester, 5 State v. Welch, 36 Conn. 216, and Cow. 462; Mayor, &c. of Memphis v. the case of Slaughter v. People, cited Winfield, 8 Humph. 707; Hayden e. below, goes still further. Those Noyes, 5 Conn. 391; Waters r. Leech, which hold that the party may be 3 Ark. 110; White v. Mayor, 2 Swan, punished under both the State and 364; Ex parte Burnett, 30 Ala 461; the municipal law are within the prin- Craig v. Burnett, 32 Ala. 728; Austin ciple of Fox v. State, 5 How. 410; 0. Murray, 16 Pick. 121; Godard, Moore v. People, 14 How 13. And Petitioner, 16 Pick. 504; Commonsee Phillips v. People, 55 III. 429. In wealth v. Worcester, 3 Pick. 462; Jefferson City v. Courtmire, 9 Mo. Commissioners v. Gas Co., 12 Penn. 692, it was held that authority to a St. 318; State v. Jersey City, 29 municipal corporation to “regulate N. J. 170; Gallatin v. Bradford, 1 the police of the city” gave it no Bibb, 209; Carew v. Western Union power to pass an ordinance for the Telegraph Co., 15 Mich. 525; State punishment of indictable offences. 0. Freeman, 38 N. H. 426 ; Pedrick And in Slaughter v. People, 2 Doug. v. Bailey, 12 Gray, 161; St. Louis v. (Mich.) 334, it was held not compe- Weber, 44 Mo. 550. But where the tent to punish, under city by-laws, an question of the reasonableness of a indictable offence.
by-law depends upon evidence, and it Where an act is expressly or by relates to a subject within the jurisimplication permitted by the State diction of the corporation, the court law, it cannot be forbidden by the will presume it to be reasonable until corporation. Thus, the statutes of the contrary is shown. CommonNew York established certain regula- wealth o. Patch, 97 Mass. 221. And tions for the putting up and marking see St. Louis v. Weber, 44 Mo. 550. of pressed hay, and provided that such To be reasonable, by-laws should be hay might be sold without deduction equal in their operation. Tugman e. for tare, and by the weight as marked, Chicago, 78 III. 405; Bailing v. West, or any other standard weight that 29 Wis. 307.
ally as stewards of the Society of Scriveners should furnish a dinner on election day to the freemen of the society, — the freemen not being the electors nor required to attend, and the office of steward being for no other purpose but that of giving the dinder, — was held not connected with the business of the corporation, and not tending to promote its objects, and therefore unreasonable and void. And where a statute permitted a municipal corporation to license the sale of intoxicating drinks and to charge a license fee therefor, a by-law requiring the payment of a license fee of one thousand dollars was held void as not advancing the purpose of the law, but as being in its nature prohibitory. And if a a corporation has power to prohibit the carrying on of dangerqus occupations within its limits, a by-law which should permit one person to carry on such an occupation and prohibit another, who had an equal right, from pursuing the same business; or which should allow the business to be carried on in existing buildings, but prohibit the erection of others for it, would be unreasonable. And a right to license an employment does not imply a right to charge a license fee therefor with a view to revenue, unless such seems to be the manifest purpose of the power; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of officers and other expenses thereby imposed. A license is issued under the police power; but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation ; and the charter must
Society of Scriveners v. Brook- and regulate the carrying on of maning, 3 Q. B. 95. See, on this general ufactures dangerous in causing or subject, Dillon, Mun. Corp. $8 251– promoting fires does not authorize an
ordinance prohibiting the erection of * Ex parte Burnett, 30 Ala. 461 ; wooden buildings within the city, or Craig o. Burnett, 32 Ala. 728. A to limit the size of buildings which by-law declaring the keeping on hand individuals shall be permitted to erect of intoxicating liquors a nuisance was on their own premises. Ibid. An held unreasonable and void in Sulli- ordinance for the destruction of van e. Oneida, 61 III. 242. That property as a nuisance without a which is not a nuisance in fact cannot judicial hearing is void.
Darst v. be made such by municipal ordi- People, 51 m. 286. An ordinance nance. Chicago, &c. R. R. Co. v. for the arrest and imprisonment withJoliet, 79 III. 25; Wreford o. People, out warrant of a person refusing to 14 Mich. 41.
assist in extinguishing a fire is void. 3
Mayor, &c. of Hudson v. Thorne, Judson v. Reardon, 16 Minn. 431. 7 Paige, 261. A power to prevent
plainly show an intent to confer that power, or the municipal
corporation cannot assume it." (* 202] * A by-law to be reasonable should be certain. If it
affixes a penalty for its violation, it would seem that such penalty should be a fixed and certain sum, and not left to the discretion of the officer or court which is to impose it on conviction ; though a by-law imposing a penalty not exceeding a certain sum has been held not to be void for uncertainty.?
So a by-law to be reasonable should be in harmony with the general principles of the common law. If it is in general restraint of trade, — like the by-law that no person shall exercise
the art of painter in the city of London, not being free of the company of painters, – it will be void on this ground. To take
1 State v. Roberts, 11 Gill & J. charter, it would perhaps be safer and 506; Mays v. Cincinnati, 1 Ohio, N. 8. less liable to lead to confusion and 268 ; Cincinnati v. Bryson, 15 Ohio, difficulty to refer the corporate au625 ; Freeholders v. Barber, 2 Halst. thority to the taxing power, rather 64 ; Kip v. Paterson, 2 Dutch. 298; than exclusively to the power
of Bennett v. Borough of Birmingham, regulation. See Dunham v. Trustees 31 Penn. St. 15 ; Commonwealth v. of Rochester, 5 Cow. 462, upon the Stodder, 2 Cush. 562 ; Chilvers v. extent of the police power.
Fees People, 11 Mich. 43 ; Mayor, &c. of which are imposed under the inspecMobile v. Yuille, 3 Ala. 144 ; John- tion laws of the State are akin to son v. Philadelphia, 60 Penn. St. 451; license fees, and if exacted not for State v. Herod, 29 Iowa, 123 ; Mayor, revenue, but to meet the expenses &c. of New York v. Second Avenue of regulation, are to be referred to R. R. Co , 32 N. Y. 261 ; Home Ins. the police power. Cincinnati Gas Co. v. Augusta, 50 Geo. 530. Nev- Light Co. v. State, 18 Ohio, x. . ertheless, the courts will not inquire 243. On this subject in general, see very closely into the expense of a Dillon, Mun. Corp. 88 291-308. license with a view to adjudge it a Mayor, &c. of Huntsville e. tax, where it does not appear to be Phelps, 27 Ala. 55, overruling Mayor, unreasonable in amount in view of its &c. of Mobile v. Yuille, 3 Ala. 14. purpose as a regulation.
And see Piper v. Chappell, 14 M. & People, 11 Mich. 347 ; Johnson v. W. 624. Philadelphia, 60 Penn. St. 451; Bur- 8 Clark v. Le Cren, 9 B. & C. 52; lington v. Putnam Ins. Co., 31 lowa, Chamberlain of London v. Compton, 102. And in some cases it has been 7 D. & R. 597. Compare Hayden held that license fees might be im- v. Noyes, 5 Conn. 391; Willard r. posed under the police power with a Killingworth, 8 Conn. 247. But a view to operate as a restriction upon by-law is not void, as in restraint of the business or thing licensed. Carter trade, which requires loaves of bread v. Dow, 16 Wis. 299 ; Tenney v. Lenz, baked for sale to be of specified 16 Wis. 567. See State v. Cassidy, weight and properly stamped, or 22 Minn. 312. But in such cases, which requires bakers to be licensed. where the right to impose such license Mayor, &c, of Mobile v. Yuille, 3 fees can be fairly deduced from the Ala. 137.