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$ 25. Interpretation of power to make by-laws.- The charter, or statutory power of enacting by-laws, is to be construed harmoniously with the unwritten rule. Thus,

Reasonable - Penalty reasonable.— A statute authorized a city corporation “to license bakers, and regulate the weight and price of bread, and prohibit the baking for sale except by those licensed.” And this was held to include the power to attach a penalty to the by-law; but it must be reasonable. And when the penalty was that the offender pay a fine not exceeding $50, to be recovered before the mayor, the by-law was adjudged void. So also, as under the unwritten law, it must in other respects be reasonable. Again,

Notice.- As, under the unwritten rule, one cannot lawfully be proceeded against without notice, it is plain that a legislative power to impose forfeitures does not authorize a by-law providing for a forfeiture without notice to the party.

§ 26. Holding by-law void.-Whenever a corporation undertakes to establish an unauthorized by-law the courts hold it to

1 Ante, $ 22.

charter.” Again: “We also incline 2 Mobile v. Yuille, 3 Ala 137, (36 to doubt the propriety of that porAm. D. 441.] Ormond, J., observed: tion of the by-law which forfeits “What would be a reasonable pen- such bread as is not of the weight alty cannot, from the nature of the required by the ordinance; as also thing, admit of a general rule ap that portion which requires $20 to plicable to all cases, but must in be paid by the baker as a license, every case be determined by the unless the latter can be supported nature of the offense intended to under the taxing power of the corbe prohibited. Some general rules, poration. Though doubtless the corhowever, may be laid down as ap- poration could require a fee for the plicable to all cases.

The penalty issuance and registration of the limust be a sum certain, and cannot cense.” p. 144. (Kiel v. Chicago, 176 be left to the arbitrary assessment 111. 137.) of the Corporation court, to be de- 3 S. v. Jersey City, 8 Vroom, 348; termined according to the nature of [Traction Co. v. Elizabeth, 58 N. J. the offense. It is also said, that, al. 1 619; Liawes v. Chicago, 158 In. though the utmost limit of the pen. 653; P. v. Kipley, 171 111. 44, 49 N. E. alty be fixed beyond which the fine R. 229.] cannot extend, it does not remove 4 Post, § 141; Bishop, First Book, the objection. The reason assigned 24; S. v. Newark, 1 Dutcher, 399; is, that it permits

the corporation to Corliss v. Corliss, 8 Vt. 373, 389. be a judge in its own cause. Nor, it 5 Rosebaugh v. Saffin, 10 Ohio, 31. is said, can the penalty of a by-law ex- And see Columbus v. Arnold, 30 Ga. tend to the forfeiture of goods, unless 517; Lesterjelle v. Columbus, 30 Ga power be expressly given by the 936; S. v. Morristown, 5 Vroom, 445. 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

such

a 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.” 9

1 Post, SS 403, 404; Rex v. Sharples, Grat. 17; S. v. Sly, 4 Oreg. 277; Lewis 4 T. R. 777; Davenport v. Bird, 34 v. S., 21 Ark. 209; [Ex parte Taylor, Iowa, 524; Hoyer v. Mascoutah, 59 87 Cal. 91, 21 Pac. R. 258.] III. 137; Cooper v. P., 41 Mich. 403; 6S. v. Thornton, 37 Mo. 360; Maher S. v. Decker, . 46 Conn. 241; Platte- v. S., 53 Ga. 418, (21 Am. R. 269;] S. v. ville v. Bell, 43 Wis. 488; Jenkins v. Cowan,29 Mo.330;(Ex parte Burgeois, Cheyenne, 1 Wyo. 287; P. v. Manistee, 60 Miss. 663, 45 Am. R. 420.] 26 Mich. 422; Schmeider v. McLane, 7 Crim. Law, I, SS 987–989. 4 Abb. Ap. 154; Greensburgh v. Cor. 8 Levy v. S., 6 Ind. 281; Waldo v. win, 58 Ind. 518.

Wallace, 12 Ind. 569, 584; Greenwood 2 Crim. Law, I, § 32 and notes. v. S., 6 Bax. 567, [32 Am. R. 539;] 3 Id., § 264 et seq., 990.

Hamilton v. S., 3 Tex. Ap. 643; S. o. 4 Id., § 1076; S. v. Crummey, 17 Bergman, 6 Oreg. 341; S. r. Williams, Minn, 72; Shafer v. Mumma, 17 Md. 11 S. C. 288; [Desoto v. Brown, 44 331, [79 Am. D. 656;] Berry v. P., 36 Mo. Ap. 148; McInerney v. Denver, Ill. 423; [Plattsburg v. Trimble, 46 17 Colo. 302, 29 Pac. R. 516.] Mo. Ap. 459.]

9 Waldo v. Wallace, supra, p. 584. 5 McRea v. Americus, 59 Ga. 168, See also Gardner v. P., 20 Ill. 430; [27 Am. R. 390;) Mayo V. James, 12 Robbins v. P., 95 Ill. 175.

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OHAPTER IV.

AT WHAT TIME STATUTES TAKE EFFECT.

.

$ 27. Doctrine defined. In the absence of any express provision, a statute has effect through the entire country from the first moment of the day on which it is enacted, reckoning from twelve o'clock of the preceding night; except that, when a constitutional or other like right would thereby be impaired, the actual hour and minute of its receiving the executive approval may be inquired into, and it will date from the instant thus ascertained. To particularize and explain:

$ 28. Ancient rule (changed in England).— Formerly, in England, the rolls of parliament were made up by the judges after its adjournment; no dates were given to the several acts, but all, says Dwarris, were “strung together” as one statute.

. The only date appearing in the rolls was that of the assembling of parliament;' therefore, the record being the sole guide to the courts, they held every statute to have gone into operation on that day. Nor was it otherwise with an act which itself provided that it should take effect “from and after its passage.” : Upon this, the statute of 33 Geo. 3, c. 13, provided that, after 1793, the parliamentary clerk should indorse on every act, immediately after its title, the day on which it received the royal assent; “and such indorsement shall be taken to be a part of such act, and to be the date of its commencement where no other commencement shall be therein provided.” And, by construction, the act takes effect from the first moment

of such day.

With us.- In North Carolina the majority of the court followed the letter of the old English rule, and held that acts of assembly go into operation from the first day of the session." Dwar. Stat. (2d ed.) 16, 31, 34, 36, Hamlet v. Taylor, 5 Jones (N. C.), 36.

See P. v. Clark, 1 Cal. 406. ? The Ann, 1 Gallis. 62; Panter v. * Tomlinson v. Bullock, 4 Q. B. D. Attorney General, 6 Bro. P. C. 553. 230, 232. 'Latless u. Holmes, 4 T. R. 660; 5 Smith v. Smith, Mart. (N. C.) 26;

Hamlet v. Taylor, supra.

37, 460.

3

be void. But a by-law may be good in part, and void as to the rest. We have seen that if a by-law is, for example, unreasonable, it is void; and the question whether it is reasonable or not is to be decided, not by the jury, but by the court."

1 Com. v. Robertson, 5 Cush. 438; 401; Mercer County v. Fleming, 111 Austin v. Murray, 16 Pick, 121, 127; Cal. 46; Willow Springs v. Withaupt, [Baltimore v. Rodecke, 49 Md. 217; 61 Mo. Ap. 275; Lamar v. WeidCarter v. Durango, 16 Colo. 534, 25 man, 57 Mo. Ap. 507; Trust Co. v. Am. St. R. 294, 27 Pac. R. 1057; City Chicago, 162 Ill. 505. An ordinance v. Gugenheim, 61 Ill. Ap. 374.] authorized in express terms by the

2 Post, § 34; Rogers v. Jones, i legislature will not be set aside as Wend. 237, 260, [19 Am. D. 493;] S. v. unreasonable. Humphreys v. BayLincoln, 7 Neb. 377; Keokuk v. Dres- onne, 60 N. J. L. 406. And an ordisell, 47 Iowa, 597; Harbaugh v. Mon. nance may be adjudged reasonable mouth, 74 Ill. 367.

when applied to one state of facts, 3 Ante, & 22.

and unreasonable when applied to a • Com. v. Worcester, 8 Pick, 462, different state of facts. Ford v. 473; 8. v. Jersey City, 8 Vroom, 348; Standard Oil Co., 32 Hun, 616.) (Burlington v. Unterkircher, 99 Iowa,

24

CHAPTER IV.

AT WHAT TIME STATUTES TAKE EFFECT.

be

.

$ 27. Doctrine defined. In the absence of any express provision, a statute has effect through the entire country from the first moment of the day on which it is enacted, reckoning from twelve o'clock of the preceding night; except that, when a constitutional or other like right would thereby be impaired, the actual hour and minute of its receiving the executive approval may inquired into, and it will date from the instant thus ascertained. To particularize and explain:

$ 28. Ancient rule (changed in England).- Formerly, in England, the rolls of parliament were made up by the judges after its adjournment; no dates were given to the several acts, but all, says Dwarris, were “strung together” as one statute. The only date appearing in the rolls was that of the assembling of parliament;' therefore, the record being the sole guide to the courts, they held every statute to have gone into operation on that day. Nor was it otherwise with an act which itself provided that it should take effect “from and after its passage.” : Upon this, the statute of 33 Geo. 3, c. 13, provided that, after 1793, the parliamentary clerk should indorse on every act, immediately after its title, the day on which it received the royal assent; “and such indorsement shall be taken to be a part of such act, and to be the date of its commencement where no other commencement shall be therein provided.” And, by construction, the act takes effect from the first moment

of such day."

With us.- In North Carolina the majority of the court fol. lowed the letter of the old English rule, and held that acts of assembly go into operation from the first day of the session." Dwar . Stat. (2d ed.) 16, 31, 34, 36, Hamlet v. Taylor, 5 Jones (N. C.), 36.

See P. v. Clark, 1 Cal. 406. ? The Ann, 1 Gallis. 62; Panter v. 4 Tomlinson v. Bullock, 4 Q. B. D. Attorney-General, 6 Bro. P. C. 553.

230, 232. * Latless v. Holmes, 4 T. R. 660; 5 Smith v. Smith, Mart. (N. C.) 26;

Hamlet v. Taylor, supra.

37, 460.

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