§ 513. Municipal legislation.

court to which it may be taken would be a nullity as it would fail to confer jurisdiction of the case upon any court whatsoever. An appeal is a purely statutory right and lies only in cases where the statute expressly provides for it and only to the court upon which jurisdiction is expressly conferred."

105 Catron v. Archuleta County Com'rs, 18 Colo. 553; Campbell v. Canyon County Com'rs, 5 Idaho, 53, 46 Pac. 1022; Ravenscraft v. Blaine County Com'rs, 5 Idaho, 178, 47 Pac. 942; Wisenand v. Belle, 154 Ind. 38. The appeal is not perfected until provisions in respect to a transcript of the proceedings before the board or county commissioners have been complied with. Hoffman V. Gallatin County Com'rs, 18 Mont. 224; In re Merrill, 55 Hun, 611, 8 N. Y. Supp. 737; Siggins v. Com., 85 Pa. 278; Walsh v. Town Council of Johnston, 18 R. I. 88, 25 Atl. 849; Shelburn v. Eldridge, 10 Vt. 123.

106 Spring Valley Waterworks v.

Bartlett, 16 Fed. 615; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505; Tennant v. Crocker, 85 Mich. 328, 48 N. W. 577; State v. Albright, 20 N. J. Law (Spencer) 644; Danforth v. City of Paterson,. 34 N. J. Law, 163; People v. Sturte vant, 9 N. Y. (5 Seld.) 263; Public Ledger Co. v. City of Memphis, 93 Tenn. 77; Trading Stamp Co. v. City of Memphis, 101 Tenn. 181; State v. Milwaukee County Superior Ct., 105 Wis. 651, 48 L. R. A. 819.

107 Ex parte Burnett, 30 Ala. 461; City of Peoria v. Calhoun, 29 Ill. 317; Keim v. City of Chicago, 46 Ill. App. 445; Covington v. City of East St. Louis, 78 Ill. 548; Fuller v. Heath, 89 Ill. 296; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505; Avery v. Police Jury, 12 La. Ann. 554; Horn v. People, 26 Mich. 221. Protection to private property from encroachment must be afforded by the laws of the state. A city has no power to pass ordinances of such a character. State v. Clark, 28 N. H. 176; State v.

Noyes, 30 N. H. 279; Clarke v. City of Rochester, 28 N. Y. 605; State v. Williams, 11 S. C. 288.

108 See the following cases with many others holding that in the exercise of such discretionary powers in the absence of fraud or a gross and wanton abuse of the power, courts will not ordinarily interfere. Shoemaker V. United States, 147 U. S. 282; Kelly v. City of Winnipeg, 12 Manitoba, 87. Municipal discretion as to amount of wages paid laborers on public works will not be interfered with in the absence of fraud or improper motive. Burckhardt v. City of Atlanta, 103 Ga. 302. Municipal discretion in repairing streets. Bacon v. City of Savannah, 105 Ga. 62. Question of necessity of street improvement. Chicago General R. Co. v. City of Chicago, 176 Ill. 253; Church v. People, 179 Ill. 205. Extent of public improvement. Dewey v. City of Des Moines, 101 Iowa, 416. Necessity for public improvement. Soden v. City of Emporia, 7 Kan. App. 583, 52 Pac. 461; Sprigg v. Town of Garrett Park, 89 Md. 406, 43 Atl. 813; State v. Cornell, 53 Neb. 556, 39 L. R. A. 513; McGovern v. Inhabitants of Trenton, 60 N. J. Law, 402. Municipal determination of contractor's ability to fulfil contract in the absence of

bad faith will not be reviewed by the courts. Wilson v. Inhabitants of Trenton, 61 N. J. Law, 599, 44 L. R. A. 540; Apex Transp. Co. v. Garbade, 32 Or. 582; Beazley v. Kennedy (Tenn. Ch. App.) 52 S. W. 791; Ogden City v. Crossman, 17 Utah, 66.

109 City of Savannah v. Hussey, 21 Ga. 80, 68 Am. Dec. 452; City of St. Paul v. Briggs, 85 Minn. 290, 88 N. W. 984. "Among the powers conferred upon the common council of the city of St. Paul by its home rule charter we find the following: "To define, restrain, regulate and license husksters, peddlers, porters, runners, agents and solicitors for common carriers, hotels, public houses, express com. panies or other establishments.' Under this power the ordinance in question was enacted, the material portion of which is as follows: 'Every person who shall sell or offer for sale, any goods, wares, fruits, nuts, candies, groceries, provisions, vegetables or article of value, or barter or exchange the same at any public place within the city of St. Paul other than upon the land owned or rented by such person, or at a store kept by said person or at a stand at one of the public markets, shall be deemed, called and known as a peddler,' etc.

The offense of peddling or the term 'peddler,' as defined by the ordinance, is much broader and more comprehensive than any of the definitions given by the lexicographers or found in any of the adjudicated cases. A peddler within the generally accepted meaning of the word is a small retail dealer who carries his merchandise with him, travelling from place to place, and from house to house, exposing his goods for sale and selling them. It is said in 34 Am. Law Reg. 569, in an article relating to this subject that there are four elements required to constitute a peddler, namely: (1) That he should have no fixed place of dealing, but should travel around from place to place; (2) that he should carry with him the wares he offers for sale, not merely samples thereof; (3) that he should sell them at the time he offers them, not merely enter into an executory contract for future sale; and (4) that he should deliver them then and there, not merely contract to deliver them in the future. To these should be added a fifth, to the effect that the sales made by him should be to consumers and not confined exclusively to dealers in the articles sold by him. * The only question for determination in the case at bar is whether under the authority to define the offense of peddling, the ordinance under consideration going as it does far beyond the ordinary definition is valid. It is contended by the prosecution that because of the fact that the city is empowered by its charter to define the offense, definitions by lexicographers and others are irrelevant, and not controlling, and that the city had

It is

power to adopt a definition or meaning within such limits as its council deemed wise and proper. We are unable to adopt this contention. The charter of the city, it is true, authorizes the council to define and restrain peddlers, porters and others, but it is clear that the power to define the offense must be confined within reasonable bounds, and limited to the generally accepted meaning and scope of the law relating to that subject. a rule of general application that the authority given municipal corporations to enact ordinances must be construed strictly and this rule should apply with special force to cities authorized to form and adopt their own charters. If a city organizing under the constitutional amendment empowering cities to form their own charters may assume and clothe itself with power to define crimes and misdemeanors, it may extend and enlarge the criminal laws of the state to suit the notions of its council. There must, in the nature of things, be some limitation upon such authority; if not, confusion may result. Under authority to define peddling, the ordinances of one city might be entirely different from those of another. What would constitute peddling in St. Paul might not in Minneapolis or in Duluth. It could not Iwell be said that if a city was authorized to define petit larceny it could go beyond in doing so, the definition of the offense as known to the law generally. The exercise by municipal corporations of the delegated power to enact ordinances must, therefore, be confined within the general principles of the law applicable to the subject of such or

§ 514. Ordinances.

dinances. Any other rule would confer upon municipal authorities greater power than was intended they should possess." Mays v. City of Cincinnati, 1 Ohio St. 268.

110 Pittsburg, C. & St. L. R. Co. v. Hood, 94 Fed. 618; Murphy v. City of San Luis Obispo, 119 Cal. 624, 39 L. R. A. 444; State v. Tryon, 39 Conn. 183; Perdue v. Ellis, 18 Ga. 586; Robb v. City of Indianapolis, 38 Ind. 49; City of Detroit v. Ft. Wayne & B. I. R. Co., 95 Mich. 456, 20 L. R. A. 79; Bott v. Pratt, 33 Minn. 323; Jackson v. Grand Ave. R. Co., 118 Mo. 199; State v. Clarke, 25 N. J. Law (1 Dutch.) 54. "The charter of the city confers upon its inhabitants the special franchise of making its own laws in regard to the opening of streets within its territorial limits. So far as it extends it is a grant of sovereignty, a delegation of a part of the sovereign power of making laws. It is, in its essential character, exclusive. Doubtless the legislature may, at its pleasure, revoke the power or limit its exercise. It may repeal the charter or extend the operation of general laws, by express terms, over the city; but until

that is done, while the power of legislation upon a given subject remains in the city government, and is exercised in accordance with the charter, those laws must prevail to the exclusion of the general laws of the state, where they are inconsist ent or repugnant." Bradshaw v. City Council of Camden, 39 N. J. Law, 416; Jones V. Firemen's Fund Ins. Co., 2 Daly (N. Y.) 307; Griffin v. City of Gloversville, 67 App. Div. 403, 73 N. Y. Supp. 684; Village of Carthage v. Frederick, 122 N. Y. 268, 10 L. R. A. 178; Kennedy v. Sowden, 1 McMul. (S. C.) 323; State v. Soragan, 40 Vt. 450. Not being public laws of general character, city ordinances must be especially pleaded in an indictment. Village of St. Johnsbury v. Thompson, 59 Vt. 300.

111 Citizens' Gas & Min. Co. v. Town of Elwood, 114 Ind. 332; Bills v. City of Goshen, 117 Ind. 221, 3 L. R. A. 261; Blanchard v. Bissell, 11 Ohio St. 96; Robinson v. Town of Franklin, 20 Tenn. (1 Humph.) 156, 34 Am. Dec. 625.

112 Mason v. City of Shawneetown, 77 Ill. 533, 537.

113 McQuillin, Mun. Ord.