Imágenes de páginas
PDF
EPUB

Legislative action of municipal councils is further regulated by the courts through the application of those unwritten rules or canons for the construction and interpretation of statutes which

the boundary of legislative and judicial discretion and is exercising the municipal power arbitrarily to the injury and oppression of the citizens' that judicial interference will be justified."

City of Athens v. Camak, 75 Ga. 429; Burckhardt v. City of Atlanta, 103 Ga. 302. The court here in its

opinion say: "The question of improving, repairing, or repaving the streets of Atlanta is left to the discretion of its municipal legislature. It is a well established rule of law that the courts will not interfere with the exercise of such discretion unless the power conferred is exceeded, or fraud is imputed and shown, or there is an arbitrary and unreasonable invasion of private rights. While the state is jealous of her sovereign right of legislation, and while a strict construction will be given any legislative power conferred by her upon one of her communities, yet it should not receive such a narrow interpretation as would result in defeating the very ends for which it was conferred. An incorporated city is a government within a government. It has its own executive, judicial and legislative branches. It is a creature of the state, and can exercise no power that is not derived from its creator. Where legislative power is conferred upon it by the state, it is necessary that a degree of freedom should be allowed in its exercise; otherwise the city would be so hampered in the government of its people as would defeat the very ends of its incorporation. Hence it is that the

state courts will never interfere with the free exercise of such rights as are left to the discretion of a corporate authority, unless such authority should go beyond the scope of power delegated, or unless the discretion given should be abused by an arbitrary exercise thereof, and by a plain and unwarranted violation of private rights." Village of Desplaines v. Poyer, 22 Ill. App. 574, affirmed 123 Ill. 348, 14 N. E. 677. But the principle stated in the text does not permit a municipal corporation to pass an ordinance declaring all public pic nics a nuisance, irrespective of their character. Handy v. City of New Orleans, 39 La. Ann. 107; In re Inhabitants of Weymouth, 56 Mass. (2 Cush.) 335; City of St. Louis v. Boffinger, 19 Mo. 15; Lockwood v. City of St. Louis, 24 Mo. 20. Sheidley v. Lynch, 95 Mo. 487; Bond v. City of Newark, 19 N. J. Eq. (4 C. E. Green) 376. "All legislative acts or exercise of discretionary powers within their authority are beyond the control of the courts however unwise or impolitic or even when done from corrupt motives or unworthy purposes."

Schumm v. Seymour, 24 N. J. Eq. (9 C. E. Green) 143; Treasurer of Camden v. Mulford, 26 N. J. Law (2 Dutch.) 49; Wiggin v. City of New York, 9 Paige (N. Y.) 16; People v. City of New York, 32 Barb. (N. Y.) 35; Id., 9 Abb. Pr. (N. Y. ) 253; Kavanagh v. City of Brooklyn, 38 Barb. (N. Y.) 232; Ex parte City of Albany, 23 Wend. (N. Y.) 277; Satterthwaite v. Beaufort County Com'rs, 76 N. C. 153;

have been formulated as the inevitable result of long experience,163 and those which exist in written form providing for and controlling the passage and character of legislation.164

§ 521. Limitations upon the general power to pass.

Considering now in detail the limitations upon the power of a municipal legislative body to pass ordinances or take legislative action, it will be remembered thoroughly that a municipal corporation is a diminutive state and, as such, possesses certain specific powers accompanying such an organization. The validity of ordinances will depend upon an answer to two general questions: first, have the written and unwritten requirements controlling the enactment of legislation in respect to its verbal and mechanical form and mode of passage been complied with and, second, assuming the affirmative to the first query, is the ordinance valid considered in respect to its subject-matter and general characteristics?

Presumption of validity. The presumption of law exists in favor of right acting and right thinking; this principle in criminal law finds expression in the familiar phrase that one is. presumed innocent until he is proven guilty. In corporation law the courts adopt the principle that an act of a corporation is presumed to be within its legal powers until established to the contrary. The burden of proof is upon one who attacks the

Wilson v. Aldermen of Charlotte, 74 N. C. 748; State v. Superior Ct. of Milwaukee County, 105 Wis. 651, 48 L. R. A. 819. The court here say: "The exceptions to the rule would seem to be limited to cases where the governing body of the municipality has no power to act on the particular subject, legislatively, at all; or, where the threatened act is not legislative but purely ministerial or where such body is clothed with certain powers but threatens to go beyond or outside of such powers and thereby invade the property or property rights of the complainant, or where such body threatens to squander or di

vert some fund or property held by it or some of its officials in trust for its taxpayers and citizens." See, also, cases cited note 108, § 513, and § 518, ante.

163 In re Yick Wo, 68 Cal. 294; Zorger v. City of Greensborough, 60 Ind. 1; Denning v. Yount, 62 Kan. 217; State v. Kirkley, 29 Md.. 85; Quinette v. City of St. Louis, 76 Mo. 402. See, also, 58 Am. Rep. 112.

164 In re Yick Wo, 68 Cal. 294; Bearden v. City of Madison, 73 Ga. 184; Denning v. Yount, 9 Kan. App. 708; Milne v. Davidson, 5 Mart. (N. S.; La.) 409; Flynn v. Canton Co., 40 Md. 312.

validity of a contract and this doctrine of presumption is found in the determination of nearly every legal question. The courts apply the same doctrine in the determination of cases involving the validity of ordinances, where the presumption obtains that an ordinance is valid,165 that all required formalities were complied with in its passage and that it is legal in respect to both its subject-matter and its general characteristics. The doctrine stated in the first of the section shifts the burden of proof to the one attacking the validity of the ordinance and operates generally in favor of the legality of corporate action.

This principle, however, is not carried to such an extent as to conflict with the doctrine and theory that municipal corporations are bodies of restricted and limited powers. As said in an Illinois case,166 Municipal corporations exercise only delegated and lim

165 City of Birmingham v. Tayloe, 105 Ala. 170; Santa Rosa City R. Co. v. Central St. R. Co. 38 Pac. (Cal.) 986. The doctrine of presumption especially will apply where, for fourteen years after the passage of an ordinance, the city has treated it as duly passed and recognized its existence as valid. Merced County v. Fleming, 111 Cal. 46; Ex parte Haskell, 112 Cal. 416, 32 L. R. A. 527; City of Greeley v. Hamman, 17 Colo. 30, 28 Pac. 460; Terre Haute & I. R. Co. v. Voelker, 129 Ill. 540, 22 N. E. 20; Parker v. Catholic Bishop of Chicago, 146 Ill. 158, 34 N. E. 473; Chicago & A. R. Co. v. City of Carlinville, 103 Ill. App. 251; Fralich v. Barlow, 25 Ind. App. 383, 58 N. E. 271; State v. Vail, 53 Iowa, 550; Taylor v. McFadden, 84 Iowa, 262, 50 N. W. 1070; Town of Bayard v. Baker, 76 Iowa, 220; Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532; Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. 281; City of Lexington v. Headley, 68 Ky. (5 Bush) 508; Nevin v. Roach, 86 Ky. 492, 5 S. W. 546; Elliott v. City of Louisville, 101 Ky. 262, 40 S. W. 690; City of

Duluth v. Krupp, 46 Minn. 435; Becker v. City of Washington, 94 Mo. 375, 7 S. W. 291; Van Vorst v. Jersey City, 27 N. J. Law (3 Dutch.) 493; City of Seattle v. Doran, 5 Wash. 482, 32 Pac. 105, 1002; O'Mally v. McGinn, 53 Wis. 353; Stafford v. Chippewa Valley Elec. R. Co., 110 Wis. 331; Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135, 52 L. R. A. 369. But see City of Altoona v. Bowman, 171 Pa. 307, which holds that the same presumption of law does not exist in favor of the legality of the pas sage of an ordinance that applies to an act of the legislature.

166 Schott v. People, 89 Ill. 195; City of St. Paul v. Laidler, 2 Minn. 190 (Gil. 159). "The city of St. Paul is a municipal corporation, organized and established to accomplish certain purposes and objects particularly specified in its charter. The city government derives its power and authority to make and enforce laws for the government of the city solely from the legislature. It is entirely a creature of the statute, and in the exercise of its authority cannot exceed the limits

[graphic]

ited powers and in the absence of express statutory provisions to that effect courts are authorized to indulge in no presumptions in favor of the validity of their ordinances. If in conformity with the express or necessarily implied grant in the charter, they are valid; otherwise, not."

$522. Form of ordinance.

The form of an ordinance may be prescribed by charter or general law;167 otherwise, it can take any phraseology or form which the experience or taste of the writer may dictate.168 Since it is a law, it should contain in its form the technical essentials of a law and these have been held to include a title, an enacting clause, the body or substance, a repealing clause, the operative clause and the proper and necessary signatures and approvals.169 In

therein prescribed. It is a body of special and limited jurisdiction; its powers cannot be extended by intendment or implication, but must be confined within the express grant of the legislature. Especially is this the case in the exercise of its legislative authority, or the power of making ordinances or laws for the government of the city; and not only so, but this power must be exercised reasonably and in sound discretion, and strictly within the limits of the charter, and in perfect subordination to the constitution and general laws of the land, and the rights dependent thereon (2 Kent, 296); and where the charter enables a company or corporation to make by-laws (or ordinances), in certain cases and for certain purposes, its power of legislation is limited to the cases and objects specified; all others being excluded by implication."

167 City of Rockwell v. Merchant, 1 Mo. App. Rep'r, 84. An immaterial variation from the form prescribed by law will not, however, invalidate an ordinance. Town of Union, 32 N. J. Law, 343;

Pope v.

State v. Fountain, 14 Wash. 236, 44 Pac. 270. The enacting clause of an ordinance that reads "Be it ordained by the town council" sufficiently complies with a statute which provides that the enacting clause of all ordinances shall be as follows: "Be it ordained by the council of the town of ." State v. Nohl, 113 Wis. 15, 88 N. W. 1004.

168 Los Angeles County v. Eikenberry, 131 Cal. 461, 63 Pac. 766. The fact that the subdivisions of an ordinance are not numbered in consecutive order does not make it void.

People v. Murray, 57 Mich. 396. In the absence of a charter requirement for the insertion of an enacting clause in an ordinance, its omission will not render it void. City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202. Where a city charter is silent in regard to the form of an enacting clause or a failure to follow a statutory form, irregularities in this respect will not render an ordinance invalid. City of Janesville v. Dewey, 3 Wis. 245.

169 Atkins v. Phillips, 26 Fla. 281, 10 L. R. A. 158; Pitts v. Opelika

some is included a recital of the reasons for its passage and it is also customary in ordinances based upon the police power to include a penal section or clause providing a punishment or penalty for their violation.170

The repealing clause is frequently omitted. The form of an ordinance may also differ with its nature or character. They may be divided in this respect into those sustaining or enforcing the police power of the municipality, those relating to public improvements, those having for their purpose the imposition of taxes and the control of public property including the granting of franchises and, finally, those which relate to the general administration of municipal affairs. Again, some ordinances may be contractual in their nature and, therefore, in their construction and application involve contract relations with third persons.172 Others are penal in their character and are subject to those rules of law

Dist., 79 Ala. 527; Bills v. City of Goshen, 117 Ind. 221, 3 L. R. A. 261. Defects in respect to form cannot be remedied by a subsequent motion. City of Topeka v. Huntoon, 46 Kan. 634; Hamilton v. State, 61 Md. 14. The great seal of the state is necessary to the authenticity of a bill and the governor may refuse to consider one presented without its being affixed.

Tennant v. Crocker, 85 Mich. 328; Magneau v. City of Fremont, 30 Neb. 843, 9 L. R. A. 786; Schermerhorn v. Jersey City, 53 N. J. Law, 112; Fisher v. Graham, 1 Cin. R. (Ohio) 113. The provisions of a statute in respect to the authentication of an ordinance may be directory merely, not mandatory, and a failure upon the part of the designated officer will not affect the validity of the ordinance.

Waln v. City of Philadelphia, 99 Pa. 330. The signature of the mayor necessary. City of Allentown v. Grim, 109 Pa. 113. A mistake in the date of the formal approval by the mayor of an ordinance will not affect its validity.

Galveston, H. & S. A. R. Co. v. Harris (Tex. Civ. App.) 36 S. W. 776. An ordinance without the enacting clause as required by the state statutes is void. Boehme v. City of Monroe, 108 Mich. 401, 64 N. W. 204.

170 State v. Zeigler, 32 N. J. Law, 262; Massinger v. City of Millville, 63 N. J. Law, 123, 43 Atl. 443; Smith v. Treasurer of Clinton, 53 N. J. Law, 329; Smith v. Gouldy, 58 N. J. Law, 562; State v. Cleaveland, 3 R. I. 117.

171 Lisbon v. Clark, 18 N. H. 234.

172 New Orleans, S. Ft. & L. R. Co. v. Delamore, 114 U. S. 501; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; New Orleans Waterworks Co. v. Rivers, 115 U. S. 674; City of St. Louis v. Western Union Tel. Co., 148 U. S. 92; Citizens' St. R. Co. v. City of Memphis, 53 Fed. 715; Baltimore Trust & G. Co. v. City of Baltimore, 64 Fed. 153; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505; Seitzinger v. Borough of Tamaqua, 187 Pa. 539; City of Ashland v. Wheeler, 88 Wis. 607.

« AnteriorContinuar »