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ter of law, declare them void.1

To render them reasonable, they

should tend in some degree to the accomplishment of the was created and its

[201] objects for which the corporation

powers conferred. A by-law, that persons chosen annu

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rent, 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.

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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 . Winfield, 8 Humph. 707; Hayden v. 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

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Ez parte Burnett, 30 Ala. 461; Craig v. Burnett, 32 Ala. 728. A by-law declaring the keeping on hand of intoxicating liquors a nuisance was held unreasonable and void in Sullivan v. Oneida, 61 Ill. 242. That which is not a nuisance in fact cannot be made such by municipal ordinance. Chicago, &c. R. R. Co. v. Joliet, 79 Ill. 25; Wreford v. People, 14 Mich. 41.

3 Mayor, &c. of Hudson v. Thorne, 7 Paige, 261. A power to prevent

and regulate the carrying on of man-
ufactures dangerous in causing or
promoting fires does not authorize an
ordinance prohibiting the erection of
wooden buildings within the city, or
to limit the size of buildings which
individuals shall be permitted to erect
on their own premises. Ibid. An
ordinance for the destruction of
property as a nuisance without a
judicial hearing is void. Darst v.
People, 51 III. 286.

An ordinance
for the arrest and imprisonment with-
out warrant of a person refusing to
assist in extinguishing a fire is void.
Judson v. Reardon, 16 Minn. 431.

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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 Minu. 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. s. 243. On this subject in general, see Dillon, Mun. Corp. §§ 291-308.

2 Mayor, &c. of Huntsville t 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,

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an illustration from a private corporation: It has been held that a by-law of a bank, that all payments made or received by the bank must be examined at the time, and mistakes corrected before the dealer leaves, was unreasonable and invalid, and that a recovery might be had against the bank for an over-payment discovered afterwards, notwithstanding the by-law. So a by-law of a town, which, under pretence of regulating the fishery of clams and oysters within its limits, prohibits all persons except the inhabitants of the town from taking shell-fish in a navigable river, is void as in contravention of common right.2 And [* 203] for like reasons a by-law is void which abridges the rights and privileges conferred by the general laws of the State, unless express authority therefor can be pointed out in the corporate charter. And a by-law which assumes to be a police regulation, but deprives a party of the use of his property without regard to the public good, under the pretence of the preservation of health, when it is manifest that such is not the object and purpose of the regulation, will be set aside as a clear and direct infringement of the right of property without any compensating advantages.*

1 Mechanics' and Farmers' Bank v. Smith, 19 Johns. 115; Gallatin v. Bradford, 1 Bibb, 209. Although these are cases of private corporations, they are cited here because the rules governing the authority to make by-laws are the same with both classes of corporations.

2

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Hayden r. Noyes, 5 Conn. 391. As it had been previously held that every person has a common-law right to fish in a navigable river or arm of the sea, until by some legal mode of appropriation this common right was extinguished, Peck v. Lockwood, 5 Day, 22,-the by-law in effect deprived every citizen, except residents of the township, of rights which were rested, so far as from the nature of the case a right could be vested. See also Marietta v. Fearing, 4 Ohio, 427. That a right to regulate does not include a right to prohibit, see also Ex parte Burnett, 30 Ala. 461; Austin v. Murray, 16 Pick. 121. And see Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y. 611.

8 Dunham v. Trustees of Rochester, 5 Cow. 462; Mayor, &c. of New York v. Nichols, 4 Hill, 209. See Strauss v. Pontiac, 40 Ill. 301.

By a by-law of the town of Charlestown all persons were prohibited, without license from the selectmen, from burying any dead body brought into town on any part of their own premises or elsewhere within the town. By the court, Wilde, J.: "A by-law to be valid must be reasonable; it must be legi, fidei, rationi consona. Now if this regulation or prohibition had been limited to the populous part of the town, and were made in good faith for the purpose of preserving the health of the inhabitants, which may be in some degree exposed to danger by the allowance of interments in the midst of a dense population, it would have been a very reasonable regulation. But it cannot be pretended that this by-law was made for the preservation of the health of the inhabitants. Its restraints extend many

[* 204]

* Delegation of Municipal Powers.

Another and very important limitation which rests upon municipal powers is that they shall be executed by the municipality

miles into the country, to the utmost limits of the town. Now such an unnecessary restraint upon the right of interring the dead we think essentially unreasonable. If Charlestown may lawfully make such a by-law as this, all the towns adjoining Boston may impose similar restraints, and consequently all those who die in Boston must of necessity be interred within the precincts of the city. That this would be prejudicial to the health of the inhabitants, especially in the hot seasons of the year, and when epidemic diseases prevail, seems to be a well-established opinion. Interments, therefore, in cities and large populous towns, ought to be discountenanced, and no obstacles should be permitted to the establishment of cemeteries at suitable places in the vicinity. The by-law in question is therefore an unreasonable restraint upon many of the citizens of Boston, who are desirous of burying their dead without the city, and for that reason void. And this by-law would seem to be void for another reason. A by-law for the total restraint of one's right is void; as if a man be barred of the use of his land. Com. Dig. By-Law, c. 4. The land where the bodies were interred was the land of the Catholic Bishop of Boston, purchased by him in 1830, and then consecrated as a Catholic burying-ground, and has ever since been used as such, for the interment of Catholics dying in Charlestown and Boston. It is true the by-law does not operate to the total restraint or deprivation of the bishop's right, but it is a total restraint of the right of the burying the dead in Boston, for which a part

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of the burying-ground was appropriated. The illegality of the by-law is the same, whether it may deprive one of the use of a part or the whole of his property; no one can be so deprived, unless the public good requires it. And the law will not allow the right of private property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation. Now we think this is manifest from the case stated in regard to the by-law in question. It is a clear and direct infringement of the right of property, without any compensating advantages, and not a police regulation made in good faith for the preservation of health. It interdicts, or in its operation necessarily intercepts, the sacred use to which the Catholic burying-ground was appropriated and consecrated, according to the forms of the Catholic religion; and such an interference, we are constrained to say, is wholly unauthorized and most unreasonable." Austin v. Murray, 16 Pick. 125. So in Wreford v. People, 14 Mich. 41, the common council of Detroit, under a power granted by statute to compel the owners and occupants of slaughter-houses to cleanse and abate them whenever necessary for the health of the inhabitants, assumed to pass an ordinance altogether prohibiting the slaughtering of animals within certain limits in the city; and it was held void. See further State v. Jersey City, 5 Dutch. 170. Upon the whole subject of municipal by-laws, see Angell & Ames on Corp. c. 10; Grant on Corp. 76 et seq. See also Redfield on Railways (3d ed.)

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