CHAPTER III

MUNICIPAL BY-LAWS.

§ 18. By-law defined.- A by-law of a corporation is a regulation which itself has established for the government of its own internal affairs. Blackstone terms it a "private statute;" and it has the force of a statute within its narrow sphere."

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Municipal by-law - Ordinance.- A municipal by-law, therefore, is a by-law of a municipal corporation. Ordinance is a word practically synonymous. And the by-laws of cities are in most localities commonly called city ordinances; even they are popularly so where the more appropriate legal word is by-law.

How municipal corporation created.- Municipal corporations, such as cities and towns, are, in England, created either by act of parliament or by charter from the crown; usually by the latter,' regulated, in modern times, more or less by statute." With us they exist only by statute.

Legislative power over charter.- The legislature can amend or repeal an act of incorporation at pleasure, or can force such

He mentions, among the powers of a corporation: “To make by-laws or private statutes for the better government of the corporation; which are binding upon themselves, unless contrary to the law of the land, and then they are void. This is also included by law in the very act of incorporation; for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic." 1 Bl. Com. 476.

2 Hopkins v. Swansea, 4 M. & W. 621, 641; S. v. Williams, 11 S. C. 288; [R. R. Co. v. Hines, 82 Ill. Ap. 488; R. R. Co. v. Village of Allamount, 84 Ill. Ap. 274; Water-works Co. v. New Orleans, 164 U. S. 471; City v. Wilson,

15 Utah, 53; S. u. Williams, 11 S. C. 288.]

3 Jones v. Sanford, 66 Me. 585, 588; S. v. Jersey City, 8 Vroom, 348. 4 Willcock, Corp. 25.

5 As, see 40 & 41 Vict., c. 69.

6 Sloan v. S., 8 Blackf. 361; S. v. Branin, 3 Zab. 484; Martin v. Dix, 52 Miss. 53, [24 Am. R. 661;] New Orleans v. Cazelar, 27 La. An. 156; Stilz v. Indianapolis, 55 Ind. 515; Giboney v. Cape Girardeau, 58 Mo. 141; Philadelphia v. Fox, 64 Pa. St. 169; Layton v. New Orleans, 12 La. An. 515; Annapolis v. S., 30 Md. 112; S. v. Union, 4 Vroom, 350. And see S. v. Person, 3 Vroom, 134; Brackett v. P., 72 IL 593; [Crook v. P., 106 Ill. 237; 5 Am. & Eng. Corp. Cas. 460; Coyle v. Mc

act on the corporators against their will,' except as or unless restrained by the constitution. But not unfrequently an act incorporating a municipality is passed to be accepted or rejected by those to be affected thereby as they may choose, and such proceeding is always permissible, while still it is not necessary.

Incidental power to make by-laws.- An incident of every such corporation, even where its charter or incorporating act is silent on the subject, is the power to make by-laws. Commonly the authority is conferred in express words, and it is competent for legislation to do this; but the general power results equally from the very existence of the corporation."

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19. Extent of incidental power.- Neither a general statutory power to make by-laws, "nor," in the words of an Eng

Intyre, 7 Hous. (Del.) 44; Ward v. City, 121 N. C. 1; Galloway v. Tavares, 37 Fla. 58. In construing a municipal ordinance the same rules govern as apply to the general statutes. Pittsburg, etc. Ry. Co. v. Hays, 17 Ind. Ap. 261, 45 N. E. R. 675. The rule generally adopted in this country providing that acts of the legislature shall embrace but one subject, which shall be expressed in the title, has no application to municipal corporations. Ex parte Haskell, 112 Cal. 412.]

1 Paterson v. Society, 4 Zab. 385; San Francisco v. Canavan, 42 Cal. 541; S. v. Jennings, 27 Ark. 419; City v. Shields, 52 Mo. 351. See P. v. Bennett, 29 Mich. 451, [18 Am. R. 107;] Manly r. Raleigh, 4 Jones Eq. 370; P. v. Chicago, 51 Ill. 17, 58, [2 Am. R. 278;] Harward v. St. Clair, etc. Drainage Co., 51 Ill. 130; Lovingston v. Wider, 53 IIL 302.

2S. u. McFadden, 23 Minn. 40; Milner v. Pensacola, 2 Woods. 632; Bank of State v. Bank of Cape Fear, 13 Ire. 75; S. v. Canaday, 73 N. C. 198, [21 Am. R. 465;] Mosher v. Independent School District, 44 Iowa, 122.

Post, §36; Lammert v. Lidwell, 62 Mo. 188, [21 Am. R. 411;] St. Louis v. Russell, 9 Mo. 507; [St. Maggard v. Pond, 93 Mo. 606.]

Blessing v. Galveston, 42 Tex. 641. 5 Blackstone, ut sup.; Willcock, Corp. 99, 100; Rex v. Westwood, 2 Dow. & C. 21, 4 Bligh (N. S.), 213, 7 Bing. 1, 4 B. & C. 781; Com. v. Stodder, 2 Cush. 562, 569, [48 Am. D. 679;] Angell & Ames, Corp., §§ 110, 325.

❝S. v. Noyes, 10 Fost. (N. H.) 279; S. v. Simonds, 3 Mo. 414; [Fred v. Ry. Co., 65 Mo. Ap. 121; Water Co. v. Aurora, 129 Mo. 540, 31 S. W. R. 946; City v. Wilson, 15 Utah, 53; St. Ransen v. Ireg, 42 Neb. 186, 60 N. W. R. 601.]

7 "Though power to make laws is given by special clause in all incorporations, yet it is needless; for I hold it to be included, by law, in the very act of incorporating, as is also the power to sue, to purchase, and the like. For, as reason is given to the natural body for the governing of it, so the body corporate must have laws, as a politic reason, to govern it; but those laws must ever be subject to the general law of the realm, as subordinate to it. And, therefore, though there be no proviso for that purpose, the law supplies it." Norris v. Staps, Hob. 210b, 211a.

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lish author, "a general custom to make by-laws, will give an ordinance any greater claim to validity than if it had been made under the incidental power in every corporation."1 But it is difficult to say exactly how far this general power extends; because, in most instances, our incorporating acts define the powers, so that the decisions under them do not help us on this question. And, as further complicating the authorities, there are in England prescriptive corporations, having local customs, among which are rights founded on ancient and long usage to establish by-laws not within the general authority; but there are no corporations of this sort in the United States." Still we have authorities enabling us to say that a by-law made under the general power must, to be good, not contravene the other laws of their policy, or exceed the proper local or other jurisdiction of the corporation, or be otherwise oppressive or unjust. To particularize:

20. Express authority-Constitutional. Any proper by-law made under express authority from the legislature is good, provided the authorizing act did not exceed the constitutional power. But such act may be unconstitutional, therefore void, and therefore the by-law be void. Or, if the by-law

1 Willcock, Corp. 159.

Kyle v. Malin, 8 Ind. 34. Generally the express legislative power is to be deemed simply an addition to the implied. S. v. Morristown, 4 Vroom, 57. See Parker v. Baker, Clark, 223; [Gas & Water Co. v. Elyria, 57 Ohio St. 374.]

8 Mobile v. Yuille, supra; Norris v. Staps, Hob. 210b; Cullinan v. New Orleans, 28 La. An. 102; Shreveport v. Levy, 26 La. An. 671, [21 Am. R. 553;] Bowling-Green v. Carson, 10 Bush, 64; Com. v. Wilkins, 121 Mass. 356; Jones v. Sanford, 66 Me. 585; Pieri v. Shieldsboro, 42 Miss. 493;

3 Com. v. Stodder, 2 Cush. 562, [48 Columbia v. Beasly, 1 Humph. 232; Am. D. 679.]

4 Willcock, Corp. 74.

5 Com. v. Stodder, 2 Cush. 562, 569. 6 Ante, § 17a; post, § 22; Mobile v. Yuille, 3 Ala. 137, 143, [36 Am. D. 441;] Canton v. Nist, 9 Ohio St. 439; [City v. Leckie, 78 Mo. Ap. 8; Steinmueller v. Kansas City, 3 Kan. Ap. 45.]

7 Rex v. Breton, 4 Bur. 2260, 2267; Com. v. Turner, 1 Cush. 493, 496; Will iams v. Davidson, 43 Tex. 1; S. v. Mobile, 5 Port. 279, [30 Am. D. 564;] Thomas v. Richmond, 12 Wall. 349; S. v. Hoboken, 4 Vroom, 280.

Barling v. West, 29 Wis. 307, [9 Am. R. 576;] Yates v. Milwaukee, 10 Wall. 497; St. Paul v. Traeger, 25 Minn. 248; Ward v. Greeneville, 8 Bax. 228; [Kirkham v. Russell, 76 Va. 956; Barnett v. Denison, 145 U. S. 145.]

9 Gunnarssohn v. Sterling, 92 Ill 569; Mowery v. Salisbury, 82 N. C. 175; S. v. Canaday, 73 N. C. 198, [21 Am. R. 465;] Fretwell v. Troy, 18 Kan. 271; Schwuchow v. Chicago, 68 Ill. 444; Wheeler v. Cincinnati, 19 Ohio St. 19, [2 Am. R. 368;] Ex parte Hurl, 49 Cal. 557; Sullivan v. McCam

does not follow, or if it exceeds, the power, it will be void.1 A fortiori, therefore, it will be void if itself unconstitutional.' Among

By-laws commonly permissible,— yet more or less resting on statutory authority, are the following: forbidding the removal of house dirt and offal from the city, except by license;3 regulating the speed of vehicles drawn through the streets; ordain ing rules for passenger transportation in the city, the carriages, prices, and the like; providing for a city market, and prohibiting persons to occupy stands within the near streets, for the vending of such things as are sold in the market; and, in a limited degree, regulating the times for opening and closing places of business.' But, in general, a by-law in restraint of

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trade, labor or business can be justified only by express statutory authority. A city adjoining navigable waters may make reasonable by-laws concerning quarantine and wharves within its limits. But it cannot thus prevent persons not its inhabitants from taking shell-fish in a navigable river within its bounds; because this would be in contravention of a common right.3 Yet, if the inhabitants of a town have the exclusive right of fishing in its waters, such a by-law is within its power. A city corporation cannot make a by-law which shall permit one person to carry on a dangerous business and prohibit another having equal claim. So it has been adjudged," but the doctrine is plainly subject to wide exceptions and qualifications.

§ 21. Nuisance-Bawdy-house-Keeping dog.- Without special legislative authority, a by-law cannot make abatable as a nuisance what is not so by the general law, thus destroying private property; nor, on the other hand, can it authorize the creation of a nuisance, whether public or private." But if the statute creating the corporation authorizes it to make by-laws relating to nuisances, an ordinance is within the authority which subjects to punishment the owners of houses of ill-fame, or those reputed to be such, knowing the facts. And, under this sort of

1 Barling v. West, 29 Wis. 307, [9 Am. R. 576;] Dunham v. Rochester, 5 Cow. 462; Plaquemine v. Roth, 29 La. An. 261; Norris v. Staps, Hob. 210b; Rochester v. Upman, 19 Minn. 108; Hesketh v. Braddock, 3 Bur. 1847; Harrison v. Godman, 1 Bur. 12; Clark v. Le Cren, 9 B. & C. 52. See post, § 22; [City v. Bazzetti, 159 Ill. 284; Anniston v. Ry. Co., 112 Ala. 557.]

2 Dubois v. Augusta, Dudley (Ga.), 30; St. Louis v. McCoy, 18 Mo. 238.

3 Hayden v. Noyes, 5 Conn. 391. 4 Rogers v. Jones, 1 Wend. 237, [19 Am. D. 493.]

Hudson v. Thorne, 7 Paige, 261. And see Cullinan v. New Orleans, 28 La. An. 102; Shreveport v. Levy, 26 La. An. 671, [21 Am. R. 553.]

Wooden buildings.- According to Hudson v. Thorne, also, the charter of the city of Hudson does not empower it to restrict the erection of

wooden buildings, or to limit the size of buildings; and an ordinance prohibiting a hay-press within certain limits is void. But generally, in our cities, such things may be more or less regulated by by-laws. And see Crim. Law, I, §§ 1150, 1151; Fielding v. Rhyl Imp. Co., 3 C. P. D. 272; Waupun v. Moore, 34 Wis. 450, [17 Am. R. 446.]

6 Pieri v. Shieldsboro, 42 Miss. 493; Yates v. Milwaukee, 10 Wall. 497. And see Lake v. Aberdeen, 57 Miss. 260; Waupun v. Moore, 34 Wis. 450, [17 Am. R. 446; Grossman v. City, 30 Oreg. 478.]

'Pettis v. Johnson, 56 Ind. 139; S. v. Lindsay, 34 Ark. 372. See Franklin Wharf v. Portland, 67 Me. 46, [24 Am. R. 1.]

8 McAlister v. Clark, 33 Conn. 91; S. v. Williams, 11 S. C. 288; S. v. Reckards, 21 Minn. 47.