$B SfiS bbS REESE LIBRARY OF THK UNIVERSITY OF CALIFORNIA. Received MAR 14 1893 ' , ^gg . j^ccessions No. ^O ^l 7^ Class No. A. TRKATISK ON THE Power to Enact, Passage, Validity and Enforcement OF MUNICIPAL POLICE ORDINANCES WITH APPKNDIX OK KORIVIS REFERENCES TO ALL THE DECIDED CASES ON THE SUBJECT IN THE UNITED STATES, ENGLAND AND CANADA BY NORTON T. HORR and ALTON A. BEMIS OF THE CLEVELAND BAR ' CINCINNATI ROBERT CLARKE & CO 1SS7 4 Entered according to Act of Congress, in the year 1887, by ROBERT CLARKE & CO. In the office of the Librarian of Congress, at Washington, D. C. S'oS^i^ PRKFACB. The authors have noticed that very many questions arise in the drafting of municipal ordinances as to the precisa extent to which certain powers of police regulation may be exercised, and upon which very little authority can be readily found. Except in those cities and towns where the municipal council has the assistance of regularly employed legal advisers, the limits of lawful legislation are apt to be exceeded. Questions of this nature, too, are seldom adjudi- cated in courts of last resort— seldom, at least, with refer- ence to the importance of the interests which they may afiect. When we consider that the greater part of the capital of this country is invested in enterprises which are located within the territorial limits and subject to the local laws of cities, towns and villages, we realize the importance of having a system of local laws which interfere with and burden the ownership of property as little as possible, but which still preserve good order and the public welfare. The first aim of this book is to show, in as concise a manner as is consistent with clearness, the extent to which police regulation may be exercised, under general and special powers, and to formulate rules that will be appli- cable in determining the validity of police ordinances. There seems to be a striking lack of uniformity in the practice observed in enforcing ordinances. 'Numerous questions arise in the local courts, which must, for want of precedent, be decided by the best judgment of .the presiding magistrate, and the rules of pleading, procedure (iii) IV PREFACE. and evidence are consequently both deficient and varied. The rules that are applied in higher courts are often poorly adapted to the peculiar practice in lower courts; and even in cases where local courts might be guided or aided by decided cases, the difficulty of finding them partially destroys their usefulness. We hope to prevent, in a measure, the necessity for laborious research by classifying the decided cases which relate to the practice in magis- trates' courts, and, if possible, to aid in making that practice uniform. Our labor will be amply rewarded if it is found to be of some assistance to those who enact ordinances, or to those who are called upon to enforce and construe them. DEDICATED TO THE Cleveland Law Library Association, ITS LIBRARY HAVING FURNISHED THE MATERIAL FOR THIS BOOK. (V) TABLE OF CONTENTS. MUNICIPAL POLICE ORDINAiTCES. CHAPTER I. Nature of Ordinances. § 1. Definition of an ordinance 1 § 2. Ordinances are laws 1 § 3. Necessity of formal passage 3 § 4. Charter prohibition need not be supplemented by an ordi- nance 4 § 5. Must be passed by the governing body 4 § 6. Must regulate corporate affairs 5 I 7. Must not regulate civil liabilities 6 CHAPTER II, Corporate Powers, § 8. Scope of corporate powers 9 § 8a. Corporate powers discretionary 10 § 9. They are continuing 11 § 10. They may not be delegated 11 § 11. What may not be delegated 12 I 12. What may be delegated 13 § 13. Discretion in granting licenses 14 § 14. Source of corporate powers 15 § 15. The rule as to source 16 § 16. Limitations on inherent powers 18 CHAPTER III. Construction of Corporate Powers. § 17. Powers construed strictly against the corporation 20 § 18. Limited to the terms of an enumeration.. 21 § 19. Illustrations 22 § 20. Hule oi ejusdem generis in en-avaersiiions 22 § 21. Concurrent powers 23 § 22. The greater power includes the less 24 § 23. Retroactive ordinances 24 § 24. Conditions precedent 24 (vii) VUl TABLE OF CONTENTS. KAPTER IV. / CONSTRUCTIOX OF CoMMON PhKASES. § 25. Common phrases in grants of power 27 § 26. Corporate purposes 28 § 27. General welfare 29 § 28. Peace and good government 29 § 29. Other general expressions 30 § 30. To regulate 31 §31. To suppress and restrain 33 g 32. Miscellaneous expressions 34 § 33. General rules of construction 34 CHAPTER V. Passage of Ordixances. Part I. — Council proceedings. § 34. Necessity of formal enactment 36 § 35. Statutory directions are mandatory 36 g 36. Council de facto ca,n.not act 37 § 37. Meetings of the council 38 § 38. Adjourned and special meetings 39 § 39. Joint action of bi-cameral council 40 § 40. Quorum in joint session 41 § 41. What constitutes a quorum 41 g 42. Holdings under statutory provisions 41 g 43. Majority of quorum suflBcient 42 g 44. When the mayor may vote 43 § 45. Other charter provisions 43 g 46. When a vote may be reconsidered 44 g 47. Readings 45' g 48. Signature of the clerk of the council 46 g 49, Signature of the mayor 46 g 50. The mayor's approval 47 §51. How signified 47 g 52. Publication '. 48 § 53. Construction of provisions regulating the time of publica- tion 50 g 54. The newspaper in which publication may be made 51 g 55. Form of the notice published 52 § 56. Record of the ordinance 52 g 57. What the record must contain 54 g 58. Record of votes 54 g 59. Informalities subsequently cured 56 g 60. Repeal 56 g 60a. Must be by the council 56 TABLE OF CONTENTS. iX ^ 61. Form of the repealing act 57 § 62. Repeal by the legislature by implication 57 § 63. Implied repeal by passage of inconsistent ordinance 58 § 64. Amendments *..... 59 § 65. Summary 59 § 66. Saving clause in subsequent ordinance 59 ^ 67. Effect of a repeal on vested rights 60 Part II. — The ordinance itself. § 68. Form of the ordinance 61 § 69. Constituent parts 61 § 70. Ordinances like resolutions in form 61 I 71. The title 62 I 72. The introduction 63 § 73. Ordinances need not recite authority 63 § 74. Scope of the ordinance 64 § 75. Reference to existing ordinances 65 § 76. Time of going into effect 65 § 77. Penalty 65 § 78. Definiteness of expression 66 ^ 79. Definiteness as to the penalty 67 § 80. License ordinances 67 § 81. Ordinances against nuisances 67 ^ 82 Council can not bind its successors 67 CHAPTER VI. Rules of Validity. •§ 83. Introduction 70 § 84. United States laws 70 § 85. Regulation of commerce 73 § 86. United States mails 75 ^ 87. United States license laws .„.. 75 § 88. Must be consistent with the laws of the state 75 § 89. Main conflict as to minor offenses 76 ^ 90. The punishment may be greater 78 § 91. Prosecutions under either law no bar to proceedings under the other 78 § 92. Alabama 79 \ 93. Colorado 79 § 94. Connecticut 79 § 95. Dakota , 79 § 96. Florida 80 g 97. Georgia 80 § 98. Illinois 80 I 99. Indiana 81 X TABLE OF CONTENTS. § 100. Iowa 82 § 101. Kansas 82 § 102. Kentucky 82 § 103. *Louisiana 82 § 104. Maryland 83 g 105. Massachusetts 83 § 106. Michigan 83 I 107. Minnesota 83 § 108. Missouri 84 § 109. Nebraska 84 § 110. North Carolina 84 § 111. New Jersey 85 § 112. New York ." 85 g 113. Ohio 85 § 114. Oregon 85 § 115. Rhode Island 85 § 116. South Carolina 86 § 117. Tennessee 86 § 118. Texas 86 § 119. Utah 86 § 120. United States holdings 87 § 121. Conflict with state license laws 87 § 122. Policy of state legislation must be sustained 90 § 223. What is the law of the land 90 § 124. Power derived from foreign sovereignties 91 § 125. Must be consistent with corporate charter 91 g 126. Other requisites of validity 92 g 127. Reasonableness 92 § 128. When discretion of council final 92 § 129. When not final 93 g 130. Examples of reasonable ordinances 93 g 131. Examples of unreasonable ordinances 97 g 132. Restraint of trade 100 g 133. What is not a restraint of trade 102 g 134. What is not a restraint of trade 102 g 135. Discrimination 103 g 136. Examples of discrimination 105 g 137. Discrimination as to non-residents 106 g 138. Once void, always void 107 g 139. Partial invalidity 108 CHAPTER VII. Remedies. g 140. Introduction 110 g 141. Territorial limits Ill g 142. Extra-territorial tffect 112 TABLE OF CONTENTS. XI § 143. Ordinances affect what persons , 113 § 144. When parts of the corporate limits exempt 115 § 145. Jurisdiction over railroad property 117 § 146. Jurisdiction over streets 118 § 147. Penalties 118 § 148. The kind of penalty that may be adopted 120 § 149. Penalties are not licenses 120 § 150. Fines 121 § 151. Amount of the fine 121 ^ 152. Cumulative fines 122 § 153. Repetition of the offense more heavily punished 123 § 154. Costs of the prosecution 124 § 155. Imprisonment in default of payment 124 § 156. The power strictly construed ^ 125 § 157. Such imprisonment does not satisfy the fine 127 § 158. Imprisonment as a penalty 127 § 159. Forfeiture 128 § 160. Illustrations ^ 128 § 161. Strays .'. 130 § 162. Notice to the owner 131 § 163. Judicial determination 132 § 164. Forfeiture of real estate 132 CHAPTER VIII. Procedure — Pleading — Evidence. § 165. Introduction 134 § 166. The tribunal 135 § 167. Citizenship does not disqualify the magistrate 137 § 168. Form of the action 138 § 169. Nature of the action 139 § 170. Holdings of the different states 141 § 170a. General conclusion 145 § 171. Joinder of causes of action 145 § 172. The complaint 145 § 172a. The title of the case 146 § 173. The offense must be distinctly alleged 147 § 174. Reference made to the ordinance violated 149 § 175. Exceptions need not be negatived 152 § 176. The conclusion of the complaint 152 § 177. Signature to the complaint 153 I 178. Arrest before trial 153 § 179. What the warrant should contain 154 § 180. Arrests made without a warrant 155 § 181. Trial by jury 156 § 182. Arraignment and plea 157 a 183. Evidence 157 Xll TABLE OF CONTENTS. § 184. Judicial notice 157 § 185. How ordinances are proved 159 § 186. Record of council proceedings as evidence 161 § 187. Proof of publication 162 § 188. Presumption that ordinances are reasonable 164 § 189. Reasonableness a question of law 169 § 190. Proof of time and place of committing the offense 170 § 191. Proof that act does not fall within exceptions 170 I 192. Testimony of the defendant 170 § 193. Construction of ordinances 171 § 194. Construction of ordinances 172 § 195. Examples of application of rules of construction. 173 § 196. Defenses to prosecutions 176 § 197. Effect of repeal of an ordinance 177 § 198. Former conviction 177 § 199. Other defenses 178 § 200. Doctrine of estoppel applied to defenses 178 § 201. Estoppel of the corporation 179 § 202. Form of the judgment 180 § 203. The order of commitment to jail 182 CHAPTER IX. Proceedings in Review. § 204. Certiorari 184 § 205. Habeas corpus 185 § 206. Injunction 185 § 207. Appeal 187 § 208. Error 188 § 209. The record 188 CHAPTER X. Resolutions. § 210. Xature and use of resolutions 193 § 210a. What may be done by resolution 194 CHAPTER XI. Ordinances Classified According to their Subject-Matter. g 211. Nature of police powers 198 g 212. Their general purpose 198 § 213. Their general purpose 199 § 214. Necessity and scope of health regulation 202 § 215. Boards of health 203 g 216. Regulation of articles of food 204 g 217. Markets 204 g 218. Other regulations of the food supply 207 TABLE OP CONTENTS. XUl § 219. Slaughter houses 208 § 220. Other health regulations; cemeteries; offal; dead animals; diseases; miscellaneous health provisions 209 § 221. Fire 212 § 222. Fire limits 212 I 223. Extentof the power 213 I 224. Streets 216 § 225. Care of the streets 218 I 226. Grading 218 i 227. Paving 219 § 228. Sidewalks 221 § 229. Protection of streets 222 § 230. Obstructions 224 § 231. Examples of lawful obstructions 224 I 232. Inclosures 225 § 233. Public buildings 226 § 234. Other buildings 226 § 235. Snow 228 § 236. Moving buildings 229 § 237. Miscellaneous obstructions ^ 229 § 238. Steam railroads 231 § 239. Police regulation of steam railroads 232 § 240. Street railways 234 § 241. Regulations 234 § 242. Sewerage system 236 I 243. Water supply '. 237 I 244. Gas pipes : 238 § 244a. Telegraph poles 239 § 245. Restrictions on ordinary use of the streets 240 § 246. Vehicles. 240 § 247. Routes and stands 241 § 248. Construction of vehicle regulations 242 § 249. Strays 243 § 250. Nuisances 245 § 251. Definition of nuisances 245 § 252. Must be an actual nuisance 246 § 253. Judicial determination 247 § 254. What are nuisances , 248 § 255. What are not nuisances ;)er 5e 249 § 256. Nature of license power 249 § 257. Nature of licenses 251 § 258. Must not amount to a tax 251 § 259. What amount may be charged 252 § 260. Examples 254 § 261. The license 255 § 262. The ordinance authorizing licenses 255 XIV TABLE OF CONTENTS. § 263. Discretion in officers 256 § 264. The penalty 258 g 265. Effect of a license £59 § 266. Conditions 259 § 267. Revocability 260 § 268. Grading and discrimination 261 § 2G9. Miscellany 263 § 270. Business privileges 263 § 271. Transient dealers 264 § 272. Peddling 265 § 273. Amusements 266 I 274. Dogs 267 § 275. Liquor licenses 267 § 276. Ordinance provisions 268 § 277. Other regulations on sale of liquors 269 § 278. Definition 270 § 279. Evidence in liquor cases 271 § 280. Uniformity in licenses 272 § 281. Taxation 273 § 282. Local assessments 273 § 283. Other taxes 274 § 284. Mode of exercise of taxing power 275 § 285. Amount of tax 276 g 286. Constitutional restrictions 276 § 287. Discrimination 276 § 288. Sunday ordinances '. 278 § 289. Appropriations for police purposes 280 § 290. To aid the administration of justice 280 § 291. To employ attorneys 281 § 292. Wharves 282 § 293. Conclusion 285 Appendix of Forms 287 TABLE OF OASES. [the kbfekences are to sections.] Abendroth v. Greenwich, 15. Academy v. Erie, 62. Adams v. Albany, 97, 121, 130. Adgar v. Mayor, 143. Ah Kow V. Nunan, 84, 193. Ah Liu, Ex parte, 144. Ahrens v. Fiedler, 51. Ah Toy, Ex parte, 121. Alberger v. Mayor, 188. Albia V. O'Harra, 187. Alexander v. Bethlehem, 178. V. Council, 169, 221. Allen V. Jones, 242. V. Rogers, 75. V. Taunton, 223. Allerton v. Chicago, 19, 241, 248, 260. Alton V. Hartford Ins. Co., 188, 284. V. Kirsch, 172a, 207. V. Mulledy, 12, 210a. Alpers V. Brown, 220. Amboy v. Sleeper, 98. Ambrose v. State, 99. Americus v. Eldridge, 242. Ames V. Carlton, 7. Amesbury v. Ins. Co., 139. Amity City v. Clementz, 147. Anderson v. Commissioners, 16. V. Gas Co., 11, 244. Andrews v. Ins. Co., 15. Anon., 44. Appleton V. Hopkins, 264. Argenti v. San Francisco, 200. Arkell v. St. Thomas, 278. Arnold v. Holdbrook, 7. Arnoult v. New Orleans, 8. Aronheimer v. Stokley, 206. Ash V. People. 258, 259. Asheville v. Means, 283. Ashton V. Ellsworth, 4, 16. Asylum v. Troy, 224. Athens v. Long, 268, 287. V. Railroad Co., 195. Atkinson v. Transportation Co., 131. Atty. Gen. v. Campbell, 223. Atty. Gen. v. Heisohn, 237. Auburn v. Eldridge, 174. Aull V. Lexington, 220. Austin V. Murray, 30, 220. B. Babcock v. BuflFalo, 252. Baker v. Boston, 188, 214. V. Cincinnati, 259, 260, 273, 280. V. Cushman, 46. V. Normal, 139, 229. V. Paris, 276. V. Scofield, 185. Baldwin v. Green, 108. V. Murphy, 98, 180. V. Oswego, 24. V. Smith, 67, 253, 265, 267. Baldwin Co. v. Retailers, 121. Ball V. Fagg, 186. Baltimore v. Brannan, 8a. V. Clunet, 188. V. Howard, 12. V. Hughes, 193. V. Johnson, 52. V. Marriott, 8a. V. Pennington, 8a. V. Hadeeke, 131. V. Scharf, 10. Bancroft v. Cambridge, 212. Bank v. Navigation Co., 15, 124. V. Chillicothe, 15, 17. Banking Co. v. Jersey City, 206. Barbier t). Connelly, 130. Barclay, In re, 263. Barker v. Commonwealth, 237. V. Smith, 63. Barling w. West, 131, 133. Barnert v. Paterson, 41, 43. Barnett v. Newark, 35, 52. Barr v. Auburn, 58, 185. Barter v. Commonwealth, 148, 166, 168. Barthet v. New Orleans, 219. Barton v. Pittsburgh, 47, 71, 186. Cxv) XVI TABLE OF CASES. Baton Rouge v. Cremonini, 135, 209. Bauer v. Avondale, 276. Baumgard v. Mayor, 163. Baumgartner v. Hasty, 75, 130, 222, 253. Baxter's Petition, 115. Baj'er v. Hoboken, 54. Bearden v. Madison, 1, 130, 239. Beasley v. Beckley, 181, 184, 204. Beaty v. Gilraore, 234. Beck V. Hansconi, 40. Bedell, Ex parte, 52, 56, 157. Beecher v. People, 166. Beekman's Case, 39. Begein v. Anderson, 142. Bell V. Manvers, 122. V. Quebec, 85. Benefield v. Hines, 121. Bennett v. Birmingham, 143, 287. — — V. People, 121. Benninger, Ex parte, 260. Bergen v. Clarkson, 160. Bergman v. Cleveland, 277. V. Railway Co., 71. Beronjohn v. Mobile, 131. Beer Co. r. Mass., 212. Berry v. People, 98. Bessoinies v. Indianapolis, 15, 220. Bethalto v. Conlv, 187, 209. Bickerstaff, In re, 12, 263, 266. Bills V. Belknap, 229. Birdsall v. Clarke, 10. Bishops. Railroad Co., 1^5. Blake v. Walker, 15. Blanchard v. Bissell, 35, 49, 210a. Blankley v. Winstanley, 17. Bliss V. Kraus, 213. V. Ball, 229. Block V. Jacksonville, 185, 275. Bloom V. Xenia, 35, 47. Bloomfield v. Trimble, 28, 100. Bloomington v. Wahl, 132, 217. V. Strehle, 279. Board v. Heister, 15, 219, 245. Board of Excise v. Barrie, 267. Boehm v. Baltimore, 215, 220. Bogart V. Indianapolis, 131, 220. V. New Albany, 99. Bohle V. Stannard, 73. Bolte V. New Orleans, 160. Bolton V. Cleveland, 24, 188. Bonsall v. Lebanon, 164,235. Boom V. Utica, 263. Booth V. Carthage, 63. V. State, 223. Borough V. Shortz, 242. Boston V. Richardson, 240. V. Schaffer, 260, 261, 262, 273 V. Shaw, 242 Bosworth V. Hearne, 132. Bott r. Pratt, 1. Bowers v. Coukton, 223, 234. Bowling Green v. Carson, 130, 265. Bowman v. St. John, 77. Boj'd V. State. 267. Braddy v. Milledgeville, 213. Brady v. Gas Co., 222. V. Ins. Co., 213, 223. Branhara v. San Jose, 15. Brannahan v. Hotel Co., 247. Branson v. Philadelphia, 265. Breauxs Bridije v. Dupuis, 50, 68. Brenham v. Bicker, 132. Breninger v. Belvidere, 16, 29. Brewster v. Davenport, 11, 58, 188. V. Hartley, 85. Brieswick I'. Brunswick, 155. Bright V. McCuUough, 287. V. Toronto, 130, 160, 287. Brodie, In re, 263. Broeck v. Welch, 137. Bronson v. Oberlin, 30. Brooklyn v. Breslin, 10, 13, 134, 229. Brooklyn v. Cleves, 134, 171, 26i V. Nodine, 246. V. Toy n bee, 112. Brookville v. Gagle, 168, IV 0. Brophy v. Perth Amboy, 1 70. Brown v. Denver, 84. V. Duplessis, 238, 240. V. Hunn, 223. V. Nugent, 195. Brown rille v. Cook, 28, 109, 170. Brush V. Carbondale, 188. Bryan v. Bates, 180. V. Page, 3, 210. Buell V. State, 84. Buffalo, In re, 58. r. Mulchady, 145. V. Webster, 196, 217, 277. Bull V. Quincy, 3, 80, 269, 279. Bullock V. Gromble, 159. Burch V. Savannah. 287. Burckholter v. McConnellsville, 6. Burgeois, Ex parte, 108. Burlington v. Baumgardner, 30. V. Dennison, 12, 50, 210. V. Estlow, 63. V. Ins. Co., 210a, 258, 262, 268. V. Kellar, 17, 100, 121, 168. V. Lawrence, 22, 31, 256, 278. Burmeister v. Howard, 1, 196. Burmeister, In re, 224. Burnett, Ex parte, 15, 163, 275. Burn ham v. Chicago, 227. Burr V. Atlanta, 271, 287. Burrill v. Boston, 290. Butler V. Passaic, 210, Butler's Appeal, 270. TABLE OF CASES. XVll Byars v. Mt. Vernon, 207, 279. Byers v. Trustees, 275. Cabot V. Eome, 26. Cady V. Barnesville, 84. Caesar v. (^artwright, 210. Caine v. Syracuse, 8a. Cairo v. Bross, 18, 66. Caldwell v. Alton, 15, 217, 245. Camden v. Bloch, 203, 204, 209 Camden v. Mulford, 125, 204. Campbell v. Kingston, 292. Canal Co. v. St Louis, 292. Canfleld v. Smith, 24. Cannon v. New Orleans, 292. Can thorn v State, 178. Canton V. Nist, 122. 288. jCantril v. Sainer, 71, 139. Cape Girardoiiu v. Riley, 72. Carlisle v. Baker, 234. Carlton St., In re, 58. Carmel v. Wabash, 31. Carr v. St. Louis, 125. Carroll v. Tuscaloosa, 284. V Wall. 44. Carson v Bloomington, 203, Carter v. Dow, 213, 274. V. Dubuque, 15. V State, 270. Cartersville v. Lanham, 249. Carthage v. Buchner, 81, 277. Casby v. Kailroad Co., 238. Case V Hall, 173. V Mobile, 174, 184. Cass. Ex parte, 292 Cassinello, Ex parte, 213, 254. Cedar Rapids v. Holcomb, 220. Centerville v. Lanham, 143, 213. V. Miller, 31. Central v. Sears 210a. Chafin V. Waukesha Co., 170. Chamberlain v. Evansville, 62. Chambers v. Trust Co., 7. Chariton v. Barber, 31. V. HoUiday, 200. Charles v. Hoboken, 10. Charleston v. Ahrens, 26. V. Benjamin, 288. V. Chur, 174, 186, V. Church, 26, 67, 130. V. Elford, 144 V. Goldsmith, 12. u Kleinback, 181. V. Oliver, 150, 168, 256. V. Reed, 15, 199, 222. Chastain v. Calhoun, 121. Chebanse v. McPherson, 213. 207, Cherokee v. Fox, 177, 272. Chess V. Birmingham, 287. Chicago V. Bartee, 131, 272. V. Crosby, 228. V Evans, 6. V. Gosseter, 195. V. Hobson, 195. V. McGinn 130. V. O'Brien, 235. V. Packing Co., 142, V. Quinby, 152. V. Railroad Co., 195. V. Rumpff, 181, 132, 185, 198, 263. Chicago Packing Co. v. Chicago, 256. Childress v. Nashville, 213. Chilvers v. People, 85, 257, 264. Chin Yan, Ex parte, 130, 188, 202. Christie v. Maiden, 15. Christopher v. Portage, 228. Church V. Baltimore, 73, 188. V. New York, 1, 220. Church, In re, 280. Cincinnati v. Bickett, 47, 54. V. Bryson, 259, 268. V. Buckingham, 218, 249, 264. V. Gwynne, 170. V. Penny, 242. V. Rice, 288. V. White. 226. City V. Ahrens, 275. V. Church, 275. V. Duncan, 209. V. Erie Railroad Co., 130, 241. V. Hughes, 209. V. Lenze, 223. V. Railroad Co., 238. V. Telegraph Co., 244a. City Council v. Church, 60a. City of Kansas v. Collins, 271. ' City of London's Case, 158. Claiborne v. Brooks, 128. Clark V. Davenport, 17. V. Elizabeth, 201. V. Fry, 231. V. Le Creu, 132, V. Lewis, 159. V. New Brunswick, 283. V. South Bend, 18, 223, Clarke's Case, 158. Clason V. Milwaukee, 130, 189. Clevenger v. Rushville, 174. Clinton v. Phillipi, 131. Clintonville v. Keeting, 277, Coates V. Dubuque, 114, 188. V. New York, 73, 174, 220. Coffin V. Nantucket, 12. Cohens v. Virginia, 87. Coldwater v. Tucker, 142. Cole V. Hall, 257, 265. Coleman v. Railroad Co., 241. XVlll TABLE OF CASES. Collins V. Hatch, 15, 16, 17, 19, 131, 249, 254. Collins V. Louisville, 285. Collinsville v. Scanland, 195. Colson V. State, 271. Columbia v. Harrison, 152, 166. Columbus V. Cutcamp, 267. V. Flournoy, 284. V. Jacques, 217, 233, 237. V. Street Ky. Co., 241. Commissioners v. Chissom, 170. V. Detroit, 8. V. Duckett, 8a. V. Gas Co., 131. V. Hudson, 243. V. Mighils, 17. V. Nell, 144. I V. Powe, 195. ", V. Silvers, 210a, Commonwealth v: Bean, 130, 173. V. Blaisdell, 234. V. Boston, 244a. V. brennan, 267. V. Brooks, 21, 76, 130. V. Byrne, 264. V. Chase, 185. V. Curtis, 173. V. Davis, 52, 57, 1 30, 237. V. Dow, 139, 193, 249, 275. V. Duane, 247. V. Elliott, 130. V. Fahey, 73. V. Farnum, 272. V. Gage, 130,247. V. Gay, 176. V. Goodnow, 105. V. Harris, 234. V. Hartford, 242. V. Jones, 272. ■». King, 237. V. Kirby, 267. V. Markham, 213. V. Mathews, 53, 130, 247. V. Passmore, 231. V. Patch, 130, 188, 213. V. Reimer, 234. V. Rice, 218. V. Robertson, 130. V. Rowe, 173. V. Roy, 78. V. Rush, 237. V. SteflFee, 130, 213. V. Stodder, 15, 130, 187, 247,259. V. Stokley, 263. V. Turner, 27, 105, 181, 218, 275. V. Vorhis, 16. V. Wentworth, 234. V. Wilking, 131, 152. V. Worcester, 130, 167, 160, 176, 189 Oonboy ». Iowa City, 49, 52, 56, 184. Cook V. Burlington, 243. V. Johnston, 6. V. Pennsylvania, 272. Cook Co. V. McCrea, 15. Cooper V. Alden, 124. V. People, 170. V. Savannah, 122, Corbett v. Duncan, 204, Cornwall v. West Nissoni, 290. Cornwallis v. Carlisle, 15, 17, 28, 29. Corrigan v. Gage, 139, 189. Corry v. Gaynor, 16. Corson v. Maryland, 137. Cory V. Somerset, 59. Cotter V. Doty, 159, 249. Coulterville v. Gillen, 121, 207. Council V. Ahrens, 130. V. Pepper, 143, 167. V. Seeba, 174. V. Van Roven, 279. Council of Mongomery, Ex parte, 155. County of Amador v. Kennedy, 135. County of San Louis Obispo v. Hen- dricks, 38. Couteulx V. BuflFalo, 15. Covington v. Boyle, 41. V. Dressman, 200. V. Ludlow, 186. V. Nelson, 24. Cox V. St. Louis, 184. Coyne, In re, 262. Craig V. Bennett, 202. Cranston v. Augusta, 204, 274. Crashaw v. Roxbury, 290. Creighton v. Manson, 34, 52. V. Scott, 227. Croll V. Village, 63. Cronin v. People, 73, 134. Cross V. Morristown, 210, 229. Crotty V. People, 262. Crowell V. Hopkinton, 290. Crowley v. Railroad Co., 145, 239. CuUen V. Carthage, 292. Cullinan v. New Orleans, 122. Cummings v. Fitch, 125. V. Railroad Co., 248. V. Savannah, 84, 85, 160. Gushing v. Adams, 237. V. Boston, 234. Cutcomp V. Utt, 47. Cutllff V. Albany, 268, 287. Cutter V. Russellviile, 58, D. Daggett V. State, 228, Dane r. Mobile, 195. Daniel v. Richmond, 137. D'Antignac r. Augusta, 164. Danville v. Shelton, 15, 17, 85. TABLE OF CASES. XIX Darling v. St. Paul, 11, 80, 262. Darst V. Illinois, 163. Daublin v. New Orleans, 234. Davenport v. Bird, 170. «. Kelly, 11,134,217. V. Kleinschmidt, 132. Davies v. Morgan, 162. Davis V. Clifton, 252. V. Clinton, 243. V. Macon, 268, 287. V. Mayor, 30, 241. V. New York, 15. V. Read, 10. V. State, 121. V. Winslow, 231. Daws V. Hightstown, 8, 213. Day V. Clinton, 66, 192. V. Green, 11, 236. V. Jersey City, 34. Dean v. Borchenius, 227. V. Madison, 15. DeBere v. Girard, 135. Decorah v. BuUis, 5. V. Dunstan, 13, 63, 263. V. Gillis, 199. Deel V. Pittsburgh, 166. Delaney, Ex parte, 28, 188. Delphi V. Evans, 3, 9, 58, 210, 226. Dempsey v. Burlington, 74. Denniston v. Clark, 226. Denver v. Mullen, 252. Des Moines v. Gilchrist, 36. V. Hall, 243. V. Railroad Co., 67. Desmond v. Jefferson, 223. Detroit v. Blakeby, 8. Dietz V. Central, 93, 121, 167, 170, 202. Dimes v. Petty, 7. Dinwiddie v. Rushville, 5, 36. Distilling Co. v. Chicago, 258, 260, 264. Dist. Columbia v. Waggainan, 188. Dodge V. Council Bluffs, 206. Domestic Tel. Co. v. Newark, 244a. Donnaher v. State, 239. Donnelly v. Clarke Tp., 268. Donovan v. Vicksburgh, 163, 249. Douglass V. Commonwealth, 223. V. Placerville, 15. V. Virginia City, 15. Douglass, Ex parte, 119. Douglass, In re, 24. Douglassville v. Johns, 188. Drake v. Rairoad Co., 210. Dubois V. Augusta, 130, 220. Dubuque v. Benson, 243. V. Lieber, 284. V. Maloney, 243. V. Stout, 292. Ducat V. Chicago, 258, 260, 264. Duck wall V. New Albany, 30, 248. Dunbar v. San Francisco, 15. Dunham v. Hyde Park, 226. V. Rochester, 131, 133, 188. Durkin, In re, 54. Dutten V. Hanover, 24. Dutton V. Aurora, 15. Dwyer v. Brenham, 56, 184. Dyer v. Chase, 228. E. Eager, In re, 227. East Hartford v. Hartford Co., 8. Eastman v. Chicago, 195. East St. Louis v. Gas Co., 244, V. Trustees, 257, 265. V. Wehrung, 268. Eddleston v. Barnes, 198. Edenton v. Capeheart, 143. Egan V. Chicago, 210a. Eldora v. Burlingame, 5, 8, 139, 187. Elizabethtown v. Lefler, 35, 185. V. Woodruff, 209. Elk Point V. Vaughn, 95, 184, 188, 189. Ellerman v. McMains, 85. Elmendorf v. Ewen, 58. Elwood V. Bullock, 263. Emporia v. Volmer, 170. Erie v. Reed's Exec., 114, 188. Erwin v. Township, 43. Esling's Appeal, 71. Eufaula v. McNab, 17. Evansville v. Martin, 292. Everett v. Council Bluffs, 229, 252, 255 Ewbanks v. Ashley, 35, 56, 168, 187, 202, 255. Express Co. v. Mobile, 130. V. St. Joseph, 287. Eyerman v. Blaksley, 147. F. Faribault V. Wilson, 149, 174, 187, 2ia Farnsworth v. Pawtucket, 16. Farrel v. London, 172a. Fant V. People, 98. Farwell v. Chicago, 248. V. Smith, 175. Fecheimer v. Louisville, 137. Fennell v. Bay City, 106. V. Guelph, 283. Ferguson v. Selma, 15. Ferrenbach v. Turner, 220. Ferry Co. v. Davis, 132, 263. V. St. Louis, 257, 258, 270. Fertilizing Co. v. Hyde Park, 16. Fielding v. Commissioners, 223. Fink V. Milwaukee, 170. XX TABLE OF CASES. Fire Dep't. v. Helfen stein, 280, First Municipality v. Blineau, 135. V. Cutting, 70, 85, 150, 193, 210. Fisher v. Graham, 24. V. Harrisburp:, 130, 188. Fiske, Ex parte, 53, 223. Fitch V. Finchard, 136. Flanagan v. Plainlield, 173, 202, 283. Flora V. Lee, 185, 191,209. Florence, Ex parte, 15. Floyd V. Eutontin, 169, 170. Fort Smith v. Ayers, 30, 258, 259. V. Dodson, 161. Foster v. Brown, 100, 121. V. Kenosha, 283. V. Koads, 143. Fowl V. Alexandria, 256, Fowler, In re, 242. Fox V. Winona, 234. Frank, Ex parte, 134, 136,283. Franklin v. Westfall, 22, 31, 62. Frazee's Case, 131, 245. Freeport v. Marks, 188. French v. Quincy, 289, Fretnellr. Troy, 134. Friday v. Floyd, 159. Fuller V. State, 121. Furman v. Huntsville, 170, 209. Furman St., In re, 9. G. Gabel v. Houston, 1, 2, 130, 188, 288. Gahagan v. Railroad Co., 239. Gale V. Kalamazoo, 135, 217, 234. V. South Berwick, 290. Galerno v. Rochester, 64. Gall V. Cincinnati, 32, 226. Garden City v. Abbott, 143. Gardner v. People, 98. Garland v. Towne, 234. Garrett v. James, 63, 74. V. Messenger, 264. Garrison v. Chicago, 225, 243. Gartside v. E. St. Louis, 6, 134, 206, 229, 248, 287. Garver, In re, 227. Garvin v. Wells, 184. Gas Co.'s Appeal, 132. Gas Co. V. Des Moines, 1, 6, 9, 188, 244. V. San Francisco, 210a, V. Toberraan, 68. Gaslight Co. v. Dunn, 11. V. Gas Co., 244. V. Middleton, 225, 244. V. Saginaw, 126. Gass V. Greenville, 143. Gates V. Milwaukee, 263. Geneva, The, 292. Genoa v. Van Alstine, 201. Gibson v. Kauffield, 272. Gilcrist v. Schmiddling, 162, 249. Gilhara v. Wells, 265. Gillmorev. Lewis, 290. Oilman v. Wells, 201. Gilmore v. Holt, 143. Glasby v. Morris, 242. Glasgow V. Kowse, 286, 287. V.St. Louis, 224. Glenn v. Baltimore, 188. Goddard, In re, 170, 235. V. Jacksonville, 275. , Petitioner, 130. Goldsmith v. New Orleans, 268. Goldstraw v. Duckworth, 234. Goldthwaite v. Montgomery, 174, 207. Goodrich v. Brown, 184. Gormley v. Day, 67. Gorsuth V. Butterfield, 279. Goshen v. Crary, 7. V. Croxton, 170. V. Kern, 174. Gosling V. Velvey, 43. Gosselink v. Campbell, 143, 161. Goszler v. Georgetown, 9. Graffty v. Rushville, 137, 245. Graham v. Carondelet, 51. Grand v. Guelph, 268. Grand Rapids v. Hughes, 19, 147, 232. Graves v. Bloomington, 220. V. Shattuck, 231, 236. Gray v. Brooklyn, 21. Greely v. Jacksonville, 63. V. Passaic, 170a, 173. Green v. Canal Co., 145, 239. V. Cape May, 210, 210a, 223. V. Indianapolis, 174, 187. V. Lake, 223. V. Savannah, 213, 254, 277. Green Bay v. Brauns, 68. Greencastle v. Martin, 249. Greenfield v. Mook, 151, 169. Greensboro v. Mullins, 121. Greensborough v. Shields, 174. Greensburgh v. Corwin, 170. Greenwood v. State, 117. Gregory v. Bridgeport, 12. V. City of N. Y., 261. , Ex parte, 188, 246. Greystock, In re, 156, 263. G/ierson v. County, 188. Griffin v. Powell, 248. Grills V. Jonesboro, 121, Grimmell v. Des Moines, 210, Gridley v. Bloomington. 130, 236. Griswold v. Bay City, 226. Groove v. Fort Wayne, 266. Grover v. Huckins, 147, 148, Guillotto r. New Orleans, 160, 216. Gunnarsoba v. Sterling, 22, 276. TABLE OF CASES. XXI Gurner v. Chicago, 227. Guy V. Baltimore, 137. H. Hadley v. Mayor, 36. Hagaman, In re, 292. Hale V. Houghton, 26. Hall, In re, 62. V. Minturn, 132. V. Nixon, 150,223. Haller v. Sheridan, 213. Hamilton v. Cartilage, 151. V. State, 118. Hammett v. Philadelphia, 227. Hanger v. Des Moines, 290. Hannibal v. Kailroad Co., 224. V. Winchell, 224, 272. Hansom, Ex parte, 287. Harbaugh v. Monmouth, 139, 191, 207, 275. Hardenbrook v. Ligionier, 150, 174. Hardy v. WalthHm,'223. Harker v. Mayor, 174, 184. Harmon v. Chicago, 85, 254. Harrington v. Corning, 24. Harris v. Hamilton, 78. V. Livingston, 188, 220. Harrison v. Baltimore, 188, 220. V. London, 132 V. Vicksburg, 270. Hart V. Albany, 148. V. Burnett, 124. Hartford v. Talcott, 7. Harvey v. Boyd, 209. V. Sloan, 143. Haskell v. Bartlett, 54. Hatcher v. Columbus, 284. Havanna v. Vanlaningham, 213, 248. Hawk V. Marion Co., 290. Hawkins v. Huron, 72. Hayden v. Noyes, 137. Hayes V. Appleton, 131, 133. V. Vincennes, 78. Hays V. Jones. 24. Haywood v. Mayor, 84, 89. Heath v. Kailroad Co., 195. Heeney v. Sprague, 7 Heilbron, Ex parte, 130, 218, 219. Heine v. Commissioners, 283. Heise v. Columbus, 30, 116, 152, 159, 160. Heisembrittle v. Charleston, 26, 130, 275. Heiskell v. Baltimore, 41. Heland v. Lowrell, ]. Hellen v. Noe, 152, 249, 254. Henback v. State, 121. Henderson v. Covington, 15. Hendersonville v. McMinn, 174. Henke v. McCord, 159, Hennessy v. Connolly, 181. Herford v. Omaha, 15. Hershoff v. Beverly, 71, 168, 172a, 179, 190, 264. Hesketh v. Braddock, 132, 167. Herzo v. San Francisco, 15, 35, 123. Hexamer v. Webb, 234. Hickey v. Railroad Co. 11, 24. Highland v. Galveston, 164. Highley v. Bunce, 17, 52. Hill V. Atlanta, 121. V. Dalton, 173, 181. V. Thompson, 84. Himmelman v. Hoadley, 226. V. Satterlee, 228. Hinckley v. Belleville, 22. Hine v. New Haven, 223. Hines v. Lockport, 227. Hitchcock V. Galveston, 11, 24. Hites V. Dayton, 217. Ho Ah Kow V. Neenan, 15. Hoblyn v. Kex, 125. Hoboken v. Gear, 52, 53. V. State 238. Hodges V. Nashville, 283. Hoffman v. St. Louis, 9, 226. Holberg v. Macon, 287. Holland v. San Francisco, 59, 188, 193. Holhvedell, Ex parte, 150, 170. Hooksett V. Amoskeag Co., 147, 229. Hopkins ?;. Swansea, 1. Horn V. People, 6, 7, 10, 292. Horner v. Rowley, 45. Horst V. Moses, 225. Hospital V. Stickney, 260. House V. Slate, 256. Hovey v. Mayo, 226. Howard v. liobbins, 252. V. Savannah, 23, 155. Hubbard v. Patterson, 215, Hudson V. Geary, 288. V. Thorne, 206. Huffsmith v. People, 89, 93. Hughes V. People, 93. Humboldt v. McCoy, 74. Huntineton v. Cheesbro, 31, 173. V. Pease, 173, 174. Huntsville v. Phelps, 151. Hurber v. Baugh, 160. Hurl, Ex parte, 268. Hutchinson v. Pratt, 56. Hyde Park v. Borden, 78. Hydes v. Joyes, 10, 11, 138. 111. Cent. R. R. Co. v. Galena, 195. Independence v. Moore, 213. V. Trouvalle, 185. XXII TABLE OF CASES. Indianapolis v. Blythe, 99. V. Fairchild, 99. V. Gas Co. 1, 18, 224. ■^ V. Im berry, 210a. V. Miller, 232. V. Mansur, 24. Information v. Oliver, 172a, 174, 184, 279. Ingham v. Railroad Co., 238. Insurance Co. v. Augusta, 284, 287, V. O'Connor, 131. Intendant v. Chandler, 204. In wood V. State, 181. Irvine v. Wood, 234. Israel v. Jacksonville, 168. Jacks V. State, 273. Jackson v. Bowman, 256. V. Boyd, 171. V. People, 204. Jackson Co. v. Brush, 10. Jackson Co. Ry. Co. v. Inter-State Ry. Co, 132. Jacksonville v. Block, 168. V. Holland, 209. V. McConnell, 15. Janesville v. Railroad Co., 27, 174. Jarman v. Patterson, 249. Jefferson v. Courtmire, 108. Jelly V. Dilly, 181. Jenks V. Williams, 7. Jenkins v. Cheyenne, 170. V. Thomasville, 97. Jersey City v. State, 60. Johnson v. Americus, 180. V. City, 257. V. Philadelphia, 15, 193, 248, 259, 260. Johnson v. Simonton, 149, 218. Johnston v. Crow, 132. V. Louisville, 15. Jones V. Ins. Co.', 1, 28. V. McAlpine, 61. V. Richmond, 213. Jonesborough r. McRee, 15, 167. Joyce V. E. St. Louis, 248. Judson V. Reardon, 180. Kaliski v. Grady, 268. Kanouse v. Lexington, 156, 209. Kansas City v. Clark, 197. V. Corrigan, 241. V. Mublbach, 279. V. White, 60. Karst V. Railway Co., 9, 226. Karwisch v. Atlanta, 288. Kavanaugh v. Brooklyn, 8. Keasy v. Louisville, 15, 188. Keeler v. Milledge, 170, 173, 174 209. Keely v. Atlanta, 287. Kellogg V. Corrico, 54. Kelly V. Dwyer, 268. V. Toronto, 217. Kelsey v. King, 243. Kempner v. Commonwealth, 210a. Kendall v. Camden, 36. Kennedy v. Phelps, 251. V. Sowden, 143. Kensington v. Glenat, 171. Keokuk v. Dressell, 22, 158, 202. V. Packet Co., 292. V. Scroggs, 15, 19, 21. Keokuk, etc., Co. v. Quincy, 194. Kepner v. Commonwealth, 50. Kerr v. Hitt, 54. Ketchum v. Buffalo, 15, 217, 233. Kettering v. Jacksonville, 139, 187, 279. Kiburg, Ex parte, 108, 170, 181. Kiley v. Forsee, 73. Kimball v. Marshall, 38, 40. V. People, 98. Kinder v. Gillespie, 249. Kinej v. Bellringer, 17. v. Carlisle, 237. V. Cross, 237. V. Davenport, 130, 212, 223. 0. Jacksonville, 202, 284. V. Williams, 40. Kinghorn v. Kingston, 185. Kinmundy v. Mahan, 10, 158. Kip V. Patterson, 131, 170, 174, 189, 218. Kirby v. Market, 235. Kirk V. Nowill, 159. Kirkham v. Russell, 15, 17, 129, 189, 237. Kitson V. Ann Arbor, 268. Knaust, In re, 71. Kneedler v. Norristown, 169, 222. Knief ». People, 52. Knight V. Kansas City, 49. V. Railroad Co., 186. Kniper v. Louisville, 17, 270. Knobloch v. Railway Co., 130, 184, 239. Knox City v. Thompson, 29. Knoxville v. Bird, 135, 188, 22a V. King, 143, 196. V. Sanford, 248. V. Vicars, 180. Korah v. Ottawa, 147, 229. Kyle V. Malin, 17 TABLE OF CASES. XXlll L, Labrie v. Manchester, 220. Lackland v. Railroad Co., 241. Lafayette v. Cox, 17. Lake v. Aberdeen, 3, 34, 251. Lake View v. Letz, 138, 220,251. Lamarque v. New Orleans, 216. Lancaster v. Richardson, 147, 229. Lanfear u. Mayor, 163. Lanier v. Mayor, 287. Larney v. Cleveland, 170, 203. Laiienstein v. Fond du Lac, 10. Launder v. Chicago, 189, 200, 213, 266. Launtz v. People, 44. Lautz V. Hightstown, 267. Law V. People, 55, 71. Lawrence v. Killam, 227. Lawrenceburg v. Wuest, 276. Leach v. Cargill, 15. Leathers v. Aiken, 85, 292. Leavenworth v. Booth, 258, 259, 280. V. Norton, 15. V. Rankin, 15. LeeTong, In re, 122. Leland v. Commissioners, 148. Lenz V. Sherrott, 63. Leonard v. Canton, 15, 17, 256, 275. Lesterjelle v. Mayor, 179. Levy V. State, 99. Lewis V. Toronto, 226. Lewiston v. Proctor, 170. Lexington v. Curtis, 182. ■ V. Headley, 186. Lindsley v. Chicago, 117, 185. Lineman, In re, 220. Linneus v. Dusky, 108. Linton v. Carter, 8. Lippman v. South Bend, 173. Little Rock v. Barton, 213. Live Stock Asso. v. Cresent City, 132. Livingston v. Albany, 122. ■ V. Pippin, 15, 26, 218. V. Trustees, 257, 280. Loeb V. Duncan, 204. Logan V. Pyne, 16, 17, 132, 263. ■ V. Tyler, 56. Logansport v. Crockett, 58, 59. Logue V. Gillick, 186. London v. Godn.an, 132. V. Van acre, 147. Long V. Brookston, 202. V. Tax District, 213. Longbridge v. Huntington, 5.3. Lord V. Oconto, 11. Lios Angeles v. Railroad Co., 270. V. Waldron, 188, 210. Louis V. Cafferata, 288. Louisburg v. Harris, 151. Louisiana v. Lathrop, 280. Louisville v. McKean, 121, 262. V. Osborne, 243. V. Roupe, 137. V. Webster. 223. V. Weible, 132. Low V. Commissioners, 84. V. Evans, 158. V. Marysville, 8. Lowell V. Simpson, 231. Loze V. Mayor, 68. Lucas V. San Francisco, 59. Lynch v. People, 175, 195, 209, 288. Lynchburg v. Railway Co., 241, 258. M. Mabry v. Bullock, 272. Macon v. Bank, 287. V. Patty, 10, 223. Macy V. Indianapolis, 9, 226. Madden v. Smeltz, 47, 205. Madison v. Hatcher, 99. Maguire, In re, 84. Main v. McCarty, 180. Mairs v. Real Estate Asso., 7. Mankato v. Fowler, 258. Manufacturing Co. v. Schell City, 70, 210. March v. Commonwealth, 102, 207, 209. Marietta v. Fearing, 196. Marion v. Chandler, 277. Markham v. Atlanta, 9. V. Mayor, 226. Markle v. Akron, 1, 170, 277. Marmet v. State, 268. Marshaltown v. Blum, 137. Martel v- E. St. Louis, 267. Martin, In re, 131. V. People, 256, 275. Martindale v. Palmer, 49. Martinsville v. Frieze, 174. Mason v. Shawneetown, 1, 147, 148. Mather v. Ottowa, 15. Mathews v. Alexandria, 11. V. Kelsey, 231. Matter of Zborowski, 24. Mauch Chunk v. McGee, 71. Maxwell v. Jonesboro, 265,276. Mayberry v. Franklin, 164. Mayo V. James, 121. Mayor v. Allaire, 92, 198, 213. V. Arnold, 179. V. Beasley, 30, 130. V. Hudson, 213. V. Hussey, 97. V. Hyatt, 112. V. Lumpkin, 67. V. Mayberry, 335. V. Nell, 172a, 182, 190. XXIV TABLE OF CASES. Mayor v. New York, 52, 68, 197. V. Nichols, 112. V. Kailroad Co., 241, 249, 285. V. Eood, 218. V. Rumsey, 15, 223. V. Second Ave. RR.Co., 241, 248. V. Thome, 131. V. Wards, 202. V. Williams, 28, 213. V. Winfield, 131. Mayo r Ba I timore w. Little Sisters of the Poor, 62. Mayor New York v. Heft, 7. Mays V. Cincinnati, 259, 283. McAlister v. Clark, 195, 264. McArthur v. Saginaw, 188. McCaflFrey v. Smith, 247. McCain v. State, 224. McCarthy v. Boston, 229. McConvill V. Jersey City, 30, 78, 79, 151. McCormack v. Patchin, 9, 226, 227. McCormick v. Bay City, 58. McCoy V. Briant, 35. V. Railroad Co., 239, McCracken v. San Francisco, 42, 59. McCullen v. Charleston, 15. McDermond v. Kennedy, 29. McDermott v. Board, 1. V. Miller, 45, 60. McGear v. Woodruff, 1 75. McGraw v. Whitson, 47. Mclntire v. Pembroke, 215. McKee v. McKee, 162. McKibbin v. Fort Smith, 213, 223. McKnight v. Toronto, 255. McLaughlin v. Stephens, 120. McLeod V. Kincasdine, 156. McLin V. Newburn, 29. McNair v. Ex parte, 143. McNamara v. Estes, 227. McPherson v. Chebanse, 288. McRea v. Americus, 97, 198. Meech v. Buffalo, 15. Megowan v. Commonwealth, 288. Melick V. Washington, 77. Memphis v. Adams, 291, V. Battaille, 143. V. O'Connor, 173. ——' V. Waterworks, 26. V. Winfield, 213. Merkee v. Rochester, 156, 178. Merriam v. Moody, 15. V. New Orleans, 193, 273. Merz V. Railroad Co., 213, 239. Meyer v. Bridgetown, 174, 275. Meyers v. Railroad Co., 141. Miles V. McDermott, 292. Milhau V. Sharp, 241, 242, 243, 244. Millar v. Batch, 252. V. OReilly, 170. Miller v. State, 213. Milliken v. Weatherford, 84, 181. Mills V. Gleason, 15. Milne v. Davidson, 1. Milwaukee v. Gross, 219. Minden v. Silverstein, 199, 277. Minneapolis Gas Co. v. Minneapolis, 12. Minturn v. Larue, 15, 121. Mitchell V. Rockland, 220. V. Wiles, 126. Mixer r. Supervisors, 169. Moberly v. Wright, 148. Mobile V. Jones, 170, 192. V. Moog, 16,292. V. Rouse, 92. V. Yuille, 130, 132, 147, 151, 259. Monroe v. Gerspach, 253. V. Hoffman, 22, 223. V. Meuer, 169. Montgomery v. Belser, 204. V. Poster, 203. V. Plank Road Co., 15. Mooney v. Keunett, 184. Moore, Ex parte, 156. V. Mayor, 36, 62. V. People, 120. Moran v. Lin dell, 75, 228. V. New Orleans, 85. Morano v. Mayor, 217. Morehouse v. Norwalk, 188. Morey v. Brown, 274. Morgan v. Cincinnati, 220. V. Nolte, 209. V. Quackenbosh, 36. Morley v. Carpenter, 227. . Morrill v. State, 272, 280. Morrison v. Hinkson, 243. Morton v. Princeton, 195. Moses V. Railroad Co., 238 Moss V. Oakland, 56, 209. Mott V. New York, 24. Moundsville v. Fountain, 181. Mount, Ex parte, 266. Mowery v. Salisbury, 274. Mt. Carmel v. Wabash, 8, 256. Mt. Keokuk v. Dressell, 31. Mt. Pleasant v. Beckwith, 15. V. Breeze, 31. V. Vansice, 138. Muhlenbrinck v. Commissioners, 288. Municipality v. Dunn, 227. V. Kirk, 231. V. Peafee, 188. Munn V. Illinois, 248. Murphy v. Jacksonville, 96. V. Montgomery, 292. V. Pance, 284. V. Pearce, 224. Muscatine v. Packet Co., 292. TABLE OF CASES. xxy Musgrave v. Church, 255. Meyers v. Railroad Co., 239. Nagle V. Augusta, 229, Napman v. People, 131, 173, 185. Nashville v. Althrop, 135, 137. 287. V Toney, 210. Nasmith, In re, 130, 160. Naylor v. Galesburg, 197. Nealis v. Haywood, 78. Neilly, In re, 260. V. Owen Sound, 130. Nelson v. La Porte, 225, 244. Nevada v. Hutchins, 251. Newark v. Murphy, 180. New Hampton v. Conroy 19, 159. New Haven v. Sargent, 15, 226. V. Water Co., 243. New London v. Brainard, 15. New Orleans v. Anderson, 193. V. Blanc, 213. V. Brooks, 38'. V. Boudro, 209. V. Clark, 225, 244. V. Costello, 213. V. Dubarry, 268, 287. ' V. Ins. Co., 15. V. Kaufman, 268, 287. V. Miller, 103. V. Phillip!, 18, 89. V. Savings Bank, 121, 287. ■ V. Wilmot, 144. Newton v. Aurora, 187. V. Belger, 223. New York v. Buffalo, 290. V. Hyatt, 62. — —V. Nichols, 121. ■ V. Ordroneaux, 152. ' V. Ryan, 124. Nichols V. Nashville, 17. Nier v. Railway Co., 127, Nightingale, Petitioner, 130, 218, Nolinv. Franklin, 254. Northern Liberties v. O'Neill, 209. Norton v. Kearnon, 148. Noyes V. Ward, 195. O. Oakland v. Carpenter, 10, 15, 37. O'Connor v. Pittsburgh, 226. Ogdensburgh v. Lyon, 81, 142. O'Leary -y. Sloo, 227,228. Olin V. Meyers, 58. Olinda v. Lothrop, 234. O Maley v. Freeport, 28. O'Mally V. McGinn, 49. Opelousa v. Andrus, 49. Ordinary v. Retailers, 256 Osborne v. Mobile, 271. Oskaloosa v. TuUis, 19. Oskosh V. Schwarz, 170, 174. Oswego V. Collins, 248. Ottawa V. Carey, 15. Ottoman Cahvey Co. v. Philadelphia, 195. Ottumwa V. Schaub, 185, 267. Ouachita v. Monroe, 15. Ould V. Richmond, 268. Pacific V. Siefert, 193, Pacific Junction v. Dyer, 137 Packet Co. v. Catlettsburg, 85, 292. V. Keokuk, 85, 292. V. St. Louis, 85. Palmer v .Hicks, 142. V. Way, 213. Palmyra v. Morton, 196, 213. Parr v. Greenbush, 56. Parsons v. Trustees, 186. Paterson v. Barnet, 70, 210. Paton V. People, 265. Patton V. Stephens, 290. Paul V. Detroit, 224. Paxson V. Sweet, 28, 235. Peay v. Little Rock, 273. Peck V. Austin, 7. Pedrick v. Bailey, 130, 149, 234. Pekin v. Smelzel, 98, 275. Pendergast v. Peru, 185, 202, 279. Penn. Co. v. Frana, 193. ■ V. James, 130, 145. Penn. Ry. Co. v. Jersey City, 139. People V. Batchelor, 38. V. Benson, 244. V. Bird, 36. V. Board of Health, 253. V. Brooklyn, 227. V. Brown, 119, 213. V. Buchanan, 185. V. Carpenter, 234. V. Cooper, 9. V. Council, 164. V. Cox, 170a. V. Crotty, 3, 210a, 269. V. Cunningham, 231, 237. V. Detroit, 170. V. Dorr, 13. V. Plagg, 225. V. Johnson, 170. V. Justices, 173, 174. V. Leavitt, 204. V. Lee, 72. V. Marx, 130. V. Mayor, 174, 184. XXVI TABLE OF CASES. V. McClintock, 223. V. Miller, 178, 188, 213. V. Mitchell, 16. V. Moore, 280. V. Morris, 8. V. Mulholland, 130, 218, 260. V. Murray, 72, 186. V. New York, 263. V. Potter, 184. V. Railroad Oo., 67, 202. V. Rochester, 46. - — V. Russell, 260, 272. V. Sacramento, 154. V. San Francisco, 55. V. Schroeder, 50. V. Starne, 57. V. Stevens, 112. V. Sturtevant, 6. V. Thurber, 85, 292. V. Wharf Co., 292. V. Whitney's Point, 170a. Peoria v. Calhoun, 188, 189. Pequignet v. Detroit, 228. Perchee v. Ellis, 130. Perry v. Railroad Co., 146, 237. Pesterfield v. Mayor, 131. Peters v. London, 151. Petersburg v. Metzger, 15, 98. Peterson v. New York, 15, 217. Pettis V. Johnson, 34, 334. Philadelphia v. Arrott, 195. V. Board, 234. V. Hughes, 195. V. Roney, 209. Phillips V. Allen, 159, 160. Phillips, In re, 227. Pierce v. Bartrum, 134, 143, 219. Pieri v. Mayor, 131. Pimental v. San Francisco, 42, 59. Piqua V. Zimmerlin, 30, 139, 213. Plaquemine v. Roth, 18, 19. V. RuflF, 155. Platteville v. Bell, 276. Player v. Vere, 133. Plum V. Canal Co., 226. Plymouth v. Pettijohn, 143. Poe V. Machine Works, 204. Poillon V. Brooklyn, 15. Polland V. Connelly, 77. Polinsky v. People, 112, 130, 218. Pomeroy r. Lapens, 174. Pool V. Boston, 290. Porter v. War in e, 184. Port Huron v. McCall, 17. Powell V. People, 209. , V. St. Joseph, 227. Powers V. Decatur, 168, 268. Poyer v. Des Plaines, 206, 255. Prell V. McDonald, 172, 179, 185. Prescott V. Battersby, 8a. — — V. Duqucsne, 292. ^ President v. Holland, 170. Preston v. Manvers, 48. Providence v. Railroad Co., 68. Provision Co. v. Chicago, 248. Pugh V. Little Rock, 185. Purdue v. Ellis, 260. Pye V. Peterson, 222, 252. Q. Queen v. Davis, 237. V. Gilbert, 155, 156. V. Justices, 54, 167. V. Milledge, 167. Quigley v. Aurora, 170. Quincy v. Ballaner, 170. V. Bull, 07, 139, 195,242, 243. V. Railroad Co., 210. Quinn v. Heisel, 180. V. Paterson, 146, 224. Quinette v. St. Louis, 193. Quong Woo, In re, 11. R. Railroad v. Belleville, 240. V. Bloomington, 239. V. Brooklyn, 189, 241. V. Brown, 238. V. Buffalo, 239. V. Burlington, 67. V. Cape May, 67. V. Chenoa, 147, 151, 239. V. Deacon, 79. V. Decatur, 239. V. East Orange, 130. V. Ellerman, 292. V. Engle, 186. V. Ervine, 7. V. Evansvilie, 24. V. Galena, 239. V. Garside, 238. V. Godfrey, 174. V. Haggerty, 239. V. Jersey City, 139, 239. V. Joliet, 195^ V. Klauber, 174. V. Lake View, 241. V. Louisville, 147. V. Long Branch, 224. V. Mt. Pleasant, 227. V. Newark, 238. V. New Orleans, 8. V. Odum, 56. V. People, 201, 239 V. Petersborough, 10. V. Philadelphia, 248. V. Quincy, 8. V. Railroad Co., 238, 240. TABLE OF CASES. XXVll Railroad ». Richmond, 135, 241. V Shields, 238. V. Shires, 186. V. Smith, 240. V. Spearman, 228. V. Springfield, 188. V St. I.oui?, '292. V. Transit Co., 240. Eailway Co. v. Baltimore, 12. V. Cambridije, 235. V. Covington, 238. V. Faribault, 224. V. Hoboken, 213, 256, 258. V. Jacksonville, 131, 226, 289. V. Jonesville, 241. V. Lake View, 262. V. Louisville, 238, 241. 242, 265. •■!;. Philadelphia, 213, 241,248, 250. V. Kail way Co., 67. Kaker v. Maquon, 187. Eaieigh v. Dt Rich. 404. (4) State V. Williams, 1 1 S. C. 288. (5) Raleigh v. Dougherty, 3 Humph. 11. (6) Greenwood v. State, 6 Baxt. .567; State v. Shelby, 16 Lea, 240. (7) Hamilton v. State, 3 Tex. A pp. 643. (8) Ex parte Douglass, 1 Utah, 108. § 121.] RULES OF VALIDITY. 87 assault and battery was soon thereafter declared void as trespassing upon the state law.^ § 120. United States.— The general doctrine of the federal courts is well expressed by Justice Greer in the following language : "Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of both. That either or both may, if they see fit, punish such an offender, can not be doubted. Yet it can not be truly averred that the offender has been twice punished for the same offense, but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other."^ And this doc- trine is fully adhered to when the apparent conflict is between statutes of a state and municipal ordinances.^ It would be much better if the various state tribunals were more harmonious in their views upon this much dis- puted question, but their tendency and the burden of their authority are certainly in favor of the adoption of the broader rule. § 121. Conflict with state license laws.— Statutes and ordinances come into further conflict in regard to acts which are permitted by the state law under certain re- strictions, and either prohibited by the ordinance, or per- mitted under additional restrictions to those imposed by the state. The true test to be applied in such cases is based upon the nature of the authority for the passage of the ordinance. When the state law allows a certain traflac to be carried on under a license, a municipality can not im- pose an additional license under its general welfare or po- lice power, even though the imposition of a local license (1) People V. Brown, 2 Utah, 462. (2) Moore u. People, 14 How. 13. (3) McLaughlin u. Stephens, 2 Cranch C. C. 148; United States v. Holly, 3 Cranch C. C. 656. 88 MUNICIPAL POLICE ORDINANCES. [§ 121. would be entirely free from objection, were there no state law on the subject.^ "When the state law is silent the corporation may safely exercise any regulation within the legitimate scope of its power.^ If the corporation has express power to license, the grant is considered additional to the power of regulation exercised by the state, and the local license is lawful and limited in amount only by the terms of the power.^ The court of Georgia seems to be alone in con- sidering the state license to vest such property rights in the licensee, that municipal ordinances, though enacted under express power subsequently granted to the corpora- tion, can not be enforced as to those who have procured the state license.* A somewhat similar holding was made by the Illinois court, which decided in a late case that a license taken out under an ordinance would exempt the licensee from an additional fee imposed by a subsequent statute.'^ These decisions do not mean, however, that both laws could not be enforced against a person who engages in the traffic after both laws have gone into effect. The ordinance may go farther than the statute when the power is plain. So, under power " to license, regulate, and pro- hibit peddlers," a corporation may require a license from all peddlers, even though a statute of the state exempts those peddlers from any license tax, who vend the products of the state.® But, unless the power is plain, an ordinance can not require inspection when the statute allows the sale of a certain commodity without inspection.^ Such permis- (1) Grills V. Jonesboro, 8 Bax. 247; Robinson v. Franklin, 1 Humph. 156; Savannah v. Charlton, 36 Ga. 460. (2) Burlington v. Kellar, 18 la. 59. (3) Deitz V. Central, 1 Col. 323; Fuller r. State, 48 Ala. 291 ; West v. Greenville, 39 Ala. 69; Greensboro v. Mullins, 13 Ala. 341; Ex part« Siebenhauer, 14 Nev. 365; Simpson v. Savage, 1 Mo. 359; Dill. Mun. Corp., § 86; New Orleans r. Savings Bank, 31 La. Ann. 637. (4) Chastain v. Calhoun, 29 Ga. 333; Hill v. Atlanta, 54 Ga. 645; Baldwin County v. Retailers, 42 Ga. 325. (5) Swarth v. People, 109 111. 621. (6) Ex parte Ah Toy, 57 Cal. 92. (7) New York v. Nichols, 4 Hill, 209. § 121.] RULES OF VALIDITY. 89 sion must, however, be express, and cau not be implied from the silence of the state law. The existence or exercise of express power by the mu- nicipality does not impair the power of the state over the same subject nor excuse any one from strict compliance with the state law.^ Permission from the corporation is no defense against the statute.^ The application of this rule must be restricted to cases where the ordinance and statutory pro- visions are concurrent in their nature, and not directly in- consistent with each other. Thus, when the statute ex- pressly permits liquor to be sold or drank anywhere^ an or- •dmance restricting its consumption to the place where sold would be inconsistent and void.^ Under express authority the corporation could even prohibit that which the state law permits under restriction.* The grant of power to the mu- nicipality of a nature inconsistent with the existing state law vrill, if express, be considered as the latest expression of the legislative mind and supersedes the state law. If the priv- ilege of granting licenses is made exclusive in the corpora- tion, no state license need be procured,^ and this, too, even though the corporation does not see fit to exercise its power.* This theory is certainly most consistent with the principle of local regulation, ana yet it has been held that the grant of a license by a corporation, under exclusive power to grant or withhold licenses, is not interfered with by the imposition of an additional burden by a state law.^ If the state law absolutely prohibits, the corporation may not permit under license.^ (1) Henback v. State, 53 Ala. 523; Davis v. State, 2 Stew. & Port. 83 Minturne v. Larue, 23 How. 435; Dill. Mun. Corp., g 86. (2) Davis V. State, 2 Stew. & Port. 83 (3) Adams v. Albany, 29 Ga. 57. (4) Mayo v. James, 12 Gratt 17. (5) Bennett v. People, 30 111. 389. (6) Coulterville v. Gillen, 72 111. 599. (7) Benefield v. Hines, 13 La. Ann. 420; Louisville v. McKean, 18 B. Mon. 10. (8) Foster v. Brown, 55 Iowa, 686. 90 MUNICIPAL POLICE ORDINANCES. [§ 123. § 122 Policy'bf state legislation must be sustained. — In order that municipal ordinances may be perfectly con- sistent with the law of the state, the construction placed upon the wording of the charter or organic law must accord with the declared policy of the state legislation. When, for example, the qualifications of voters are pre- scribed by the general law, the municipality can not add to those qualifications by ordinance.^ If the state consti- tution declare that only ad valorem taxes shall be levied, and power is given to the corporation to tax " all sales of horses made by drovers," a tax of one dollar for each horse sold is void because not ad valorem? So, when the state law guarantees freedom of religious opinion to all citizens, it would be unlawful to enact an ordinance requir- ing shops to be closed on Sunday, without excepting from its operation persons who observe some other day of the week;^ and an ordinance is void which discriminates in effect against persons of color.* With regard to ordinances of a punitive nature, it must be observed that the corporation is restricted in their passage to any definition of the thing or act ordained against that is found in the statutes. For example, the state law makes gaming an offense and defines it. The ordinance must be directed against the act of gaming as thus defined.* § 123. What constitutes the law of the land. — We have seen that ordinances must accord with the federal constitution and laws and with tbe legislation of the state in which the municipality is situated. Sometimes an exercise of corporate power is attempted to be supported by decisions of the English courts, on the theory that English common law forms a part of the law of our land (1) Bell V. Man vers, 3 U. C. C. P. 349. (2) Livingston v. Albany, 41 Ga. 22; CuUinan v. New Orleans, 28 La. Ann. 102. (3) Canton v. Nist, 9 0. S. 439. (4) Cooper v. Savannah, 4 Ga. 68. (5) In re Lee Tong, 18 Fed. Rep. 253. I l^2b.] RULES OF VALIDITY. 91 in the absence of any definite expression of policy by our courts or legislatures. Generally speaking, it would only be misleading to give weight to English authorities, be- cause many of the powers exercised by the municipalities of that country rest solely upon prescription, a source not recoo-nized in America.^ Still in cases where no applicable decision or expression of legislative policy can be found except in England, the English decision would be con- sidered in construing corporate powers unless clearly inapplicable.^ § 124. Powers derived from former sovereignties. Some of the older American cities may still have property rights which had their origin under the laws of some for- eign power,^ but they jnay exercise only such legislative powers as are granted by and consonant with the laws of the United States, or its members. New Orleans, for instance, existed as a municipality under the government of France and under that of Spain, but it may now exer- cise only the powers granted under the code of Louisiana, and its ordinances must conform to the policy of existing American legislation. It contains none of the riglits formerly exercised under its French charter, and none that were sanctioned by the Spanish cabildo, unless confirmed by its present organic law.* § 125. The corporate charter. — The most obvious restriction upon the passage of ordinances is that they must be consonant with the provisions of the municipal charter or organic law. Both their aim and form must fall within the powers conferred.^ The charter is the (1) Herzo v. San Francisco, 33 Cal. 134. (2) Claiborne County v. Brooks, 111 U. S. 400. (3) For example, San Francisco, Hart v. Burnett, 15 Cal. 530. (4) Bank v. Navigation Company, 3 La. Ann. 294. For special hold- ings as to other cities, see (New York) Mayor v. Ryan, 2 E. D. S. 368,- (Detroit) Cooper v. Alden, 1 Harr. Ch. 72. (5) Camden u. Mulford, 26 N. J. 49; Carr v. St. Louis, 9 Mo. 190; Mitchell V. Wiles, 59 Ind. 364; St. Louis v. Kase, 9 111. App. 409; Smith ^2 MUNICIPAL POLICE ORDINANCES. [§ 128 primary test of the validity of an ordinance. In the appli- cation of this test as well as the others just considered it is always better to err in restricting than in extending the «cope of corporate powers. § 126. Other requisites of validity. — The restrictions «o far noted are those based upon constitutional and stat- utory laws of express character, and are of much easier ap- plication than those further restrictions which are based on general principles of law, and depend for their expression upon the decisions of courts. § 127. Reasonableness. — The restriction most fre- quently appealed to by those desirous of defeating ordi- nances is that ordinances must be reasonable. And of all restrictions this is the least capable of precise formulation and definition. An ordinance to be void for unreasonable- ness must be plainly and clearly unreasonable.^ There must be evidence of weight that it took inception either in a mistake, or in a spirit of fraud or wantonness on the part of the enacting body.^ § 128. When the discretion of the council should be final. — If an express power is given to a corporation to enact ordinances of a certain kind, the legislature thereby trusts to the discretion of the council to determine just how far they shall go within the limits imposed ; and there is every presumption that the council are not only actuated by pure motives, but that they are so familiar with the mischief to be remedied, and with the defects of the prior regulations, as to be the best possible judges of the neces- sity for the enactment of the new law, and of the extent to which it is advisable to exercise the power granted. The V. Knoxville, 3 Head, 245; St. Louis v. Weber, 44 Mo. 547; Cummings V. Fitch, 40 0. S. 56 ; Rex v. Cutbush, 4 Burr. 2204; Hoblyn v. Rex, 2 Bro. P. C. 329; Dill. Mun. Corp. § 319. (1) White V. Kent, 11 0. S. 550; Neier v. Railway Ck)., 12 Ma App. 25. (2) Sargent v. Railroad Co., 1 Handy (Ohio), 52. § laO.j RULES OF VALIDITY. 93. council, and not the court, is the proper repository of this public trust, and it should be a plain case indeed to justify the latter in interfering with the determination of the council, or of questioning either their motives or the co- gency of their reasons for enacting the ordinance. Surely, when an ordinance is, upon its face, plainly within the- terms of an express power, the court ought not to interfere on the ground of unreasonableness. It is restricted to con- sider the constitutionality of the act granting the power. § 129. When not final. — When the ordinance is passed in order to exercise some power necessary to effectuate an express grant, or under some implied or inherent power which it is the policy of the courts to allow municipalities to exercise, or under a power accompanied by no express direction governing the mode of its exercise,^ then it is proper for the court, in cases of doubt, to look beyond the facS of the ordinance in order to inquire if it is reasonable. And, in fact, as is evidenced by the best considered decis- ions on the subject, the evidence is looked into in those cases alone. The reasonableness of an ordinance ought never to be questioned when it is enacted in accordance: with the terms of an express power. § 130. Examples of reasonable ordinances. — Decis- ions as to the reasonableness of ordinances will be particu- larly considered under the subsequent treatment of the various special subjects of municipal control,^ but an enumeration here of some leading cases will aid in fixing the general rule. The following ordinances have been held reasonable : Railroads: That railroad trains shall not be run at a greater rate of speed than six miles per hour within the corporate limits;^ regulating the speed of trains and wagons, (1) Kirkham v. Russell, 76 Va. 956; Ex parte Chin Yan, 60 Cal. 83.. (2) Post. §§ 211 to 292. (3) Knobloch v. Railway Company, 31 Minn. 402. 94 MUNICIPAL POLICE ORDINANCES. [§ 130. within the city ;^ that trains shall not be allowed to stand across a public street longer than two minutes at one time f that railroad companies shall keep flagmen at street cross- ings during the day, and that they shall protect the street crossings by colored lights at night ;^ that boys and other persons not connected with the management of the rail- road, except passengers, and those about to take passage, shall not get on trains or cars within the city limits;* that street railway companies shall report quarterly the number of passengers carried;^ requiring railroads to pave the sides of the streets through which they run.^ Vehicles : That hackney carriages shall not stand within thirty feet of any public place of amusement f fixing the rates of fare that may be charged by hackney coachmen f prescribing routes of travel for omnibus lines, and prohib- iting their passing over other streets;' fining persons who impede the progress of street cars by allowing their ve- hicles to stand on the tracks ;^'' requiring hackmen who stand near railroad depots to obey the orders of the police ;^^ imposing a moderate tax on all vehicles that are used on the streets ;^^ assigning certain stands for vehicles used for hire." Markets: That wagons loaded with produce shall not stand in the market-place for over twenty minutes during certain hours ;^* prohibiting those who were not licensed occupants of market stalls from oflfering fresh meat for (1) Commonwealth v. "Worcester, 3 Pick. 461 ; Pennsylvania Co. v. James, 32 *P. F. Smith, 202. (2) State V. Jersey City, 37 X. J. 348. (3) D. L. & W. R. R. Co. V. East Orange, 41 N. J. 127. (4) Beardenv. Madison, 73 Ga. 184. (5) St. Louis V. St. Louis Railway Co., 89 Mo. .44. (6) City V. Erie Passenger R. R. Co., 7 Phila. 321. (7) Commonwealth v. Robertson, 5 Cush. 438. (8) Commonwealth v. Gage. 1 14 Mass. 328. (9) Commonwealth v. Stodder, 2 Cush. 562. (10) State V. Foley, 31 la. 527; s. c, 7 Am. Rep. 166. (11) St. Paul V. Smith, 27 Minn. 364. (12) St. Louis V. Green, 70 Mo. 562. (13) Commonwealth v. Mathews, 122 Mass. 60. (14) Commonwealth v. Brooks, 100 Mass. 355. § 130.] RULES OF VALIDITY. 95 sale in less that quarters;^ fixing market-hours at from dawn to nine o'clock a. m., and prohibiting the sale of fresh beef at other times in quantities less than a quarter.^ Sale of commodities: Prescribing that gunpowder shall not be kept in quantities over a certain number of pounds, that it shall be kept in copper canisters, and imposing a fine of from $50 to $500 for each violation of the ordi- nance;^ prohibiting the sale of milk without a license from the mayor ;* requiring a license to sell certain commodities in certain streets;® requiring a $200 license fee from each butcher;® requiring all imitations of lacteal products to be plainly marked;^ prescribing any regulations to prevent the adulteration of milk;^ providing for and regulating the weight and price of bread f and requiring the weight of the loaf to be stamped thereon, the bread to be forfeited if the provision is neglected '^^ restricting the slaughter of animals in certain localities;" forbidding sales of goods on Sunday ;^^ requiring a license fee from persons engaged in peddling goods from house to house ;^' and from those who stand on the streets to sell papers ;^^ Wiixt every horse and cattle dealer shall take out a license and furnish a certificate of moral character.^® Intoxicating liquors : Levying a tax of $100 on each re- (1) St. Louis V. Weber, 44 Mo. 547. (2) BowUng Green v. Carson, 10 Bush (Ky.) 164. (3) Williams v. Augusta, 4 Ga. 509. (4) People V. Mulholland, 82 N. Y. 324. (5) Nightingale, Petitioner, 11 Pick. 168. (6) St. Paul V. Colter, 12 Minn. 41. (7) State V. Addington, 77 Mo. 110. (8) Polinsky v. People, 73 N. Y. 65. (9) Mayor v. YuiUe, 3 Ala. 137. (10) In re Nasmith, 2 Ont. 192. (11) Slaughter-House Laws, 16 Wall. 63; Ex parte Heilbron, 20 Cent, L. Jour. 183. (12) Gabel v. Houston, 29 Tex. 335. (13) State Center v. Barenstein, 66 la. 249. (14) Commonwealth v. Elliott, 121 Mass. 367. (15) St. Louis V. Knox, 6 Mo. App. 247. 96 MUNICIPAL POLICE ORDINANCES. [§ 130. tailer of spirituous liquors ;^ placing the tax at $500 f pun- ishing the sale of liquors in quantities of a quart or more to be drunk on the premises;^ punishing retail grocers who keep spirituous liquors on their "premises;* that dram shops shall close at nine o'clock p. m. f closing them from lOiSO p. M. till 5 A. M. f and from midnight till five a. m. ;' requir- ing tliat there shall be no avenue of direct communication between billiard rooms and places where liquors are sold.* Other occupations: Requiring an annual license fee of $500 from express companies whose business extends be- yond the state, and $100 on all others f requiring restau- rants to close at ten o'clock in the evening;^" and confec- tioneries to remain closed on Sunday after nine o'clock in the morning;" prohibiting gambling and bawdy houses from being located in certain parts of the city ;^^ prohib- iting work in laundries at night within certain territorial limits.^ Health and security : Prohibiting persons from allowing their cattle to run at large;" compelling boats laden with produce apt to become putrid to anchor in the adjoining waterway until inspected and permitted to unload by a city officer ;" punishing vagrants ;^^ preventing the establishment (1) Mayor r. Beasly, 1 Humph. 426. (2) Perdue v. Ellis, 18 Ga. 586. (3) Adams v. Albany, 29 Ga 56. (4) Council V. Ahrens, 4 Strob. L. 241 ; Heisembrittle v. Charleston^ 2 McMull. 233. (5) Smith V. Mayor, 3 Head, 245. (6) State V. Welch; 36 Conn. 215. (7) Bright v. Toronto, 12 U. C. C. P. 433. (8) Neilly v. Owen Sound, 37 U. C. Q. B. 289. (9) Express Co. v. Mobile, 49 Ala. 404. (10) State V. Freeman, 38 N. H. 426. (11) St. Louis V. Cafferata, 24 Mo. 94, (12) Ex parte Chin Yan, 60 Cal. 78. (13) Soon Hingv. Crowley, 113 U. S. 703; Barbierv. Connelly, 113 U. S. 27. (14) Commonwealth v. Patch, 97 Mass. 221 ; Commonwealth v. Bean^ 14 Gray, 52. (15) Dubois V. Augusta, Dudley (Ga.), 30. (16) St. Louis v. Bentz, 11 Mo. 61. § 131.] RULES OF VALIDITY. 97 of new burial-grou nds within the city limits ;^ prohibiting unlicensed persons from removing offal and garbage ;2 im- posing a fine of ten dollars upon the ovt^ner of any dog that shall bite any one.^ Miscellaneous ordinances: Prohibiting the owners of lots abutting on the lake shore from removing sand ;^ prohib- iting the erection of awnings over the sidewalks;* fixing a price for the privilege of tapping the public sewers;^ re- quiring adjoining owners to clear the snow from the side- walks;^ prohibiting the erection of wooden buildings within certain territorial limits;^ requiring a license for building;^ prohibiting any one from delivering sermons, lectures, or addresses in the public common without first having obtained permission from the council ;^° making it unlawful to keep draw-bridges open more than ten minutes at one time, and fining vessels that neglect to observe the bridge signals ;^^ restricting laundries to ce^ain kind of building.^^ § 131. Examples of unreasonable ordinances. — Among others, the following ordinance regulations have been declared unreasonable, and for that reason void : Railroads : That a railroad company shall keep a flag- man by day and a red light by night at a street crossing which is not particularly dangerous.^^ (1) Charleston v. Church, 4 Strob. L. 306. (2) Vandine, Petitioner, 6 Pick. 187; s. c, 17 Am. Dec. 351. (3) Commonwealth v. SteflFee, 7 Bush, 161. (4) Clasen v. Milwaukee, 30 Wis. 316. (5) Pedrick v. Bailey, 12 Gray, 161. (6) Fisher v. Harrisburg, 2 Grant Cas. 291. (7) Goddard, Petitioner, 16 Pick. 504. Contra, Gridley v. Blooming- ton, 88 111. 555. (8) King V. Davenport, 98 111. 305 ; Baumgartner v. Hasty, 100 Ind. 575. (9) Welch V. Hotchkiss, 39 Conn. 140, (10) Commonwealth v. Davis, 140 Mass. 485. (11) Chicago V. McGinn, 51 111. 266. (12) In re Yick Woo, 68 Cal. 294. (13) Railway Co, v. Jacksonville, 67 111. 38; s. c, 16 Am. Rep. 611. 7 98 MUNICIPAL POLICE ORDINANCES. [§ 131. Vehicles : That porters and hackmeu shall not approach within twenty feet of a depot, when their presence is ex- pressly sanctioned by the railroad company.^ Markets : Prescribing a penalty for each hour that a wagon is kept within the limits of the public market.^ Sale of commodities : That fruit and lemonade shall not be sold at temporary stands without a license ;' imposing a fee of five cents on each sale of produce;* that producers shall pay an annual fee of twenty-five dollars for the privi- lege of vending their produce on the streets ;' forbidding the sale of goods on Sunday f imposing a license fee on all hucksters f forbidding sales by auctioneers except to the highest bidder ;^ prohibiting auction sales after sundown.' Intoxicating liquors: That licensed venders of spirits shall not sell between six o'clock p. m. and six o'clock A. M.;^" requiring druggists, under a heavy penalty for neglect, to furnish a quarterly statement, verified by afiidavit, of the kind and quantity of liquors sold ;" prohibiting sales of liquors in less quantities than twenty-eight gallons.'- Other occupations: Permitting one person, to the ex- clusion of others, to carry on a dangerous business ;'' pro- hibiting the slaughtering of animals on one's own premises unless in a regular slaughter-house;'* restricting all slaughtering to a singlg specified building;" prohibiting non-residents from taking fish from a navigable river (1) Napman v. People, 19 Mich. 352. (2) Commonwealth v. Wilkins, 121 Mass. 356. (3) Barling v. West, 29 Wis. 307; s. c, 9 Am. Rep. 576. (4) Kip V. Patterson, 2 Dutch. 298. (5) St. Paul V. Traeger, 25 Minn. 248; s. c, 33 Am. Rep. 462. (6) Shreveport V. Levy, 26 La. Ann. 671 ; s. c, 21 Am. Rep. 553. (7) Dunham v. Rochester, 5 Cow. 462. • (8) In re Martin, 27 Ark. 467. (9) Hayes v. Appleton, 24 Wis 542. (10) Ward v. Greeneville, 8 Baxter, 228; s. c, 35 Am. Rep. 700. (11) Clinton v. Phillips, 58 111. 102; s. c, 11 Am. Rep. 62. (12) Commonwealth v. Turner, I Cush. 493. (13) Mayor v. Thorne, 7 Paige, 261. (14) Wrefordv. People, 14 Mich. 41. (15) Chicago v. RumpflF, 45 111. 90. § 131.] RULES OF VALIDITY. 99 within the city limits ;^ requiring a license fee for each milk-cart f requiring owners of theaters to pay a police officer for attendance at every performance.^ Health and security: Compelling the removal, from the city, of a steam engine that is not per se a nuisance f pro- hibiting a gas company from opening paved streets for the purpose of making new connections f forbidding the use of a certain kind of approved fire-extinguishers at fires f compelling the removal of property not shown to be a nuisance '^ punishing those whose animals are found run- ning at large in the streets f giving authority to police officers to make arrests without warrants for ofifenses not committed in their presence f punishing those who associ- ate with persons of bad character;^'' limiting the burial of the dead to one locality, the prohibited territory being un- reasonably large ;" subjecting private burial-grounds to the control of the city sexton -^'^ forbidding the renting of buildings to prostitutes, without regard to the use to which they intend to put them ;'^ prohibiting the use of steam- boats not provided with a spark-arrester '* as effectual as the same can be made by any means known or in use."'* Miscellaneous ordinances : Requiring the arrest of all free negroes found on the streets after ten o'clock p. m.-/^ levying a tax to build a sidewalk in an uninhabited part of the city, where it would not be couuected with other side- (1) Hayden v. Noyes, 5 Conn. 391. (2) Chicago v. Bartree, IlL App. (1887). (3) Waters v. Leech, 3 Ark. 110. (4) Baltimore v. Radecke, 49 Md. 217; s. c, 33 Am. Rep. 23'./. (5) Commissioners v. Gas Company, 12 Pa. St. 318. (6) Insurance Co. v. O'Connor, 27 La. Ann. 371. (7) Fieri v. Mayor, 42 Miss. 493. (8) Collins V. Hatch, 18 Ohio, 522. (9) Pesterfield v. Mayor, 3 Coldw. 205. (10) St. Louis V. Fitz, 53 Mo. 582. (11) Selectmen v. Murray, 16 Pick. 121. (12) Bogart u. Indianapolis, 13 Ind. 134. (13) Milliken v. Weatherford, 54 Tex. 189. (14) Atkinson v. Transportation Co., 60 Wis. 141. (15) Mayor v. Winfield, 8 Humph. 707. 100 MUNICIPAL POLICE ORDINANCES. [§ 132. walks ;^ requiring the expulsion from the public school of any child that shall decline, under its parents' direction, to study some branch of the curriculum ;- excluding a scholar from promotion in the public schools for inability to pass an examination in a study which his parents do not desire him to pursue;^ providing that the city sexton, whose fees, are paid out of the estates of deceased persons, shall ex- pend $500 on the public burying-grounds, and bury paupers free of charge ;* granting a franchise to maintain a toll-bridge across a river ;' requiring consent of mayor to march through the streets in procession with flags, torches, and music.® § 132. Restraint of trade. — At common law, any one might carry on any trade in any place unless some custom forbade.^ Any restraint of trade is burdensome to the com- munity at large, and especially so to those engaged in the trade or occupation that is restrained. But many trades are of such a nature that they may easily be made injurious or dangerous to health and security, if improperly con- ducted. Any regulation of trade that has restraint as its. object is unlawful, but any degree of restraint is permissi- ble that is actually necessary to secure and maintain health and good order. A simple regulation for police purposes alone is valid.* "A law which unnecessarily and oppressively restrains a citizen from engaging in any traflfic, or disposing of his property as he may see fit, although passed under the specious pretext of a preservation of the health of the inhabitants, would be void. Such a law would be unreasonable, and would deprive the people of (1) Corrigan v. Gage, 68 Mo. 541. (2) Rulison v. Post, 79 Ind. 567. (3) Trustees v. People, 87 111. 305. (4) Beronjohn v. Mobile, 27 Ala. 58. (5) "Williams v. Davidson, 43 Tex. 1. (6) Frazee's Case, Mich. (Oct. 28, 1886), 35 Alb. L. J. C. (7) Clark v. Le Creu, 9 B. & C. o2 ; Hesketh v. Braddock, 3 Burr. 1847; Bosworth v. Hearne, 2 Str. 1085; Harrison v. London, 1 Burr. 16 ; London v. Godraan, 1 Burr. 12. (8) Mobile v. Yuille, 3 Ala. 137. § 132.] RULES OF VALIDITY. 101 the rights guaranteed to them by the organic law of the land. But if the regulation or prohibition contains nothing more than the necessary limitation, and is passed in good faith for the purpose of preserving the good health and abating nuisances, it is not liable to objection. No man has an inalienable right to produce disease or trade in that which is noxious."^ If the degree of the restraint is reasonable, and its ne- cessity obvious, the ordinance imposing it is valid. But the restraint must not be such as to create a monopoly, or to entirely prevent any trade, the exercise of which is useful to humanity, so long as properly conducted. Monopolies are obnoxious to the spirit of our laws, and should not, even indirectly, be created.^ ' It tends to create a monopoly, to designate a single place as a market-house and to prohibit the sale of fresh meats at any other place, at any time, and in any quantity f to grant the exclusive right of maintaining a market-house to one person for a term of years, and to confine the sale of produce to his house.* Privileges that have once been conferred can not subse- quently be made exclusive, unless additional authority has in the meantime been granted.® A grant of an exclusive privilege of selling water to the city for a term of twenty years, creates a monopoly.® Monopolies may be created by •delegating police powers to persons Or corporations.^ Thus, no one person ought to have the exclusive right to run omnibus Imes,^ or to carry on the business of slaughtering.' (1) State V. Fisher, 52 Mo. 174. (2) Gas Light Co. v. Saginaw, 2S Fed. Rep. 529; Tugman v. Chicago, 78 111 405; Railway Co. v. Railway Co., 24 Fed. Rep. 306; State v. Cin. Gas Light, etc., Co., 18 0. S. 262; Live Stock Associations. Crescent City, 1 Abb. U. S. 388; Gas Company's Appeal (Pa.), 4 Atl. Rep. 733. (3) Bloomington v. Wahl, 46 111. 489. (4) Gale v. Kalamazoo, 23 Mich. 344. (5) Johnson v. Crow, 87 Pa. St. 184. (6) Davenport v. Kleinschmidt, 13 Pac. Rep. 249. (7) Louisville v. Weible (Ky.), 1 S. W. Rep. 605. <8) Logan v. Pyne, 43 la. 524 <9) Chicago v. RumpfF, 45 111. 90. 102 MUNICIPAL POLICE ORDINANCES. [§ 134. Still, express power to grant exclusive privileges may be exercised. Thus, a mere power to license gives no right to create a monopoly by confining the license granted to one or a few persons ; but, where the corporation has power to grant or refuse a license, an exclusive license may be con- ferred.^ Business investments, upon which the prosperity of a community depends, should be hampered by as few re- straints as are compatible with the health and security of the people ; and whenever any doubt exists as to the ur- gency of the necessity, or the dangerous character of the occupation, it should be resolved against the validity of the restraint, § 133. What is a restraint of trade. — The following ordinance regulations have been declared invalid as in re- straint of trade : A prohibition of aution sales after sun- down ;" requiring petty grocers to procure licenses;' pro- hibiting the sale of lemonade, nuts, and fruit, at temporary stands;* imposing numerous conditions upon the right to sell fresh meat outside of the market stalls;'^ limiting the number of carts that should be allowed to be used, and re- quiring licenses f under power to regulate the ringing of bells and the crying of goods and other commodities for sale at auction or otherwise, an ordinance unnecessarily restrains trade which forbids all sales of watches and other jewelry after sunset by public auction.' § 134. What is not a restraint of trade. — It is not a restraint of trade to impose reasonable regulations on the speed of railway trains f or to require all persons selling (1) Ferry Co. v. Davis, 48 Iowa, 133. See further, post, § 256 et seq. (2) Hayes v. Appleton, 24 Wis 542. (3) Dunham v. Rochester, 5 Cow. 462. (4) Barling v. West, 29 Wis. 307. (5) St. Paul V. Laidler, 2 Minn. 190. (6) Player v. Vere, Raym. 288. (7) Rochester v. Close, 35 Hun, 209. (8) Knobloch v. Railway Co., 31 Minn. 402. § 135.] RULES OF VALIDITY. 103 liquors to obtain a license, druggists included ;^ or to pro- hibit the maintenance of slaughter-houses within certain limits f or to impose a license fee of four dollars a day upon auctions;^ or to prohibit the sale at retail of fresh meat out- side of market-stalls ;^ or to prohibit such sale except under license;^ or to require a license from persons engaged in carrying coal from places within to places without the city f or to require, under penalty for omission, every hack- man and drayman to obtain a license ;^ or to require coal, when sold, to be weighed by the city weigher f or to require street railway companies to make quarterly reports of the number of passengers carried;* or to impose licenses, if moderate, on all business, under general power to license trade and occupations.^" § 135. Discrimination. — Municipal ordinances are passed by a body that represents the whole community, and for the purpose of regulating matters which affect the general welfare, and their provisions should, so far as practicable, affect each member of the community alike. Ordinances should neither favor nor discriminate against any person or class of persons, or any particular portion of the municipal territory. Their burdens and their benefits should rest equally upon all. Laws of a municipality, like the laws of a state, should be uniform and of a general operation within the corporate limits, and any unnecessary, distinct discrim- ination between persons, classes, orlocations, will invalidate them. Slight inequalities of benefit are unavoidable in proper police regulation. "A slight, incidental damage (1) Rochester V. Upman, 19 Minn. 108. (2) Cronin v. People, 82 N. Y. 318 ; Pierce v. Bartrum, Cowp. 270. (3) Fretvvell v. Troy, 18 Kan. 272. (4) Davenport v. Kelly, 7 la. 103. (5) Brooklyn r. Cleves, Hill & Den. Sup. 231 ; Strike v, Collins, 54 L, T. Rep. (N. S:) 152. (6) Gartside v. East St. Louis, 43 111. 47. (7) Brooklyn v. Breslin, 57 N. Y. 591. (8) Stokes V. New York, 14 Wend. 87. (9) St. Louis Railway Co. v. St. Louis, 89 Mo. 44. (10) Ex parte Frank, 52 Cal. 606. 104 MUNICIPAL POLICE ORDINANCES. [§ 135. done to one individual, or even more, could never be held to be an oppression or wrong such as would invalidate an ordinance of a city. It must certainly be one working a general and public, or a permanent and continued wrong to a private individual or class."^ Penal ordinances must be general in their effect; they must affect all, who are thereby restricted, equally. If directed against single per- sons or concerns, or against part only of a class, they are contrary to common right and void.^ The effect of one ordinance that is general in form may in reality be as dis- criminating as one that is in terms partial. Regard must be had to the reason of ordinances. It is, for example, proper to impose a license tax on all liquor dealers in order to prevent wholly irresp'onsible persons from engaging in the traffic, and to thereby preserve the public peace ; but if the corporation extends over districts which are wholly unsettled and remote from the thickl}'' inhabited parts of the city, it would be manifestly unjust to subject a liquor dealer located in such district to the same degree of restric- tion as other dealers. Such an ordinance would impose a burden largely out of proportion to the beueiits of police protection which it affords.^ On the other hand, an ordi- nance that is prima facie discriminating, because governing the conduct of a specific railroad, is still valid so long as there are no other railroads to be regulated.* In order that burdens may in fact be equably imposed, it is often necessary to classify the citizens of a municipality for the purposes of police regulation. The same principle is recognized in state legislation by the classification of municipalities according to their size. The classification must, however, be well defined and based on some reasou- (1) Knoxville V. Bird, 12 Lea. 121 ; s. c , 47 Am. Rep. 326; Gale v. Kal- amazoo, 23 Mich. 344; s. c, 9 Am. Rep. 80; Chicago v. Rumpfl', 45 111. 90. (2) Baton Rouge v. Cremonini, 3G La. Ann. 247 ; De Bere v. Gerard, 4 La. Ann. 30; First Municipality v. Blineau, 3 La. Ann. 688; Nashville V. Althrop, 5 Coldw, 554. (3) Salt Lake City v. Wagner, 2 Utah, 400. (4) Railroad Co. v. Richmond. 96 U. S. 521. § 136.] RULES OF VALIDITY. 105 able distinction. If the members of each class are then treated alike the ordinance is unobjectionable.^ If a regu- lation of some business is the object of the ordinance, the amount or extent of the business done may be taken as a basis of classification ; or, in regard to other subjects, the degreee of ability to work injury to the rights of the com- munity. But no man can object to an ordinance directed against a certain business because he has less business than his competitors, claiming that discrimination should be made in his favor. His opportunities are equal to those of all others, and the right to classify lies solely within the discretion of the local legislators. § 136. Examples of discrimination. — A tax ordinance directed against dram-shops must include all dram-shops within its operation, either equally or by classes.^ Taxes for general revenue must be levied equally on all persons according to the tax basis adopted by the state.^ No dis- tinction can be made between goods in store and goods in transitu.*' So, an ordinance regulating the observance of the Sabbath can not exclude Jews from its operation, be- cause in the eyes of the law all persons are equal, and a man's religious belief is in no way violated by prohibiting him to engage in certain occupations on a certain day.* Power to regulate the lighting of the streets does not authorize an ordinance granting an exclusive right to light the streets, for every man may lawfully provide street lights in front of his own premises if he does not disturb the public easement.^ The same principle goes to prevent a corporation from imposing any discretion in its minis- terial agents who are to issue licenses for certain trades or occupations. It is proper for the council to direct them (1) Ex parte Siebenhauer, 14 Nev. 365; post, §§ 268, 287; County of Amador V. Kennedy, 11 Pac. Rep. 757. (2) Zanone v. Mound City, 103 111. 553. (3) Fitch V. Pinchard, 5 111. 69. (4) Ex parte Frank, 52 Cal. 606. (5) Shreveport v. Levy, 26 La. Ann. 671. (6) Gas Light Co. v. Saginaw, 28 Fed. Rep. 529. 106 MUNICIPAL POLICE ORDINANCES. [§ 137. to follow certain general classifications, to refuse licenses to those who are incompetent, irresponsible, or of bad reputa- tion, but discretion vested in the mayor to thus classify applicants might easily be so exercised as to result in un- just discrimination between races, or between persons of exactly the same responsibility and competency.^ § 137. Discrimination as to non-residents. — Munici- palities are not in any sense close corporations. They are not vested with rights of local legislation, in order that they may arrogate to their own inhabitants additional rights and privileges to those enjoyed by other citizens of the state or nation. Neither may rights be denied to its citizens and still allowed to he exercised by non-residents who may come within the corporate limits. Discrimina- tion against residents is equally odious to discrimination in their favor. If an ordinance declares that the tires of wagon-wheels shall be of a certain width according to the weight carried, non-residents who pass through the corpo- ration, or who reside more than two miles from the limits, can not be excluded fri)m its operation.'^ It has been held, however, in Kentucky, that an ordinance may discriminate against citizens of the municipality, however peculiar its provisions.^ A grant of exceptional immunities to non- residents might, it is true, be of advantage to the munici-' pality by attracting trade, but the furtherance of the material interests of the people is not one of the legitimate objects of corporate organization. Without express legis- lative authority, municipal corporations are restricted to matters of government and of police regulation. Under power to regulate fisheries, an ordinance prohibit- ing all persons not residents of the town from fishing within the corporate limits is void.^ It is unlawful dis- crimination to prohibit, except under license, non-residents from running lines of coaches into or within the city, (1) Yick Woo V. Hopkins, 118 U. S. 356. (2) Regina v. Pipe, 1 Ontario, 43. (3) Louisville v. Roupe, 6 B. Mon. 591. (4) Ilayden v. Noyes, 5 Conn. 391. § 138.] RULES OF VALIDITY. 107 without imposing an equal burden on the same occupation when exercised by- residents.' So, non-resident peddlers and sales-agents can not be restricted to any further extent than residents, neither can additional burdens be imposed on the sale of goods that are not of local manu- facture.^ And no discrimination in wharfage fees can be lawfully made against citizens of other states than the one in which the municipality is located.* An ordinance is void for the same reason that prohibits swine belonging to non-residents from running at large in the town when no such restriction is made upon residents.* § 138. Once void, always void. — If the corporate power is exceeded at the date of the enactment of an ordi- nance, no subsequent grant of additional power could validate the prior ordinance. An ordinance which is void at its inception is always void, and neither the council nor the legislature can lend it validity by subsequent affirm- ance or legislation.^ And even when subsequent legislation is held to validate a void ordinance, the ordinance does not gain any retrospective effect.^ An ordinance that has been declared void for inconsistency with the provisions of a state law does not acquire validity through the repeal of the law to which it is obnoxious.^ (1) Commonwealth v. Stodder, 2 Cush. 562. (2) Marshalltown v. Blum, 58 la. 184; Welton v. Missouri, 91 U. S. 275; Pacific Junction v. Dyer, 64 la. 38; St. Rochs Sud v. Dion, 1 Que- bec, 242; Graffty v. llushville, 107 Ind. 502; Fecheimer v. Louisville (Ky. 1886), 35 Alb. L. J. 155; Nashville v. Althrop, 5 Cold. 554; Dan- iel V. Richmond, 78 Ky. 542; St. Charles v. Nolle, 51 Mo. 122; Robbins V. Shelby County (U. S. Sup. Ct. 1887), 7 Sup. Ct. Rep. 592; Corson v. Maryland, 7 Sup. Ct. Rep. 655. (3) Guy V. Baltimore, 100 U. S. 434; Broeck v. Welch, 18 Blatch. 54; s. c, 2 Fed. Rep. 364. (4) Roberts v. Ogle, 30 111. 459. (5) Hydesv. Joyes, 4 Bush, 464; Mt. Pleasant v. Vansice, 43 Mich. 361. Contra, Truchelot v. City Council, Nott & McC. 227. (6) Lake View v. Letz, 44 111. 81. (7) Mt. Pleasant v. Vansice, 43 Mich. 361. 108 MUNICIPAL POLICE ORDINANCES. [§ 139. § 139. Partial invalidity. — Ordinances passed in pur- suance of an express power are often- so worded as to in- clude some provisions which are not authorized by the power. The unauthorized provisions do not invalidate the whole ordinance if they can be separated from the rest of the ordinance without so mutilating it as to render it inoperative ; but whenever the void portion is an essential element of the whole, when the provisions are mutually dependent, then the whole ordinance falls.^ " When an ordinance is entire, each part being essential and connected with the rest, the invalidity of one part renders the whole invalid, but when it consists of several distinct and independent parts, as when it prohibits dis- junctively two or more acts, the invalidity of one part does not affect the validity of the others."^ The fact that an ordinance covers matters which the city has no power to control, is no reason why it should not be enforced as to those which it may control.^ So, when a double penalty is imposed upon some offense, one of them being unauthorized by the charter does not pre- vent the enforcement of the other.* But, if the penalty is void, the whole ordinance is void.' When an ordinance contains several sections, each defining a different offense, the sections are not m'utually dependent, and one may be void without affecting the validity of the others.^ If the prohibition of the ordinance is against enumerated offenses, or if its subject-matter is expressed by an enumeration, in (1) State V. Hoboken, 38 N. J. 110; Trowbridge v. Newark, 46 N. J. 140; Bakery. Normal, 81 111. lOS: Harbaugh <.-. Monmouth, 74 111. 367; Quincy v. Bull, 106 111. 337; Cantril v. Sainer, 59 la. 26; Eldora v. Burlingame, 62 la. 32 ; Commonwealth v. Dow, 10 Mete. 382; Warren V. Mayor, 2 Gray, 84; Amesbury v. Insurance Co., 6 Gray, 596; St. Louis V. Railway Co., 14 Mo. App. 221 ; State v. Clarke, 54 Mo. 17; Rogers v. Jones, 1 Wend. 237; Piqua v. Zimmerlin, 35 0. S. 507; Rau v. Little Rock, 34 Ark. 303; St. Louis v. Railway Co., 89 Mo. 44. (2) Penna. Railroad Co. v. Jersey City, 47 N. J. 286. (3) Kettering v. Jacksonville, 50 111. 39. (4) Wilcox V. Hemming, 58 Wis. 144. (5) State V. Cainan, 94 X. C. 883. (6) Rogers v. Jones, 1 Wend. 260. § 139.] , RULES OF VALIDITY. 109 which some things are contained over which the corpora- tion has no power, the enumeration is separable.^ An or- dinance regulating the speed of railroad trains over the public streets is not wholly void because its provisions are unreasonable when applied to one or two suburban streets.^ Separability of the void from the valid parts of the or- dinance is the only test, and a fair doubt should be so re- solved as to effectuate the ordinance. (1) Shelton v. Mobile, 30 Ala. 540. (2) Kailroad Co. v. Jersey City, 47 N. J. 286. 110 MUNICIPAL POLICE ORDINANCES. [§ 140. CHAPTER VII. REMEDIES. § 140. Introduction. § 141. Territorial limits. § 142. Extraterritorial eflFect. § 143. Ordinances affect what persons. § 144. When parts of the corporate limits exempt § 145. Jusisdiction over railroad property. § 146. Jurisdiction over streets. § 147. Penalties. § 148. The kind of penalty that may be adopted. § 149. Penalties are not licenses. § 150. Fines. § 151. Amount of the fine. § 152. Cumulative fines. § 153. Repetition of an offense more heavily punished- § 154. Costs of the prosecution. § 155. Imprisonment in default of payment. § 156. The power strictly construed. g 157. Such imprisonment does not satisfy the fine. § 158. Imprisonment as a penalty. g 159. Forfeiture. § 160. Illustrations. § 161. Strays. § 162. Notice to the owner. § 163. Judicial determination. § 164. Forfeiture of real estate. § 140. Introduction. — Most municipal ordinances would be entirely inefiective if there were no way of compelling obedience to their provisions. Those which are passed in the exercise of the powers of local police regulation must, like the police laws of the state, be capable of proper en- forcement. Ordinances of a quasi-ministerial nature, such as those providing for the improvement of the streets, do not need to contain such positive provisions for their enforce- ment, because the execution of the contracts entered into by their authority is a matter independent of the local o 241.1 REMEDIES. 1^^ police and the taxes levied to bear the expense are usually collected and enforced by the ministerial agents of the state or city in some manner prescribed by general law. Their burdens are imposed upon the property affected, whereas police ordinances primarily affect rights of the person, and provision must be made to enforce them against the person, else they are of no avail. The gist of the ordinance is that part which prescribes the penalty, and the necessity of keeping within the limits of authority as to the penalties imposed, and as to the persons sub- jected to their enforcement, is far greater than that of observing the strict limits of the degree of lawful regula- tion, or of the extent of the subject-matter incorporated into' the ordinance. Penalties are to be construed strictly, without exception, against the body in whose favor they are imposed. The remedy to be adopted in enforcing ordinances must be cautiously selected,^ and strictly con- fined to the limits of the existing authority. § 141. Territorial limits.--As has been stated, one of the prime essentials of police ordinances is that they shall aim at corporate purposes alone. Unless the special cir- cumstances surrounding the necessity for a certain regula- tion require it to be of only limited territorial apphcation, police ordinances take effect over the whole territory included within the corporate limits, both at the time of their passage and at all times thereafter. If the limits of the corporation should subsequently be extended, those within the added territory would, ipse facto, come within the operation of all the ordinances then in force.^ Any other rule would not only produce innumerable complica- tions, but it would necessitate the re-enactment of the whole body of local laws, whenever any material addition is made to the territorial extent of the corporation. (3rdinances that do not fall within the operation of the rule arc such as limit certain occupations or acts to pre^ scribed portions of the municipal territory; and, to a very limited extent, ordinances general in their form, but which (1) Toledo V. Edens, 59 la. 352. 112< MUNICIPAL POLICE ORDINANCES. [§ 142. would work decided inequalities of burdens if en- forced over the entire limits. For example of the latter class, it is lawful to limit the speed of railway trains within a city, but if the city covers considerable tracts of agricul- tural, or sparsely settled land, it would be useless and oppressive to demand a moderation of speed in such por- tions of the city equal to that exacted in the heart of the city.^ It would be equally oppressive to impose the same degree of restriction on occupations carried on in such vir- tually rural districts as is necessary in the thickl}' peopled parts of the city.^ But the circumstances in each case must be such as make the inequality of burden very plain in order to warrant a departure from the general rule. §142. Extraterritorial effect. — The same reasons that necessitate any kind of local regulation apply to demon- strate that many acts may be injurious to the inhabitant* of a town or city when performed without its territorial limits. And the inhabitants are often greatly in need of power to provide for adequate sewerage or water supply hy using and regulating the use of property beyond the limits. It would seem eminently proper that some means should be provided by which the corporation in such cases may exercise some degree of control over the immediately ad- joining territory. Still, the spirit and the letter of our laws are plain that no power of this kind may be exercised unless it is expressly granted by the state legislature, and that the authority must be clear and undoubted.^ Munici- pal corporations may exercise power of police control over adjoining navigable waters, where such control comes in conflict with no provision of the maritime law of the land. But such jurisdiction is limited to police purposes, and must not interfere with or create property rights. Thus (]) Meyers v. Railroad Co., 57 la. 555; s. c, 42 Am. Rep. 50. ,(2) Salt Lake City v. Wagner, 2 Utah, 400. (3) Strauss v. Pontiac, 40 111. 301; Chicago Packing Co. v. Chicago, 88 111. 221 ; Coldwater r. Tucker, 36 Mich. 474; s. c, 24 Am. Rep. 601. The erection of a cemetery just outside the city limits can not be pre- vent'^d by a municipality. Begein v. Anderson, 28 Ind. 79. § 143.] REMEDIES. 113 fishing in adjoining waters could not be prohibited.^ If a municipal corporation is bounded by navigable water, on the other side of which another municipality is located, each would be allowed to exercise police control to the center of the stream. In one instance, that of ITew York city, the state legislature, in view of the importance of the interests exposed, has extended the jurisdiction of the city over the navigable rivers surrounding it up to the opposite shore line of those rivers, to the exclusion of the power of the adjoining cities.^ § 143. Ordinances affect what persons. — In order that ordinances shall serve the purposes of their enactment, it is evident that they must bind the actions of every one who is at any time found within the corporate limits, not only regular citizens, but non-residents and even transient visitors. This proposition is as applicable to municipal regulations as to those of a state or nation.^ An early de- cision in IsTew York deviates from the strict rule, and holds that a stranger could not be prosecuted in a municipal court for trespassing upon the commons in violation of the provision of an ordinance passed under authority to im- prove the public commons and to prescribe regulations to govern their use.^ Whoever comes in person, or allows his property to be in the corporate limits, tacitly consents to submit to all local laws, and his property rights are as much subject to their regulations as he himself. If a non-resident's busi- ness interests are located within the corporate limits they (1) Palmer v. Hicks, 6 Johns. 133; Ogdensburg v. Lyon, 7 Lans. 215. (2) Udall V. Brooklyn, 19 Johns. 175; Stryker v. New York, 19 Johns. 179. (3) Plymouth v. Pettijohn, 4 Dev. Law, 591 ; Wilmington v. Koby, 8 Ired. Law, 250; Gilmore v. Holt, 4 Pick. 258; Vandine, Petitioner, 6 Pick. 187; Ex parte McNair, 13 Neb. 195; Gosselink v. Campbell, 4 la. 296 ; Pierce v. Bartrum, Cowp. 269 ; Eegina v. Osier, 32 U. C. Q. B. 324; Cooley Const. Lim, *p. 199; Harvey v. Sloan, Smith (Ind.), 136. (4) Foster v. Rhoads, 19 Johns. 191. 114 MUNICIPAL POLICE ORDINANCES. [§ 143. enjoy the fall benefit and protection of the local laws, and ought not to be exempt from their burdens. If animals belonging to a non-resident stray into a corporation the local authorities may execute the ordinance against strays against them to the same extent as though they were the property of a citizen. The accident of ownership can not alter the degree of the oflfense.^ The fact that a business man lives outside of the city does not excuse him from the pa3'ment of a tax imposed by the city upon all businesses of the same nature as his.^ If an ordinance imposes a license tax on all vehicles used for hire on the public streets, the tax must be paid for each vehicle of the kind, by whomsoever owned.^ So a tax imposed on the owner of all vehicles kept or used for free delivery within the limits of a city can be collected from the proprietors of iron works whose drays are sent into the city to deliver goods.* In these cases, as in all others, regard must be had for the purpose and reason of the law. Its spirit as well as letter must be observed. Non-residents are subject to the local laws, because their interests and rights are protected, and they should therefore help bear their burdens, and also because their interests or occupations are injurious to some corporate right. If the reason for holding a non-resident fails, he ought to go free. Thus, if a tax is imposed on every vehicle using the paved streets, intended reference is had to such as use them habitually^ and the ordinance would not operate to bind a non-resident who uses the paved streets incidentally in passing through the corporation.' Neither would such a provision apply to one who lives at a distance, but who occasionally brings a load into the city (1) Kennedy v. Sowden, 1 McMuU. 323; Knoxville v. King, 7 B. J. Lea, 441 ; Spitler v. Young, 63 Mo. 42; Centerville v. Lanham, 67,Ga. 753. (2) Wilkinson v. Charleston, 2 Spears, 623; Edenton v. Capeheart, 71 N. C. 156. (3) Council V. Pepper, 1 Rich. L. 364. (4) Memphis v. Battaile, 8 Heisk. 524. (5) Bennett v. Birmingham, 31 Pa. St. 15. § 114.] REMEDIES. 115 and takes another back. Such use is not habitual.^ Under power to regulate all hucksters living in the city or within one mile thereof, the ordinance must be drawn so as not ta be applicable to any one living more than a mile away.^ Likewise an ordinance providing for the payment of a tax on "all hay bought or brought within the corporation" applies only to persons who sell hay in the city for use in the city. It would not apply to a non-resident who buys hay in the city for use without the city.^ A power to restrict "residents" in some manner can not be extended to warrant the same regulation of non-resi- dents.^ The fact that the word is used in the power im- plies the exclusion of all other persons, and whenever a serious doubt exists, it must be resolved in favor of a non- resident who has been proceeded against. § 144. When parts of the corporate limits exempt. — The proposition that all persons within the limits of a cor- poration are subject to the corporate ordinances must be accepted with some limitation as to the place where the ofi'ense is committed. Every act that is prohibited as a police regulation is considered injurious or threatening in- jury to the public welfare, and distinction must be drawn between various unlawful acts according to the degree of their capability of doing harm. In a municipality the only places that are really public are the streets, squares, commons, and public buildings to which all have access, and there are classes of acts that are not injurious to the public in any sense unless committed in a public place. A person who is seen publicly in a state of intoxication may cause a breach of the peace, and is at any rate a spectacle that works harm upon the standard of public morals and decency, but the public is not affected if a per- son gets intoxicated in the seclusion of his own house. (1) St. Charles v. iSTolle, 51 Mo. 122. Likewise as to carriages, Adgar V. Mayor, 2 Spear, 719. (2) Snell V. Belleville, 30 U. C. Q. B. 81. (3) Gass V. Greeneville, 4 Sneed, 62. (4) Garden City v. Abbott, 34 Kan. 283. 116 MUNICIPAL POLICE ORDINANCES. [§ 144. The public has no right of access to his house. Likewise^ it would be of uo import to the public that a man supports a billiard room for the use of his family and invited guests. So long as uot every one may have access to and partake in the thing otherwise unlawful, no offense can be com- mitted. If the ordinances directed against such offenses do not expressly restrict their own operation' to public places, the courts will, when called upon, supply the de- ficiency by construction. Purely private rights can not be regulated by ordinance except when they still threaten the public good. Many occupations that are conducted wholly on one's own premises may have results that are evil. Slaughtering, manufacturing chemicals, tanning, operating noisy or pon- derous machinery, are things which thus in fact harm or disturb the health and convenience of the public. The storage of explosives, or of combustibles, or the use of in- flammatory material in the construction of buildings, are things that may easily do injury, and by reason of their threatening character may be prohibited. In such casea police regulation may invade and control private premises and the mode of their use, regardless of whether the pub- lic has access. But under power to prevent and suppress opium smok- ing, only those can be punished who smoke in a place kept for public use for that purpose.^ And under an ordinance providing that " all hogs shall be kept up," the running of hogs in public places may be prevented, but no addi- tional remedy is thereby created against a person who al- lows his hogs to escape into an adjoining lot.^ So, power to regulate wharves does not extend to regulation of wharves that are owned and conducted by private enterprises. The reason of the power is that the public may be compensated for the outlay in providing public wharves, and that the wharves so provided may be protected from improper use. The reason no longer exists when the ownership and con- (1) Ex parte Ah Litt. (Oregon, 1886)» (2) Shepherd v. Hees, 12 Johns. 433. ^ 145.] KEMEDIES. * 117 trol is private.^ The lowering of cotton bales on to an open private space where they are exhibited for sale, and which is open to the public, is dangerous enough to need regulation.^ § 145. Jurisdiction over railroad property. — Railroads are often called semi-public institutions, and their prop- erty is likewise semi-public. Their tracks, grounds, and depots, when located in a thickly settled community, are unavoidably used more or less by the general public, and their conduct is accompanied by danger even on the com- pany's private grounds. It is, therefore, eminently proper that municipalities should exercise some degree of con- trol over the details of their management. . This right is evident in regard to street crossings and other places where the right to use the space is open to the railroad and the public alike. It has been held that the speed of trains can only be regulated over the streets, squares, and public grounds,^ but the generally accepted view is that such regu- lation may be exercised over the whole line of the right of way through the corporation,* and even over the switch yards of the company.' Where an ordinance prohibited the running of any car or engine at a higher rate of speed than ten miles an hour within the city limits, it was held that it was not intended tc^ apply to engines used in the yards and private premises of the railroad company, but the court intimated that an ordinance might have been lawfully passed that would apply to even the private yards.^ Under power to regulate hacks, an ordinance may be made to apply to their conduct on the depot grounds of a (1) Vanderwater V. New York, 2 Sandf. 258; Commissioners v. Nell, Z Yeates, 54; New Orleans v. Wilmot, 31 La. Ann. 65; St. Martinsville V. Mary Lewis, 32 La. Ann. 1293. (2) Charleston v. Elford, 1 McMuU. 234. (3) State V. Jersey City, 29 N. J. L. 170. (4) Pennsylvania Co. v. James, 32 P. F. Smith, 194; Whitson v. Franklin, 34 Ind. 392. (5) Crowley v. Railroad Co., 65 Iowa, 658. (6) Green v. Canal Co., 38 Hun, 51. 118 MUNICIPAL POLICE ORDINANCES. [§ 147. railroad as well as upon the public streets, and that they may be compelled to occupy certain stands under the di- rection of a public officer.^ But it has been held in New York that under power to license and regulate vehicles used for public hire, an ordinance prescribing certain stands for hacks would not prevent their occupying other stands on private railroad premises.'^ § 146. Jurisdiction over streets. — Police regulation is always properly exercised over the streets of a corporation, without regard to the title to the streets. Even private streets may be generally used by the public. Power over streets, the fee in which belongs to the adjoining owners, is limited to police regulation and to such measures as are necessary to insure the serviceability of the roadway. The city could not alter the physical characteristics of a private street publicly used, nor could it authorize a railroad com- pany to run over a street to which the fee remains in the land-owners, unless express authority is granted by the state.^ But the fact that a turnpike company owns the fee does not prevent the exercise of any grade of police regu- lation.* § 147. Penalties. — A penalty is a punishment for doing a prohibited act or omitting some imperative duty. It does not include imprisonment, when used with reference to municipal ordinances.* Ordinances would be inopera- tive if no power was vested in the municipality to enforce obedience to them. Provision is usually made by statute or charter for the means that may be adopted to enforce ordinances; bat if it is not expressly made, the municipality is not thereby barred from its remedy. Although penal- (1) Walsh V. Railroad Co., 27 Minn. 367; St. Paul v. Smith, 27 MinA 364. (2) Buffalo V. Mulchady, 1 Sheldon, 431. (3) Quinn v. Paterson, 28 N, J. 35 ; Perry v. Railroad Co., 55 A1& 425. (4) State V. New Brunswick, 30 N. J. 395. (5) Lancaster v. Richardson, 4 Lans. 136. 119 g l^-T -I REMEDIES. •«.i.ffnllv looked upon with disfavor, no grant of fntent that the exereiBe of -the power shou d be made effe t ve by the imposition of adequate peaalt.es. Power to ordaiu implies, of necessity, power to provide and en- f:r=e reasonable ;enalties.. The penalties rrnposed unde Imp ied power must be reasonable, that >Mhey mus' n°t be too severe to accomplish *eir purpose-that of insur ing obedience to the ordinances. Regard mu t be had f„ the policy of the state as evidenced in grants to o*er cor positions', or to the same corporation over other subjects of '° pLver ^'establish, erect, and keep bridges in repair im- Blies power to provide by ordinance for the punishment of ?erZwbo willfully injure the bridges that ^^^J<'^^^^^^- der the erant.^ Under power "to open, widen, establish Ircve and keep in repair the streets, avenues, etc.," and 7pas ordLiancef to effLtuate that power, &- may aw- fully be imposed for obstructing ti>e public streets Power Irp^-event nuisances necessitates the imposition of deflm Tienalties for tlieir erection or maintenance, feo, a power L prevent, as the council " may judge proper," the erection of wooden buildings authorizes an ordinance prescribing a penalty to be enforced by a prosecution in the municipal courts.^ Under a general power of police regulation, a city may impose pecuniary penalties for injuries to the public property.^ And power to levy a license tax implies power to enforce payment by appropriate proceedings. If a municipality has power to suppress bawdy houses, power (1) Tipton .. Norman, 72 Mo. 380; Eyerman .. Blaksley 78 Mo. 14 \y nooski .. Gokey. 49 Vt. 282; Grover .. Hucknjs 26 M,ch^476; Moiile .. Yuille. 3 Ala. 137; London .. Vanacre, 12 Mod^ ^^^^ ^^^^^J! . Shawneetown, 77 111. 533; Shreveport .. Roos, 35 La. Ann. lOlU, Hooksett V. Amoskeag Co., 44 N. H. 105. (2) Korah v. Ottawa, 32 111. 122. (3) Railroad Co. v. Chenoa, 43 111. 209. (4) Railroad Co. v. Louisville, 8 Bush, 415. (5) Respublica v. Duquet, 2 Yeates, 493. (6) Korah v. Ottawa, 32 111. 122. (7) Amite City v. Clements, 24 La. Ann. 27. 120 MUXICIPAL POLICE ORDINANCES. [§ 149. to adopt means to suppress them follows by implication.^ But if the charter enumerates certain powers that may be enforced by 'penal prosecution, such enumeration ex- cludes the implication of right to impose penalties in other cases.^ § 148. The kind of penalty that may be adopted.— Whenever the organic law of the corporation defines the mode of enforcement of ordinances, the definition must be strictly adhered to.' Thus, under a power to punish by fine or imprisonment, an ordinance is void which imposes a certain fine or a certain imprisonment, or both} When the mode of enforcement is specified in the act containing the grant of power, or otherwise, all other modes are pre- cluded.* The usual means are to be resorted to if no others are indicated f and within the limits of those usual means the council may exercise its discretion.^ § 149. Penalties are not Ucenses. — The penalties im- posed by ordinances, like those imposed by the laws of the state, can in nowise be construed as legalizing the acts subjected to punishment. Penalties are not licenses. The acts punished are thereby made unlawful. Express grant of power, for example, to kill dogs, for the keeping of which no license has been obtained, does not prevent the imposition of a penalty on the owner for violation of the ordinance in refusing or omitting to procure a license. The imposition of a penalty amounts to an authoritative prohibition.^ (1) Shreveport v. Roos, 35 La. Ann. 1010. (2) Grand Rapids v. Hughes, 15 Mich. 54. (3) Barter v. Commonwealth, 3 Pen. & W. 253 ; Norton v. Kearon, 6 Ir. R. C. L. 126. (4) Leland v. Commissioners, 42 X. J. 375. (5) Hartv. Albany, 7 Wend. 571; Moberly v. Wright, 19 Mo. App. 269. (6) Grover v. Huckins, 26 Mich. 478. (7) Mason v. Shawneetown, 77 111. 533 , State v. Cantieny, 34 Minn. 1. (Costs). (8) Pedrick V. Bailey, 12 Gray, 161; Johnson v. Simonton, 43 CaL 242; Faribault V. Wilson, 34 Minn. 254. § 151.] REMEDIES. 121 § 150. Fines. — Fines are not debts in the sense of a con- stitutional provision which prohibits imprisonment for debt.^ They are strictly penalties, and are in the nature of liquidated damages, established as such in lieu of the damages which a court of law would be authorized to assess for the injury done to the public by the offense punished.^ At common law fines constituted the only lawful mode of punishing breaches of ordinances.^ And unless express power is given to punish in some other mode, as by imprisonment, the rule still obtains.^ But it has been held that authority to impose "the ordinary penalties " does not restrict a city to the imposition of fines alone in cases where a license is exacted. Offenses may be punished by revocation of the license.^ § 151. Amount of the fine. — Fines, as penalties, must be reasonable in amount; but when the limit is not pre- scribed, the amount fixed by the council in the exercise of its discretion is presumptively reasonable. If a limit is prescribed by statute, it must be strictly observed, and no penalty for a single offense may exceed the maximum. If fifty dollars is the prescribed maximum and an ordinance authorizes the imposition of any amount between twenty and one hundred dollars, any fine levied under that ordi- nance will be enforceable if not greater than fifty dollars. It would seem that the mere attempt to authorize an unlaw- ful fine is not fatal to the validity of the ordinance so long as the minimum fine prescribed would be lawful.® When the charter of a city gives it "the same power" to impose fines that had previously been given to other towns, and as to other towns there was no restriction as to (1) Hardenbrook v. Ligonier, 95 Ind. 70; Ex parte HoUwedell, 74 Mo. 395; Charleston v. Oliver, 16 S. C. 47. (2) First Municipalty v. Cutting, 4 La. Ann. SSSj^^^^^rvV^^^V,^ (3) Hall V. Nixon, 10 L. E. Q. B. 159. /^^ Of rlf ^^ (4) Sedgwick Stat. Law, p. 473. \{ UNIVEBSITT (5) Schwuchow y. Chicago, 68 111.444. Xs^Cd/ '^'^ i4 (6) Greenfield v. Mook, 12 111. App. 281. N^i^'FORNlA^ 122 MUNICIPAL POLICE ORDINANCES. ■ [§ 152. amount, the amount of the fine that could lawfully be imposed would be limited only to the jurisdiction of the tribunal provided for the trial of violations of the ordi- nances.^ Fines must be not only reasonable, but certain in amount. Neither of these requirements should, however, be .construed to mean that the ordinance should name the exact amount. If the ofi'ense were of such a nature that the circumstances of its commission could not operate to aggravate it, it would be best to fix upon an invariable amount of the fine ; but most offenses do vary materially in degree according to the accompanying circumstances, and the best ends of justice are subserved by recognizing this fact by prescribing certain limits within which the court trying the offender may exercise its discretion. A provision that a certain oj^ense shall be punished by a fine net over a certain amount, but fixing no minimum, would impose too much confidence in the discretion of the magistrate, who might adjudge a very nominal fine against an offender and thus virtually make the penalty no punishment at all. An ordinance is both reasonable and definite which fixes a maximum and a minimum limit.- lu those states where actions brought to enforce penalties under municipal ordi- nances are considered to be criminal prosecutions, it is held that the ordinance should fix the exact amount of the fine.' § 152. Cumulative fines. — In determining the validity of a judgment imposing a fine, care must be had to dis- criminate between offenses that are several and distinct and those that are continuing. Distinct offenses of the same nature may, under some codes of procedure, be pros- (1) Hamilton v. Carthage. 24 111. 22; Railroad Co. v. Chenoa, 43 111. 209; Zylstra v. Charleston, 1 Bay (S. C). 382; Dill. M. C, § 438. (2) McConville v. Jersey City, 39 N. J. 38; State v. Crenshaw, 94 X. C. 871; State v. Cainan, 94 N. C. 883. (3) Louisburg v. Harris, 7 Jones (N. C), 281 ; State v. Zeigler, 32 N. J. 262; Mooile v. Yuille, 3 Ala. 137 (overruled in Huntsville v. Phelps, 27 Ala. oo); Peters v. London, 2 U. C. Q. B. 543. § 153.] REMEDIES. 123 ecuted in one and the same action ; in which case the full limit of the law may be adjudged against the offender for each offense, regardless of the fact that the total fine thus imposed far exceeds the bounds of the jurisdiction of the local court.^ For instance, one might make any number of unlawful sales of intoxicating liquors on the same day, and each sale would be a distinct offense punishable sepa- rately. Other acts that constitute offenses against ordinances are continuing ; that is, they may have numerous consecutive results, each of which may be considered an offense. Thus, if a person erect a nuisance, not only the primary erection but also each day's continuance, is a menace to public rights. A prosecution, however, would needs cover the total offense prior to the date of its institution. In such cases, the limit of the lawful fine for maintaining a nuisance could not be exceeded for the same nuisance, but it is lawful to provide an initial fine for creating the nui- sance and an additional fine for each day of its continuance. The fine, as thus computed, must not be made to exceed the limit prescribed for that kind of an offense. It is no ground of objection to such an ordinance that the fine might, under its provisions, be computed to exceed the limit.^ An ordinance that imposes a fine of five dollars for every barrel of fiour sold without having been inspected by a certain ofilcer, is only operative up to the $100 limit fixed by statute as the amount of fine that the municipality may lawfully impose.^ So, under power to regulate the sale of gunpowder and to punish all offenses against the city by fines not to exceed $250, an ordinance that imposes a finef of $125, on each hundred pounds kept in store, could only be enforced up to the $250 limit.* § 153. Repetition of an offense more heavily pun- ished. — It is proper that a distinction should be drawn be- (1) Columbia v. Harrison, 2 C. C. (S. Car.) 215; Heise v. Columbia, 6 Rich. 404. (2) Contra, Commonwealth v. Wilkins, 121 Mass. 356. (3) Chicago v. Quimby, 38 111. 274. (4) New York v. Ordrenaux, 12 Johns. 122. 124 MUNICIPAL POLICE ORDINANCES. [§ 155. tween the first and a subsequent commission of an offense. The repeated act is more of an offense, because the offend- er's attention has been forcibly attracted to the provisions of the law, and the disregard thus shown for the rights of the public is less pardonable. Special authority is often given by statute to distinguish between a first offense and subsequent offenses by imposing a heavier fine for each rep- etition of the unlawful act; but, without express author- ity, such discrimination is still lawful, so long as the higher penalty is within the limit of the amount that the munici- pality may impose for breaches of its ordinances.^ § 154. Costs of the prosecution. — In computing the amount of a fine, the costs of the proceeding are not to be considered as a part of the penalty,^ Municipal corpora- tions are generally obliged to enforce their own ordinances, and the expense incurred in securing the punishment of offenders should be repaid by those whose digression from the path of duty has caused the expense. Being proceed-' ings to punish the commission of ofienses against the com- munity, the community should not only be made good for its outlay, but whatever fines are imposed should be paid into the municipal treasury, and inure to the benefit of the corporation.^ § 155. Imprisonment in default of pasnnent. — Fines imposed for violations of ordinances may be collected by levying upon the personal property of the offender and selling it, as upon an execution in a civil proceeding, only when the authority is express. If any remedy exists against his real estate, it can only be enforced in a separate action brought in a state court. In Canada the sole rem- edy is against personalty,* and in the United States neither realty nor personalty can be subjected to the payment of a fine in the absence of special authority." (1) Staats V. Washington, 45 N. J. L. 318. (2) State V. Herdt, 40 X. J. L. 264. (3) People V. Sacramento. Cal. 422. (4) Queen v. Gilbert, 2 Pug. & Bur. 619; Ex parte Trask, 1 Pug. & Bur. 277. (5) Howard v. Savannah, T. U. P. Ch. 173. § 156.] REMEDIES. 125 In order, therefore, that the imposition of fines for of- fenses against municipalities may be made effective against impecunious offenders, it is usually provided by statute or charter that the offender may be imprisoned for a certain length of time in case default is made in paying the fine and the costs of prosecution. Such imprisonment is not looked upon as a punishment for the offense, but simply as a necessary means of en-, forcing the pecuniary penalty.^ i^either does it fall within the meaning of imprisonment as used in the consti- tution, and does not entitle the offender to the protection of any of the rights or guaranties which are accorded ta persons who stand accused of an offense punishable by im^ prisonment.^ By paying the fine imposed, an offender can escape this kind of imprisonment. Although this option to pay or be imprisoned is virtually of no value to one- whose poverty prevents him from exercising it to escape confinement, and thus, in fact, amounts to a punishment,, it is just that class of offenders who escape punishment if no such procedure were lawful. The charter or general law must, however, expressly authorize this mode of enforcing fines. Thus, power to punish by fines or imprisonment does not include power to imprison for the non-payment of a fine.^ Neglect to take out a license required by ordinance is as much a violation of the ordinance as other offenses more positive in their nature, and the payment of the fine pro- vided for such neglect may be enforced by imprisonment whenever a failure to pay a fine imposed for any other of- fense might be so punished.* § 156. The power strictly construed. — In adjudging the alternative of payment or imprisonment for a certain time unless the fine is paid, the terms of the power to so (1) Sheffield v. O'Day, 7 111. App. 339; State v. Herdt, 40 N. J. 264. (2) State V. Herdt, 40 N. J. 264; Inwood v. State, 42 0. S. 186. (3) Brieswick v. Brunswick, 51 Ga. 639. (4) Ex parte Council of Montgomery, 64 Ala. 453. See Plaquemine- V. RuflF, 30 La. Ann. 497. 126 MUNICIPAL POLICE ORDINANCES. [§ 156. imprison must be closely followed, and the imprisonment must conform exactly to the wording of the decree. Where a magistrate is empowered to commit offenders, in default of payment, to " the county jail," and " for such time as the council may have directed," a commitment to any other than the cou7ity }ai\ would be unlawful, and no commitment at all could be sustained if the council had neglected to make the contemplated direction as to the duration of the imprisonment. The power is not perfect until such direction has been made.^ So, where the statute allows six months' imprisonment, the judgment of the court should in terms decree imprisonment for six months, or until the fine is paid, a mere general judgment of imprisonment be- ing unlawfnl in not providing for the possible termination of the necessity for such a penalty.^ If the charter author- izes such imprisonment for twenty-one days, an ordinance is void which permits or authorizes a commitment for from one to thirty days.' If the state law directs that fines shall be collected by levying execution on the goods and chattels of the offender, and also allows imprisonment for failure to pay fines, an attempt to collect a pecuniary penalty by ex- ecution mu^ be made before the right to imprison can lawfully be exercised.* The terms of the judgment rendered must be closely ob- served. Thus, if a statute make it lawful to imprison at hard labor for failure to pay a fine, but the judgment or sentence, as rendered, simply decrees imprisonment until the fine and costs are paid, to subject the offender to imprison- ment at hard labor would render the authorities who ex- ecute the sentence liable to the offender in an action for false imprisonment.* Costs can not be included in the amount for which the offender is imprisoned, without ex- press authority.* (1) Merkee v. Rochester, 13 Hun. 137. (2) Kanouse v. Lexington, 12 111. App. 318. (3) McLeod v. Kincasdine, 38. U. C. Q. B. 617. (4) Queen v. Gilbert, 2 Pug. ife Bur. 619; Ex parte Trask, 1 Pug. & Bur. 277 ; In re Greystock, 12 U. C. Q. B. 458. (5) Torbert v. Lynch, 67 Ind. 474; Ex parte Moore, 62 Ala. 471. (6) State V. Cantieny, 34 Minn. 1. See post, § 203. § 158.] REMEDIES. 127 § 157. Such imprisonment does not satisfy the judg- ment. — Consistently with the theory that imprisonment in default of payment is not in itself a punishment, but merely a mode of compelling payment, it is held that such imprison- ment is in no sense a satisfaction of the fine imposed, unless some provision is made that the prisoner shall work out the amount of the fine during the imprisonment. It would, therefore, be no bar to an action of scire facias on an appeal bond to collect the fine and costs, neither would it prevent subsequent execution to collect the sum due.^ An oficnder can not, however be compelled to labor dur- ing his imprisonment in order to satisfy the judgment against him unless by virtue of express statutory provision, and the labor imposed must conform to the letter of the power,^ § 158. Imprisonment as a penalty. — Ordinances may prescribe imprisonment as a penalty for their non-observ- ance only when express authority is given. The only remedy at common law was an action in the nature of deb)\ to collect the pecuniary penalties attached to violation. The power to imprison never arises by implication.^ "When this power is conferred, it must, like all other final provis- ions, be strictly construed. The literal meaning conveyed by the terms of the grant must be followed. It could not authorize an ordinance inflicting imprisonment for failure to pay a license fee, if no power is given the municipality to make such failure a misdemeanor.* Imprisonment as a direct penalty means imprisonment in pursuance of a proper judicial determination of the guilt of an ofl'ender, in a prosecution for an offense actually committed. If that is the penalty prescribed by ordinance, no authority is thereby given to imprison a person before (1) Sheffield v. O'Day, 7 111. App. 339. (2) Ex parte Bedell, 20 Mo, App. 125. (3) Clarke's Case, 5 Coke, 64; City of London's Case, 8 Coke, 127; Burlington u. Kellar, 18 la. 59; Kinmundy v. Mahan, 72 111. 462. (4) Desty Taxation, 770. 128 MUNICIPAL POLICE ORDINANCES. [§ 160* a judicial determination of his liability. He can not be im- prisoned before trial.^ Whenever a limit is set to the duration of the imprison- ment that maybe inflicted by ordinance, it must never be exceeded. An ordinance, however, that provides a method of determining or computing the length of the term, whereby it would be possible to exceed the constitutional or statutory limit, may be enforced up to that limit. The ordinance would not ipso facto be void.^ § 159. Forfeiture.— At common law and in England to-day tines alone are lawful as penalties for violation of municipal ordinances, and unless express authority exists, to collect them by taking the property of the offender. Collection can only be made by a separate action in the nature of debt. Distress against the goods of the offender and imprisonment are alike unlawful.^ The rights of private property are equally sacred to the common law of this country. Except under plain authority, forfeitures ta secure the payment of fines are unlawful;* and when con- ferred, the power must be exercised in strict conformance to its terms.' But if a double penalty of fine and forfeitura ia imposed by ordinance, the fine is lawful, although the forfeiture is not. The two penalties are severable, and the fact that one is in excess of the power granted would not affect the validity of the other.® § 160 Illustration. — An ordinance authorizing the ar- rest and punishment of persons who keep or visit gam- (1) Low V. Exans, 16 Ind. 486. (2) Keokuk v. Dressell, 47 la. 597. (3) Kirk v. Nowill, 1 Term Rep. 118. (4) Heise V. Columbia, 6 Rich. 404; Hart v. Albany, 9 Wend. 571 ; Cotter v: Doty, 5 Ohio, 394; Rosebaugh v. Saffin. 10 Ohio, 31 ; White v. Tallman, 26 N. J. L. 67; Phillips v. Allen. 41 l':«. St. 4S1 ; Kneedler v. Norristown, 100 Pa. St. 368; Henke v. McCord, 55 la. 378; New Hampton V. Conroy, 56 la. 498; Varden v. Mount, 78 Ky. 86; Sless- man v. Crozier, 80 Ind. 4S7. (5) Clark V. Lewis, 33 111. 417; Friday v. Floyd, 63 111. 50; Bullock V. Gromble, 45 111. 218. (6) Kneedler v. Norristown, 100 Pa. St. 368, S 160.1 KEMEDIES. 129 bling houses, does not warrant the seizure and destruction of the instruments of gambling that may be found in such houses.^ Power to regulate markets authorizes the passage of an ordinance requiring the true capacity of all baskets in which produce is sold to be plainly marked on the bas- kets, but could not warrant forfeiture of all baskets not so marked.'' But where the thing prohibited is of itself dangerous to the health of the community, provision may be made to abate the nuisance on duly compensating the owner for any actual loss. Thus, it is held that bread may be for- feited if the loaves fall below the prescribed standard weight, which is required to be stamped thereon.^ The ultimate object of such regulation is to keep light loaves out of the market, and this is not accomplished by a simple punishment of the baker or vender. The occasions just referred to furnish the key to an im- portant distinction between those cases where forfeitures are and where they are not allowable. If the gist of the offense is some personal act that tends to break the peace of the community, the fine imposed can not be made out of the offender's property, but if the offense is based on the erection and maintenance of a structure which menaces public health or security, or on the keeping or production of some article which is such a nuisance, the remedy ceases to be directed purely against the individual,'but it is all important that the structure or article should be removed or altered beyond the possibility of doing harm. In the case of light weight loaves of bread, the defect can not be remedied by rebaking the bread, and the only way of keeping such bread from consumers is to withdraw it en- tirely from the market. If a person is conducting a trade or business under a license from the town, and commits some offense against the ordinance regulating the manner in which he shall (1) Ridgeway v. West, 60 Ind. 371. (2) Phillips V. Allen, 41 Pa. St. 481. (3) Guillotte V. New Orleans, 12 La. Ann. 482; In re Nasmith, 2 On- tario, 192. 9 130 MUNICIPAL POLICE ORDINANCES. [§ 161. conduct his business, the ofiense is of a personal nature and may not be punished by forfeiture of his license.* The license is property, and so is the right to conduct the business. "Without express authority no place of business can be closed for a violation of the ordinance regulating its conduct.^ Such a procedure would amount to a distress, and is contrary to common right.^ In all cases where the remedy of the municipality in order to be effective must be enforced against the property the improper use of which constitutes the offense, con- siderable expense is incurred by the municipality, and this should in some way be reimbursed by the offender. Under a power to prevent the erection of wooden buildings within defined limits, an unlawful structure may be re- moved. The materials removed still belong to the person who is building, but the corporation may lawfully have its remedy against them in order to secure compensation for the expenses incurred in their removal. The same is true with regard to any nuisance that the corporation has power to abate. § 161. Strays. — The most frequent application of the rule against forfeiture is in cases arising under ordinances- for the prevention of strays and the running at large of animals.* Power to restrain cattle from running at large and to enact such ordinances as are necessary to make the restraint effectual does not authorize a sale of the animals taken up in order to satisfy the penalty imposed upon their owner.* The animals may be held and sold to defray the cost of abating the nuisance, but not to pay the penalty. (1) Heise v. Columbia, 6 Rich. 404 ; Staats v. Washington, 44 N. J. L. 605. Contra, Hurber v. Baugh, 43 la. 514. (2) Ryan v. Jacob, 6 W. L. Bull. (Ohio) 139; Bolte v. New Orleans, 10 La. Ann. 321 ; Bright v. Toronto, 12 U. C. C. P. 433. Contra. Towns V. Tallahassee, 11 Fla. 130. (3) Bergen v. Clarkson, 6 N. J. L. 352; White v. Tallman, 26 N. J. L. 67; Gumming v. Savannah, R. M. Charlt. 26. (4) Varden v. Mount, 78 Ky. 86. (5) Sleesman v. Crozier, 80 Ind. 487 ; Wilcox v. Hemming, 68 Wis. 144. § 162.] REMEDIES. 131 The ordinauce is only indirectly aimed at the owner of the stray animals ; he may, in fact, be wholly beyond the cor- porate jurisdiction. The corporation is put to trouble and expense in taking up the strays and in providing a suitable pound for their retention until claimed by the owner. The animals must be fed and cared for. To meet this ex- pense the animals may be sold, even against the owner's consent, although the owner thereby forfeits his property.' § 162. Notice to the owner. — Every principle of justice demands that no man shall be deprived of his property, even though by his own act or neglect he may have al- lowed it to be so used or placed as to violate the local laws, without first afibrding him an opportunity to contest the fact of the violation, and, when the fact is determined, of saving the forfeiture by paying such fines as have been im- posed, and by compensating the public for its outlay. Such is the almost uniform holding of the courts, although the Supreme Court of Wisconsin, deeming the necessity of the remedy of paramount importance, holds that an ordi- nance that authorizes the seizure, impounding, and sale of strays without any prior judicial inquiry, does not work a forfeiture within the constitutional prohibition of forfeit- ures of property without due process of law and compen- sation.^ Before a sale can be made either actual or constructive notice must be given to the owner. It may be personal or by advertisement.^ Due notice can not be dispensed with without legislative authority.* And the prescribed mode of giving notice must be strictly followed in order to justify the proceeding.^ So, where an ordinance against allowing (1) Contra, Gosselink v. Campbell, 4 la. 296. Pro, Fort Smith v. Dod- son, 46 Ark. 301. (2) Wilcox V. Hemming, 58 Wis. 144. (3) Davies v. Morgan, 1 C. & J. 587; Rosebaugh v. Saffin, 10 Ohio, 31; Hellen v. Noe, 3 Ired. L. 493; Shaw v. Kennedy, N. Car. Term. Rep. 158 ; Gilchrist v. Schnidling, 12 Kan. 263 ; McKee v. McKee, 8 B. Mon. 433. (4) Rosebaugh v. Saffin, 10 Ohio, 31. (5) Wade on Notice, § 1122. 132 MUNICIPAL POLICE ORDINANCES. [§ 164. hogs to run at large gives the owner five days to redeem the strays, and allows a sale to defray expenses after three days' advertisement of the sale, the owner has five full days time exclusive of the day on which the animals are seized, and a sale could not be made until three days after the expiration of the five days, or until the ninth day after the day of seizure. § 163. Judicial determination. — Although the acts of seizure, impounding, and sale are ministerial, to be per- formed by the police authorities of the corporation, some formal preceding should be had to determine the fact that the animals seized were actually running at large, and in which the owner may have an opportunity of being heard and contesting the justice of the seizure or sale.^ If possible, personal service of summons should be made upon the owner of the animals, but if he is not known, or is beyond the jurisdiction of the court, it is sufficient that the procedure be in re and that some public notice be given, of the time and place of sale. § 164. Forfeiture of real estate. — Those are really police ordinances which make the construction of side- walks or fences obligatory upon the owners of property adjacent to the public streets, and which provide that in case of failure to comply with the requirement after due notification, the corporate authorities may proceed to con- struct the walk or fence, and charge the owner with the cost of construction. The cost is generally assessed upon the land, by authority of law, and if not paid the land may be sold to satisfy it, as for any delinquent taxes due to the state or county, thus indirectly working a forfeiture for disobeying the ordinance. This is considered more &b a tax than as a penalty and is looked upon with favor.' It (1) White r. Haworth, 21 Mo. App. 439. (2) Varden v. Mou«t, 78 Ky. 86; Baumgard v. Mayor, 9 La. 119; Rost V. Mayor, 15 La. 129; Lanfear v. Mayor, 4 La. 97; Shaw v. Ken- nedy, N. Car. Term Rep. 158; Darst r. Illinois, 51 111.286; Willis v. Legris, 45 111. 289 ; Donovan v. Vicksburg, 29 Miss. 247 ; Ex parte Burnett, 30 Ala. 461 ; Dill. Mun. Corp., § 353. (3) Bonsall v. Lebanon, 19 Ohio, 418. § 164.] REMEDIES. 133 does not result in unequal taxation within the meaning of that term as used in constitutions.* The primary burden is upon the person upon whom the duty is imposed by statute or authorized ordinance,^ but as the improvement is a benefit to the land, it is eventually charged upon the land, and any person who has an interest therein, or who acquires an interest after the construction is completed, is liable to have his interest sold to satisfy the lien.^ As in other proceedings which result in imposing a burden on persons or property, every step must conform strictly to the mode prescribed by the charter or statute.* (1) Mayberry v. Franklin, 6 Humph. 368; Washington v. Nashville, 1 Swan (Tenn.) 177. (2) People V. Council, 54 N. Y. 507. (3) Highland v. Galveston, 54 Tex. 527, (4) D'Antignac v. Augusta, 31 Ga. 700. 134 MUNICIPAL POLICE ORDINANCES. CHAPTER VII PROCEDURE— PLEADING— EVIDENCE. § 165. Introduction. § 166. The tribunal. g 167. Citizenship does not disqualify the magistrate. g 168. Form of the action. § 169. Nature of the action. § 170. Holdings of the diflFerent states. g 170a. General conclusion. g 171. Joinder of causes of action. g 172, The complaint. g 172a. The title of the case. g 173. The offense must be distinctly alleged. g 174. Reference made to the ordinance violated. g 175. Exceptions need not be negatived. g 176. The conclusion of the complaint. g 177. Signature to complaint. g 178. Arrest before trial. g 179. What the vrarrant should contain. g 180. Arrests made without a warrant. g 181. Trial by jury. g 182. Arraignment and plea. g 183. Evidence. g 184. Judicial notice. g 185. How ordinances are proved. § 186. Record of council proceedings as evidence. g 187. Proof of publication. g 188. Presumption that ordinances are reasonable. g 189. Reasonableness a question of law. g 190. Proof of time and place of committing the offense. g 191. Proof that act does not fall within exceptions. g 192. Testimony of defendant. g§ 193, 194. Construction of ordinances. • g 195. Examples of application of rules of construction. § 196. Defenses to prosecutions. g 197. Effect of repeal of an ordinance. g 198. Former conviction. g 199. Other defenses. g 200. Doctrine of estoppel applied to defenses. g 201. Estoppel of the corporation. g 202. Form of the judgment. g 203. The order of commitment to jail. § 166.] PROCEDURE — PLEADING — EVIDENCE. 135 § 165. Introduction. — The enforcement of municipal ordinances is intrusted to the local authorities, and must be accomplished through proceedings in a local court. The state laws seldom prescribe detailed rules of practice and procedure in these local courts, and we therefore find a deplorable state of confusion in the methods ordinarily followed. They are based partly upon direct statutory provisions, partly on custom, partly on the by-laws of the corporation itself, but more often on an attempt to imi- tate the rules laid down for analogous proceedings in the state courts. When we consider that the offenses are of a minor character, that the necessity for a speedy remedy is more urgent, that local courts are seldom organized under complete systems such as underlie the existence of state tribunals, and that the ordinances to be enforced are of a confusing variety and scope, it becomes apparent that the rules observed in higher courts are often wholly impractica- ble or inapplicable to practice before the municipal courts. Kules must be varied and modified to meet the necessi- ties of each case. Rules of evidence are about the only rules that can well be applied in the local courts without some modification. Because the practice in these courts is usually left to its own development and is seldom regu- lated by extensive legislation, it is much easier to formu- late rules which will be applicable to procedure in all the states, than it is in regard to actions brought in the state courts. § 166. The tribunal. — In England all actions to enforce ordinances are in the nature of debt or assumpsit to recover the specific fine, and are brought before the ordinary tri- bunals having jurisdiction to entertain such actions. In America the practice is very diverse, but some special tri- bunal is usually created for the trial of causes based upon violation of local ordinances. Its jurisdiction is often, for the sake of convenience, extended over petty offenses against the laws of the state. Remedies under ordinances will, however, never be allowed to fail for want of a tribunal, and if no special tribunal is provided, actions to enforce 136 MUNICIPAL POLICE ORDINANCES. [§ 166. penalties may be brought in the established courts of the state/ If a special tribunal is provided by general law such actions are restricted to it. It acquires exclusive jurisdic- tion unless the general law plainly indicates that such is not the intention of the state legislature. The power to hear and decide actions brought to enforce ordinances in- volves the liberty and rights of property of the individual. It is derogatory to common right and can only be exercised by such tribunals as have plain, unmistakable authority, and in strict accordance with the terms of the grant. If the charter provides that justices of the peace shall hear pro- ceedings based on the ordinances of the municipality, the municipality can not supplement the charter by giving concurrent jurisdiction to the mayor.^ The corporation can not erect its own tribunals if none are provided by the law under which it is established, nor can it erect different tribunals from those that are expressly authorized.' "When special tribunals are created for the purpose of entertaining actions to enforce municipal ordinances, their jurisdiction is limited strictly to that purpose, and only extends to such proceedings as may be necessary to compel obedience to the local laws. They may control the person of the offender and his property so far as concerns the man- ner of its use. It may be necessary to determine the title to property incidentally, but such determination is only effective as regards the remedy being pursued. No claim to the property can be based on it. It could not even be used in evidence in an action in a state court involving the title to the same property.* Local courts are, in short; lim- ited in their jurisdiction strictly to the purposes of their creation. -- Objection to the jurisdiction must be made before sub- mission to the process and judgment of the court. If the person whose rights are in jeopardy fails to question the (1) Columbia v. Harrison, 2 C. C. (S. Car.) 213. (2) Staatesv. Washington, 45 N. J. L. 318. (3) Barter v. Commonwealth, 3 Pen. & W. 253; Deel v. Pittsburgh 3 Watts, 363. (4) Beecher v. People, 38 Mich. 289. § 167.] PROCEDURE — PLEADING — EVIDENCE. 157 jurisdiction at the first step, he will be estopped from so doing in the appellate court.^ If suit be begun before one justice, but for some insufiicient reason is continued before a different justice, and the defendant allows the trial to pro- ceed without objection, his appearance and silence will be a bar to subsequent objection.^ The jurisdiction of the court is in no sense dependent upon the validity of the ordinance ; that is, an objection to the jurisdiction by demurrer or motion will not be sus- tained by proof of the invalidity of the ordinance sought to be enforced.^ § 167. Citizenship does not disqualify the magistrate. Every citizen of a municipality has an interest in the prompt and vigorous enforcement of its ordinances. This interest may be only such as all public spirited persons have in the peace and good order of the community, or it maybe pecu- niarily material as in cases where the fines collected inure to the benefit of the local revenue, and thereby slightly re- duce the burdens of taxation. No one would think of claiming that the judge of a state court is disqualified from hearing prosecutions brought under the penal laws of the state, by reason of his interest, as a public-minded citizen, in the due enforcement of those laws. Earlier English corporations were not municipal, but were close corpora- tions, composed of those who followed the same trade, and it was held that the local magistrate was disqualified to try violations of their by-laws, if he chanced to be a member of the prosecuting corporation.* Reasoning from the false analogy of such holdings, the claim has often been seriously made that the personal interest of a local justice, mayor, or magistrate is so direct and material as to disqualify him to try actions brought to enforce the penalties imposed by the ordinances of the municipality of which he is a citizen. The authorities are uniformly opposed to the validity of (1) Tisdale v. Minonk, 46 111. 9. (2) Wiggins V. Chicago, 68 111. 372. (3) WoodruflFi;. Stewart, 63 Ala. 208. (4) Hesketh v. Braddock, 3 Burr. 1847. 138 MUNICIPAL POLICE ORDINANCES. [§ 168, such an objection. The magistrate's personal interest in the fine is far too remote to defeat his jurisdiction.^ § 168. Form of the action. — The common-lar/ remedy for violation of ordinances consisted of a civil action either of debt or on the case in assumpsit^ brought against the of- fender to recover the amount of the penalty imposed ; debt^ when the penalty was considered as a certain amount of liquidated damages, and assumpsit^ when the act complained of was merely considered as a violation of a duty owed to the community by the offender.^ And in this country an action in the nature of debt is still the proper remedy un- less, as is generally the case, the charter or general law contains some other provision.' When the statute is silent it is proper, though unnecessary, for the corporation to or- dain that penalties shall be recovered by action in debt; such an ordinance would simply be a formal recognition of the rule of law.* In the majority of the states the gen- eral municipal code or the charter provides for a special proceeding to be instituted before some local magistrate. This special proceeding is more or less summar}', and is usually divested of many of the formalities and technical- ities of actions in higher courts. "Whether the line or penalty is definitely fixed by ordi- nance, or is only restricted to certain limits within which the magistrate is to exercise his discretion, the action is always brought to enforce a penalty, the benefit of which inures to the corporation, and unless the law of the state requires the action to be brought in the name of the state (1) Commonwealth v. Worcester, 3 Pick. 462; Thomas v. Mt. Vernon, 9 Ohio, 290; Deitz v. Central, 1 Col. 323; Jonesborough v. McKee, 2 Yerg. 167; Council v. Pepper, 1 Rich. 364; Queen v. Justices, 4 Q. B. Div. 522; s. c, 29 Moak Eng. Rep. 61 ; Queen v. Milledge, 4 Q. B. Div. 332; 8. c, 28 Moak Eng. Rep. 784. (2) Dill. Mun. Corp., § 409; 1 Roll. Abr. 366, 1. 48; Clift. 901. (3) Brookville v. Gagle. 73 Ind. 117; Jacksonville v. Block, .36 III. 507; Israel v. Jacksonville, 2 111. 290; Ewbanks v. Ashley, 36 111. 177; Weeks v. Foreman, 16 N. J. L. 237; State v. Zeigler, 32 N. J. 262; Williamson v. Commonwealth. 4 B. Mon. 146. (4) Barter v. Commonwealth, 3 Pa. 253 § 169.] PROCEDURE — PLEADING — EVIDENCE. 139 the corporation is the proper party plaintiff. If the statute makes any direction it must be closely followed.* No other form could be legalized by an ordinance than the one pre- scribed.^ If authorized to sue "in the name of the cor- poration," the name conferred or recognized by the charter or general law must be used, though a slight variation would be considered immaterial.^ Where no direction at all is made it is advisable to use such name as may be incidentally used in the charter or statute, or in the absence of such a name, that by which the municipality is generally known, or by which it is ac- customed to appear in court. In such case, an action in the name of the council, of the overseers, or of the president and trustees would be unobjectionable.* § 169. The nature of the action. — The rules of proce- dure and evidence applicable to proceedings to enforce penalties for the violation of ordinances depend largely upon the nature of the action, whether civil or criminal. At common law the only means of enforcing ordinances was an action in debt brought before tribunals of general jurisdiction, and the action was therefore purely civil. Certainly, the erection of special tribunals for such actions, and the prescription of different modes of procedure and practice, does not alter the civil nature of the action so long as a fine only is sought to be enforced. And, as we have seen, the imprisonment that is often inflicted for failure to pay a fine is considered a means of enforcing payment and not as a punishment. Great diversity of opinion exists as- to the nature of actions which may result in iniprisonm.ent as a part or the whole of the punishment. Fines may be considered as debts or as liquidated damages, but imprison- ment is a penalty directed against the person of the offender, one that deprives him of liberty. For the pur- (1) State V. Zeigler, 32 N. J. 262. (2) Weeks v. Forman, 16 N. J. 237. (3) Powers v. Decatur, 54 Ala. 214. (4) Charleston v. Oliver, IG S. C. 47; Williamson v. Commonwealtlv 4 B. Men. 146; Hirschoff v. Beverly, 45 N. J. L. 288. 140 MUNICIPAL POLICE ORDINANCES. [§ 169. poses of determining rules of procedure, actions of this class are best divided into quasi-criminal and criminal actions. The majority of ordinances are directed against offenses which have no existence except as defined by the ordinance. These offenses are not of the same grade with offenses against the state, and the actions brought to pun- ish them are only quasi-criminal.^ But actions brought to enforce the punishment of imprisonment for acts, which are already crimes or misdemeanors under the laws of the state, are criminal, and the same right or rights equally ef- ficient should be secured to the accused in the municipal court that are reserved to him in the state courts. There is no objection to a double punishment for the same act considered as two distinct offenses, one against the public at large, the other against the peace of the local community, but the local community should not be allowed to provide or follow modes of procedure that might make conviction easier under the ordinance than under the stat- ute. This last class of actions are not very numerous, and still we apprehend that they are more apt to work unlawful infringement of the personal rights of citizens than any other proceeding, and their conduct should be guarded with closer scrutiny than simple civil or quasi-criminal actions. For instance, the constitutional guarantee of trial by jury, whenever a person is tried for an offense punish- able by imprisonment, would defeat the jurisdiction of a local magistrate over such cases, unless the law creating his tribunal makes provision for jury trial* But the applicability of the constitutional guarantee to prosecution under ordinances ceases whenever the act complained of is not included among the offenses punisnable by the laws of the state.^ Much confusion arises from a careless use of the words *' crime" and " criminal." A crime is technically an act made penal by the laws of the state or general govern- (1) Wiggins V. Chicago, 68 III. 373; Floyd v. Eutontin, 14 Ga. 355; Greenfield v. Mook, 12 111. App. 281 ; State v. Lee, 27 Minn. 445. (2) Thomas v. Ashland, 12 O. S. 124. (3) Monroe v. Meuer, 35 La. Ann. 1192. I § 170.] PROCEDURE — PLEADING — EVIDENCE. 141 ment, and the proceeding brought to enforce the punish- ment prescribed by the state law is a criminal prosecution. It is preferable not to extend the application of these terms to offenses against ordinances, unless in relation to offenses common to both the state and the municipal law, in which case the rules of procedure in the local court should con- form to those in the state court in all their essential fea- tures.^ The extent to which proceedings brought to punish quasi-criminal offenses must conform to the criminal codea and rules of practice in the state courts is decided very differently in different states. § 170. Holdings of the various states. — The following digest of decided cases shows the tendency to be toward very much less strict rules of procedure in the enforcement of ordinances : (a) Alabama. Such actions are so far criminal as to- disqualify the defendant from testifying in his own behalf, as is the rule in regular criminal proceedings.* And, in. general, stricter rules of procedure are observed than in civil cases.^ (6) California. Such actions are criminal and, unless some contrary provision is made by statute, they should be brought in the name of the people like prosecutions under the penal laws of the state* (c) Georgia. The right of trial by jury is not violated by imposing fines for violations of municipal ordinances to be recovered by actions before a tribunal that is not provided with a jury.^ (d) Illinois. Actions for violations of penal ordinances are in the nature of actions on tort, but they are not such (1) Mixer v. Supervisors, 26 Mich. 422; Wayne County v. Detroit,. 17 Mich. 390; Alexander v. Council, 54 Miss. 659 (2) Mobile v. Jones, 42 Ala. 630. (3) Fuhrman v. Huntsville, 54 Ala. 263. (4) Santa Barbara v. Sherman, 61 Cal. 57 ; People v. Johnson, 30^ Cal. 98. (5) Williams v. Augusta, 4 Ga. 509 ; Floyd v. Eutontin, 14 Ga. 354. 142 MUNICIPAL POLICE ORDINANCES. [§ 170. penal actions as require security to be given for costs, under a statutory provision that security for costs must be given by the informer in penal actions.^ (e) Indiana. The remedy under ordinances is a civil action brought to recover the common-law penalties.* It makes no difference that the action is begun by the service of a warrant of arrest.^ And the rules of practice in civil cases must be followed * (/) Iowa. Such actions need not be brought in the name of the state, not being criminal prosecutions. The complaint filed is not a process within the meaning of the statutory provision that all process in criminal prosecution shall be in the name of the state.' (^) Kansas. The municipality can sue in its own name, unless the act complained of is also a penal offense against the laws of the state, in which case the proceeding is a criminal prosecution, which must be governed by the rules of criminal procedure.® {h) Massachussetts. Such actions are public prosecutions governed by the penal code of procedure, although unlike actions under the state laws, in that no costs are allowed the accused in case of acquittal.^ (i) Michigan. — Prosecutions under municipal ordinances are not criminal proceedings within the provisions of the penal code of procedure, but are merely penal actions on the part of the municipality for local purposes.** (1) President v. Holland, 19 111. 271 ; Quincy v. Ballance, 30 111. 185; Lewiston v. Proctor, 23 111. 533. (2) Brookville v. Gagle, 73 Ind. 117; Quigley v. Aurora, 50 Ind. 28; Greensburg v. Corwin, 58 Ind. 518. (3) Goshen v. Croxton, 34 Ind. 239; Commissioners v. Chissom, 7 Ind. 688. (4) Goshen v. Croxton, 34 Ind. 239; Miller v. O'Reilly, 84 Ind. 168 (as to appeal bonds). (5) Davenport v. Bird, 34 la, 524. (6) Weitzel v. Concordia, 14 Kan. 446. Contra, Emporia v. Volmer, 12 Kan. 622. (7) Dill Mun. Corp., §412; In re Goddard, 16 Pick. 504; Common- wealth V. Worcester, 3 Pick. 462. (8) Cooper v. People, 41 Mich. 403 ; People v. Detroit, 18 Mich. 445. § 170.] PROCEDURE — PLEADING — EVIDENCE. 143 (J) 111 Minnesota such actions are called quasi-criminal, and statutory provisions for the regulation of procedure in prosecutions for crimes are not applicable/ (k) Missouri. Such proceedings are purely civil, and it is wholly immaterial whether the form of the action be civil or criminal.'* (I) In Nebraska the statute is practically the same as in Iowa, but contrary to the holding in Iowa actions of this kind are considered criminal.^ (in) New Hampshire courts hold likewise that prosecutions for offenses against ordinances are criminal in their na- ture.* (n) New Jersey. Proceedings in this state more clearly adhere to the old common-law procedure than in the other states. Actions brought to enforce pecuniary penalties under ordinances are civil, and even if in the form of an information, part of the penalty going to the informer, the action is qui-tarn and civil.^ (o) New York. Offenses against ordinances, however punished, are neither crimes nor misdemeanors.® (p) Ohio. In this state it is apprehended that such ac- tions would be considered quasi-criminal only. Its supreme court has called attention incidentally to the fact that the common-law civil action in the nature of debt is still law- ful, unless expressly superseded, to recover pecuniary pen- alties;^ and it has also been said that "many offenses, de- cidedly immoral and mischievous in their tendencies, are only quasi-criminal and properly fall under the jurisdiction of a justice or mayor.^ Still, where the complaint failed to allege that an action was for a second offense against an (1) State V. Lee, 27 Minn. 445. (2) St. Louis V. Vert, 84 Mo. 204; Ex parte Hollwedell, 74 Mo. 395; Ex parte Kiburg, 30 Mo. App. 442. (3) Brownville v. Cook, 4 Neb. 102. (4) State V. Stearns, 31 N. H. 106. (5) Brophy v. Perth Amboj, 44 N. J. L. 217 ; Kip v. Patterson, 26 N. J, L. 298; Keeler v. Milledge, 24 N. J. L. 142. (6) Wood V. Brooklyn, 14 Barb. 431. (7) Cincinnati v. Gwynne, 10 Ohio, 192. (8) Markle v. Akron, 14 Ohio, 586. 144 MUNICIPAL POLICE ORDINANCES. [§ 170. ordinance that imposed heavier fines for each repetition of an offense, the court held that it was a fatal omission, and that the rule of criminal pleading would apply.* (r) Wisconsin. In no other state has this question re- ceived more thorough consideration than in Wisconsin^ and the position finally adopted by the courts is the most logical and the one to which other states are tending, if they have not already adopted it. At first it was held that even actions brought to enforce the payment of a fine are criminal prosecutions within the meaning of the state bill of rights, which provides that "in all criminal prosecu- tions the accused shall be entitled to demand the nature and cause of the accusation against him."^ Referring to that de- cision. Judge Dillon expresses his belief that such a broad principle can hot be maintained where the act charged " is not a crime at common law or in its essential nature ;" ^ and the later decisions in Wisconsin fully maintain him and go even farther. If the offense is a crime under the state law, the action is criminal, but otherwise, at most quasi-crimi- nal.* In cases punishable by imprisonment, and probably in all cases whether the oftense is also covered b}^ the state law or not, the right of trial by jury may be waived by stipulation between the parties.* The action is purely civil, BO far as the remedy under the ordinance is concerned, and an offense is not a misdemeanor, if prohibited by the ordi- nance alone, and not by the state law.® (s) Wyoming. In order to avoid all question it is pro- vided by the code of Wyoming that actions brought to enforce municipal ordinances are purely civil, to be gov- erned by civil procedure.'^ (1) Larney v. Cleveland, 34 0. S. 599. (2) Fink v. Milwaukee, 17 Wis. 26. (3) Dill. Mun. Corp., § 412, note. (4) Oshkosh V. Schwarz, 55 Wis. 483; Sutton v. McConnell, 46 Wis. 269. (5) Sutton V. McConnell, 46 Wis. 269. (6) Chafin v. Waukesha County, 62 Wis. 463. (7) Jenkins v. Cheyenne, 1 Wy. Ter. 287. § 172.] PROCEDURE — PLEADING — EVIDENCE. 145 § 170a. General conclusion. — In general it may be said that every rule of procedure provided by statute or ordir nance must be strictly followed, and especially so when the action may result in a forfeiture of property, or in impris- onment as a penalty.^ If no provision at all be made, the procedure should coftform as closely as practicable to pro- cedure in similar actions. Thus, if jurisdiction over of- fenses against ordinances is given to an existing tribunal, the same rules should be observed that are prescribed for procedure in other causes brought before it.^ So, a justice would have no right to refuse a jury trial if compulsory in other cases brought before him.^ § 171. Joinder of causes of action. — If the action be considered as brought to recover a debt, or liquidated dam- ages, as at common law, there could be no objection to joining claims for several penalties in one action.^ It seems, however, that the offenses must be against the same ordinance, and not against two different ordinances, how- ever closely related by their nature.* Even where it is customary to join such causes of action it is optional with the complainant, and several causes of action need not be joined so that the aggregate of the penalties exceeds the limits of the magistrate's jurisdiction.^ In Iowa special authority is conferred by statute to proceed against several offenses in a single information, and the same provision may be made by ordinance.^ For further treatment of joinder of claims see ante, sec. 152. § 172. The complaint. — In a proceeding to enforce the penalty for a violation of an ordinance, the first step to be taken is to file with the proper magistrate a complaint or (1) People V. Whitney's Point, 32 Hun, 508. (2) Greeley y. Passaic, 42 N. J. 87. (3) People V. Cox, 76 N. Y. 47. (4) Brooklyn v. Cleves, Hill & Den. Sup. 231. (5) Kensington v. Glenat, 1 Phila. 393. (6) Whitehall v. Meaux, 8 111. App. 182. (7) Jackson v. Boyd, 53 la. 536. 10 146 MUNICIPAL POLICE ORDINANCES. [§ 172a. pleading in the nature of an information. This must be in writing.^ A sentence would be wholly void unless based upon a formal complaint, even though the accused should appear before the magistrate and acknowledge his guilt. Such a sentence could, however, only be impeached hy the offender himself. This preliminary pleading may be called an information, petition, complaint, affidavit, or by any other name, but in order to be sufficient it must contain a clear statement of the offense charged and a reference to the ordinance violated. Great formality is seldom required, and even when the remedy is an action of debt brought be- fore the local court it is not at all necessary to file a com- mon-law declaration.^ So, when the action is considered criminal, the strict formality of an indictment need not be observed, so long aa the principal element, the offense, be definitely described and alleged. In order that the com- plaint may not be open to any manner of objection, it should, however, contain the name of the tribunal before which it is filed, a formal title, a full and complete allega- tion of the commission of an offense, a reference to the ordinance prohibiting the act complained of, and a conclu- sion. The complaint must be signed by the informer, and sworn to before the magistrate or some other officer having power to administer such an oath. It then becomes the duty of the magistrate to institute such further action as will bring the accused before the court in a lawful manner, and as will enable some formal decision to be rendered. § 172a. The title. — Every complaint should be entitled for the purpose of identification, if for no other reason, but the total lack of a title will not be fatal to its validity if the complaint concludes " against the form of the ordi- nance in such case provided by the city of X," or " against the peace and dignity of the city of X," so that it shows on its face that the proceeding is brought on behalf of the city of X.^ The object of a formal title is to inform the offender (1) Prell V. McDonald, 7 Kan. 445. (2) Dietz V. Central, 1 Col. 323. (3) Information v. Oliver, 21 S. Car. 318. § 173.] PROCEDURE — PLEADING — EVIDENCE. 147 of what law he is charged with violating. This object is attained with sufficient accuracy if the information is con- veyed by the wording of the body of the complaint. The issue is fully formed and apparent without any title.^ Whenever a title is made necessary by statute, but no par- ticular form is prescribed, any form is sufficient. Slight mistakes are immaterial.^ They are mere irregularities and not fatal.' It was held, however, in an early case in Pennsylvania, that the name of the corporation must be accurately given.* If the identity of the corporation is plain in spite of an error, there is no ground for a valid objection to a verdict or sentence.^ Even though the error consist in entitling the case, as though brought by the state instead of by the corporatiou, exception must be taken in the court below on the trial of the case or the error will be effectually waived.^ § 173. The offense must be distinctly alleged. — It is essential to the validity of a prosecution that the complaint contain allegations of every fact necessary to inform the ac- cused with reasonable certainty of the act for which he is sought to be punished.^ It is sufficient if he is informed to a reasonable certainty.^ Neither the strictness of the com- mon-law requirements nor the technical accuracy of indict- . ments need be observed.^ Still, a complete statement of the offense must be made.^" The requirement is not satisfisd by a simple allegation that the defendant has violated a cer- tain ordinance. The act of violation must be described (1) Alton V. Kirsch, 78 111. 1261. (2) Hershoff v. Beverly, 45 N. J. 288. (3) State V. Graflfmuller, 26 Minn. 6. (4) Mayor v. Nell, 3 Yeates, 475. (5) Farrel v. London, 12 U. C. Q. B. 343. (6) State V. King, 37 la. 462. (7) Memphis v. O'Connor, 53 Mo. 468. (8) St. Louis V. Frein, 9 Mo. App. 590. (9) Keeler v. Milledge, 24 N. J. 145; Memphis v. O'Connor, 53 Mo. 468 ; Commonwealth v. Rowe, 141 Mass. 79. (10) People V. Justices, 12 Hun, 65. 148 MUNICIPAL POLICE ORDINANCES. [§ 173. and not left to implication.^ Tt is best, if not necessary, to plead the acts constituting the alleged offense at least as accurately and definitely as the description of the offense contained in the ordinance.^ If the same language is used the complaint will hold good.^ Under an ordinance against the maintenance of nuisances in^ the shape of ob- noxious and injurious trades, it is not enough to allege that the defendant keeps in store a large quantity of hides and tallow which emit a disagreeable odor. The complaint must also allege that the odor is injurious to health or ob- noxious to the comfort of the citizen, or other facts which would make it amount to a nuisance.* So, if it is made unlawful to " suffer " hogs to go at large, the complaint must aver that the defendant's hogs were at large by his sufferance.'^ Any material deviation from the elements of the offense as defined by the ordinance is fatal. Thus,, under an ordinance declaring it an offense for any one to allow his animals to stop and feed along the highway, a complaint is defective which avers that the defendant's^ animals were allowed by him to stop to feed. The animals must have not only stopped, but they must also have fed on the highway. If the feeding had not been considered a material element of the offense, it should and would have been omitted from the provision of the ordinance.^ There must be a positive allegation that the act was committed. A complaint is bad for uncertainty that simply alleges that the informer has "just cause to suspect and does suspect that B. is guilty of a certain offense.^ It is, however, no ground of objection to a complaint that it aver more than is necessary to constitute the offense. If any one of several distinct acts that are alleged is suffi- (1) Huntington v. Pease, 56 Ind. 305; Huntington v. Cheesbro, 5T Ind. 74. (2) Truesdale v. Moultrieville, Rice (S. C), 158. (3) St. Louis V. Knox, 74 Mo. 79. (4) Lippman v. South Bend, 84 Ind. 276. (5) Case v. Hall, 21 111. 632. (6) Commonwealth v. Bean, 14 Gray, 52. (7) Roberson v. Lambertville, 38 N. J. L. 69. § 174.] PROCEDURE — PLEADING — EVIDENCE. 149 cient to constitute the offense, proof of any one will sus- tain a conviction. The remaining allegations are sur- plusage.^ In order to properly advise the defendant of the charge made against him, not only must the act be particularly described, but the complaint must allege when, where, and how it was committed. A simple charge that he has com- mitted a described offense is indefinite.^ So, a charge that the defendant " knowingly associated with thieves previous to August 21, 1871," is bad for not stating when, where, and with whom he associated.^ This principle is most frequently invoked in complaints that charge offenses against the ordinances regulating the traffic in intoxicating liquors. If the offense consists in keeping a saloon open at unlawful hours, or in allowing persons to enter at un- lawful hours, it is immaterial who entered, or who utilized the breach of 'the law ; but if the offense lies in selling to persons in the habit of getting intoxicated, or in a state of intoxication, or to minors, the complaint must state either the names of those to whom the liquor was sold, or that their names are unknown to the informer.* The allegations of the complaint must bring the offender clearly within the class of persons against whom an or- dinance may be directed. If it is unlawful for any person in control of a saloon or house to do some act, the defend- ant prosecuted under that ordinance must be alleged to be in control of the saloon or house in question.^ § 174. Reference must be made to the ordinance violated. — Under the common-law procedure, the only remedy for violation of municipal ordinances was an action (1) Commonwealtli v. Curtis, 9 Allen, 266; Stevens v. Common- wealth, 6 Met. 242. (2) Memphis v. O'Connor, 53 Mo. 468. (3) St. Louis V. Fitz, 53 Mo. 582. (4) Hill V. Dalton, 72 Ga. 314; Sparks v. Stokes, 40 N. J. 487; Flan- agan V. Plainfield, 44 ^^. J. L. 118; Greeley v. Passaic, 42 N. J. L. 87; Roberson v. Lambertville, 38 N. J. L. 69 (5) Napman v. People, 19 Mich. 352. loO MUNICIPAL POLICE ORDINANCES. [§ 174. in debt or assumpsit, and it was deemed necessary to plead every fact that went to constitute the right to recover. The ordinance itself was considered a fact, and had to be pleaded. Following this rule many cases hold that the ordinance, or at least that portion which is directly violated, should be embodied in the complaint.^ Considered purely as a declaration in debt, the complaint would needs contain allegations as to the time of passage of the ordinance, by whom and by what authority enacted, the ordinance itself, and the acts constituting the breach.* The strictness of the rule is sometimes modified by hold- ing that only the substance of the ordinance need be pleaded.^ The existence of municipal ordinances must be noticed by all who come within the corporate juristliction in the same degree that state laws must be noticed by those within the limits of a state. State statutes are not spe- cially pleaded in criminal prosecutions, and it is not plain why the same principle might not be as well extended to prosecutions under ordinances. The fact that it is not commonly extended to them, would seem to indicate very strongly that prosecutions under ordinances are still con- sidered as civil rather than as criminal actions. Decisions have been rendered in a few states, which deny wholly or qualifiedly the necessity of pleading the existence of an ordinance. Thus it is held iu Minnesota not to be neces- sary to refer to the ordinance.* In "Wisconsin it has been (1) Railroad v. Klauber, 9 111. App. 613; Railroad v. Godfrey, 71 111. 500; Van Dyke v. Cincinnati, 1 Dis. (Ohio), 533; Green v. Indianapolis,. 25 Ind. 490; Pomeroy v. Lappens, 9 Greg. 363; Barker v. New York,. 17 Wend. 199; People v. Xew York, 7 How. Pr. 81 ; Greensborough v. Shields, 78 N. Car. 417; Hendersonville v. McMinn, 82 N. Car. 532;. State V. Edens, 85 X. Car. 522. (2) Coates v. New York, 7 Cow. 585. (3) Clevenger v. Rushville, 90 Ind. 258; Keeler v. Milledge, 24 N. J. 142; Sanesville r. Railroad, 7 Wis. 484; People v. Justices, 12 Hun, 65; Case v. Mobile, 30 Ala. 538; Charleston v. Chur. 2 'Bailey, 164; Council V. Seeba, 4 Strobh. 319 ; Kip v. Patterson, 26 N. J. L. 298. (4) State V. Richards, 21 Minn. 47: Rochester v. Upman, 19 Minn. 108. But contra, Winona v. Burke, 23 Minn. 254. See Meyer v. Bridge- town^ 37 N. J. 160. § 174.] PROCEDURE — PLEADING — EVIDENCE. 151 held that a prayer that the defendant " may be arrested and held to answer," could be construed to refer to the ordinance as though imported in the complaint.^ A conclusion against the peace of the city has been held to have the same effect.^ But these decisions are surely not consonant with the current of authority. On the one hand munici- pal ordinances are looked upon by the American courts as quasi-public laws ; as such, all who come within their operation are obliged to take notice of them, and it would therefore seem useless to plead them specially when sought to be directly enforced. On the othei hand, actions to en- force ordinance penalties still have many features in com- mon with the civil action in debt; they are generally con- sidered as but semi-criminal, and some regard must still be had to the' requirements of the civil rules of pleading. As these conflicting considerations can not be wholly reconciled, the best rule seems to be that the complaint should refer to the ordinance in some manner that will en- able it to be easily identified ; that it ought not to entirely ignore its existence, but also that it need not plead the ordinance or even its substance. Although the weight of authority is nearly evenly divided among these varying views, there is ample authority favorable to the doctrine that the ordinance need only be referred to, to justify its adoption by any court that is not yet committed to another view.^ If only one ordinance was passed on a certain day, it might be sufficient to refer to the ordinance as passed on that day. Where the ordinances are numbered, a refer- ence to the number is sufficient. And in general a refer- ence to the title of the ordinance, or some other feature by which it is commonly known, and which will enable the defendant to easily identify it and single it out from all (1) Oshkosh V. Schwartz, 55 Wis. 483. (2) Information v. Oliver, 21 S. Car. 318. (3) West V. Columbus, 20 Kan. 633; State v. Merritt, 83 N. Car. 677; Watts V. Scott, 2 Dev. (N. Car.) 1 ; Goldthwaite v. Montgomery, 50 Ala. 486; Huntington v. Pease, 56 Ind. 305 ; Goshen v. Kern, 63 Ind. 468; Auburn u. Eldridge, 77 Ind. 126; Whitson v. Franklin, 34 Ind. 392; State V. Cainan, 94 N. Car. 880 ; Faribault v. Wilson, 34 Minn. 254. 152 MUNICIPAL POLICE ORDESTANCES. [§ 176. other ordinances, will satisfy the requirements of good pleading. If the ordinance has been properly referred to, or its substance pleaded, where that is deemed essential, it is not necessary to allege power in the corporation to enact the ordinance,^ nor to plead or refer to the charter or general law by which that power was conferred.^ It need not be al- leged that all proper formalities were observed in its pas- sage,^ nor that the corporation has legal capacity to sue.* § 175. Exceptions need not be negatived. — Where certain acts or classes of acts are expressly excepted from the operation of an ordinance, it is unnecessary and unad- visable to negative the exception. "If the act complained of comes within the exception, and is therefore lawful, it is a good defense to the action, and should be left to the defendant to prove.* § 176. The conclusion. — In those states where actions are properly brought in the name of the corporation, it is undoubtedly sufficient if the information or complaint con- cludes with such an expression as " contrary to the form of the ordinance in such case provided."® In Massachusetts, where ordinances are considered as a part of the general scheme of state legislation, and where actions are brought in the name of the commonwealth, it is considered essential that the ordinance conclude either " contrary to the form of the statute in such case pro- vided," or " contrary to the form of the ordinance in such case made and provided, and to the peace and dignity of (1) Janesville V. Railroad, 7 Wis. 484. (2) Winooski v. Gokey, 49 Vt. 282. Contra, Washington v. Frank, 1 Jones, 436. (3) Hardenbrook v. Ligonier, 95 Ind. 70. (4) Janesville v. Railroad, 7 Wis. 484. (5) McGear v. Woodruff, 33 N. J. L. 213: Roberson v. Lambertville, 38 N. J. L. 69; Lynch v. People, 16 Mich. 472; Farwell v. Smith, 16 N. J. L. 133; Shaw v. Poynter, 2 Ad. & El. 312; Martinsville v. Frieze, 33 Ind.- 507. (6) Winooski v. Gokey, 49 Vt. 282. ^ 178.] PROCEDURE — PLEADING — EVIDENCE. 153 the state." ^ A very convenient and ample form of con- clusion includes a distinct reference to the ordinance vio- lated, such as " contrary to the ordinance entitled ' an or- dinance against the obstruction of the streets/ passed Oc- tober 10, 1882, and to the peace and dignity of the state." § 177. Signature to complaint. — The person who makes the complaint or files the information upon which the complaint is based, must sign his declaration and make affidavit to its truth. Here, as in regard to other formal- ities, the making of the affidavit and the signature as a means of identifying the informer are the essence of the formality, and slight errors, not going to material features, are mere irregularities.^ § 178. Arrest of offender. — In actions instituted against a person who has allowed his property to violate the local ordinances, the remedy is more directly against the prop- erty, and the notice to be given him of the pendency of the proceeding has already been considered.^ But where the remedy is wholly against the person of the offender, the filing of a proper affidavit or complaint is followed by the issuing of a warrant to some police officer, com- manding him to arrest the defendant, and to bring him before the court. At common law, local magistrates had no power to order the arrest of an offender and to take a bail bond for his due appearance, but, as the form of action has now been changed, and other punishments than fines imposed, the common-law rule has ceased to be applicable.'* Some kind of process must issue, unless expressly declared unnecessary by statute.^ Lack of process may be waived by the voluntary appearance of the defendant, but such (1) Commonwealth v. Gay, 5 Pick. 44; Commonwealth v. Worcester, 3 Pick. 462. (2) Cherokee v. Fox, 34 Kan. 16. (3) Ante, § 162. (4) Canthorn v. State, 43 Ark. 131. (5) People V. Miller, 38 Hun, 82 ; Alexander v. Bethlehem, 27 N. J. L. 377. 15-4 MUNICIPAL POLICE ORDINANCES. [§ 179. appearance to be an eftectual waiver must be made witb a knowledge of the actual pendency of a charge or action. Thus, when a person came before a magistrate informally, and questions were put to him which induced the court to believe him guilty of the violations charged, and a fine was thereupon imposed, but the defendant did not know, when the questions were being asked him, that an actual complaint had been made before that magistrate, his ap- pearance was held not to be an effectual waiver of process, and the judgment was held void.^ § 179. What the warrant should contain. — The war- rant issued should contain facts sufficient to inform the person arrested of what he stands charged. It generally gives the title of the action, the name of the court in which it is brought, and brief reference to the nature of the accusation, besides the formal command to the officer to take the person named therein into custody, and to bring him before the court. The prosecution actually con- ducted can not deviate materially from the facts contained in the summons or warrant, else a conviction would be voidable ; that is, a person who is summoned to answer for the violation of one ordinance can not be punished in that proceeding for a breach of a different ordinance.- No man can be punished for that to which he has not been called to answer. The tribunal must likewise be accurately described. Thus, if a magistrate, who has jurisdiction over a whole township, the municipality included, in civil cases, but only over the municipality in cases arising under ordinances, should summon a defendant to appear in his court " in the township of B." instead of " in the city of B.," the summons is fatally defective.' The person to be summoned or arrested should be as definitely named in the writ as is possible. If his Chris- (1) Merkee v. Rochester, 13 Hun, 157. (2) Mayor v. Arnold, 30 Ga. 517; Lesterjelle v. Mayor, 30 Ga. 936. (3) Hershoflf v. Beverly, 43 N. J. 139. § 180.] PROCEDURE — PLEADING — EVIDENCE. 155 tian name is unknown, that fact should be stated ; if omit- ted without any such explanation, the arrest will be void.^ § 180. Arrests made without a warrant. — In order to secure the efficiency of the remedy against breaches of ordinances, the local police officers must be allowed to ar- rest for violations committed in their presence without having first secured a warrant.^ For the purpose of legal- izing arrests, municipal ordinances must be considered as equal to the criminal laws of the state. It has, however, been held that the act, though committed in the presence of the officer, must be one which amounts to a breach of the peace.^ A warrant is certainly necessary if the offense was not committed in the presence of the officer.* Greater freedom in the making of arrests can not be conferred by ordinance that would be lawful at common law.® It has been held in Georgia that power tc pass all ordinances necessary and proper for the good government of the town and for the subjection of all persons whatever authorizes an ordinance which permits arrests on view and without a warrant.® But it is apprehended that such power and ordinance confer no additional or novel powers on the local police. Still, under the charter of Newark, New Jersey, power to arrest on view alone must be expressly conferred upon the officer.^ An arrest for an offense committed in the officer's pres- ence may be made on any day, but an arrest or warrant can not lawfully be made on Sunday.^ The simple service of a warrant to arrest without act- ually taking the person into custody is not an arrest, and (1) Prell V. McDonald, 7 Kan. 426. (2) White V. Kent, 11 0. S. 550; Bryan v. Bates, 15 111. 87; Main v McCarty, 15 III. 441 ; State v. LuflFerty, 5 Harr. 491, (3) Hennessy v. Connolly, 13 Hun 173. (4) Knoxville v. Vickers, 3 Coldw. 205 ; State v. Cantieny, 34 Minn. 1. (5) Qninn v. Heisel, 40 Mich. 576. (6) Johnson v. Americus, 46 Ga. 80. (7) Newark v. Murphy, 40 N. J. 145. (8) Wood V. Brooklyn, 14 Birb. 425. 156 MUNICIPAL POLICE ORDINANCES. [§ 181. such a proceeding is considered to be such duress as would vitiate a confession of judgment or plea of guilty.* An arrest, to be lawful, must be made as a preliminary step to an actual bo7ia fide complaint and action. An ar- rest is for that reason unlawful, if made in pursuance of an ordinance that provides that any person who shall re- fuse to obey the orders of the officers present at a fire " may be arrested and detained in custody until the fire is ex- tinguished.'' The object of such an arrest is not to subject the ofiender to any legal action, and no process of law is contemplated. If such an arrest were to be followed by a prosecution under an existing ordinance prohibiting the obstruction of the fire department, or the liiie, it would be lawful.^ § 181. Trial by jury. — In all prosecutions which may result in the imprisonment of the offender as a part of the penalty for his offense, the right of trial by jury must not be denied, but in prosecutions for petty offenses against ordinances passed in the exercise of police powers, and in which a pecuniary penalty alone can be inflicted, such a right can not be demanded.^ And it does not matter that provision is made for enforcing the payment of the fine by imprisonment.'* Nor can a jury trial be demanded in pro- ceedings to determine and abate nuisances.' In cases where a jury trial can be insisted upon, or in which it is allowed, either party may exercise the same right of challenge that is allowed by statute or the com- mon law in other actions.^ If the action is considered civil in its nature, or only quasi-criminal, the number of chal- lenges would accord to the practice in civil causes, other- wise to the practice in criminal cases under the state laws (1) Baldwin v. Murphy. 82 111. 487. (2) Judson V. Reardon, 16 Minn. 431. (3) Ex parte Kiburg, 10 Mo. App. 442; Hill v. Dal ton, 72 Ga. 314; tnwood V. State, 42 0. S. 186. (4) Inwood V. State, 42 0. S. 186. (5) Hart v. Albany, 9 Wend. 571., (6) Charleston v. Klpint>a'>k, 2 Spears, 418. § 184.] PROCEDURE — PLEADING —EVIDENCE. 157 In West Virginia a jury trial can be had on appeal, but can not be insisted on in the magistrate's court.* § 1S2. Arraignment and plea. — It is certainly just to the offender and not injurious to the speediness of the remedy, that he should be formally arraigned and allowed to plead.^ If he is not allowed to do so, costs of the ac- tion incurred after the point where he should have had this privilege, can not be charged against him, as they might have been saved by a plea of guilty. Whether the action be civil or criminal an opportunity to plead to the complaint should be given to the defendant. Under the liberal procedure followed in Missouri, it seems that these formalities are only considered essential in cases where indictments under the state law would be for the same act.^ § 183. Evidence. — The methods adopted to prove the issues made in cases based on violations of municipal ordi- nances and the rules of evidence are subtantially the same as in cases in the state courts. The actual practice presents a strange mixture of civil and criminal rules. It is always safer to observe the established rules of evidence in crimi- nal cases, though not always necessary to a valid judgment or conviction. The ordinary rules of evidence may be to some extent illustrated and even supplemented by minor rules dependent upon the peculiar nature of this class of actions, and upon the variation in the nature of the offense. It is, however, impracticable to formulate any well defined modification of the law of evidence, that can be considered as belonging peculiarly to practice in ordinance cases. § 184. Judicial notice. — In those states which adhere to the rule of common law that the complaint or petition must plead the ordinance on which the prosecution is based (1) Beasleyu. Beckley, 28 W. Va. 81; Moundsville v. Fountain, 27: W. Va. 183; Jelly v. Dills, 27 W. Va. 267. (2) Mayor v. Nell, .3 Yeates, 475. (3) Lexington v. Curtiss, 69 Mo. 626; St. Louis v. Knox, 74 Mo. 79.. 158 MUNICIPAL POLICE ORDINANCES. [§ 184. as a fact, it is held consistently with that view that the local court will not take judical notice of the municipal ordinances. The same view is entertained in many states where there is no longer any reason for the rule. At com- mon law ordinances, or by-laws, were not part of the public laws, having been originally enacted solely by the guilds, which were private corporations. The distinction seems, however, either to have been wholly overlooked, or other considerations have outweighed it in the minds of the courts. Cases are numerous which deny the right of the local courts to take iiidicial notice of the local ordinances.^ In cases where the state statutes provide that ordinances may be proved in a specified manner, it would seem to be the legislative intent thiit they shall not be judicially noticed. Under the circumstances, it is certainly advisable to either plead or prove in evidence the ordinance relied on. In those states where no indication of legislative intent is conveyed by statute, and especially in those where prosecutions under ordinances are considered criminal actions, it is difficult to understand why ordinances need to be proved. Of course it would be necessary whenever their validity is attacked on the ground of an alleged informality in their passage. It is well established that the residents within a municipality must take notice of the ordinances, and it is frequently stated that ordinances have the force and effect of laws within the limits of the corpo- ration* Why, then, are they not such public laws as to the locality which they govern, and matters of such public knowledge as to be brought within the judicial notice of the tribunals charged with their enforcement? The local court takes judicial notice of corporate existence, and the law by which it exists; in fact, corporate existence can not be questioned in the prosecution for the violation of an (1) Winona v. Burke, 23 Minn. 254; Cox v. St. Louis, 11 Mo. 432; Mooney v. Kennett, 19 Mo. 551 ; Garvin v. Wells, 8 la. 286; Goodrich V. Brown, 30 la. 291 ; Case v. Mobile, 30 Ala. 538 ; Porter v. Waring, 69 N. Y. 250; Barker v. Mayor, 17 Wend. 199 ; People v. Mayor. 7 How. Pr. 81. § 185.] PROCEDURE — PLEADING EVIDENCE. 159 ordinance.^ And as to other matters of general public knowledge, local courts will take notice of materially the same things as the state courts. Surely if analogy is to be drawn from criminal prosecutions, it ought not to be nec- essary to prove the law violated. There can be no valid criminal proceeding, unless some public law has been vio- lated, and the prosecution ought not to be obliged to prove a law of which all people are presumed to have notice. The municipality ought not to do more than produce such evidence of the ordinance, or appertaining to the steps taken in its enactment, as is necessary to rebut any claim of invalidity that has been frima facie proved. And such is the position favored by the recent text writers basing their opinions upon a number of well considered cases.^ § 185. How ordinances are proved. — When it is deemed necessary to establish the existence of an ordinance by evi- dence, or when the validity of the ordinance is attacked for informal enactment, questions arise as to how it should be done. Provision is ordinarily made for a simple method of proving ordinances, either by introducing a certified copy or the printed volume in which they are all collected. When the printed volume is made evidence, ordinances are in one sense put upon the same footing with the state statutes,^ and all other proof is unnecessary.* Very often special rules of evidence are provided by statute or by the municipality under express charter authority for the proof of ordinances, but if no special rule exists the common rules of evidence apply .^ Even in the absence of statutory provision, the printed (1) Elk Point V. Vaughn, 1 Dak. 108; Winooski, v. Gokey, 49 Vt. 282; Smith v. Adrian, 1 Mich. 495; People v. Potter, 35 Cal. 110; Beasley v. Beckley, 28 W. Va. 81. Of its powers, Dwyer v. Brenham, 65 Tex. 526. (2) Dill. Mun. Corp., § 413, and note; Wharton on Evidence, § 293; Dubuque v. Lieber, 11 la. 407; Conboy v. Iowa City, 2 la. 90; Inform- ation V. Oliver, 21 S. Car. 318; Wheeling v. Black, 25 W. Va. 266. (3) Napman v. People, 19 Mich. 352. (4) St. Charles v. O'Mailey, 18 111. 407. (5) Railroad Co. v. Engle, 76 111. 317. 160 MUNICIPAL POLICE ORDINANCES. [§ 185» volume containing the citj ordinances is 'prima facie evi^ dence and will be considered sutlicient proof of their exist- ence until controverted.! A book purporting to contain all the ordinances, and shown to be in the custody of the- corporation clerk, will be received without further attesta- tion.2 The testimony of a policeman who is familiar witk the book and with the signature of the mayor affixed thereto will render the book admissible.^ Where there is no book in which ordinances are regu- larly published or recorded together, a prima facie case may be made by offering in evidence a copy of the ordi- nance sued upon attested by some corporate officer, usually the clerk. A copy duly, that is plainly, certified by the clerk, is proper evidence of the existence of the ordinance.* The ordinance must be certified to, if it is not in some form which is upon its face sufficient to establish its genuineness and accuracy.' A copy of the ordinance shown to have come from the clerk, and bearing the indorsement, "A true copy, A. B., Clerk," is authentic.^ Where the witness tes- tified that he was the clerk of the corporation when the ordinance in question was passed ; that he had compared the copy offered in evidence with the corporate records, and that it was correct — that evidence was considered sufficient to admit the paper as a sworn copyJ (1) Ban* v. Auburn, 81 111. 3fil; Independence v. Trouvalle, 15 Kan. 70; Prell v. McDonald, 7 Kan. 446; State v. King, 37 la. 462; Lindsley V. Chicago, 115 111. 120. (2) Tipton V. Norman, 72 Mo. 380. (3) Ottumwa v. Schaub, 52 la. 515. (4) Pendergast v. Peru, 20 111. 1 ; Commonwealth v. Chase, 6 Cush. 248; People v. Buchanan, 1 Idaho, 681 ; Lindsley v. Chicago, 115 III. 120. (5) Pugh V. Little Rock. 35 Ark. 75. (6) Kinghorn v. Kingston, 25 U; C. Q. B. 130. (7) Railroad Co. v. Shires, 108 111. 617. If the municipal charter provides that, "an ordinance shall be suflSciently proved by producing a copy certified by the clerk, a printed copy taken from a newspaper," or a printed pamphlet, provided the same appears to have been issued by the authority of the corporation, a copy cut from a newspaper, and entitled, "published by authority," and bearing, in printing, the sig- nature of the president and clerk, is sufficient proof. Block v. Jack- sonville, 36 111. 301. § 186.] PROCEDURE — PLEADING — EVIDENCE. 161 Proof of tbe existence aud identity of the ordinance of- fered should by rights be all that is required of the prose- cution in any case, until some showing has been made that there was irregularity in the enactment of the ordi- nance, in which case it becomes necessary to prove that it was properly enacted in order to sustain a conviction or judgment. If no such question is raised the presumption that the ordinance was properly passed becomes conclusive.* If it is deemed necessary to prove compliance wnth all formalties, none must be omitted which are prescribed by the charter or statute authorizing the municipality to enact ordinances.^ The steps taken before the council must be proven.^ "Where publication is necessary, that must be shown, as must also formal adoption by the body of the electors when their approval is required.* Although au early case holds that no evidence of promulgation need be given.* § 186. The record of council proceedings as evidence. Some' provision is generally made for keeping a record of the acts and proeeedings of every local legislative body. A record so kept aud duly identified is the only proper method of proving those acts, unless express provision is made for some other method.^ Where there is a record book, as a rule, parol or extrinsic evidence is inadmissible for the purpose of proving ordinances. It is the best evi- dence.'' The record is conclusive as to all its recitals, and if it is silent as to the taking of some necessary step, com- pliance v^ith the requirement can not be shown by supple- (1) Flora V. Lee, 5 111. App. 629. (2) As !o what are deemed essential, see ante, §§ 56, 57, 58. (3) Elizabethtown v. Lefler, 23 111. 90; Willard v. Killingworth, 8 Conn. 247. (4) Schott V. People, 89 111. 195. (5) Charleston v. Chur, 2 Bailey, 164. (6) Parsons v. Trustees, 44 Ga. 529; Baker v. Scofield, 58 Ga. 182. (7) Stewart v. Clinton, 79 Mo. 604. 11 162 MUNICIPAL POLICE ORDINANCES. [§ 187. meatary extrinsic evidence.^ Thus, the city clerk's attesta- tion on the record of the date of the mayor's approval can not be contradicted by parol evidence.^ The mayor's ap- proval can not be proved extrinsically.^ It has, however, been held in Missouri that if the signature of the mayor to the ordinance that was read and adopted is lacking through an omission to record accurately, it may be shown extrin- sically that he did in fact sign it.* The local court of Pitts- burgh once held, though certainly contrary to all authority, that the provision for a record is only directory, that the passage of an ordinance could be proved outside of the record and a prosecution thus sustained.* § 187 Proof of publication. — Publication of the ordi- nance is the onlv formality, compliance with which may be proved outside of the record. The rule against the admissibility of parol evidence is relaxed in this one par- ticular. Ordinances must be promulgated before they can have effect and parol or documentary evidence of promul- gation is admissible.® If the publication is made by post- ing copies in public places, testimony given by the clerk of the corporation that the ordinance in question was so posted is good proof.^ "When the statute provides that publica- tion may be made in that manner, if no newspaper is pub- lished in the village, proof must be offered to show that no paper was so published when the ordinance was promul- gated in order to show that posting was lawful.^ It is suf- ficient to show that the statutory provision has been com- plied with. No other evidence of publication need be (1) Solomon v. Hughes, 24 Kan. 211; Covington v. Ludlow, 1 Mete. (Ky.) 295; Lexingto;i v. Headley, 5 Bush, 508; Ball v. Fagg, 67 Mo. 841; St. Louis v. Foster, 52 Mo. 513; People v. Murray, 57 Mich. 396. (2) Ball V. Fagg, 67 Mo. 481. (3) Lexington v. Headley, 5 Bush, 508. (4) Knight v. Railroad Co., 70 Mo. 231, (5) Barton v. Pittsburgh, 4 Brewst. 373. As to the method of proving ordinances in New York city, see Logue v. Gillick, 1 E. D. Smith, 398. (6) Eldora v. Burlingame, 62 la. 32. (7) Teft V. Size, 10 111. 433; Newton v. Aurora, 14 111. 364. (8) Raker V. Maquon, 9 111. App. 155. f 187.] PROCEDURE — PLEADING — EVIDENCE. 163 given than the printed ordinance book issued by the local authorities, if printing the ordinance in a book be recog- nized by statute as a lawful mode of publication.^ If an issue is made as to proper publication in a newspaper, and the record does not show on its face that the statutory requirement was fulfilled, a sworn certificate of one of ithe publishers of the newspaper in which it was printed will be received.' The ordinance, as passed, need not be writ- ted in the record book. A copy cut from the newspaper and pasted in is sufficient.^ Similarly, publication may be shown by attaching the publisher's affidavit to the manu- script copy in the record book, instead of to a printed copy cut from the newspaper.* Where the statutes declare that proof of publication shall be unnecessary unless the fact of proper publication be denied under written oath, an affidavit to that effect is defective which merely states that " affiant is informed and believes" that due publication was not made.^ It may be observed that Illinois furnishes most of the decisions cited in this section. This arises from the exist- ence in that state of a statute permitting publication by posting notices in certain cases. The same principles should, however, be equally applicable in any other state, because publication is not strictly one of the proceedings in the council. The record book derives its unimpeach- able authority from the fact that it is supposed to be a record of council proceedings made at the time and by the hand of an officer appointed for that purpose, and while it may be the most available and most natural place for pre- serving due evidence of what is done with ordinances after their passage by the council, as to such subsequent pro- ceedings, the reason ceases for considering that evidence conclusive. It is possible to produce other evidence of (1) Eaker v. Maquon, 9 111. App. 155; Bethalto v. Conley, 9 111. App. 339; Faribault V. Wilson, 34 Minn. 254. (2) Kettering v. Jacksonville, 50 111. 39. (3) Ewbanks v. Ashley, 36 111. 177. (4) Albia v. O'Harra, 64 la. 297. (5) Green v. Indianapolis, 25 Ind. 490. 164 MUNICIPAL POLICE ORDINANCES. [§188. publication equally as good and worthy of credit as the record book, which is in that particular, at best, a piece of secondary evidence. . § 188. Presumption that ordinances are reasonable.— It is not necessary on the trial of a prosecution under a municipal ordinance to adduce proof of the power under which it was passed. If the ordinance is on its face absurd or unreasonable the court may and ought to dismiss the complaint/ and the court can, of course, take judicial notice of the power if conferred by statute, and determine- whether the ordinance Ijas any authorization.'' Unless the invalidity of an ordinance is apparent on its face, there is a very strong presumption that it is valid. Whenever a question is raised the court will be governed by the follow^ ing well established rules : 1. If the ordinance is passed in pursuance of a specific and definite power and includes nothing beyond the letter of that power, the presumption in favor of its validity becomes conclusive. 2. If the ordinance is based on a general power, and its^ provisions are more detailed and minute than any expres- sion of power, the court may look into the question of its reasonableness. It may determine whether the power has- been exercised in a reasonable manner, and if such de- termination depends on the existence or non-existence of certain facts, evidence may be introduced to prove or dis- prove them. The burden of proof is upon the party who denies the validity of the ordinance.' The court will not investigate the reasonableness of an ordinance which has been enacted in pursuance with a definite power.* But if the power is expressed in such (1) State Center v. Barenstein, 66 la. 249. (2) Alton V. Hartford Ins. Co., 72 111. 328. (3) Van Hook v. Selma, 70 Ala. 361 ; Bolton v. Cleveland, 350. S. 319; Reynolds v. Cincinnati, 27 0. S. 312; I^ouglasville v. Johns, 62 Ga. 423 ; State v. Gas Co., 37 Ohio, 45. (4) Ex parte Chin Yan, 60 Cal. 83; Peoria v. Calhoun, 29 HI. 317 ^ St. Paul V. Colter, 12 Minn. 41 ; Grierson v. County, 9 U. C. Q. B. 6i3 ; Dist. of Columbia v. Waggaman, 4 Mackey, 328. § 188.] PROCEDURE— PLEADING — EVIDENCE. 165 general terms that an ordinance which adopts its phraseol- ogy would be too indefinite to be enforceable, .it becomes necessary for the local legislature to determine the precise regulation or control which is necessary to meet the needs of the public. The council will be protected by the courts in this exercise of its discretion to every reasonable extent. The main test is the ordinance itself. If it bears no ap- parent connection with any grant of power and is of a re- strictive nature it might be just to oblige the corporation to show how its enactment could be justified.^ " Within the power granted, the degree of necessity or propriety of its exercise rests exclusively with the proper corporate author- ities; but in all cases the power exercised, or attempted to be exercised, must depend upon the nature and extent of the power granted, and w^henever the question of the ex- istence or limit of power is raised it becomes the plain duty of the courts to see that the corporate authorities do not transcend the power delegated to them." ^ As is said by Freeman, J. : " I have always thought the only test of gen- eral legislative action should be, was the law passed in pur- suance of and in accordance with the constitution, and in the exercise of the constitutional powers of the legis- lative body. In the case of a municipal corporation, the question is, whether it is in accord with our constitution, state and federal, and, then, within the powers granted in the charter of the corporation, or necessary, as an implied power, to the exercise of the powers expressly granted. If so, the propriety and mode of its exercise is one solely for the legislative body exercising it. That is, in my judg- ment, a legislative, not a judicial, question, when the power to do the thing is conceded. ... It seems to be sus- tained by the current of authority that an ordinance may be held void for oppression or irregularity." ^ It is not quite clear just how far this right to review the exercise of discretion by the council extends. The (1) Glenn v. Baltimore, 5 Gill & J. 424; Dunham v. Rochester, 5 Cow. 462. (,2) State V. Mott, 61 Md. 297; s. c, 48 Am. Rep. 105. (3) In Knoxville v. Bird, 12 Lea, 121; s. c, 47 Am. Rep. 326. 166 MUNICIPAL POLICE ORDINANCES. [§ 188. court say in an early case in Pennsylvania that " where the municipal legislature has authority to act, it must be governed not by our discretion, but by its own, and we shall not be hasty in convicting them of being unreason- able in the exercise of it." ^ If the ordinance bears plain evidences of unreasonableness, or of unjust discrimination, or of fraud in its inception, it should undoubtedly be set aside." Otherwise the results of its enforcement must be shown to cause great irregularities of burdens, or to efiect a violation of some constitutional or statutory right. An ordinance is not defective because the mode of resulation adopted by the council does not accord with the views of the judicial power.' In the absence of evidence of per- nicious results the ordinance will be presumed to be reason- able.* Courts should construe ordinances to be a valid ex- ercise of the corporate powers except when the power has been grossly abused.^ Especially is that so if the power vested in the corporation is exclusive in its nature. When limited to, or concurrent with, regulation also exercised by the state, more strict adherence to the power must be de- manded.^ Every presumption should be admitted to sup- port an ordinance which reasonably intends to efiect a law- ful purpose.^ In Illinois it has been held that, in the ab- sence of express statutory authority, courts are not author- ized to indulge in presumptions in favor of the validity of ordinances.^ Whereas, the California courts go to the other extreme and hold that police ordinances as a class are valid, and that all questions, as to whether a certain ordi- nance is directed against an actual evil, or falls within the terms of the power contained in the statute or charter, are concluded by the discretion of the council.^ In the last (1) Fisher V. Harrisburgh, 2 Grant's Cas. 291. (2) Alberger v. Mayor, 04 Md. 1 ; Kensselaer v. Leopold, 106 Ind. 29. (3) Knoxviller. Bird, 12 Lea, 121. (4) Commonwealth v. Patch, 97 Mass. 221. (5) Elk Point v. Vaughn, 1 Dak. 108. (6) Baltimore v. Clunet, 23 Md. 464. (7) Gabel v. Houston, 29 Tex. 336. (8) Schott V. People, 89 111. 195. (9) Ex parte Smith, 38 Cal. 702; Ex parte Delaney, 43 Cal. 478. § 188.] PROCEDURE — PLEADING — EVIDENCE. 167 case cited, Ex parte Delanej, the power was to prohibit practices against good morals, and the decision of the council as to what is contrary to good morals was held finals But such holdings are certainly extreme. So long as the means adopted are not plainly and clearly unreasonable on their face, the ordinance provision will be upheld.^ And the legal presumption is iu favor of the validity of the ordi- nance.' The reasonableness of an ordinance must at all events be judged solely from the wording of its provisions and from its results. The motives of the legislative body can under no circumstances be inquired into.* Summary. Were the council to be bound down by severe rules it would be little more than a ministerial body, but the purpose and essence of its existence consist in the exer- cise of legislative functions. All legislation, to be effective, must be based upon the discretion of the law-making power, in view of all the circumstances of each case, as to the par- ticular remedies that need to be provided. What is proper for one city is seldom exactly adapted to the necessities of other cities. The location of the community, the nature of its industries, the compactness of its population, and the character and sentiment of its citizens, among other things, are elements to be considered in determining just what measures are most appropriate to its needs and consonant with its policy. It follows that a wide discretion must be vested in the council. They are iu the best possible posi- tion to understand all these varying elements, and to judge of the best course to pursue. , The main object of local legislation, the very purpose of municipal organization, would be defeated, did not the courts recognize the full (J) Likewise in Baker v. Boston, 12 Pick. 184; Grierson v. County, 9 U. C. Q. B. 623. (2) Mc Arthur v. Saginaw, 58 Mich. 357; Ex parte Gregory 20 Tex. App. 210; 15 Bull. 363; Dillon Mun. Corp., § 328. (3) Railroad Co. v. Springfield, 85 Mo. 674. (4) Freeport v. Marks, 59 Pa. St. 253 ; Knoxville v. Bird, 12 Lea, 121; s. c.,47 Am. Rep. 826. 168 MUNICIPAL POLICE ORDINANCES. [§ 188. extent of this discretion, and refuse to interfere with its exercise, except in cases of gross abuse. The unreasonable- ness of the ordinance must plainly appear upon its face, or it must as evidently appear to have been passed in a spirit of wantonness, or to be based on mistake or fraud, before the court will declare it void.^ The council discretion is not reviewable unless private rights are wantonly invaded or the power exceeded.^ When the power is not evidently abused and made a pretext for doing what is a violation of constitutional rights, the court ought not to interfere with the municipal discretion.^ The general proposition is sus- tained by numerous authorities, and with the limitations just stated, the courts ought never to set up their judgment in place of the judgment of the council as to the manner and means of exercising delegated powers involving more or less discretion.* Special illustrations. An ordinance is valid which'author- izes the mayor to revoke the license issued for the sale of liq- uors, upon conviction of the licensee of keeping a disorderly house. Courts will not interfere with a municipal regula- tion, unless clearly shown that it is not authorized by the power, or that it is in conflict with the constitution or stat- utory law.* A fee of $200, charged for a license to keep a butcher's stall, is reasonable. The legislative discretion is not to be questioned, unless grossly and mauiftistly absurd.^ If power is granted to fix wharfage charges, the courts will (1) White V. Kent, 11 0. S. 550; Sargent r. Railroad Co., 1 Handy, 52; Neier v. Railway Co., 12 Mo. App. 25 ; Brust v. Carbondale, 78 111. 74; Brewster V. Davenport, 51 la. 427; Erie v. Reed's Executors, 113 Pa. St. 468. (2) State V. Clarke, 54 Mo. 17 ; Gas Co. v. Des Moines, 44 Iowa 509 ; St. Louis V. BoflSnger, 19 Mo. 15. (3) Van Baalen v. People, 40 Mich. 258. (4) Harrison u. Baltimore, 1 Gill, 264; Church «. Baltimore, 6 Gill, 391 ; State v. Mott, 61 Md. 297; Watson v. Turnbull, 34 La. Ann. 856 ; Los Angeles v. Waldron, 65 Cal. 283 ; Holland v. San Francisco, 7 Cal. 361 ; Morehouse v. Norwalk, 6 Ohio Law Bull. 267 ; St. Louis v. Knox, 6 Mo. App. 247. (5) Towns r. Tallahassee, 11 Fla. 130. (6) St. Paul V. Colter, 12 Minn. 41. § 189.] PROCEDURE — PLEADING — EVIDENCE. 169 not undertake to determine the limit to the amount which the municipal authorities may exact, that being an admin- istrative, not a judicial, function.^ Nor can the court re- view the decision of the council that certain improvements are necessary.^ Under power to define and punish misde- meanors, an ordinance is valid which enumerates the acts that shall be deemed misdemeanors, and its definition of those acts is final and binding on the courts.' But, under power to establish markets at such places as the council may deem fit, it would be unlawful to author- ize their establishment in a public highway.* § 189. Reasonableness a question of law. — It does not fall within the province of the jury to decide upon the va- lidity of an ordinance ; they are restricted to consider whether the evidence is sufficient to prove the commission of the act charged as an offense in the complaint.' The question as to whether a certain ordinance is a reasonable- exercise of the discretion vested in the council, %vhen proper to be considered at all, is one of law, and for the court to decide f unless it depends, in the estimation of the court, on the existence of particular facts w^iich are dis- puted.'' What will amount to a prohibitory tax, so as to render an ordinance a virtual prohibition of a lawful trade, is a question of fact, and evidence may be admitted to show its effect.* It has, though, been held that witnesses may not be called to show that the restriction imposed by an ordinance is detrimental to certain businesses.® But, in an action brought to punish an alleged violation of an ordi- nance regulating the sale of fresh meats, it is error to in- (1) Municipality v. Pease, 2 La. Ann. 538. (2) Keasy v. Louisville, 4 Dana, 154. (3) People V. Miller, 38 Hun, 82. (4) St. John V. New York, 3 Bosw. 483. (5) Washington v. Frank, 1 Jones (N. Car.), 436. (6) Kirkham v. Russel, 76 Va. 956; St. Louis v. Weber, 44 Mo. 547i' Plk Point V. Vaughn, 1 Dak. 108; Kip v. Paterson, 26 N. J. 298. (7) Clason v. Milwaukee, 30 Wis. 316. (8) Sweet v. Wabash, 41 Ind. 7. (9) Launder v. Chicago, 111 111. 291. 170 MUNICIPAL POLICE ORDINANCES. [§ 192. struct the jury that the ordinance is valid, unless they find that it is in restraint of trade. That is for the court to find.^ Evidence tending to show that the ordinance is in fact unreasonable is inadmissible.^ The unreasonableness of the ordinance must appear clearly.^ § 190. Proof of time and place of committing the offense. — If an act is an oflense only when committed on a certain day, such as a violation of the Sunday laws, it must be alleged and proven to have been committed on such a day.* Otherwise, any slight variance between the com- plaint and the proof is immaterial. So with regard to the place of commission. If necessary to be alleged, it must be proven to a reasonable certainty, and under all circum- stances the act, must be proven to have been done within the territorial limits of the corporation.* § 191. Proof that act does not fall within excep- tions. — Ordinances are frequently drawn so as to exclude certain persons or acts committed under certain circum- stances from their operation. In such cases it is unneces- sary for the prosecution to adduce evidence to show that the act complained of does not fall within the exception. The exception need not be negatived either by the evi- dence or by the allegations of the complaint.® The burden of proof is on the defendant to prove that the act com- plained of is such a one as falls within the exception. § 192. Testimony of defendant. — It seems that an action brought to punish a violation of an ordinance is so (1) Peoria v. Calhoun, 29 111. 317. (2) Corrigan v. Gage, 68 Mo. 541 ; Commonwealth v. Worcester, 3 Pick. 462. Held error to exclude all evidence of reasonableness in an action brought to test the validity of an ordinance. Railroad Co. v. Brooklyn, 37 Hun, 413. (3) St. Louis V. Weber, 44 Mo. 547. "* (4) HershoflFv. Beverly, 45 X. J. 288. (5) Mayor v. Nell, 3 Yeates, 475 ; Taylor v. Americus, 39 Ga. 59. (6) Flora V.Lee, 5 111. App. 629; Harbaugh v. Monmouth, 74 111. 367. Contra, Regina v. Pipe, 1 Ont. 43. § 193.] PROCEDURE — PLEADING — EVIDENCE. 171 far criminal in its nature that the defendant can not be compelled to testify.^ § 193. Construction of ordinances. — The general rules followed in construing statutes are as well applicable to the construction of ordinances.^ A distinction must be drawn between the rules applied when considering whether an ordinance as enacted falls within the terras of the power or not, and those applied in determining whether a certain act complained of falls within the prohibition of an ordi- nance ; the rules in the former case being'much more lenient than in the latter. If doubt arises in the latter case the construction adopted is strict and in favor of the accused, although not quite so strict as in regard to penal laws of the state.^ But in regard to their validity under the power expressed, ordinances are specially entitled to a reasonable construction, because they are less artificially expressed than other laws.* They are enacted by bodies less used to the exercise of legislative power, and less capable of observing niceties of distinction in the language employed. Very few ordinances would stand the test of rigid scrutiny,* An ordinance is frequently capable of two constructions, one which would bring its provisions within the limits of the power conferred upon the cor- poration, another which would invalidate it. That one should be adopted which gives effect to the ordinance,® Questions of construction are for the court and not for the jury.'^ (1) Day V Clinton, 6 111. App. 477; Mobile v. Jones, 42 Ala. 630. (2) State V. Kirkley, 29 Md. 85; Zorger v. Greensburgh, 60 Ind. 1 Quinette v. St. Louis, 76 Mo. 402; In re Yick Woo, 68 Cal. 294. (3) Pacific V. Seifert, 79 Mo. 210; Schultz v. Cambridge, 38 O. S. 659 Chicago V. Rumpflf, 45 111. 90; New Orleans v. Anderson, 9 La. Ann. 323. (4) Whitlock V. Wilton, 26 Conn. 406. (5) Fii'st Municipality v. Cutting, 4 La. Ann. 335. (6) Commonwealth v. Dow, 10 Mete. 382; Baltimore v. Hughes, Adm'r, 1 Gill & J. 480; Merriam v. New Orleans, 14 La. Ann. 318; Johnson v. Philadelphia, 60 Pa. St. 445. (7) Pennsylvania Co, " Frana, 13 111. App. 91 ; Wells Law and Fact, §71. 172 MUNICIPAL POLICE ORDINANCES. [§ 194. An ordinance is not void for want of clearness of ex- pression or on account of a difficulty in construing or applying its provisions.^ The act complained of does not constitute an offense unless it falls plainly within the meaning of the words used by the legislative body in framing the ordinance. Unless some peculiarity of the subject-matter indicates otherwise the words used must be taken in their ordinary accepted meaning. But the rule of strict interpretation is not violated by permitting the words of the ordinance to have their full meaning, or the more extended of two meanings, nor by giving a reasonable meaning to the words according to the intent of the law-making body, disregarding captious objections and even the demands of an exact grammatical propriety.* Although that meaning must be determined from the face of the ordinance, it is permissible to refer to the statements made in the debate on the ordinance on its passage in order to determine the mischief which led to its enactment.' It is to be presumed that the council in- tended to enact an ordinance that would be within the terms of their power, and therefore the ordinance ought to be upheld whenever plainly capable of a validating con- struction, but extrinsic evidence of the actual legislative intent is never admissible.* Ordinances which regulate the property rights of the citizen are subject to the rules of construing contracts, and should not be invalidated unless plainly necessary.* § 194. Where an enumeration is made in an ordinance all things not specially named are impliedl}' excluded, and general words can not widen the scope of special words preceding them.® So, when the first section of an ordi- (1) Smith V. Toronto, 10 U. C. C. P. 225. (2) Bishop's Statutory Crimes, chap. XIII. (3) Ah Kow V. Nunan, 5 Saw. 552. (4) State V. Railroad Co., 55 Tex. 76. (5) Holland v. San Francisco 7 Cal. 363. <6) Schultz V. Cambridge, 38 0. S 659. § 195.] PROCEDURE PLEADING — EVIDENCE. 173 nance enumerates the kinds of vehicles which shall be subject to the payment of a license fee, the use of general terms in the following section which prescribes the amount of the fee can not be held to extend the operation of the prior section to other vehicles than those therein desig- nated.^ If an ordinance imposing the payment of wharf- age dues on companies using the public wharves specifies the companies to be affected no other companies than those enumerated, not even their successors or new com- panies subsequently established, can be compelled to pay the prescribed fee.^ § 195. Examples of the application of rxiles of con- struction. — A short review of a few decided cases will show how the rules of construction are often modified and governed by the circumstances of the case. In order to sustain a charge of suffering domestic animals to run at large there must be proof that the defendant either caused them to run at large, or that he had notice of their being at large and took no steps to restrain them.' In a prosecution under an ordinance that prohibits fast driving the motive for the alleged violation may be consid- ered, not to entirely free the defendant from the penalty imposed, but to lessen the amount of the fine when dis- cretion in adjudging the amount rests in the magistrate.*^ An ordinance required that all fish packed for sale should be first inspected and the packages branded by the in- spector before being offered for sale. The defendant, after the packages were properly inspected and branded, repacked his fish in smaller packages and offered them for sale. This was held to be a sufficient compliance with the ordinance.^ An ordinance that imposed certain restrictions upon per- sons coming "from a place" infected with the small-pox applies to those only who leave such a place after the pas- (1) Snyder v. North Lawrence, 8 Kan. 82. (2) Keokuk, etc., Co. v. Quincy, 81 111. 422. (3) CoUinsville v. Scanland, 58 111. 222. (4) Morton v. Princeton, 18 111. 383. (5) Chicago v. Hobson, 52 111. 482. 174 MUNICIPAL POLICE ORDINANCES. [§ 195. sage of the ordinance and come directly to the town.^ An ordinance that makes it unlawful to associate with a pros- titute "in any public place, street, alley, common, or within the city," is construed to cover only public places, streets, alleys, and commons.' A provision that street cars going in the same direction "shall keep a certain distance apart" does not apply to two cars fastened together.' The pro- vision that no person shall put, or cause to be put, in any street or other public place "any dirt, filth, shavings, or other rubbish or obstruction of any kind*" has been held broad enough to cover the obstruction of a street by the cars of a railroad company.* An ordinance prohibiting the storing of fertilizers within the city limits without ob- taining permission from the city council does not apply to the transient storage of fertilizers in the store-houses of a railroad company.* Under an ordinance, power to license a house for danc- ing, music, games, etc., a license may be granted for either one of those things separately, and things not enumerated inthelicense would still be unlawful.® The word " aw. King, 32 Barb. 410; Quincy v. Bull, 106 111. 337. (4) Commissioners V. Hudson, 2 Beasley(N. J.) 420. (5) New Haven v. Water Co., 40 Conn. 106. § 245a.] ORDINANCES CLASSIFIED, ETC. 239 the sale of gas to private consumers, to vest the privilege of laying pipes in private persons.^ In order, however, to grant such privileges the municipality must have ex- press power at least to light the streets.^ The municipality can never grant an exclusive right to use the streets for such purpose, except as it has express power to grant such priv- ileges for a limited time. Such power may be necessary to encourage the investment of capital in such useful en- terprises,, but care must be exercised not to create a mo- nopoly,' and power to regulate gas pipes after, they are laid can not be delegated.* § 244a. Telegraph poles. — Telegraph companies, al- though of great service to the public, must, like railroads, have express authority to use the streets of a city for the support of their wires.^ And the city may impose any reasonable restrictions upon the mode of conveying the wires through the city. It may prescribe the streets over which they may be strung, the size, height, and frequency of the poles ; and if compelled to lay the wire underground, the manner of so doing. ^ A telegraph company is subject to all reasonable ordi- nances, and the actual erection of poles may be lawfully put entirely under the control of the police or fire depart- ment.^ (1) Garrison v. Chicago, 7 Biss. 480. (2) Nelson v. La Porte, 33 Ind. 258; State v. Gas Co., 18 0. S. 262 ; Milhan v. Sharp, 15 Barb. 210; Gas Light Co. v. Gas Co., 25 Conn. 19; Smith V. Gas Co., 12 How. Pr. 187; People v. Benson, 30 Barb. 24; New Orleans v. Clark, 95 U. S. 644; Gas Light Co. v. Middleton, 59 N. Y. 228; East St. Louis v. Gas Light Co., 98 111. 415. (3) Dill. Mun. Corp., § 692-696; State u. Gas Co., 18 0. S. 262; In- dianapolis V. Gas Co., 66 Ind. 396; Gas Light Co. v. Gas Co., 25 Conn. 19, and other cases cited above; Gas Co. v. Des Moines, 44 la. 508. (4) Anderson v. Gas Co., 12 Daly, 462. (5) Commonwealth v. Boston, 97 Mass. 555; Domestic Telegraph Co. V. Newark, 10 East. Rep. 122. (N. J. 1887). (6) Telegraph Co. v. Chicago; 16 Fed. Rep. 309; s. c, 11 Biss. 539. (7) City V. Telegraph Co., 11 Phila. 327. 240 MUNICIPAL POLICE ORDINANCES. [§ 246. § 245. Restrictions on ordinary use of the streets. — It is lawful for a municipal corporation to restrain -by ordi- nance any immoderate or incommodious use of the streets, to insure freedom of passage and the absence of any thing that might be dangerous. The streets may be kept free from all things which are 'per se nuisances and from many other things which become nuisances from improper use. Hawkers and peddlers, stands for the sale of fruits and nuts, and any thing that tends to attract a crowd of per- sons and thereby impede progress of wayfarers, may be pro- hibited from being on the streets, whenever the council deems it necessary.^ Any method of selling goods by out- cry in the streets or public places, or by attracting persons to purchase goods exposed at such place, by signals or pla- cards, or by going from house to house selling or offering goods for sale at retail to persons who are not dealers in such commodities, whether for future or immediate delivery, constitutes hawking or pedding within a statute or ordi- nance prohibiting those things.^ The streets are open to the public for all ordinary uses, and it is considered that marching in procession through the streets with torches, flags, or musical instruments is a lawful use, and that associations or organizations of persons can not be prohibited from so doing without the consent of the local authorities.' Hours of the day may be fixed during which it shall be unlawful to drive cattle either singly or in droves through the streets.* Such an ordinance would not be violated by transporting cattle over the streets in vans drawn by horses.* § 246. Vehicles. — In order that traffic may not be im- peded upon the streets of a corporation, and to prevent the use of the streets by vehicles and loads of a nature to injure the pavement or damage the road-bed, corporations are (1) Caldwell v. Alton, 33 111. 416; St. Paul «. Traeger, 25 Minn. 248. (2) Graffly v. Rushville, 107 Ind. 502. (3) Frazee's Case, 35 Alb. L. Jour. 6 (Mich. 1886). (4) Board v. Heister, 37 N. Y. 661. (5) Triggs V. Lester, 1 L. R. Q. B. 259. § 247.] ORDINANCES CLASSIFIED, ETC 241 generally empowered to regulate the use of vehicles. This power is reasonably exercised by requiring the owners of Buch vehicles as tend from the nature of their use to obstruct the streets, or such as may endanger the security of foot passengers, to procure a license, or by regulating the use of vehicles kept for hire. It does not authorize restrictive regulations upon all classes of vehicles indiscriminately, nor even upon all classes of vehicles used in the conduct of any business. A license imposed upon vehicles used in any business without exempting those whose use can in no way be dangerous to public security, or annoying to the citizens, would be nothing less than a tax measure. It would cease to be regulatory in its nature, and would therefore be void.^ § 247. Routes and stands. — It is proper to ordain cer- tain routes to be followed by such vehicles as tend from the nature of their use either to hinder traflBc, or to be offensive to passers-by.^ lu this category would fall all vehicles whose loads render rapid motion impossible, or whose loads are unusually bulky, as hay-wagons or wagons loaded with lengthy building material ; wagons used for transporting offal, garbage, or fertilizers of offensive odor; and vehicles of such gaudy appearance or peculiar appearance as to tend to frighten horses. That people may be protected from imposition, it is law- ful to ordain that fixed tariffs must be charged for the use of vehicles kept for hire for the transportation of passengers or merchandise, and prescribing the rates for different dis- tances.^ In such case the ordinance provision becomes im- perative and the drivers of such vehicles are precluded from asking higher rates, and even from making a special con- tract varying the lawful charges to the disadvantage of the passenger.* (1) Brooklyn u.Nodine, 26 Hun, 512; Ex parte Gregory, 20 Tex. App. 210. (2) Commonwealth v. Stodder, 2 Cush. 562. (3) Commonwealth v Gage, 114 Mass. 328. (4) Commonwealth z. Duane, 98 Mass. 1. 16 242 MUNICIPAL POLICE ORDINANCES. [§ 248. Inasmuch as the general public would inevitably suffer annoyance from the promiscuous and unrestrained solicita- tion of passengers or trade by those in charge of vehicles used for hire, it is lawful to prescribe defined stands for hacks and drays, and to prohibit them from standing else- where when not employed.^ But the location of such stands must be selected so as to avoid annoyance to those whose premises are adjacent. No ordinance of this nature could legalize any hinderance to the free use of the streets. So, if the hacks standing in their prescribed places tend to inter- fere with access to the adjacent premises of private indi- viduals, the ordinance virtually works an appropriation of private property without making compensation, and is void to that extent.^ Bicycles come within the reason of such regulation and their use may be regulated.^ § 248. Construction of vehicle regulations. — The gen- eral propriety and scope of such ordinances is evident, but many contests arise as to the lawful extent of an ordinance with reference to the wording of a power. When the power enumerates the classes of vehicles that may be regu- lated, all others are excluded, and construction is often in- voked to determine whether a class ordained against is reasonably within the meaning of the terms of the power. Thus, it is held that an ordinance requiring a license for drays, carts, wagons, or other vehicles used for hire, does not include the delivery wagons of wholesale merchants.* Such wagons are used for private persons, but they come within the reason and letter of the ordinance whenever the merchant makes a charge for delivery.' An ordinance reg- ulating wagons, drays, carts, and other vehicles of burden used to convey loads, includes wagons used by retail grocers (1) Commonwealth v. Matthews, 122 Mass. 60. (2) Branahan v. Hotel Co., 39 0. S. 333; McCaffrey v. Smith, 41 Hun 117.' (3) Recent unreported case in New Jersey ; In re Wright, 29 Hun. 357. (4) Farwell v. Chicago, 71 111. 269. (5) Knoxville v. Sanford, 13 B. J. Lea, 545 ^ 249.] ORDINANCES CLASSIFIED, ETC. 243 for delivering goods sold.^ But when the same provision in the ordinance is followed by a provision relative to fixing the rates to be charged, this evidence of the legislative in- tention as to the scope of the ordinance would exclude re- tail delivery wagons".* Where one section of an ordinance requires a license for keeping a livery-sta'ble, to let out horses, carriages, etc., and other vehicles, providing that it should not extend to drays used for hire, and a separate provision is made for the regulation of drays, it is held that under a livery license a wagon might be let by the day for hauling lumber, without securing the license required for drays by the second section of the ordinance.^ Street cars are properly vehicles. They may be regulated under a power to regulate omnibuses and vehicles in the nature thereof,^ or under a power to license hackmen, omnibus drivers, and others pursuing like occupations.' Under the designation " public vehicles " are included sprinkling carts,® but not a hotel free bus.' " Cars" include steam cars.^ A ferry-boat is not a " ve- hicle." ^ A livery-stable man, who hires out vehicles by the day to draw ice, is not a common-carrier.^'' § 249. Strays. — Perhaps, upon no subject connected with municipal powers does there seem to be less uniformity in adjudicated cases than in regard to strays, or animals found running at large. If animals are at large upon the public streets or commons of a populous city, they are cer- tainly apt to impede traffic, to render the streets filthy, and (1) Gartside v. East St. Louis, 43 111. 47. (2) Joyce v. East St. Louis, 77 111. 156. (3) Griffin v. Powell, 64 Ga. 625. (4) Railway Co. v. Philadelphia, 58 Pa. 119. (5) Allerton v. Chicago, 6 Fed. Rep. 555; s. c, 9 Biss. 552; Johnson V. Philadelphia, 60 Pa. St. 445; Provision Co. v. Chicago, 88 111. 221 ; Munn v. Illinois, 94 U. S. 113. Cordra, Mayor v. Second Ave. R. R. Co., 32 N. Y. 261; Railroad Co. v. Philadelphia, 6 Phila. 238. (6) St. Louis u. Woodruff, 71 Mo. 92. (7) Oswego V. Collins, 38 Hun, 171. (8) Gumming v. Railroad Co., 38 Hun, 362. (9) Duckwall v. New Albany, 25 Ind. 283. (10) Havana v. Vallaningham, 17 111., App. 62. 244 MUNICIPAL POLICE ORDINANCES. [§ 249. to greatly annoy many who have occasion to use the public ways. It would seem most reasonable that strays should be considered per se nuisances, and that every municipal corporation should have an incidental power to restrain them, and to pass ordinances providing for reasonable pre- vention of the evil.^ But it has been held that pounds can only be established under express power,^ and that ordinances against strays can not be sustained under power " to abate nuisances," nor under power to pass ordinances for the " well regula- tion, interest, health, convenience, etc.," of the corpora- tion.' These decisions are based upon the idea that an or- dinanpe of this nature must, to be in any way effective, au- thorize a summary proceeding against property, and that express authority must be given in order to warrant such proceedings. But the evident impracticability of making the remedy other than summary, and the evident incon- venience of having animals running on the public streets, QUght to establish a case where the public good is to be preferred to the rights of the individual. The regulation of strays ought to be considered as fairly within the police- powers vested in every corporation.* Of course, like all other police powers, the prescribed mode of exercise must be strictly observed.^ However summary the seizure of strays may be, there must be some notice given to the owner, actual or con- structive, and some form of judicial determination before the animal taken up can be forfeited and sold to pay the expenses incurred in its seizure and keeping.^ The remedy (1) Koberts v. Ogle, 30111. 459; Hellen v. Noe, 3 Ired. 493; Whitfield V. Longest, 6 Ind. 268; Waco v. Powell, 32 Tex. 258; Gilchrist v. Schneidling, 12 Kan. 263. (2) White V. Tallman, 26 N. J. 67. (3) Collins V. Hatch, 18 Ohio, 523. (4) Cartersville v. Lanham, 67 Ga 753. (5) Greencastle v. Martin, 74 Ind. 449. (6) Cotter i). Doty, 5 Ohio, 395 ; Cincinnati v. Buckingham, 10 Ohio,, 257; Rosebaugh v. SaflBn, 10 Ohio, 32; Jarman v. Patterson, 7 Monroe, 647; Varden v. Mount, 78 Ky. 86; Donovan v. Vicksburg, 29 Miss. 247;. and cases cited ante, §§ 159-161. § 251.] ORDINANCES CLASSIFIED, ETC. 245 is, however, not confined to seizing and selling the stray itself. The owner may be fined for violating the ordinance in allowing his animal to run at large, and on default of payment the fine may be added to the amount to satisfy which the animal is sold.^ The main difiiculty that arises in enforcing this class of ordinances is in determining whether an animal is "run- ning at large" within the meaning of the ordinance. In the first place, the animal must be found on the public streets or places. An animal that has escaped from one private inclosure to another is not at large.^ An animal that is accompanying some person upon the street is at large as soon as the circumstances show that 'it is beyond that person's control. The test is simply whether the per- son has immediate control of the animal. A dog running close to his master, or a trained horse following him, would not be at large.' § 250. Nuisances. — The power to prevent and remove nuisances is one of the most important to be noticed under the general head of police powers. It is difiicult to draw any distinct class line between the various police powers, for the same act may have several bearings. Thus, a building which violates the fire limit ordinance may also be in such condition of dilapidation as to be jper se a nuisance, or dangerous to health. § 251. Definition. — All things are nuisances which are detrimental to the health, dangerous to life, or productive of serious inconvenience.* Municipal corporations have inherent power as absolutely essential to the corporate pur- poses to take measures to remove nuisances.^ J!:Tor is the power restricted to simple abatement. It extends to all (1) Roberts v. Ogle, 30 111. 359; Kinder v. Gillespie, 63 111. 88; Waco V. Powell, 32 Tex. 258. (2) Shepherd v. Hees, 12 Johns. 433. (3) Commonwealth v. Dow, 10 Mete. 382; Welsh w. Railway Co., 53 la. 632. (4) State V. Jersey City, 29 N. J. 170. (5) Kennedy v. Phelps, 10 La. Ann. 227. 246 MUNICIPAL POLICE ORDINANCES. [§ 252. steps necessary to prevent nuisances from arisiusr. -An or- dinance may be passed in advance looking toward preven- tion.^ Though, as has been held in Illinois, the power to abate nuisances does not warrant an ordinance prohibiting the establishment of a cemetery .^ This power, like all others, is not self-executing, and an actual abatement can not be made unless an ordinance has first been passed defining the mode of procedure, and establishing the law.^ When such ordinance once exists, the corporation may intrust the exe- cution to the police officers, or it may direct the abatement of certain nuisances as they may arise. And the resolution expressing the corporate determination that a specified thing is a nuisance is legal. It must not be confused with an ordinance directed against an individual, which would be bad.* Unless general power is given to punish for violations of all ordinances, the single power to abate nuisances does not carry with it the power to punish the person at whose instance, or by whose neglect, a certain nuisance exists.^ § 252. Must be an actual nuisance. — N"uisances can not be declared in contravention of the general law ; for instance, a railroad expressly authorized by state law can never be of itself a nuisance, though it might be so con- ducted as to create nuisances.^ Neither may the power be exercised unrestrfctedly. When the corporation is authorized to abate nuisances in any manner deemed expedient, only such means as are for the public good are lawful. ITo wanton or unnecessary injury may result from the means adopted.^ Due provision may be taken to prevent any business or structure from be- (1) Gregory v. City of N. Y., 40 N. Y. 273. (2) Lake View v. Letz, 44 111. 82. (3) Lake v. Aberdeen, 57 Miss. 260. (4) Kennedy v. Phelps, 10 La. Ann. 227. (5) Nevada v. Hutchins, 59 Ga. 506. (6) State V. Jersey City, 29 N. J. 170; Ward v. Little Rock, 41 Ark. 526. (7) Babcock v. Buffalo, 56 N. Y. 268; affirming Babcock v. Buffalo, 1 Sheldon, 317. § 253.] ORDINANCES CLASSIFIED, ETC. 247 coming a nuisance, but must not go so far as to practically prohibit. Businesses that are lawful per se, and which may be so conducted as to be free from nuisance, can only be so regulated as to prevent their improper conduct.^ Power to compel the cleansing and abating of slaughter houses whenever necessary to the health of the city can only be exercised when an actual nuisance exists.^ The nuisance may be abated when it arises, but care must be taken that no unnecessary damage results. The nuisance alone may be proceeded against, and the cause is to be separated if possible from its surroundings. So, if a certain trade or business becomes a nuisance, the trade or business may be stopped, but the remedy would not extend to the place or building in which the nuisance is maintained. Buildings can never be removed simply because they have been put to an unlawful use.^ A corporation has no right to declare that to be a nui- sance which is not so in fact. This power is exercised in derogation of property rights, and must be strictly fol- lowed. ITuisances are declared at the risk of the corpora- tion, and its determination, however formal, is never con- clusive.* Its judgment is always subject to revision.^ And if in fact erroneous, the corporation owes restitution to all who have suffered injury to their property rights. But " in doubtful cases, where the thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, their action would be conclusive of the question." 6 § 253. Judicial determination. — There should, then, (1) Weil V. Ricord, 24 N. J. Eq. 169. (2) Wreford v. People, 14 Mich. 41. (3) Miller v. Burch, 32 Tex. 208. (4) Howard v. Robbins, 1 Lans. 63. (5) Everett v. Council Bluffs, 46 la. 66 ; Pye v. Peterson, 45 Tex. 312; State v. Mott, 61 Md. 297; Davis v. Clifton, 8 U. C. C. P. 236. , (6) Railway Co. v. Lake View, 105 111. 207; s. c, 44 Am. Rep. 788; Denver v. Mullen, 7 Col. 345. 248 MUNICIPAL POLICE ORDINANCES. [§ 254. always be some judicial determination of the existence of a nuisance.^ A board of health vested with power to pro- ceed against nuisances must give notice to the owner or party in control, and must allow him an opportunity to be heard.^ An ordinance that authorizes the closins: of a saloon by force, without a prior judicial determination that it is a nuisance, is void.^ It is even held that a resolutiou for the removal of a person sick with an infectious disease is void unless he consent to the removal.* But this i^ surely not the accepted rule, especially not during the prevalence of such disease, when public health and safety make such removal an imperative necessity. But if % thing is in fact a nuisance, and its abatement is effected without doing unnecessary damage, the fact that the owner was not notified would only be so far material as to throw the cost of removal on the corporation. In or- der to impose the cost on the owner, he must be first given a reasonable opportunity to remove the tiuisance himself.^ Under the Georgia statute, a municipal corpoiacion may punish for continuing a nuisance, before notice is given to abate it, but not after, when such continuance becomes a penal offense.*' § 254. What are nuisances. — The follo;ving things have been held to be nuisances and properly prohibited by ordinance : Exposing articles for sale that are in a condition unfit for use;^ public exhibition of stud horses;* depositing rubbish except in places designated by some board or (1) Gates V. Milwaukee, 10 Wall. 497; Monroe v, Gerspach, 33 La. Ann. 1011. (2) People V. Board of Health, 33 Barb. 344; Weil v. Ricord, 24 N. J. Eq. 169. (3) Baldwin v. Smith, 82 111. 163. (4) Boom V. Utica, 2 Barb. 104. (5) Baumgartner v. Hasty, 100 Ind. 575. (6) Vason v. Augusta, 38 Ga, 542. (7) Shillito V. Thompson, L. R., 1 Q. B. Div. 12. (8) Nolin V. Franklin, 4 Yerg. 163 ; Ex parte Shrader, 33 Cal. 279. § 256.] ORDINANCES CLASSIFIED, ETC. 249 officer;^ smoke from chimneys;^ bouses of ill-fame;^ swine running at large in the streets;* growing rice within city limits ; keeping swine.* § 255. What are not nuisances per se, — Many things that are not nuisances yer se may become nuisances under special circumstances. Such are a blacksmith's shop f a cornice projecting over the street f keeping pigs or cows in stables in close proximity to dwelling-houses;^ burning lime f cemeteries.^" In order to make this class of things nuisances it must appear that they cause some actual inconvenience or dis- comfort, or some actual damage to life or health.^^ The consideration of what acts amount to nuisances is one involving too much space to be treated at length. Reference must be made to the text-books on that subject. § 256. Nature of license power. — Among other means in common use to effect the purposes of police regulation is the j2.rohibition, except under license from the corpora- tion, of such occupations and pursuits as need to be con ducted with more than ordinary care. The power t(» license must be granted in express terms, although it il merely a police power. It is one mode of regulation, but one that can not be exercised under general police author- (1) Ex parte Casinello, 62 Cal. 538. (2) Harmon v. Chicago, 110 111. 400. (3) !McAlister v. Clark, 33 Conn. 91. (4) Roberts?;. Ogle, 30 111. 459; Hellen v. Noe, 3 Ired. 493 j Whit- field V. Longest, 6 Ired. 268 ; Waco v. Powell, 32 Tex. 258. Contra, Collins V. Hatch, 18 Ohio, 523. (5) Green v; Savannah, 6 Ga. 1 ; St. Louis v. Stern, 3 Mo. App. 48. (6) Terre Haute v. Turner, 36 Ind. 522. (7) Grove v. Ft. Wayne. 45 Ind. 429. (8) McKnight v. Toronto. 3 Ont. 284. (9) State V. Mott, 61 Md. 297. (10) Musgrave v. Church, 10 La. Ann. 244. (11) Ewbanks v. Ashley, 36 111. 177; Poyer v. Des Plaines, 18 111, App. 225 ; Everett v. Council Bluffs, 46 la. 66. 250 MUNICIPAL POLICE ORDINANCES. [§ 256. ity.^ And like all other express powers it must be strictly followed.^ So, power to enact ordinances " relative to'' certain occupations does not warrant the passage of an ordinance imposing a license.' Even a power " to make such assessments for the safety, convenience, benefit, and ad- vantage of said city " as may be deemed expedient, would not suffice.* But it must not be supposed that the word " license " must itself appear in the grant of power, for the right to subject occupations to licenses may be, and is, con- ferred by a grant of power superior in grade to that of licensing. For example, a grant of entire co??^ro?, or of power to suppress and restrain, would enable the corporation to adopt any mode of regulation within the limit of those powers, license included." So, a license would be lawful under power to declare the selling of certain commodities a nusiance.® In Illinois the courts have gone to the ex- treme limit, and have even held that power to license is implied by power to regulate,'^ or power to restrain.^ The claim is often made that a distinction should be drawn in this respect between such occupations as afford special op- portunities to defraud and impose upon the public and those of a more harmless nature, but there is no reason for maintaining such a distinction. The same degree of regu- lation can be attained by other means than licenses, even (1) Railway Co. v. Hoboken, 41 N. J. L. 71; Fowle v. Alexandria, 3 Pet. 399 ; Sanders v. Butler, 30 Ga. 679; Ordinary v. Retailers, 42 Ga. 325. (2) Jackson u. Bowman, 39 Miss. 671 ; House v. State, 41 Miss. 737; Dill. Mun. Corp. 361. (3) Dill. Mun. Corp. 361. (4) Charleston v. Oliver, 16 S. C. 47. (5) Martin v. People, 88 111. 390; Burlington v. Lawrence, 42 la. 681; Smith V. Madison, 7 Ind. 86 ; Ex parte Mount, 66 Cal. 448. (6) Martin v. People, 88 111. 390. (7) Chicago Packing Co. v. Chicago, 88 111. 221. (8) Mt. Carmel v. Wabash Co., 50 111. 69. Wherever the right to license is sustained under a general power of regulation, the provisions of the license ordinance must be strictly adapted to the maintenance of good order, and only reasonable means to that end employed. State V. Hoboken, 33 N. J. 280. " To tax " does not mean " to license." Leonard v. Canton, 35 Miss. 189. § 258.] ORDINANCES CLASSIFIED, ETC. 251 though perhaps more arduous ; and, without express author- ity 80 to do, no lawful business should be prohibited. § 257. Nature of licenses. — The power to license de- pends upon a concurrent power to prohibit. The business or occupation is declared unlawful, except upon compli- ance with certain condition. A license, then, " is a privi- lege granted to carry on some occupation or exercise some right which could not be legally exercised without the grant of such license. The pursuit of the prohibited occu- pation becomes a franchise in the power of the municipality to grant, and the license fee is the price exacted for the right to exercise the franchise." ^ A license is in no sense a tax.^ The distinction between the two is of the utmost importance, and is the turning point upon which the validity of a large class of license ordinances depends. The basis of all license ordinances is police regulation, and all are valid which do not exceed the proper limits of such regulation. The questions to be propounded in order to test such ordinances are: 1. Is the ordinance provision within the express author- ity of the power? If so, it is valid, however high the fee imposed, or however severe the conditions. 2. If the amount of the fee demanded or the conditions imposed are not expressly authorized by the power to en- act the ordinance, do they exceed the limits of reasonable regulation ? § 258. Must not amount to a tax. — When rightfully imposed the license fee will never be construed to be a tax within the meaning of constitutional provisions, although the term " license tax " is frequently used to designate it.' (1) Desty Tax, § 193; Chilvers v. People, 11 Mich. 43. (2) Desty Tax, § 193; Coe v. Hall, 103 111. 30; State v. Herod, 29 la. 123 ; Livingston v. Trustees, 99 111. 564; Ferry Co. v. East St. Louis, 102 111. 560; East St. Louis v. Trustees, 102 111. 489; Walker v. Springfield, 94 111. 364; Ducat v. Chicago, 48 111. 172; Johnson v. City Leg. Int. 1869, p. 269. (3) Distilling Co. v. Chicago, 112 111. 19; Leavenworth v. Booth, 15 Kan. 627; Fort Smith v. Ayers, 43 Ark. 82; Ash w. People, 11 Mich 347. 252 MUNICIPAL POLICE ORDINANCES. [§ 259. And courts will not interfere with the discretion of the •council unless the amount imposed is plainly unreasonable.^ A tax is levied for the purposes of revenue, and the power to levy taxes must be granted in the plainest language, the policy of some states even forbidding by constitutional in- hibition any delegation of the power. Power to license gives no right to enact ordinances for the purpose of in- creasing the municipal revenues.* It is within the province of the court to decide in each case whether the amount of the fee is upon its face so high as to make it in eftect a revenue measure. But a fee may be entirely reasonable as a police regulation, and at the same time in fact swell the municipal revenues. The precise extent to which the ordi- nance may go is the point npon which the courts of the dift'erent states vary, and in regard to which it is impossible to lay down exact rules. The standard is reasonableness, in itself a very indefinite and unsatisfactory basis, varying, as it must, with the individual opinions of those called upon to judge and with the character of the thing to be regulated.^ § 259. What amount may be charged. — The strictest rule limits the amount of the fee to the actual expense of issuing the license. This is upon the theory that the sole object of regulation by licensing is to prevent improper persons from obtaining permission to carry on the pro- hibited trade, and that this may be accomplished by the exercise of discretion in the selection of the licensees by the officer who issues the licenses. This rule restricts the lawful amount to a very small sum and is adopted by very few states,* and is only recognized in some of the earlier decisions. (1) Burlington v. Insurance Co., 31 la. 102; Mankato u. Fowler, 32 Minn. 364. (2) Mankato v. Fowler, 32 Minn. 364; Van Hook v. Selma, 70 Ala. 361; Railway v. Hoboken, 41 N. J. 71 ; Burlington v. Insurance Co., 31 la. 102. But see Ferry Co. v. East St. Louis, 102 111. 560; Lynchburg V. Railway Co., 80 Va. 237. ,(3) Kitson V. Ann Arbor, 26 Mich. 325; Railway v. Hoboken, 41 N. J. 71. (4) Commonwealth v. Stodder, 2 Cush. 562; Mobile v. Yuille, 3 Ala. 137. § 259.] ORDINANCES CLASSIFIED, ETC. 25S The wider and almost universally adopted rule recognizes the fact that different occupations need different restrictions, varying with the character of the people and the size of the city, and reposes a very broad, generous confidence in the judgment of the law-makers as to the needs of each particular case. Thus the amount charged often swells the local treasury without exceeding the bounds of proper reg- ulation. As was said by Gholson, J., in Baker v. Cincin- nati, 11 O. S. 534 : " Things licensed may be such as should only be pernjitted under the regulation or supervision of public functionaries. A tax or charge may have reference to such regulation and supervision. Such is the case of ex- hibitors of shows and performances. An inquiry has to be made into the character of those who propose to ex- hibit, and as to the nature of the thing exhibited. Then the exhibition may require additional attention from those intrusted with the care of public peace to prevent disorder and disturbance. The burden thus devolved on public officials, requiring, perhaps, an increase in their number or compensation, for the benefit of exhibitors of shows or per formances may justly authorize a charge beyond the mere expense of filling up a blank license. The same principle that would authorize a charge for one extends to the other. To say that it is a tax and goes into the public treasury does not disprove this object. There is no magic in names." The holding in this case is that generally recognized as the true rule. The amount of the fee should depend on the nature of the business, and should not be scrutinized too narrowly. A reasonable addition to cover the cost of police supervision may always be raade.^ The whole ex- pense attending the additional supervision should be met.^ The law is stated very clearly in Van Hook v. Selma, 70 Ala. 361 ; s. c, 45 Am. Rep. 81, as follows : " We declare the true rule to be, in the case of useful trades and em- (1) Van Hook v. Selma, 70 Ala. 361; Ash v. People, 11 Mich. 347; In re Wan Yin, 22 Fed. Rep. 701 ; Cincinnati v. Bryson, 15 Ohio, 625; Johnson v. Philadelphia, 60 Pa. St. 445 ; comparatively strict holding ik Mays v. Cincinnati, 1 O. S. 268 ; Fort Smith v. Ayers, 43 Arls. 82. (2) Ash V. People, 11 Mich. 347. 254 MUNICIPAL POLICE ORDINANCES. [§ 260. ployments, and a fortiori iu other cases, that as an exercise of police power merely, the amount exacted for a license, though designed for regulation and not for revenue, is not to be confined to the expense of issuing it; but that a reasonable compensation may be charged for the additional expense of municipal supervision over the particular busi- ness or vocation at the place where it is licensed. For this purpose, the services of officers may be required and inci- dental expenses may be otherwise incurred in the faithful enforcement of such police inspection or superintendence." The amount thus reached may be inuch greater than the mere cost of issuing, and a considerable surplus fund may go into the treasury to swell the general revenue fund.* The Kansas courts have even gone so far as to hold that the amount of the fee should include not only the value of the labor and material involved in allowing and issuing the license, and the value of the inconvenience and cost of additional supervision, but also the value of the franchise granted to the licensee, and that the fee could even be still increased so as to prevent improper persons from engaging in the business.^ These additional elements are, however, justly excluded from the general rule. It certainly adds nothing to the burden of regulation, that the privilege granted is of spe- cial benefit to the licensee, and in proper persons can be excluded from the licensed business by the exercise of dis- cretion on the part of the ministerial officer charged with the duty of allowing the licenses, although they could law-, fully refuse only those who were notoriously and evidently unfit to be vested with the privilege. The Kansas doctrine is expressly based on the theory that a license is " a sale of a benefit or privilege to a person who would otherwise not be entitled to the same." § 260. Examples. — To illustrate the extent to which the courts allow license fees to exceed the bare cost, and to (1) Leavenworth v. Booth, 15 Kan. 627; Johnson v. Philadelphia, 60 Pa. St. 445. (2) Leavenworth v. Booth, 15 Kan. 627. § 262.] ORDINANCES CLASSIFIED, ETC. 255 which they trust to the judgment of the council, the following fees have been sustained : $5 on every meat market ; ^ $200 on pawnbrowkers ; ^ $63.50 for a six months' license for a theater ;' $5 to $10 on milk peddlers;* $500 a year for retail liquors ;® $500 per year for a theater;* $500 per year for brewer's license;^ $300 for the privilege of keeping billiard tables;^ $25 for sale of liquors;^ $15 for each peddler ;^'' $50 a year on each street car used by street railway companies ; " $1,000 annually on a theater under power to license " on such terms and conditions as may seem just and reasonable." ^^ § 261. The license. — The grant of a license is usually evi- denced by a written certificate, statii:^ the amount paid, the name of the licensee, the duration of the license and the par- ticular franchise or privilege granted. Still, it is not essential that the license should be in writing.^^ And when so evi- denced, its form and manner of execution are imma- terial.^* § 262. The ordinance. — Whenever power to license cer- tain occupations is given to a municipal corporation, it be- comes discretionary with the council to exercise the power. (1) Ash « People, 11 Mich. 353. (2) Van Baalen v. People, 40 Mich. 258. (3) Baker v. Cincinnati, 1 1 0. S. 534. (4) People V. Mulholland, 82 N. Y. 324. (5) Wiley v. Owens, 39 Ind. 429; Perdue v. Ellis, 18 Ga. 586. (6) Hospital V. Stickney, 2 La. Ann. 550. (7) Distilling Co. v. Chicago, 112 111. 19. (8) In re Neilly, 37 U C. Q. B. 289. (9) Ex parte Benninger, 64 Cal. 291. (10) People V. Russell, 49 Mich. 617. (11) Allerton v. Chicago, 9 Biss. 552; s. c, 6 Fed. Eep. 555 ; Railway Co. V. Philadelphia, 58 Pa. St. 119; .Johnson w. Philadelphia, 60 Pa. St. 445. In New York the contrary is held as to street cars under an or- dinance imposing the same amount. Mayor v. Railway Co., 32 N. Y. 261. (12) Boston V. SchaflFer, 9 Pick. 4l5. (13) Boston V. SchaflFer, 9 Pick 415. (14) Swarth v. People, 109 111. 621. 256 MUNICIPAL POLICE ORDINANCES. [§ 263. The necessary degree of police regulation could often be attained by other local means. And when the license power extends to businesses which are unlawful under the state laws, a simple local option is thereby conferred, which is in nowise mandatory.^ Power to license includes, as incident thereto, power to de- termine the exact sum to be enacted and extent and duration of the privilege.^ This power must be conclusively exercised by the council, and the main features of the regulation in- corporated in the ordinance. The ordinance, too, must he general in its terras, and its benefits capable of enjoyment by any one who is willing to comply with its requirements.' The licensees can not be nominated b}' the ordinance.* Where the power is silent as to the manner in which it should be executed, the amount of the license may be fixed by resolution as well as ordinance.^ § 263. Discretion in ofi&cers. — As has been already stated no discretionary powers should be vested in the offi- cers whose duty it is to execute the provisions of ordinances, and the rule is entirely applicable to this class of ordi- nances. The ordinance itself should specify every con- dition of the license and the officer should be merely intrusted with the duty of issuing licenses to all who com- ply with the prescribed conditions. If it is feared that irre- sponsible and unprincipled persons may thus receive rights whose exercise in their hands might be injurious to the public, the remedy can not be provided by placing a dis- cretion in the hands of the ministerial officer, but lies with the council itself. A bond may be required of the appli- cant conditioned upon the proper conduct of the business (1) Louisville V. McKean, 18 B. Mon. 10. (2) Boston V. Schafier, 9 Pick. 415; Darling v. St. Paul, 19 Minn. 389. (3) The ordinance should be general and uniform, and not discrimi- nating, but it need not be so general that all persons complying with its terms may receive the license, without regard to their moral fitness. Crotty V. People, 3 111. App. 465. (4) In re Coyne, 9 U. C. Q. B. 448. (5) Burlington v. Insurance Co., 31 la. 102. § 263.] ORDINANCES CLASSIFIED, ETC. . 257 licensed, or the ordinance may provide for a forfeiture of the license ipse facto in case the business privilege is mis- used. The expression in the ordinance, "which license shall be granted by the mayor," makes the issuing of a license to every comer mandatory upon the mayor.^ But, if discretion is rightfully vested in the mayor, he violates no rights by refusing an applicant.^ And it has been held in Alabama that a note may be taken for the amount of the license fee, to be collected, if necessary, by suit in assumpsit.' An early case in Iowa holds that the mayor may lawfully be vested with a discretion, within specified limits, as to the amount to be paid for auction licenses,* but a similar discretion in regard to peddlers' licenses was defeated in a later case,* and the rule may be considered universal that no judicial discretion may be conferred upon the officer issuing the license.® Even the council itself can not lawfully limit the num- ber of licenses to be granted. Its power extends only to the prescription of conditions.^ And when they have power "to limit the number of licenses," under express grant, the language will be strictly construed, and at least two licenses, to comply with the use of the word in the plural, must be authorized.^ But if authorized to grant or refuse a license, power is thereby conferred to grant an (1) Commonwealth v. Stokley, 12 Phila. 316. (2) People V. New York, 7 How. Pr. 81. (3) Powers v. Decatur, 54 Ala. 214. (4) Decorah v. Dunstan, 38 la. 96. (5) State Center v. Barenstein, 66 la. 249. (6) Tt may delegate its authority to issue licenses, by requiring five citizens to sign a petition therefor, and allowing the officers to investi- gate the character of the applicant. Such provisions only relate to the mode of applying for the license. In re Bickerstaff, 11 Pac. Rep. 393, Cal. 1886. But an ordinance is void which provides that the mayor shall license entertainments, but only at fair times, and then not, if three citizens should so petition. This places the discretion entirely in the hands of the citizens. Elwood v. Bullock, 6 Q. B. 383. (7) In re Barclay, 12 U. C. Q. B. 86; In re Greystock, 12 U. C. Q. B. 458 ; In re Brodie, 38 U. C. Q. B. 580. (8) Terry v. Haldimand, 15 U. C. Q. B. 380. For further considera- tion of the discretion that may be vested in ministerial officers, see § 13. 17 258 MUNICIPAL POLICE ORDINANCES- [§ 264. exclusive license.^ Mere power " to license " does not in- clude power to enact a monopoly.^ § 264. The penalty. — Like all other classes of ordi- nances that aim at pohce regulation, ordinances which de- mand a license fee as a condition to engaging in some pro- hibited business, may be enforced by proper penalties. And the same modes of punishment for an omission to take out a license may be adopted as would be lawful for other offenses against local laws.^ This is based upon the theory that the business authorized to be regulated by license, becomes unlawful without the license, immediately upon the exercise of the power vested in the corporation.* "Where imprisonment may be prescribed for other of- fenses, it may also for any violation of a license ordinance.' In prosecutions for failure to secure a license no ques- tion of evil intent arises. The essence of the offense con- sists in pursuing the avocation without a license, when one is required by law.^ It is held in England that the offense of pursuing a prohibited business without the necessary license can only be punished once during the period for which the license should have been secured.' But this can not be taken as the American rule ; for, under the policy of our laws, the punishment is a penalty, and in nowise acts as a license. The payment of a fine ought not to be considered as a sub- stitute for the payment of the required license fee. (1) Ferry Co. v. Davis, 48 la. 133. (2) Logan v. Pyn^, 43 la. 524 ; Chicago v. Rumpflf, 45 111. 90. (3) St. Louis V. Bank, 49 Mo. 574 ; St. Louis v. Life Association, 53 Mo. 466; St. Louis v. Sternberg, 69 Mo. 289; St. Louis v. Laughlin, 49 Mo. 559; St. Louis v. Green, 70 Mo. 562; s. c, 6 Mo. App. 591; Cin- cinnati V. Buckingham, 10 Ohio, 257; Vandine, Petitioner, 6 Pick. 187; Shelton v. Mobile, 30 Ala. 540 ; Chilvers v. People, 1 1 Mich. 43 ; Brook- lyn V. Cleves, Hill & Den. L. S. 231 ; Desty Taxation, 770 ; Distilling Co. r. Chicago, 112 111. 19. (4) HershofiF v. Beverly, 45 N. J. 288. (5) Appleton V. Hopkins, 5 Gray, 530; Commonwealth v. Byrne, 20 Gratt. 165; Desty Tax. 770. (6) St. Louis V. Sternberg, 69 Mo. 302, and other Missouri cases there cited. (7) Garrett v. Messenger, 10 Cox C. C. 498; s. c, 36 L. J. C. P. 337. § 266.1 ORDINANCES CLASSIFIED, ETC. 259 § 265. EfiPect of a license. — It follows from the nature of license exactions as mere police regulations, that the payment of a license fee in nowise exempts the licensee from any of the burdens imposed by other laws and ordi- nances.^ The grant of a license does not waive the right of the corporation to subject the business licensed to all fur- ther reasonable police regulations.^ But even if the busi- ness, by the express language of the license, were etill to be subject to all ordinances, no ordinance would be in- cluded which the council has no power to pass. Such language is construed to mean all laioful ordinances.' The license is a grant of a privilege, and exempts from no duty or burden, either of regulation or taxation.* The licensee by accepting the license thereby assents to the terms im- posed by the license and ordinance, and by the general law.^ Thus it would be no bar to the exercise, as against his property, of the right of eminent domain.* IS'or could the license be set up iu defense of a prosecution under the general law.^ § 266. Conditions. — Under power to license, the council may impose such reasonable conditions precedent or sub- sequent as they may see fit. Only in such manner can the license be made efficacious as a mode of police regulation.* The ordinance may require proof of fitness of the appli- cant, and may impose conditions for the breach of which (1) If the bond requires obedience "to all other ordinances," only- such would be included as relate to the subject-matter of the thing licensed. In re Schneider, 11 Oreg. 288. (2) Maxwell u. Jonesboro, 11 Heisk. 257; Bowling Green v. Carson, 10 Bush, 64 ; Baldwin v. Smith, 82 IU. 162. (3) Gilham v. Wells, 64 Ga. 192. (4) State V. Herod, 29 la. 123 ; Railway Co. v. Louisville, 4 Bush, 478; Walker u. Springfield, 94 111. 364; Cole u. Hall, 103 111. 30; East St. Louis V. Trustees, 102 111. 489. Does not exempt from the payment of ordinary taxes. State v. Bennett, 19 Neb. 191 ; Wendover v. Lex- ington, 15 B. Mon. 358. (5) Schwuchow v. Chicago, 68 111. 444. (6) Branson v. Philadelphia, 47 Pa. St. 329. (7) Paton V. People, 1 Col. 79. (8) Launder v. Chicago, 111 111. 291. 260 MUNICIPAL POLICE ORDINANCES. [§ 267. the license ma}^ be declared forfeited.^ Any reasonable conditions will be sustained. § 267. Revocability. — Licenses, being mere grants of privileges issued in the exercise of police power, do not create contractual obligations, and are revocable at the dis- cretion of the municipal authorities.^ The power of revocation should, however, be exercised by a formal act of the law-making body, unless it is made an express con- dition in the grant that the license shall become forfeited by any breach. So, when a person accepts a license, under an ordinance which gives the mayor authority to revoke it for cause, and the license recites this provision, he can not be heard to say that the mayor has no power and that the license can only be revoked by judicial sentence.' Licenses may be revoked for a violation of the ordinance under which they were granted.* But there should be some cause for revocation. And it has been held that the council can not reconsider a grant of a license at a subsequent meet- ing.* The revocation of a licnse granted upon the condi- tion of its due observance is not a forfeiture beyond the power of the corporation. Such revocation is not depriv- ing the licensee of his property without compensation.* It has been held in Canada that a forfeiture for a breach of the ordinance is lawful.' Revocation must be express even when authorized. It may not be indirectly effected, as by the prohibition of the vocation licensed, or by the enactment of such unreason- (1) In re Bickerstaflf, 11 Pac. Rep. 393 (Cal. June, 1886). (2) Board of Excise v. Barrie, 34 N. Y. 657 ; Commonwealth v. Bren- nan, 103 Mass. 70; Commonwealth v. Kurby, 5 Gray, 597; Columbus v. Cutcamp, 61 la. 672. (3) Wiggins v. Chicago, 68 111. 373; Schwuchow v. Chicago, 68 111. 444. (4) Ottumwa v. Schaub, 52 la. 515. (5) Laurtz v. Hightstown, 17 Vroom, 102, p. 107. An ordinance pro- viding that the license should be ipso facto revoked as a part of the penalty for breach of the ordinance under which it was granted, held void. Towns v. Tallahassee, 11 Flor. 130. (6) Baldwin v. Smith, 82 111. 162. (7) Bright v. Toronto, 12 U. C. C. P. 433. § 268.] ORDINANCES CLASSIFIED, ETC. 261 able regulations as will amount to a prohibition.^ Neither the repeal of the ordinance authorizing the license,^ nor a decree of a court that the ordinance is void,^ will render the licensee liable to conviction until the expiration of the time foi which the license was granted. Likewise, a license granted by a de facto officer protects the licensee until the license is formally revoked and the money paid, or a proportional part thereof returned.* § 268. Grading and discrimination. — Where power is given to a municipal corporation to license certain enumer- ated occupations, the power may be exercised as to any or all of them, in the discretion of the council, and it can not be objected that a certain business is thereby discriminated against. The restriction might lawfully be placed upon a single kind of business.^ And where several occupations are licensed, they. need not all be treated alike. It is within the council discretion to say that one occupation needs further restriction than another. For this purpose «11 trades and occupations may be classified and each class required to pay different amounts. Ordinances which dis- tinguish thus between classes are valid, so long as they treat all the members of the same class alike.® The dif- ficulty naturally consists in determining the proper basis of classification. It is certain that the nature of the oc- €upation may be used as a basis. For instance, peddlers, auctioneers, vendors of meat, and brokers, exercise clearly distinguishable callings. But there is a strong tendency to the classification of members of the same apparent class, based upon minor diflrerences in the locality, extent, and other peculiarities. Where the classification is distinct it can never be objected that the burden of a uniform license (1) Wiggins V Chicago, 68 111. 373. (2) Boyd V. State, 46 Ala. 329. (3) Eegina v. Stafford. 22 U. C. C. P. 177. (4) Martel v. East St. Louis, 94 111. 67. (5) Ex parte Hurl, 49 Cal. 557; Athens v. Long, 54 Ga. 330. (6) New Orleans v, Kaufman, 29 La. Ann. 283; New Orleans v. Du- barry 33 La. Ann. 481 ; Davis v. Macon, 64 Ga. 128; Cutliff r. Albany, 60 Ga. 597; Grand v. Guelph, 29 U. C. Q. B. 46; Kelly v. Dwyer. 7 Lea, 180. 262 MUNICIPAL POLICE ORDINANCES. [§ 268. fee falls heavier upon some licensees than upon others. Every person in the eye of the law has equal facilities to do business, and if one is more prosperous than another the ;difference need not be noticed by the law-making power. Thus, an ordinance exacting a fee for a license to erect or alter a building within established fire limits is not in- equitable because it does not discriminate between classes and sizes of buildings sought to be erected.^ But a serious question arises so soon as the corporation sees fit to recognize these inequalities among members of the same class and to make them the foundation for dis- crimination in the amount of the fee demanded. The dis- crimination must not be arbitrary, but must, in all cases, be based upon some reasonable advantage possessed by one class over another.^ Thus, it has been held that a license ordinance, which demands $10 from a dray drawn by over three horses, and $75 from an omnibus, discriminates unjustly against the latter.' It would seem natural that the opportunities to do harm and infringe upon the public rights would be directly proportionate to the amount of business done, and the ability or facility to conduct an oc- cupation ; and, in fact, the true rule seems to be, although not by any means generally recognized, that the amount of the fee must be uniform as to all having the same or equal facilities for profit.* Under power to license, dealers may be classified according to the nature and amount of business and the fee graded accordingly.' So, under pow- ers to fix and collect a license tax on all trades, professions, and businesses, an ordinance is valid which grades the amount according to the gross sales. It is not void for lack of uniformity. The tax is on the trade and not on the (1) Welch u. Hotchkiss. 39 Conn. 140. (2) Zanoneu. Mound City, II 111. App. 334. (3) Van Sant v. Stage Co., 59 Md. 330 (4) East St. Louis v. Wehrung, 46 111. 392; Kaliski v. Grady, 25 La. Ann, 576; Vosse v. Memphis, 9 B. J Lee, 294. (5) Vosse V. Memphis, 9 B. J Lee, 294; Cincinnati v. Bryson, 15 Ohio, 643. Grading license for laundries, according to number of persons employed, has been held valid. Ex parte Sisto Li Protti, 68 Cal. 635' Theaters, according to seating capacity Marmetv. State, Ohio, 1887. § 270.] ORDINANCES CLASSIFIED, ETC. 263 goods or person exercising the trade.^ The amount of the license may he graded according to the income.^ Location of the business may be justly considered as a facility within the meaning of the rule and the fees graded accord- ing to locality.' Thus, a fee of $50 for persons selling liquor on boats plying to and from a city, and of $85 for persons selling on land, is a proper discrimination. The same amount is imposed on persons pursuing the traffic in the same way.* But there are authorities to the contrary.' An ordinance dividing occupation into classes, and impos- ing a certain sum on each class, and directing the finance committee to classify the occupations is not a delegation of the power to tax.* An ordinance imposing a license tax on businesses and vocations, and discriminating as to the amounts to be paid by different classes of persons, is not within the inhibition of the state constitution against un- equal taxation.^ There is no law governing the amount of the license fee that the city of New Orleans may demand of any partic- ular occupation. The council is the sole judge.^ § 269. Miscellany. — Until a power to license is exer- cised it lies dormant, and none can be required until an appropriate ordinance is passed.^ Nor can the license power be put in operation by resolution.^" § 270. Business privileges. — Under this and subse- quent sections are grouped together numerous decisions (1) Sacramento v. Crocker, 16 Cal. 120. (2) Burlington v. Insurance Co., 31 la. 102. (3) East St. Louis v. Wehrung, 46 111. 392. (4) Kaliski v. Grady, 25 La. Ann. 576. (5) St. Louis V. Spiegel, 75 Mo. 145; Donelly v. Clarke Township, 38 U. C. Q. B. 599. (6) Ould V. Richmond, 23 Gratt. 464 ; Telegraph Co. v. Richmond, 26 Gratt. 1. (7) State V. Columbia, 6 Rich. 1. (8) Goldsmith v. New Orleans, 31 La. Ann. 646. (9) Bull V. Quincy, 9 111. App. 127. (10) People V. Crotty, 93 111, 181. 264 MUNICIPAL POLICE ORDINANCES. [§ 271. based upon the construction of various license powers and ordinances. A statute authorizing the licensing of specified voca- tions and "all other places of business conducted for profit,'* applies to merchants, bankers, and brewers, in addition to those enumerated, or similar to those enumerated.^ Attor- neys at law do not exercise an avocation or business within the meaning of a licensing power.^ iNTor are insurance companies included by the term " works of all kinds." * But if rightfully included, a foreign insurance company may be compelled to pay a percentage on their business, and the same is not a tax. The agent is amenable.* Unless specifically imposed upon the individual by the power, it is the business which is licensed, and a partner subsequently taken in by the licensee is protected.^ To be a live stock dealer, one must not only buy live stock, but buy with the intent to sell.® A license imposed on persons or corporations whose business extends beyond the limits of the city or even into other states, such as express com- panies, is not void as being a regulation of commerce.'' Where the charter fixes a minimum and maximum limit the fee exacted must neither fall below the minimum nor exceed the maximum.^ When a person is engaged, in two occupations, each may be licensed, unless a clear cus- tom can be shown to consider them as one business.^ § 271. Transient dealers. — The class of dealers who come into a locality temporarily, in order to represent some business located elsewhere and to solicit orders or sell oa (1) Butler's Appeal, 73 Pa. St. 448. (2) St. Louis V. Laughlin, 49 Mo. 559. (3) State V. Smith, 31 la. 493. (4) Trustees v.Roome, 93 N. Y. 313; Ex parte Schmidt, 2 Tex. App. 196. (5) Carter v. State, 60 Miss. 456; Sacramento v. Crocker, 16 Cal. 119. (6) Saunders v. Russell, 10 Lea, 293. (7) Osborne v. Mobile, 16 Wall. 479; Sacramento v. Stage Co., 12 Cal, 135 ; Harrison v. Vicksburg, 3 S. & M. 581 ; Ferry Co. v. East St. Louis, 108 U. S. 18 ; Los Angeles v. Railroad Co., 61 Cal. 59. (8) Kniper v. Louisville, 7 Bush, 599. (9) Savannah v. Feeley, 66 Ga. 31 ; Wilder v. Savannah. 70 Ga. 76a § 2'r2.] ORDINANCES CLASSIFIED, ETC. 265 commission, are, in distinction from peddlers, known as transient dealers. Ordinances imposing a license tax upon them must be clearly aiithorized.^ The fact that they do not carry with them the goods sold has been considered as an additional feature distinguishing them from peddlers. Regulations demanding license fees from transient dealers are not regulations of commerce.^ A non-resident who sends goods to a local' dealer to be sold on commission is not a transient dealer.^ Where the sole power of the kind is to license peddlers, an ordinance is void which requires a license from persons sent out by local business houses to solicit orders and supervise delivery of the goods. Such are not peddlers.* So, a drummer or commercial traveler, who sells by sample for future delivery, is neither a merchant nor a peddler.^ The term merchant has, however, been held to include an itinerant trader who ships produce to an agent who goes about the city solicit- ing orders and delivering goods from the freight depot.® § 272. Peddling. — A peddler is one who sells from place to place, or offers for sale commodities, which he carries with him.^ Selling goods by sample is not peddling, although an occasional order is filled by delivering the sample.* It makes no difference that the peddler has regular customers.^ The usual method is to grant licenses for a year or fraction thereof.^'' The term peddler includes milkmen.^^ The license im- posed is a personal privilege to the one actually selling (1) Ex parte Taylor, 58 Miss. 478. (2) Colson V. State, 7 Blackf. 590; Sears v. Commissioners, 36 Ind. 267; In re Kudolph, 2 Fed. Rep. 65. (3) Regina v. Cuthbert, 45 TJ. C. Q. B. 19. (4) Regina v. Coulter, 5 Ont. 644. (5) City of Kansas v. Collins, 34 Kan. 434. (6) Burr v. Atlanta, 64 Ga. 225. (7) Cook V. Pennsylvania, 97 U. S. 556. (8) Commonwealth v. Farnum, 114 Mass. 267; Commonwealth v. Jones, 7 Bush, 502. Contra, Morrill v. State, 38 Wis. 428. (9) Chicago v. Bartee, 100 111. 61. (10) Wilmington v. Roby, 8 Ired. Law, 250. (11) Chicago V. Bartee, 100 111. 57. 266 MUNICIPAL POLICE ORDINANCES. [§ 273. the goods. He can not even employ another to drive his wagon and transact business under his license. The privi- lege can be exercised only by the person named in the license.^ Under power to license peddlers, a fee of $15 per year, or, at the option of the applicant, $3 per day is not excessive.^ An ordinance providing that "hawkers and peddlers of any article kept for sale by merchants of the city to pay a license of $2.50 per day for selling the same is not void for discrimination, partiality, or on grounds of public policy.* The fact that a person is ped- dling an article covered by a patent right, owned by him, in nowise releases him from the duty of securing the regular peddler's license.* § 273. Amusements. — Exhibitions may be regulated or restrained by means of a license system.^ Theatrical en- tertainments are not confined to pure drama, but include negro minstrelsy.^ A license to keep a theater will, how- ever, not entitle the licensee to produce feats of legerde- main.^ Amateur performances, if produced on successive nights, come within the provision of amusement license ordinances.^ Owners of billiard halls may be licensed in accordance with the number of tables kept.^ A license tax may be im- posed upon billiard saloons as a reasonable police regula- tion,'" and power to restrain and suppress them includes power to license.'^ (1) Temple v. Sumner, 51 Miss. 13; Gibson v. Kaufield, 63 Pa. St. 168; Stokes v. Prescott, 4 B. Mon. 37; Mabry v. Bullock, 7 Dana, 337. (2) People V. Russell, 49 Mich. 617, (3) Cherokee v. Cox, 34 Kan. 16. (4) People V. Russell, 49 Mich. 617. (5) Boston V. Schaffer, 9 Pick. 415; Baker v. Cincinnati, 11 O. S. 534. (6) Taxing District v. Emerson, 4 Lea, 512. (7) Jacko V. State, 22 Ala. 73. (8) Society v. Diers, 10 Abb. Pr. 2 16. (9) Merriam v. New Orleans, 14 La. Ann. 318. (10) Peay v. Little Rock, 32 Ark. 35; Washington v. State, 13 Ark. 752. (11) Burlington v. LaTrrence, 42 la. 681. § 275.] ORDINANCES CLASSIFIED, ETC. 267 § 274. Dogs. — The keeping of dogs is an act that may be regulated by requiring a license fee.^ Such fee is not in the nature of a tax on property, but is essentially a police regulation.^ In the District of Columbia an ordinance requiring a license for the privilege of keeping a dog, and prescribing fine and imprisonment for omission to secure the same, is void.^ § 275. Liquor licenses. — The power to regulate the sale of intoxicating liquors is one that has always been exercised by the general government, and one that may be lawfully, and generally is, delegated to municipal corporations. But the grant must be express, and the right can not be exer- cised by municipalities under general language of any kind.^ An ordinance declaring a penalty for selling liquors with- out having first obtained a license is valid, under power to license retailers of liquor and general police power.^ Un- der power "to license and regulate groceries, ale-houses, and confectioners " an ordinance regulating " grocery shops or the vending by retail bread, cakes, ale, wine, porter, beer," etc., is valid.^ In Goddard v. Jacksonville, 15 111. 589, it was held that towns being empowered to pass such by-laws as should not (1) Cranston v. Augusta, 61 Ga. 573; Shelby v. Randies, 57 Ind. 390. (2) Movvery v. Salisbury, 82 N. C. 175; Van Horn v. People, 46 Mich. 183; Carter v. Dow, 16 Wis. 317; Morey v. Brown. 42 N. H. 373. (3) Washington v. Meigs, 1 McArthur, 53. (4) Commonwealth v. Turner, 1 Cush. 493; e. g. in Indiana, Law- renceburg v. Wuest, 16 Ind. 337; Commonwealth v. Dow, 10 Met. 382; Ex parte Burnett, 30 Ala. 461. In the entire absence of state laws the subject may be regulated under general power. Heisembrittle v. City 2 McMull. 233; City v. Ahrens, 4 Strob. 241; City v. Church, 4 Strob. 306. And in Illinois the sale of liquors is regulated under power to pre- vent nuisance. Block v. Jacksonville, 36 111. 361; Pekin v. Smelzel, 21 111. 464; Byers v. Trustees, 16 111. 35; Goddard v, Jacksonville, 15 IlL 688. (5) Meyer v. Bridgetbn, 37 N. J. 160. (■ft) Thomas v Mt. Vernon, 9 O. S. 290. 268 MUNICIPAL POLICE ORDns^ANCES. [§ 276 be inconsistent with the laws of the state, and as they should deem necessary to prevent and remove nuisances, an ordinance might be passed declaring the selling of spir- ituous liquors a nuisance and imposing a fine under the general power to provide penalties. Power " to tax or entirely suppress all petty groceries '* gives no right to license the retailing of liquors.^ Nor does power "to regulate, tax, and prohibit tippling-houses, ale, and porter shops '' authorize a total prohibition of the sale of liquors.^ Power to prohibit tippling-houses and dram shops does not authorize the passage of an ordinance forbidding the sale of spirits and beer, in any quantity or for any purpose, except by persons authorized to sell for mechanical, medic- inal, and manufacturing purposes.^^ Partial prohibition may be exercised under power to prohibit. The greater includes the less.* § 276. Ordinance provisions. — An ordinance closing the bar-rooms of inns during a certain time, when " no liquor is to be sold or furnished to any one," is void for not ex- cepting guests of the inns from its provisions.^ Under a charter provision that the council might sup- press disorderly houses, and that t?ie mayor might order saloons closed at such hour as the council should designate, it is held that the council may ordain that saloons shall close from 10:30 p. m. to 5 a. m., under a penalty of $25 for failure.® Among other provisions relative to the hours of closing saloons, the following have been sustained : Com- pelling saloons to close at 10 p. m. ;' at 9 p. m. under gen- (1) Leonard v. Canton, 35 Miss. 189. (2) Tuck V. Waldron, 31 Ark. 462; Pekin v. Smelzel, 21 111, 465. (3) Strauss v. Pontiac, 40 111. 301. (4) Gunnarssohn v. Sterling, 92 111. 569; Schwuchow v. Chicago, 68 111. 444; Harbaugh v. Monmouth, 74 111. 371 ; Martin v. People, 88 111. 390, and other cases cited there. (5) Baker v. Paris, 10 U. C. Q. B. 621. (6) State V. Welch, 36 Conn. 215. (7) Staates v. Washington, 44 N. J. 605; Bauer v. Avondale, 4 Cin. Law Bull. 12; s. c, 8 L. Rec. 478; Platville v. Bell, 43 Wis. 488. § 277.] ORDINANCES CLASSIFIED, ETC, 269 eral powers ; ^ at dark ; ^ from 10 p. m. to 5 a. m. ; ^ from 10 p, M. to 4 a. m.* Such provisions need not be based upon power over saloons or the liquor traffic, but can be sus- tained under general police powers of regulation. The reasonable sale of liquors is in no way hindered. A regu- lation that requires saloons to be closed twelve hours out of the twenty-four would be unreasonable under any power.'' § 277. Other regulations. — Under power to regulate ale, beer, and porter-houses it is proper to ordain that girls shall not be employed in such places, the regulation being reasonable as tending to preserve the public morals.^ Un- der general power to regulate, the council may, by. the terms of the license, confine the sale of liquors to a partic- ular room in a house, as to the front room on the ground floor, for instance.'' If the power is to license, regulate, restrain, or suppress, the sale may be prohibited; and if permitted under license, the license may provide for its for- feiture as a penalty for any breach of the provisions of the ordinance authorizing the license. Other restrictions may be imposed, such as requiring the place licensed to be closed at certain hours, on Sundays, holidays, and election days.^ Saloons may be closed on Sundays under power to enact police regulations and to control the sale of liquors.' An ordinance inflicting a penalty on any one selling domestic liquors which have not been gauged according to fixed regulations, and charging a small fee for such gauging, has been held constitutional.^'' In Alabama, under power to prohibit drunkenness, to license retailers of spirits, and to (1) Smith V. Knoxville, 3 Head, 245. (2) Maxwell v. Jonesboro, 11 Heisk. 257. (3) Ex parte Wolf, 14 Neb. 24. >8.] ORDINANCES CLASSIFIED, ETC. 279 police power.^ So, when power is granted to regulate the ]iolice of a city, to pass and enforce all necessary police regulations, and to impose penalties for violations of the ordinances, places of business may be required to be closed on Sunday." Especially is this true of such businesses as from their nature are gen6rally looked upon as liable to interfere with the public security and to promote disorders. The sale of intoxicants and noisy and public occupation may be prohibited on Sunday. This will not be so far ex- tended as to cause great financial loss or great loss of time in businesses which depend largely on uninterrupted prose- cution for success. It is, for example, improper to close large mills and manufacturing establishments. Even if the state law only goes to the extent of forbid- ding all labor on Sunday, which disturbs "the peace and good order " of the community, places of ordinary commer- cial business may be closed on that day." Ordinary regulations against carrying on mercantile pur- suits on Sunday are not in derogation of the rights of re- ligious liberty.* But an ordinance would be void which orders the closing of all places of business on Sunday, without making some provision for works of charity and necessity and for the transaction of business by those who from religious motives observe some other day as a day of rest.^ The offense in such cases depends on the publicity of the business, on its conduct as a. public business, to which every one who wishes may have access. Thus, it is not at all impossible or inconsistent to have a business place closed for one purpose and open for another.^ Hotels and (1) Specht V. Commonwealth, 8 Pa. St. 312; St. Louis v. Caflferata, 24 Mo. 94; Hudson v. Geary, 4 E. I. 485; Cincinnati v. Rice, 15 Ohio, 225; State v. Ames, 20 Mo. 214; Karwisch v. Atlanta, 44 Ga. 204; Gabel v Houston, 29 Tex. 336. (2) McPherson v. Chebanse, 114 HI. 46. (3) McPherson v. Chebanse, 114 111. 46. (4) Charleston v. Benjamin, 2 Strobh. 508. (5) Canton v. Nist, 9 0. S. 439. Contra, Shreveport v. Levy, 26 La. Ann. 671. Ordinances can not distinguish between Jews and Gen tiles. (6) Lynch v. People, 16 Mich. 477. 280 MUNICIPAL POLICE ohdinances. [§ 290 inns are such places of business. Though the general pub- lic is prohibited from access to a hotel bar on Sunday, the hotel-keeper owes other duties to his guests, and he can not be punished for furnishing liquors to them. If the or- dinance disregards their duty, and attempts to absolutely prohibit the sale of liquors on Sunday, it is voidable.' Travelers and boarders must be excepted.^ The municipality ought as a lule to follow the policy es- tablished by the state, and ought never to attempt to ex- ceed its limits. § 289. Appropriations for police purposes.— Munici- palities are generally provided by the laws of the state with a system of municipal courts and officers. It becomes a question of some importance as to how far the munici- pality may make appropriations to supplement the efficacy of the state laws. In the first place, suitable buildings or rooms must be provided for the use of the local officers and courts, and the incidental expenses of their operation and action must be defrayed. These are legitimate corporate purposes, and may be attended to without an express grant of power. A suitable municipal hall may be erected without express power.^ And it may be built large enough to meet and supply the prospective as well as the present wants of the administration of the local government; and, until needed, the extra rooms may be rented to private per- sons, or their use permitted gratuitously.* § 290. To aid the administration of justice. — Occa- sions frequently arise when it seems eminently proper that the municipality should, by means of judicious appropria- tions, render additional aid and encouragement to the local authorities in 'the administration of the laws. But it is generally considered unlawful to offer special inducements (1) Wood V. Brooklyn, 14 Barb. 425. (2) Ross V. York, 14 U. C. C. P. 171. (3) Torrent u. Muskegon, 47 Mich. 115. (4) Worden v. New Bedford, 131 Mass. 23; French v. Quijicy, 3 AV len, 9. § 291.] ORDINANCES CLASSIFIED, ETC. 281 to the local officers to do their duty. It is the duty of ev- ery citizen to aid in making arrests when an opportunity offers itself; but private persons will undoubtedly be moved to greater activity to assist the local police if they have a prospect of reward for so doing, and it has been held law- ful to offer rewards to citizens for the apprehension of crim- inals.^ It is the duty of a police officer to do all he can to make lawful arrests, and in theory he needs no additional stimulus to urge him to properly perform that duty. The extra exertion made by a private citizen may constitute a consideration for the payment of a reward offered ; but an officer who makes an arrest has done no more than his duty for which his salary is paid to him, and there is no consideration for such a payment or off'er. It is accord- ingly generally held, and usually without drawing any dis- tinction between officers and private persons, that it is un- lawful for a municipal corporation to offer rewards for ar- rests.^ The police power of the municipality is limited in this respect to allowing extra pay to officers who are obliged to do extra duty in time of great peril from riots, and to providing adequate means of defense against riots. Thus, it would be lawful to authorize the mayor, in antici- pation of a riot, to borrow arms and to give a bond for their safe return.^ As against dangers threatened from without the municipality, such as hostile invasions, or an at- tack of rebels, it is the duty of the state and nation to pro- vide protection, and the municipality has no power by im- plication to expend public money for defense.* § 291. To employ attorneys. — As a rule, a municipal corporation may, without express authority, employ attor- (1; York v. Forscht, 23 Pa. St. 391; Crashaw o. Roxbury, 7 Gray, 374. (2) Cornwall v. West Missouri, 25 U. C. C. P. 9; Hawk v. Marion County, 48 la. 472; Pool v. Boston, 5 Cush. 219; Gilmore v. Lewis, 12 Ohio, 281; Gale v. South Berwick, 51 Me. 174; Patton v. Stephens, 14 Bush, 324; Hanger v. Des Moines, 52 la. 193. (3) New York v. Buffalo, 2 Hill, 434. (4) Burrill v Boston, 2 Cliff. 590 ; Crowell v. Hopkinton, 45 N. J. 9; Stetson V. Kempton, 13 Mass. 272. 282 MUNICIPAL POLICE ORDINANCES. [§ 292. neys to look after the public interests and to aid in the ex- ecution of its laws.^ A different question arises when suit is brought against some municipal officer for alleged inju- ries suffered at his hands in the performance of his official duties. The law presumes that every officer restricts his official acts to those which are lawful, and when the legal- ity of his acts are questioned he must either defend him- self or be defended by the public whom he serves. An at- torney employed by a city to defend an action brought against a municipal officer for an alleged unlawful exer- cise of his powers can collect reasonable fees from the cor- poration. As was justly said by Zollars, J., in Cullen v. Carthage, 103 Ind. 196 ; s. c, 53 Am. Rep. 504 : " In every community there is a greater or less number of people who yield obedience to the law, and respect the rights of others, simply because they fear the eonsequences of an opposite course. It is necessary that such shall be made to under- stand that the laws will be executed, and that the execu- tive officers will be sustained in their efforts to execute them. If it should be understood that the marshal of the town is left without support of the governing body to de- fend himself against all manner of suits that might be in- stituted against him, the vicious and violent might, by a succession of annoying suits against him, greatly cripple the enforcement of the ordinances. Such an understand- ing would at least have a tendency to embolden the vicious and intimidate the marshal." § 292. Wharves. — In those municipalities which border on navigable waters, it is often important to determine the extent of their power to regulate the public wharves. The full power of police control extends only over those wharves that have been dedicated to or constructed by the corporation. Only such control can be exercised over pri- vate wharves as may be necessary by reason of the public nature of their use.'' Public wharves can not be erected (1) Memphis v. Adams, 9 Heisk. 518; Smith v. Sacramento, 13 Cal. 531, (2) Horn v. People, 26 Mich. 222. See last note under g 144, ante. § 292.] ORDINANCES CLASSIFIED, ETC. 283 except under special powers; but if their erection is in any way authorized, such powers of police control and regula- tion may be exercised over them as are necessary to pre- serve their usefulness. Neither power to regulate the streets nor to preserve good order and government author- rize the imposition of wharfage fees as a method of police regulation.^ Power " to erect" wharves includes power to establish new wharves and also to extend existing ones.^ Power " to erect, repair and regulate " does not give any power to alienate the wharves or their franchises.^ The power of control does not exist in Louisiana except by express grant.* The better and general view is, how- ever, that public wharves may be regulated to the same ex- tent as any other public property, such as city parks and streets.^ The wharves entail expense upon the corporation for their construction and care, and it is no more than just that the burden of the expense should fall upon those who are benefited by them and not upon the body of the tax- payers. Reasonable fees for the use of the public wharves may be exacted. This right is not a franchise to depend upon a grant of power, but it results from the proprietary interest of the corporation.* Such a charge is neither a tax in the constitutional sense, nor as a tonnage tax, ob- noxious to the constitutional prohibition of any regulation of inter-state commerce. This is true, even though the tonnage of vessels is made the basis by which the amount charged is determined.' But the fee must only be a reason- In California, no proprietary interest in wharves is vested in corpora- tions. People V. Wharf Co., 31 Cal. 33; Miles v. McDermott, 31 Cal. 271. (1) The Geneva, 16 Fed. Rep. 874; s. c, 28 AFb. L. J. 376. (2) Hannibal v. Winchell, 54 Mo. 172. (3) Eailroad Co. v. St. Louis, 2 Dill. C. C. 70. (4) St. Martinsville v. " Mary Lewis," 32 La. Ann. 1293, (5) Muscatine u. Packet Co., 45 la. 185; Keokuk u. Packet Co., 45 la. 196. (6) Murphy v. Montgomery, 11 Ala. 586; Mobile v. Moog, 53 Ala. 66] ; Campbell v. Kingston, 14 U. C. C. P. 285. (7) Keokuk v. Packet Co., 45 la. 196; Packet Co. v. Catlettsburg, 105 U. S. 559 ; Packet Co. v. Keokuk, 95 U. S. 80. See ante, § 85. 284 MUNICIPAL POLICE ORDINANCES. [§ 292. able compensation for the actual use of the public wharves.^ The owners of adjoining property may be prohibited from using the wharves without paying a fee and obtaining a formal permit'from some corporate officer.^ "Where a corporation is expressly authorized to charge wharfage, it becomes its duty to do so, in order not to throw the cost of supervising them on the general tax- payer, and it could not establish free wharves.' The pay- ment of the fee could not be avoided on the ground that the wharf is not well built and that it needs further im- provements.* The fee may be collected from all kinds of vessels, even such as are licensed by the state or federal government.^ Wharves are only those portions of the shore that have been improved in order to facilitate the landing of boats. The use of an unimproved part of a shore would not sub- ject a vessel to the regular wharfage charge.^ Elevators, as beneficial to the public, may not be erected by the corporation, but it may allow others to erect them on the public wharves. They would not be considered pub- lic obstructions.^ Power to regulate the wharves does not imply power to improve the harbor, even though an improvement would greatly facilitate access to the wharves.* Nor could the corporation define high-water mark, and declare all erec- tions of buildings below it to be nuisances.® It would be equally unlawful to create an artificial dock line further toward the shore than the navigable portion of the water, (1) Cannon v. New Orleans, 20 Wall. 577; Railroad Co. v. Ellerman. 105 U. S. 166 ; Leathers v. Aiken, 9 F«d. Rep. 679; In re Hagaman, 20 U. C. Q. B. 583. (2) Dubuque v. Stout, 32 la. 80. (3) Mobile v. Moog, 53 Ala. 561. (4) Prescottv. Duquesne, 48 Pa. St. 118. (5) Packet Co. Keokuk, 95 U. S. 80. (6) Idem. (7) Canal Co. v. St. Louis, 2 Dill. C. C. 70. (8) Spengler v. Trowbridge, 62 Miss. 45. (9) Evansville v. Martin, 41 Ind. 145. § 293.] ORDINANCES CLASSIFIED, ETC. 285 and by prohibiting the erection of wharves over or beyond that line, in fact prevent access to the navigable water.^ After wharf lines are established, all the water beyond is considered as navigable.^ After wharves have been established their use may be regulated directly by ordinance, or through some public wharf or harbor-master, appointed for that purpose. Any reasonable rules may be adopted. The manner of landing at wharves, the place, the length of their occupa- tion, the mode of their use, are all proper subjects of regu- lation.^ The transportation of goods along the wharves, may be regulated under general police power.* § 293. Conclusion. — After reviewing the decisions cov- ered by this work, it is clear that the drafting of valid or- dinances ought not to be a matter of great difficulty to any council. As a general rule any ordinance will stand the test of enforcement which has been enacted in good faith, after careful deliberation, and to remedy a real mischief or provide for a real want. Nearly every feature of local laws which has been held void or unlawful had its origin in local prejudice or in precipitate action. Ordinances should be enacted with the legislative mind directed to rights of offenders, as well as to those of the public ; penalties should be made as light as possible and still preserve their ef- fectiveness ; burdens of every kind should be distributed as equably as possibly; plain words should be used and in their ordinary sense ; and the remedy should be carefully limited to accomplish the cure of the evil or mischief against which the ordinance is directed, and not extended 80 that it affects or restrains harmless acts or occupa- tions. (1) Yates V. Milwaukee, 10 Wall. 497. (2) Winpenny v. Philadelphia, 65 Pa. St. 136. (3) Horn v. People, 26 Mich. 222; Keokuk v. Packet Co., 45 la. 196. (4) Ex parte Cass, 13 Pac. Rep. 169 (Cal. 1887). 286 MUNICIPAL POLICE ORDINANCES. [§ 293. The ordinance book of a municipal corporation should neither be incumbered with useless laws nor should the community be obliged to suffer inconveniences or to endure evils which the corporation has ample power to prevent and correct. APPENDIX. FOUR SAMPLE ORDINANCES. I. An ordinance. To regulate strays. Be it ordained by the [council of the village of -B.], that: . Section 1. The [mayor] shall select and establish a place within the corporate limits for impounding stray animals. Sec. 2. The marshal [or, any police officer] shall take up any animal found running at large on the public streets or places, and impound it ; he shall at once give notice by one week's publication in some newspaper of general circulation in the [village], [describing the animal, and giving the date and place of sale] ; that it will be sold to defray costs, if it is not reclaimed and costs paid within u week from the publication of the notice ; if not then reclaimed, he shall sell said animal at public auction, apply the proceeds to th(j payment of the poundage and expenses, and retain the balance in trust for the owner of the animal. If the balance is not claimed within a year from the sale, it shall be paid into the general fund of the [village]. Sec. 3 The following shall be the fees charged as poundage, one- half of which shall be paid to the marshal [or, pound-keeper], who shall have charge of the pound, and the other half to the treasurer of the village on account of the general revenue fund: For each seizure, fifty cents ; for each day's retention of each animal, of the horse, cattle, ass, goat, sheep, or swine kind, fifty cents; for each day's retention of any other animal, twenty-five cents; for prepar- ing any advertisement and for each auction, regardless of animals sold, one dollar. Sec. 4. Any person who permits an animal belonging to him to run at large upon a street or public place within the corporate limits shall, on conviction thereof, be fined in any sum not more than five dol- lars and not less than one dollar. Sec. 5. This ordinance shall take afect five days after its publi- cation, as provided by statute. (287) 288 APPENDIX. II. An ordinance. - To regulate peddlers. Be ii ordained by the [council of the village of B.'], that : Section 1. A peddler is a person who carries goods with him, either on his person or in some vehicle, and sells them or offers them for sale, barter or exchange, on the streets or public places, or at stores or residences. Sec. 2. The mayor shall issue a license to peddle to each appli- cant, on the payment of fifty cents, ^ unless the applicant is known to him to have a bad reputation, which license shall be good for three months. Sec. 3. Any person who peddles without such license shall, on conviction thereof, be fined not less than five nor more than twenty- five dollars. Sec. 4. This ordinance shall be in effect on and after its due publication. III. An ordinance. To regulate the erection of build- ings, so as to insure safety from fire. Be it ordained by the [council of the viEage of B."], that : Section 1. It shall be unlawful for any person to erect, within the limits hereinafter defined, any building, more than ten feet square, or eight feet high, unless the outer walls thereof are con- structed of iron, stone, brick and mortar, or some of those materials^ eight inches thick, in a building less than twenty feet in height to the eaves, twelve inches thick in a building less than forty and more than twenty feet in height, and four inches additional thick- ness for each additional twenty feet in height, and unless the roof is covered with some non-combustible material. Sec. 2. Erections include removals from one lot to another. Sec. 3. Any person who violates section one of this ordinance shall, on conviction thereof, be fined in a sum not less than twenty and not more than one hundred dollars. [The limit must be confined to the amount of fine lawful for the corporation to impose.'\ Sec. 4. [Describe Hie limits.'] Sec. 5. Whenever any building shall be erected, or in progress of erection, in violation of section one of this ordinance, the mayor [8. use as evidence, 186. Record of court proceedidgs, what must contain, 209. on error, 209. on appeal, 207-209. mention of bill of exceptions, 209. Reference in ordinance to other ordinance, 75. Regulation, scope of, 30. Religious liberty, and Sunday regulations, 288. Remedies, nature and necessity of, 140. over what teritory eflfectual, 141. extraterritorial effect, 142. affects what persons, 143. when part of corporate territory exempt, 144. railroad premises, 145. streets, regardless of title, 146. penalties, definition, 147. power to inflict, when implied, 147. 308 INDEX. Eemedies— Continued. what kind lawful, 148. are not licenses, 149. fines, 150. amount, 151. cumulative, 152. for second oflFense, 153. costs, 154. imprisonment in default of payment, 155, 156. does not satisfy judgment, 157. labor during, 157. imprisonment as a penalty, 158. forfeiture, 159, 160. destruction of property, 160. against strays, 161. disposition of proceeds of sale, 161, notice to owner, 162. judicial determination, 163. forfeiture of realty, 164. distress not lawful, 84. Repeal of ordinance, effect on license, 266. effect on prosecution, 197. of repealing ordinance, 197. general treatment, 60-65. must be by council, 60a. form of repealing act, 61. by legislature by implication, 62. by council by implication, 63. saving clause, 66. effect on vested rights, 67. of state law, does not invalidate ordinance when, 138L Residence, when a defense, 196. Resolution, when ordinance may be in form of, 70. nature of and effect, 210. when sufficient, 210, 210a. how passed, 210. to fix license fee, 262, 264. to ordain license, 269. Restaurant, reasonable regulation of, 130. Restraint of trade, 132-134. "Restrain," meaning of " to restrain," 31. Retroactive ordinances, 23. Revenue, power to tax for, 283, Reward for arrests, 290. INDEX." 309 Khode Island, law of double offenses in, 115. Kiots, regulation of to insure security, 213. Rubbish, regulation of, 213. Rules of validity, 83-139. . fdei, legit et rationalii, 83. must accord to IT. S. constitution and laws, 84. law of the land, 84, 123, 124. regulation of commerce, 85. of U. S. mails, 86. interference with U, S. license laws, 87. consistence with state law, 88. as to minor offenses, 89. punishment may be greater, 90. one conviction to bar, 91. holdings in the various states, 92-120. consistency with state license laws, 121. policy of state legislation, 122. corporate charter, 125. reasonableness, 127-131. restraint of trade, 132-134. discrimination, 135-136. against non-residents, 137. once void, always void, 138. partial invalidity, 139, 159. Sale of commodities, what reasonable regulation of, 130. what is not, 131. Saloons, regulations of, 276-279. Saving clause in ordinance, 66. Scbool, unlawful regulation of, 131. Security and comfort, regulations to preserve, 213. Selling goods on the streets, 245. Sewerage system, 242. beyond corporate limits, 142. reasonable regulation of, 130. power to fix size may not be delegated, 11. Shore, reasonable regulation of, 130. Sidewalks, power to regulate may not be delegated, 11. reasonable regulation of 130 unreasonable regulation of, 131. extent of control over, 228. snow on, 235. Signature to ordinance, of clerk, 48. of mayor, 49. when proved extrinsically. 186. 310 INDEX. Signature to complaint, 177. Slaughter-houses, regulation of under health powers, 213. wliat reasonable regulation of, 130, 219. what is not, 131. Smoke, may be regulated, 85. Snow, on the sidewalks, 1 30, 235. South Carolina, law of double offenses, 116. State law, must be conformed to, 88, 121, 122. Statute of limitations, 196. Strays, remedy against, 161. notice to owner, 162, 249. reasonable regulation of, 130. unreasonable regulation of, 131. of non-residents, 137. See Remedies. may be regulated, 249. pounds, 249. proof of owner's knowledge, 195. regulation under police powers, 213. Streets, power to improve may not be delegated, 11. nor to determine boundaries 1 1. lights for, who may erect, 136. regulations under police power, 213. may not be obstructed by markets, 217. power to regulate implied, 15. use of by non-residents, 143. jurisdiction over, 146. under police control, 224. no power to vacate, 224. extent and scope of power, 224. care of the streets, 225. lighting, 225. grading, 226. paving, 227. sidewalks, 228. protection of, 229. See Vehicles. obstructions to, 230-237. inclosures, 232. public buildings, 233. other buildings, 234. snow, 235. moving buildings, 236. other obstructions, 231. ^ railroads, 238-241. INDEX. 311 Streets — Continued. openings in, 234. sewerage, 242. water-pipes, 243. gas, 244, 225. telegraphs, 244a. restrictions on the ordinary use, 245. sale of goods on, 245. processions, 245. use by vehicles, 246. See Vehicles. Street railways, 240, 241. Subject, covered by a single ordinance, 74. Sunday ordinances, when against religious freedom, 122. when discriminating, 136. to insure peace and comfort, 213. closing saloons, 277. regulating trades, 288. Suppress and restrain, scope of power to, 31. Suspension, of council rules, 45. Swine, when nuisances, 254. regulation under health powers, 213. Taxes, not levied under police power, 213. limit of for police purposes, 281. local assessments, 282. other taxes, 283. mode of exercising the power, 284. amount of the the tax, 285. limited by the constitution, 286. discrimination in, 287. Telegraph poles, 244a. Tennessee, law of double oflFenses in, 117. Territory, over which ordinance takes effect. See Remedies. Texas, law of double offenses in, 1 1 8. Theater, amount of license fee, 260. definition of the word, 273. unreasonable regulation of, 131. Title to property, not affected by ordinance, 166. Title, of ordinance form and contents, 71. Title of complaint, object of, 172a. form of, 172a. total lack of, 172a. slight inaccuracy not fatal. 168, 172a. ordinary name of corporation, 168. exception to, taken in the court below, 172a. 312 INDEX. Time of going into effect, 76. Toll-bridges, not to be erected under police power, 213. Transcript. See Record. Transient dealers, license of, 271. Trees, regulation of on streets, 229. owner's remedy in case of injury, 7. Trial by jury, inviolable, 84. Uniformity in licenses, 280. United States mail, transport of subject to regulation, 86, 199. United States law, to be observed, 84. license laws, 87. law of double offenses, 120. Utah, law of double offenses in, 199. Vagrants, what regulation of reasonable, 130. Validity. See Rules of Validity. Vehicles, what regulation reasonable, 130. what is not, 131. what is in restraint of trade, 133, 134. of non-residents, 143. on railroad grounds, 145. use of street by, 229, 246. what regulation lawful, 246. routes and stands, 247. kept for hire, 247. construction of special regulations, 248. Waiver of right to object to offense, 201. Warrant of arrest, form of, 179. what it must contain, 179. of imprisonment, 203. See Complaint ; Commitment. Water, provision for supply of, 218. for use of fires, 222. use of streets to convey, 243. Weighing of prodnce, 218. Wells, regulations of when obnoxious, 220. Wharves, what power over delegated to harbor-master, 12. regulation of not a regulation of commerce, 85. discrimination against non-residents, 137. may not regulate private wharves, 144. what regulation valid, 292. Wisconsin, nature of the action in, 170. Women, unlawful discrimination against, 84. Wyoming, nature of the action in, 170. 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