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. 2106; 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.

Hayden v. Noyes, 5 Conn. 391.

4 Rogers v. Jones, 1 Wend. 237, [19 Am. D. 493.]

5 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

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.]

7 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.

authority, a by-law may subject the keeping of a dog to a tax, and authorize the killing of the animal as a nuisance if the tax is not paid.1

§ 22. Requisites enumerated.- By-laws must be consistent with the act or charter of incorporation, not conflicting with it in letter or manifest intention; harmonious with the general statutory and common law,' which they cannot unauthorized supersede; reasonable and beneficial; not, in general, retro

1 Mowery v. Salisbury, 82 N. C. 175. See Leach v. Elwood, 3 Bradw. 453; Louisburg v. Harris, 7 Jones (N. C.), 291; [City v. Winter, 86 Md. 293; S. v. Taft, 118 N. C. 1190. As a general rule municipal corporations have much discretion in determining what is a nuisance, and the exercise of this discretion will not be interfered with by the courts, unless the corporation has manifestly transcended the authority granted to it. S. v. Heidenhain, 42 La. An. 483, 7 S. R. 621; Olympia v. Mann, 1 Wash. 389, 12 L. R. A. 150. The right to sell spirituous liquors, when granted by a municipal corporation, is subject to all the police powers of the corporation, and, in the absence of any restrictions upon its authority, it may revoke the license at any time. It is neither a contract nor property right in the licensee, but a mere permit to do what would otherwise be an offense under the general law. Ison v. Mayor, etc., 98 Ga. 623.]

2 Ante, §§ 17a, 19; Hoblyn v. Rex, 2 Bro. P. C. 329; Rex v. Cutbush, 4 Bur. 2204; Rex v. Canıbridge, 2 Selw. N. P. (11th ed.) 1176; Reg. v. Darlington School, 6 Q. B. 682; Com. v. Fahey, 5 Cush. 408; Rochester v. Collins, 12 Barb. 559; Clintonville v. Keeting, 4 Denio, 341; Indianapolis v. Fairchild, 1 Ind. 315, Smith (Ind.), 122; S. v. Beaufort, 2 Rich. 496; S. v. Hay, 29 Me. 457; Morris v. Rome, 10 Ga. 532; Cincinnati v. Gwynne, 10 Ohio, 192; Cincinnati v. Buckingham, 10 Ohio, 257; Angell & Ames, Corp., §§ 343-346.

3 Robinson v. Mayor, 1 Humph. 156, [34 Am. D. 625]; Chapman v. Miller, 2 Speers, 769; S. v. Savannah, T. U. P. Charl. 235, [4 Am. D. 708]: Welch v. Stowell, 2 Doug. (Mich.) 382; Angell & Ames, Corp., §§ 332-334; Cincinnati v. Rice, 15 Ohio, 225; Louisville v. Roupe, 6 B. Mon. 591; Markle v. Akron, 14 Ohio, 586; Reg. v. Edmonds, 4 Ellis & B. 993, 1 Jur. (N. S.) 727, 30 Eng. L. & Eq. 379; Thompson v. Mt. Vernon, 11 Ohio St. 688; Seneca County Bank v. Lamb, 26 Barb. 595; Lake v. Decatur, 91 Ill. 596; Gridley v. Bloomington, 88 Ill. 554, [30 Am. R. 566.] But a by-law may sometimes punish the same offense which is indictable under a general law of the state. S. v. Plunkett, 3 Harrison, 5. See post, § 23; [Buck v. Sarles, 129 Ind. 201, 13 L. R. A. 481, 28 N. E. R. 434.]

4 March v. Com., 12 B. Mon. 25; Com. v. Turner, 1 Cush. 493. And see Aberdeen v. Saunderson, 8 Sm. & M. 663; Cincinnati v. Bryson, 15 Ohio, 625, [45 Am. D. 593]; Angell & Ames, Corp., § 333.

5 Scriveners' Co. v. Brooking, 2 Gale & D. 419, 6 Jur. 835; Rex v. York, 3 B. & Ad. 770; Elwood v. Bullock, 6 Q. B. 383; Com. v. Robertson, 5 Cush. 438; Com. v. Worcester, 3 Pick. 462, 473; Kennebec & Portland

R. R. Co. v. Kendall, 31 Me. 470; Williams v. Augusta, 4 Ga. 509; Com. v. Pittsburgh, 14 Pa. St. 177; Mayor and Aldermen v. Maberry, 6 Humph. 368, [44 Am. D. 315]; Boston v. Shaw, 1 Met. 130; Austin v. Murray, 16 Pick.

spective; not restraining trade,' though a by-law merely in regulation of trade is good.'

Penalty - Forfeiture.- Every law has necessarily its penal sanction, and a rule not enforceable is not law. So that the power of making by-laws carries with it the power to render them effectual. But, without express statutory authority, a municipal corporation can inflict only the milder penalties. It cannot, for example, create a forfeiture. Yet it can provide "reasonable and proper fines" for the violators of its by-laws. And under statutory authority it may ordain forfeitures.'

Binds whom.- A by-law is properly for the government only of members of the corporation. But strangers coming within the corporate limits are amenable thereto." So also their prop

121, 125; Fielding v. Rhyl Imp. Co., 3 C. P. D. 272; S. v. Jersey City, 8 Vroom, 348; Corrigan v. Gage, 68 Mo. 541; Ex parte Frank, 52 Cal. 606, [28 Am. R. 642]; Angell & Ames, Corp., SS 347-351; [S. v. Smith, 67 Conn. 541.]

6 Coldw. 382; Zylstra v. Charleston, 1 Bay, 382; Cudden v. Estwick, 6 Mod. 123. See also Tobacco Pipe Makers v. Woodroffe, 7 B. & C. 838; Mobile v. Yuille, 3 Ala. 137, [36 Am. D. 441; Eyerman v. Blaksley, 78 Mo. 145; St. Louis v. Schornbusch, 95 Mo. 618, 8 S.

1 Howard v. Savannah, T. U. P. W. R. 791; Harris v. City Council, 100

Charl. 173.

2 Ante, § 20.

3 Pierce v. Bartrum, Cowp. 269; Cuddon v. Eastwick, 1 Salk. 143; Com. v. Worcester, 3 Pick. 462, 473; Vandine, Petitioner, 6 Pick. 187, [17 Am. D. 351]; City Council v. Ahrens, 4 Strob. 241; Morris v. Rome, 10 Ga. 532; Angell & Ames, Corp., § 335. See ante, § 20; [Ex parte Bohen, 115 Cal. 372; Helena v. Dwyer, 64 Ark. 424; Ex parte Lacey, 108 Cal. 326; Theisey

v. McDavid, 34 Fla. 440.]

4 Crim. Law, I, §§ 6-8.

Ga. 382; Re Ah You, 88 Cal. 99, 11
L. R. A. 408, 25 Pac. R. 974.]

9 Ottumwa v. Schaub, 52 Iowa, 515; Mobile & Ohio R. R. v. S., 29 Ala. 573; Charleston v. Goldsmith, 2 Speers, 428. [In Missouri it is held that a municipality cannot by ordinance create a civil liability against a person violating it and in favor of persons injured by its violation. Moran v. Car Co., 134 Mo. 641, 36 S. W. R. 659.]

10 Pierce v. Bartrum, Cowp. 269; Cuddon v. Eastwick, 1 Salk. 192;

5 Reinhard v. New York, 2 Daly, Whitfield v. Longest, 6 Ire. 268;

243.

6 Post, 403; Brieswick v. Brunswick, 51 Ga. 639, 642, [21 Am. R. 240.] 7 Kirk v. Nowill, 1 T. R. 118; Donovan v. Vicksburg, 29 Miss. 247, [64 Am. D. 143;] Angell & Ames, Corp. $340.

81 Dill. Mun. Corp. (2d ed.), § 272, referring to Fisher v. Harrisburg, 2 Grant (Pa.), 291; Trigally v. Memphis,

Horney v. Sloan, 1 Ind. 266; Vandine, Petitioner, 6 Pick. 187; Willcock, Corp. 105; Charleston v. Pepper, 1 Rich. 364; Gosselink v. Campbell, 4 Iowa, 296; Kennedy v. Sowden, 1 McMul. 323. C. v. Dow, 10 Met. 382, seems to have proceeded upon the language of the statute which authorized the by-law. See further on this point, C. v. Stodder, 2 Cush. 562,

erty, while within those limits, is subject to the operation of the by-law.1

§ 23. By-law and general law forbidding same act.- Some very complicated questions, on which the courts are not quite harmonious, have arisen where a by-law is made against a thing already punishable under the general law. The terms of statutes and by-laws so differ that a minute discussion of these questions will not be attempted, since it would occupy too much space. In some of the states, under their statutes, it is deemed not competent for the corporation to render punishable, by bylaw, what is already a crime under the general law. In other states this is not held, and effect is given to by-laws making punishable what is so also under the general law. And where the terms of the incorporating act clearly include this power, such result would appear to be unquestionable. But plainly,

as a by-law is inferior to a statute, which it cannot supersede, the liability to indictment under the general law remains, unless the authority to enact the by-law is broad enough to include such superseding of the statute." On this principle,

Arrest and detain without warrant.- A statute of Maine having the provision that, if an officer "shall detain any offender, without warrant, longer than such time as is necessary to procure a legal warrant," he shall, etc., the courts hold a town by-law, giving the officer power to detain forty-eight hours without warrant, repugnant to the statute and void. Now,

§ 24. Second jeopardy.- Assuming the general law not to be repealed by the by-law and both to be in force, can there be a conviction under both? Not all by-laws make the thing

Am. D. 493;] S. v. Bergman, 6 Oreg. 341; Hamilton v. S., 3 Tex. Ap. 643; Maher v. S., 53 Ga. 448, [21 Am. R. 269;] Robbins v. P., 95 Ill. 175; Greenwood v. S., 6 Bax. 567, [32 Am. R. 539;] Polinsky v. P., 11 Hun, 390; P. v. Williams, 11 S. C. 288; [Theisey v. McDavid, 34 Fla. 440; Ex parte McGee, 33 Oreg. 165.

Ante, §§ 17a, 19.

"Fant v. P., 45 Ill. 259; 8. v. Crum

mey, 17 Minn. 72.

6 Burke v. Bell, 36 Me. 317.

they prohibit a crime.' The imposition of a penalty does not render the transaction criminal; a penal action is civil.

And it is familiar doctrine that both a civil and criminal proceeding are maintainable for the same wrong. So that, where the by-law simply provides a penalty for the wrong, not constituting it a crime, and it is a crime by the general law, the familiar principles permit a double prosecution on both. Again, the thing declared criminal by the one may not be identical with that so declared by the other; and then neither prosecution will be an impediment to the other, though there is but one transaction. But where precisely the same act is a crime under both the general law and the by-law, there are authorities which hold that a conviction or acquittal under the one will bar proceedings under the other. The result of which is, that the by-law repeals the general law for the cases wherein the prosecution is first had under it. The better doctrine, therefore, is believed to be the contrary; namely, that, just as the same act may be an offense against both the United States and a state, and punished by both, so also it may be against a municipal corporation and a state. It might not be judicious or merciful to resort to both proceedings; but some of our courts, it is believed the greater number, maintain the right. "The powers which are exercised by a city government,” observed Perkins, J., in an Indiana case, "are, it thus appears, superadded to those exercised by the state in the same locality."

1 Post, §§ 403, 404; Rex v. Sharples, 4 T. R. 777; Davenport v. Bird, 34 Iowa, 524; Hoyer v. Mascoutah, 59 Ill. 137; Cooper v. P., 41 Mich. 403; S. v. Decker,. 46 Conn. 241; Platteville v. Bell, 43 Wis. 488; Jenkins v. Cheyenne, 1 Wyo. 287; P. v. Manistee, 26 Mich. 422; Schmeider v. McLane, 4 Abb. Ap. 154; Greensburgh v. Corwin, 58 Ind. 518.

2 Crim. Law, I, § 32 and notes. 3 Id., § 264 et seq., 990.

4 Id., § 1076; S. v. Crummey, 17 Minn. 72; Shafer v. Mumma, 17 Md. 331, [79 Am. D. 656;] Berry v. P., 36 Ill. 423; [Plattsburg v. Trimble, 46 Mo. Ap. 459.]

5 McRea v. Americus, 59 Ga. 168, [27 Am. R. 390;] Mayo v. James, 12

9

Grat. 17; S. v. Sly, 4 Oreg. 277; Lewis v. S., 21 Ark. 209; [Ex parte Taylor, 87 Cal. 91, 21 Pac. R. 258.]

6S. v. Thornton, 37 Mo. 360; Maher v. S., 53 Ga. 448, [21 Am. R. 269;] S. v. Cowan, 29 Mo.330; [Ex parte Burgeois, 60 Miss. 663, 45 Am. R. 420.]

7 Crim. Law, I, SS 987-989. 8 Levy v. S., 6 Ind. 281; Waldo v. Wallace, 12 Ind. 569, 584; Greenwood v. S., 6 Bax. 567, [32 Am. R. 539;] Hamilton v. S., 3 Tex. Ap. 643; S. v. Bergman, 6 Oreg. 341; S. v. Williams, 11 S. C. 288; [Desoto v. Brown, 44 Mo. Ap. 148; McInerney v. Denver, 17 Colo. 302, 29 Pac. R. 516.]

9 Waldo v. Wallace, supra, p. 584. See also Gardner v. P., 20 Ill. 430; Robbins v. P., 95 Ill. 175.