penalty was by an action of debt, or sometimes of assumpsit, in some one of the other courts, commonly one of the courts at Westminster Hall.' But,— 2 3 § 404. Modern changes. In modern times, the reader is aware, city ordinances and other like by-laws are usually enforced by summary proceedings, before a court sitting within the bounds of the municipal corporation; and the penalty is a fine or imprisonment, or both. These changes are wrought, directly or indirectly, by statutes, both in England and in our states generally. The ancient methods are ill adapted to the later manners and necessities. § 405. As to act of incorporation.- The charter, or act of incorporation, is, by the greater number of modern opinions, a public statute. Yet by some it is deemed private. Where it is private, the elucidations of the last sub-title explain that it, or so much of it as shows the power of the corporation to make the by-law in question, must be pleaded, then proved. If the power relied on is such only as springs incidentally from the existence of the corporation,' not much of allegation under this head will be needed; but, in fact, all our acts creating municipal corporations contain, it is believed, more or less express power. Then, should the authority to make by-laws be committed by the charter to a body separate from the entire corporation,— as, to the mayor and common council,- this part of the charter must be set out; else the court cannot see that the by-law which this body ordained is valid. So, if the by-law provides a punishment not competent without express legislative authorization, the private statute giving the authority must appear in v. Meek, 42 N. Y. 186; P. v. Davis, 61 Barb. 456. 11 Saund. (Wms. ed.) 312c. note; Glover, Mun. Corp. 60; Wood v. London, supra; Bodwic v. Fennell, 1 Wils. 233; London v. Bernardiston, 1 Lev. 14; Adley v. Reeves, 2 M. & S. 53; Barber Surgeons of London v. Pelson, 2 Lev. 252. 2 S. v. White, 76 N. C. 15; S. v. Threadgill, 76 N. C. 17. 3 S. v. Wells, 46 Iowa, 662; P. v. James, 16 Hun, 426. 4 Ante, § 42b. 5 Id.; Dwar. Stat. 464. See Dwar. Stat. 464, 465; P. v. O'Brien, 38 N. Y. 193; P. v. Hills, 35 N. Y. 449; Gaskin 6 Feltmakers v. Davis, 1 B. & P. 98; Schott v. P., 89 Ill. 195. 1 Ante, § 18. 8 Rex v. Lyme Regis, 1 Doug. 149; Feltmakers v. Davis, supra, where it was observed, per curiam, that the "power of making by-laws is incident to every corporation, either by the body at large or by a select part; and it is in the latter case only that the power need be shown." Page 100. And see Rex v. Bird, 13 East, 367. allegation and proof. But generally in our states matter of this sort is not required, because either the court will hold the in corporating statute to be public, or the act itself will direct that it be judicially noticed.1 § 406. Setting out and proving by-law.-Always, by the common-law rules, the by-laws of municipal corporations are private, not public, laws, and they must be averred in pleadings upon them, and proved like other facts at the hearing. And this is so even though the act of incorporation is deemed public,3 or a statute requires the courts to notice it judicially. The allegation must contain, at least, so much of the substance of the by-law as is relied on; and such further matter as will enable the court to see that it proceeded from a body having the power, by the act of incorporation, to make by-laws. Then a by-law which appears from the records of this body to have been regularly ordained will be presumed to have been so in the absence of proof to the contrary. But largely, in our states, yet not universally, more convenient methods are established by statutes, or the courts are required to notice by-laws 1 See S. v. McAllister, 24 Me. 139; S. v. Soragan, 40 Vt. 450; Clark v. Janesville, 10 Wis. 136; S. v. Merritt, 83 N. C. 677; [East Tenn., Va. & Ga. Ry. Co. v. City of Morristown (Tenn. Ch. App.), 35 S. W. R. 771; Stone v. Halstead, 62 Mo. Ap. 136; S. v. Olinger (Iowa), 72 N. W. R. 441; Storrie v. Cortes, 90 Tex. 283, 38 S. W. R. 154, 35 L. R. A. 666; Missouri Pac. Ry. Co. v. Chick, 6 Kan. Ap. 480, 50 Pac. R. 605; City of Passadena v. Stinson, 91 Cal. 238, 27 Pac. R. 604; Butler v. Robinson, 75 Mo. 192; Burfenning v. Chicago, etc. Ry. Co., 46 Minn. 20, 48 N. W. R. 444.] 2 Porter v. Waring, 69 N. Y. 250; Stevens v. Chicago, 48 Ill. 498; Laviosa v. Chicago, etc. R. Co., 1 McGloin, 299; Winona v. Burke, 23 Minn. 254; Green v. Indianapolis, 25 Ind. 490 (but contra by subsequent statute, Huntington v. Pease, 56 Ind. 305); P. v. Special Sessions, 12 Hun, 65, 66; [Chicago West Division Ry. Co. v. Klander, 9 Ill. Ap. 613; P. v. Bu chanan, 1 Idaho (N. S.), 681; Watts v. Jones, 60 Kan. 201, 56 Pac. R. 16; Field v. Malster, 88 Md. 691, 41 Atl. R. 1087; Moore v. Town of Jonesboro, 107 Ga. 704, 33 S. E. R. 435; Wilson v. S., 16 Tex. Ap. 497; City of McPherson v. Nichols, 48 Kan. 430, 20 Pac. R. 679; Stittgen v. Rundle, 99 Wis. 78, 74 Wis. 536; P. v. Canganda, 37 N. Y. S. 768, 15 Misc. R. 325; Rockford City Ry. Co. v. Matthews, 50 Ill. Ap. 267; Com. v. Odenweller, 156 Mass. 234, 30 N. E. R. 1022.] S. v. Soragan, 40 Vt. 450. 4 Ante, § 405; P. v. Special Sessions, 12 Hun, 65; [City Council of Charleston v. Ashley Phosphate Co., 34 S. C. 541, 13 S. E. R. 845.] 5 Feltmakers v. Davis, 1 B. & P. 98. See Miller v. Anheuser, 2 Mo. Ap. 168; [Mohrden v. Northwestern Ry. Co., 54 S. C. 492, 32 S. E. R. 524.] "Lexington v. Headley, 5 Bush, 508. And see Stevens v. Chicago, 48 IIL 498; Com. v. Patch, 97 Mass. 221. or some classes of them judicially like general laws, thus avoiding the necessity of setting out and proving them.1 A provision of this sort pertains to the remedy, therefore it may be made applicable as well to past offenses as to future." How complaint conclude.-The complaint or information should conclude both against the form of the by-law, and also against the form of the statute; because it rests both upon the by-law and upon the statute. But, 4 407. Formalities diverse.- In the formal parts, the proceeding upon by-laws, varying with the statutes and the general practice of the states, is so far from uniform as to render a minute elucidation of it out of place here. An indictment, 1 Huntington v. Pease, 56 Ind. 305; Goldthwaite v. Montgomery, 50 Ala. 486. And see Schrumpf v. P., 14 Hun, 10. Wilde, J., in the Massachusetts court, observing on a case in which it was contended that the complaint ought "to have set out the by-law at large," said: "But if the statute dispensing with the necessity of thus incumbering the record is a valid law [which the court held it to be], this objection must fail. Perhaps, even without the aid of a statute, the court below, being composed of citizens of Boston, were bound to take notice of the by-law; though generally, no doubt, a by-law must be pleaded." Com. v. Worcester, 3 Pick. 462, 473; [City of Miles v. Kern, 12 Mont. 119, 29 Pac. R. 720; Incorporated Town of Bayard v. Baker, 76 Iowa, 220, 40 N. W. R. 818; Town of Moundsville v. Velton, 35 W. Va. 217, 13 S. E. R. 373; Downs v. Comm'rs of Town of Smyrna (Del.), 45 Atl. R. 717; Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. R. 281; Elkhart v. Calvert, 126 Ind. 6, 25 N. E. R. 807; City of Durango v. Reinsberg, 16 Col. 327, 26 Pac. R. 820; Village of Vicksburgh v. Briggs, 85 Mich. 502, 48 N. W. R. 625; S. v. Dunbar, 43 La. An. 836, 9 S. R. 492. Judicial notice is taken of municipal by-laws in municipal courts. City Council of An derson v. O'Donnell, 29 S. C. 355, 7 S. E. R. 523, 13 Am. St. R. 728, 1 L. R. A. 632; Ex parte Davis, 115 Cal. 445, 47 Pac. R. 258. The circuit court, on an appeal from a municipal court which takes judicial notice of a municipal by-law, will not require the by-law to be set forth and proven, though the proceedings are de novo. Town of Moundsville v. Velton, 35 W. Va. 217, 13 S. E. R. 373; Incorporated Town of Scranton v. Danenbaum (Iowa), 80 N. W. R. 221. Contra, McIntosh v. City of Pueblo, 9 Col. Ap. 460, 48 Pac. R. 969.] 2 Com. v. Bean, Thacher Crim. Cas. 85. 3 Com. v. Worcester, supra; Lewiston v. Fairfield, 47 Me. 481. 4 Crim. Pro., I, § 602, note; Com. v. Gay, 5 Pick. 44; S. v. Soragan, supra. But see Winooski v. Gokey, 49 Vt. 282, 286. 5 A reference to some of the cases may be convenient; as, Fink v. Milwaukee, 17 Wis. 26; P. v. James, 16 Hun, 426; S. v. Herdt, 11 Vroom, 264; S. v. Gordon, 60 Mo. 383; P. v. Manistee, 26 Mich. 422; P. v. Cox, 76 N. Y. 47; Jenkins v. Cheyenne, 1 Wy. 287; Platteville v. Bell, 43 Wis. 488; S. v. Decker, 46 Conn. 241; Cooper v. P., 41 Mich. 403; Hoyer v. Mascoutah, 59 Ill. 137; S. v. Stearns, 11 Fost. (N. H.) 106; Davenport v. Bird, 34 Iowa, 524; founded on the principles of the common law, will not lie for the violation of a municipal by-law.' But by force of a statute and the by-law, such violation may be made indictable." § 408. The allegations should conform to the rules of general pleading as established in other classes of causes. For example, an information will be insufficient though it fills the very language of the by-law, if it does not charge such an illegal act as the by-law was intended to prohibit. Brownville v. Cook, 4 Neb. 101; Jaquith v. Royce, 42 Iowa, 406; New York v. Walker, 4 E. D. Smith, 258; Roberson v. Lambertville, 9 Vroom, 69; Com. v. Fahey, 5 Cush. 408; Graham v. S., 1 Pike, 79; Kansas v. Flanagan, 69 Mo. 22; S. v. King, 37 Iowa, 462; S. v. Merritt, 83 N. C. 677; Alton v. Kirsch, 68 Ill. 261; Van Buskirk v. Newark, 26 Ohio St. 37; S. v. Soragan, 40 Vt. 450; [S. v. Carpenter, 60 Conn. 97, 22 Atl. R. 497; City of Springfield 873 v. Ford, 40 Mo. Ap. 586; Wagner v. 1 Rex v. Sharples, 4 T. R. 777. 3 Petition of Began, 12 R. L. 309; Huntington v. Pease, 56 Ind. 305; Roberson v. Lambertville, 9 Vroom, 69; Byars v. Mt. Vernon, 78 IIL 11; S. v. Bacon, 40 Vt. 456; Goldthwaite v. Montgomery, 50 Ala. 486. S. v. Goulding, 44 N. H. 284 |