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.2 But in these cases the control of the State is not excluded 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; Mayor, &c. of New York v. Nichols, 4 Hill, 209; Petersburg v. Metzker, 21 Ill. 205; Southport v. Ogden, 23 Conn. 128; Andrews v. Insurance Co., 37 Me. 256; Canton v. Nist, 9 Ohio, N. s. 439; Carr v. St. Louis, 9 Mo. 191; Commonwealth v. Erie and Northeast Railroad Co., 27 Penn. St. 339; Burlington v. Kellar, 18 Iowa, 59; Conwell v. O'Brien, 11 Ind. 419; March v. Commonwealth, 12 B. Monr. 25. See Baldwin v. Green, 10 Mo. 410; Cowen v. West Troy, 43 Barb. 48; State v. Georgia Medical Society, 38 Geo. 629; Pesterfield v. Vickers, 3 Cold. 205; Mays v. Cincinnati, 1 Ohio, N. s. 268; Wirth v. Wilmington, 68 N. C. 24. 2 State v. Clarke, 1 Dutch. 54; State v. Dwyer, 21 Minn. 512; Covington v. East St. Louis, 78 Ill. 548; Coulterville v. Gillen, 72 Ill. 599. Peculiar and exceptional regulations may even be made applicable to particular portions of a city only, and yet not be invalid. Goddard, Petitioner, 16 Pick. 504; Commonwealth v. Patch, 97 Mass. 222, per Hoar, J.; St. Louis e. Weber, 44 Mo. 547. City of St. Louis v. Bentz, 11 Mo. 61; City of St. Louis v. Cafferata, 24 Mo. 97; Rogers v. Jones, 1 Wend. 261; Levy v. State, 6 Ind. 281; Mayor, &c. of Mobile v. Allaire, 14 Ala. 400. 4 Such is the clear weight of authority, though the decisions are not uniform. In Rogers v. Jones, 1 Wend. 261, it is said: "But it is said that the by-law of a town or corporation is void, if the legislature have regulated the subject by law. If the legislature have passed a law regulating as to certain things in a city, I apprehend the corporation are not thereby restricted from making further 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 questioned on that ground; it is only to notice a case or two out of many. The legislature have imposed a penalty of one dollar for servile labor on Sunday; the corporation of New York have passed a by-law imposing the penalty of five dollars for the same offence. As to storing gunpowder in New York, the legislature and corporation have each imposed the same penalty. Suits to recover the penalty have been sustained under the corporation law. It is believed that the ground has never been taken that there was a conflict with the State law. One of these cases is reported in 12 Johns. 122. The question was open for discussion, but not noticed." In Mayor, &c. of Mobile v. Allaire, 14 Ala. 400, the validity of a municipal by-law imposing a fine of fifty dollars, for an assault and battery committed within the city, was brought in question. Collier, Ch. J., says, p. 403: The object of the power conferred by the charter, and the purpose of the ordinance itself, was not to punish for an offence against the criminal justice of the country, but to provide a mere police regulation, for the enforcement of good order and quiet within the limits of the corporation. So far as an offence has been committed against the public peace and morals, the corporate authorities have no power to inflict punishment, and we are not informed that they have attempted to arrogate it. It is altogether immaterial whether the State tribunal has interfered and exercised its powers in bringing the defendant before it to answer for the assault and battery; for whether he has there been punished or acquitted is alike unimportant. The offence against the corporation and the State we have seen are distinguishable and wholly disconnected, and the prosecution at the suit of each proceeds upon a different hypothesis; the one contemplates the observance of the peace and good order of the city; the other has a more enlarged object in view, the maintenance of the peace and dignity of the State." See also Mayor, &c. of Mobile v. Rouse, 8 Ala. 515; Intendant, &c. of Greensboro' v. Mullins, 13 Ala. 341; Mayor, &c. of New York v. Hyatt, 3 E. D. Smith, 156; People v. Stevens, 13 Wend. 341; Blatchley v. Moser, 15 Wend. 215; Levy v. State, 6 Ind. 281; Ambrose v. State, 6 Ind. 351; Lawrenceburg v. Wuest, 16 Ind. 337; Amboy v. Sleeper, 31 Ill. 499; St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Cafferata, 24 Mo. 94; Shafer v. Mumma, 17 Md. 331; Brownville v. Cook, 4 Neb. 101; State v. Ludwig, 21 Minn. 202. On the other hand, it was held in State v. Cowan, 29 Mo. 330, that where a municipal corporation was authorized to take cognizance of and punish an act as an offence against its ordinances which was also an offence against the general laws of the State, and this power was exercised and the party punished, he could not afterwards be proceeded against under the State law. constitution," say the court, "forbids that a person shall be twice punished for the same offence. To hold that a party can be prosecuted for an act under the State laws, after he has been punished for the same act by the municipal corporation within whose limits the act was done, would be to overthrow the power of the General Assembly to create corporations to aid in the management of the affairs of the State. For a power in the State to punish, after a punishment had been inflicted by the corporate authorities, could only find a support "The To render them reasonable, they ter of law, declare them void.1 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 proceedings on the part of the corporation were null and void. The circumstance that the municipal authorities have not exclusive jurisdiction over the acts which constitute offences within their limits does not affect the question. It is enough that their jurisdiction is not excluded. If it exists, although it may be concurrent, if it is exercised, it is valid and binding so long as it is a constitutional principle that no man may be punished twice for the same offence." This case seems to be supported by State v. Welch, 36 Conn. 216, and the case of Slaughter v. People, cited below, goes still further. Those which hold that the party may be punished under both the State and the municipal law are within the principle of Fox v. State, 5 How. 410; Moore v. People, 14 How 13. And see Phillips v. People, 55 Ill. 429. In Jefferson City v. Courtmire, 9 Mo. 692, it was held that authority to a municipal corporation to "regulate the police of the city" gave it no power to pass an ordinance for the punishment of indictable offences. And in Slaughter v. People, 2 Doug. (Mich.) 334, it was held not competent to punish, under city by-laws, an indictable offence. Where an act is expressly or by implication permitted by the State law, it cannot be forbidden by the corporation. Thus, the statutes of New York established certain regulations for the putting up and marking of pressed hay, and provided that such hay might be sold without deduction for tare, and by the weight as marked, or any other standard weight that * should be agreed upon. It was held that the city of New York had no power to prohibit under a penalty the sale of such hay without inspection; this being obviously inconsistent with the statute which gave a right to sell if its regulations were complied with. Mayor, &c. of New York v. Nichols, 4 Hill, 209. 12 Kyd on Corporations, 107; Davies v. Morgan, 1 Cromp. & J. 587; Chamberlain of London v. Compton, 7 D. & R. 597; Clark v. Le Cren, 9 B. & C. 52; Gosling v. Veley, 12 Q. B. 347; Dunham v. Rochester, 5 Cow. 462; Mayor, &c. of Memphis v. Winfield, 8 Humph. 707; Hayden e. Noyes, 5 Conn. 391; Waters v. Leech, 3 Ark. 110; White v. Mayor, 2 Swan, 364; Ex parte Burnett, 30 Ala 461; Craig v. Burnett, 32 Ala. 728; Austin v. Murray, 16 Pick. 121; Godard, Petitioner, 16 Pick. 504; Commonwealth v. Worcester, 3 Pick. 462; Commissioners v. Gas Co., 12 Penn. St. 318; State v. Jersey City, 29 N. J. 170; Gallatin v. Bradford, 1 Bibb, 209; Carew v. Western Union Telegraph Co., 15 Mich. 525; State v. Freeman, 38 N. H. 426; Pedrick v. Bailey, 12 Gray, 161; St. Louis v. Weber, 44 Mo. 550. But where the question of the reasonableness of a by-law depends upon evidence, and it relates to a subject within the jurisdiction of the corporation, the court will presume it to be reasonable until the contrary is shown. Commonwealth v. Patch, 97 Mass. 221. And see St. Louis v. Weber, 44 Mo. 550. To be reasonable, by-laws should be equal in their operation. Tugman v. Chicago, 78 Ill. 405; Bailing v. West, 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 dinner, 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.2 And if a corporation has power to prohibit the carrying on of dangerous 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 and regulate the carrying on of man- Darst v. plainly show an intent to confer that power, or the municipal corporation cannot assume it.1 [* 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.2 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. 506; Mays v. Cincinnati, 1 Ohio, N. s. 268; Cincinnati v. Bryson, 15 Ohio, 625; Freeholders v. Barber, 2 Halst. 64; Kip v. Paterson, 2 Dutch. 298; Bennett v. Borough of Birmingham, 31 Penn. St. 15; Commonwealth v. Stodder, 2 Cush. 562; Chilvers v. People, 11 Mich. 43; Mayor, &c. of Mobile v. Yuille, 3 Ala. 144; Johnson v. Philadelphia, 60 Penn. St. 451; State v. Herod, 29 Iowa, 123; Mayor, &c. of New York v. Second Avenue R. R. Co, 32 N. Y. 261; Home Ins. Co. v. Augusta, 50 Geo. 530. Nevertheless, the courts will not inquire very closely into the expense of a license with a view to adjudge it a tax, where it does not appear to be unreasonable in amount in view of its purpose as a regulation. Ash People, 11 Mich. 347; Johnson v. Philadelphia, 60 Penn. St. 451; Burlington v. Putnam Ins. Co., 31 Iowa, 102. And in some cases it has been held that license fees might be imposed under the police power with a view to operate as a restriction upon the business or thing licensed. Carter v. Dow, 16 Wis. 299; Tenney v. Lenz, 16 Wis. 567. See State v. Cassidy, 22 Minn. 312. But in such cases, where the right to impose such license fees can be fairly deduced from the v. charter, it would perhaps be safer and less liable to lead to confusion and difficulty to refer the corporate authority to the taxing power, rather than exclusively to the power of regulation. See Dunham v. Trustees of Rochester, 5 Cow. 462, upon the extent of the police power. Fees which are imposed under the inspection laws of the State are akin to license fees, and if exacted not for revenue, but to meet the expenses of regulation, are to be referred to the police power. Cincinnati Gas Light Co. v. State, 18 Ohio, N. 8. 243. On this subject in general, see Dillon, Mun. Corp. §§ 291–308. 2 Mayor, &c. of Huntsville . Phelps, 27 Ala. 55, overruling Mayor, &c. of Mobile v. Yuille, 3 Ala. 144. And see Piper v. Chappell, 14 M. & W. 624. 8 Clark v. Le Cren, 9 B. & C. 52; Chamberlain of London v. Compton, 7 D. & R. 597. Compare Hayden v. Noyes, 5 Conn. 391; Willard r. Killingworth, 8 Conn. 247. But a by-law is not void, as in restraint of trade, which requires loaves of bread baked for sale to be of specified weight and properly stamped, or which requires bakers to be licensed. Mayor, &c. of Mobile v. Yuille, 3 Ala. 137. |