new charter or statutes may contain a saving clause with respect to existing ordinances.327 The power to amend or repeal may be exercised as a rule at any time, even at the same session of the official body at which the legislation repealed or amended was adopted.328 This principle applies in all cases before the time of taking effect of an ordinance, the acceptance of benefits under it by third parties or so long as the action of the legislative body remains executory.329

550. Restrictions upon the power to amend or repeal.

Limitations may exist in respect to the power to amend or repeal either as to the mode or because of the subject-matter of the legislation. The former restriction has been suggested in a preceding section. The law requires that certain legislative action. can be amended or repealed only by the use of the same formalities as required in the adoption of the original legislation, and this principle applies to all the details of law making, including the character of the legislative body, the question of a quorum and the form of the law itself. Legislation of a higher grade cannot be repealed or amended by resolutions or acts of an inferior grade passed with less formality.330

The other restriction upon the power of all legislative bodies exists in connection with the subject-matter. Legislative action.

960, 53 S. W. 644; Knight v. Town of West Union, 45 W. Va. 194.

327 State v. City of Mobile, 24 Ala. 701; City of Pensacola v. Sullivan, 23 Fla. 1; Allen v. City of Davenport, 107 Iowa, 90; United R. & Elec. Co. v. Hayes, 92 Md. 490; Ruell v. City of Alpena, 108 Mich. 290; Kansas City v. White, 69 Mo. 26; Monett v. Beaty, 79 Mo. App. 315; Garey v. City of Galveston, 42 Tex. 627; City of Spokane v. Williams, 6 Wash. 376.

328 East St. Louis U. R. Co. v. City of East St. Louis, 39 Ill. App. 398; Neal v. Franklin County, 43 Ill. App. 267; Gormley v. Day, 114 Ill. 185; State v. Graves, 19 Md. 351.

329 City of Rock Island v. Mc

Eniry, 39 Ill. App. 218; East St. Louis U. R. Co. v. City of East St. Louis, 39 Ill. App. 398; Gormley v. Day, 114 Ill. 185; Waukesha Hygeia Mineral Spring Co. v. Village of Waukesha, 83 Wis. 475.

330 People v. Mount, 186 Ill. 560, 58 N. E. 360, affirming 87 Ill. App. 194; Hibbard v. City of Chicago, 173 Ill. 91, 40 L. R. A. 621; Swindell v. State, 143 Ind. 153, 35 L. R. A. 50; Id., 146 Ind. 527, 45 N. E. 700; Ryce v. City of Osage, 88 Iowa, 558; Bailey v. Com., 23 Ky. L. R. 1223, 64 S. W. 995; Naegely v. City of Saginaw, 101 Mich. 532; State v. Cowgill & H. Mill Co., 156 Mo. 620; Ashland Water Co. V. Ashland County, 87 Wis. 209. See, also, cases cited under last paragraph of § 564.

may result in the granting or acquirement of contract, vested or property rights to third parties, and the law universally obtains that such rights cannot be impaired or destroyed by the passage of subsequent legislation, 331 Even where in the granting of franchises the express power is reserved to alter or amend or repeal, the courts universally hold that this is not synonymous with the right of confiscation; 332 that under charter or ordinance rights such property may be acquired as will be afforded protection under those constitutional clauses that prohibit the passage of laws impairing the obligation of a contract and prevent the confiscation of a property vested right or the taking of private property for public use without the payment of just compensation."

§ 551. Effect of repeal.

333

The repeal of a city ordinance, it has been held, puts an end to all proceedings founded upon it and pending at the time of the repeal unless they are saved by the repealing ordinance.334 In

331 Louisiana v. Police Jury of St. Martin's Parish, 111 U. S. 716; Baltimore Trust & G. Co. v. City of Baltimore, 64 Fed. 153, 166 U. S. 673; Reiff v. Conner, 10 Ark. 241; Bishoff v. State, 43 Fla. 67, 30 So. 808; City of Rome v. Lumpkin, 5 Ga. 447; Metropolitan Gas Co. v. Village of Hyde Park, 27 Ill. App. 361; Baldwin v. Smith, 82 Ill. 162;. City of Terre Haute v. Lake, 43 Ind. 480; City of Des Moines v. Chicago, R. I. & P. R. Co., 41 Iowa, 569; City of Burlington v. Burlington St. R. Co., 49 Iowa, 144; New Orleans El. R. Co. v. City of New Orleans, 39 La. Ann. 127; City of New Orleans v. Great Southern Tel. & Teleg. Co., 40 La. Ann. 41; Bigelow v. Hillman, 37 Me. 52; State v. Graves, 19 Md. 351; Pond v. Negus, 3 Mass. 230, 3 Am. Dec. 131; State v. Laclede Gaslight Co., 102 Mo. 472; Hudson Tel. Co. v. Jersey City, 49 N. J. Law, 303, 8 Atl. 123; State V. Pinto, 7 Ohio St. 355; Bassett v. City of El Paso, 88 Tex. 169; Stod

dard v. Gilman, 22 Vt. 568; City of Ashland v. Wheeler, 88 Wis. 607. 332 City of Baltimore v. Hughes' Adm'r, 1 Gill & J. (Md.) 480.

333 Louisiana v. Pilsbury, 105 U. S. 278; Louisiana v. Police Jury of St. Martin's Parish, 111 U. S. 716; City of Baltimore V. Baltimore Trust & G. Co., 166 U. S. 673; Reiff v. Conner, 10 Ark. 241; Metropolitan Gas Co. v. Village of Hyde Park, 27 Ill. App. 361; City of Quincy v. Bull, 106 Ill. 337; City of Terre Haute v. Lake, 43 Ind. 480; City of New Orleans v. Great Southern Tel. & Teleg. Co., 40 La Ann. 41; Missouri, K & T. Trust Co. v. Smart, 51 La. Ann. 416; Bigelow v. Hillman, 37 Me. 52; Hudson Tel. Co. v. Jersey City, 49 N. J. Law, 303; People v. O'Brien, 111 N. Y. 1, 2 L. R. A. 255; State v. Pinto, 7 Ohio St. 355; In re Road in Augusta Tp., 17 Pa. 75; Stoddard v. Gilman, 22 Vt. 568.

334 Spears v. Modoc County, 101 Cal. 303, 35 Pac. 869; Day v. City of

some few cases the rule seems to be that the repeal of an ordinance expressly repealing other legislation will restore that original legislation.335

§ 552. Enforcement of ordinances.

A municipal corporation is organized for the better protection and convenience of those living within its limits. It possesses certain powers, either expressly given or derived by implication from the grant of express powers or because of the nature and effect of its organization. Such powers are possessed because of the necessity for carrying out the purpose of the organization of public corporations.338 The possession of the power to legislate or to pass laws with reference to matters of local interest and necessary to the preservation of the public peace necessarily carries with it the power to enforce those valid and reasonable laws and regulations as may in the discretion of the corporate authorities be adopted to secure such objects.337 The power to enforce ordinances in conjunction with that necessary to their legal passage is derived from the legislature.338 Municipal corporations, the

Clinton, 6 Ill. App. 476; Naylor v. City of Galesburg, 56 Ill. 285; Denning v. Yount, 62 Kan. 217, 61 Pac. 803, affirming 9 Kan. App. 708, 59 Pac. 1092; Baker v. City of Lexington, 21 Ky. L. R. 809, 53 S. W. 16; Kansas City v. Clark, 68 Mo. 588; Kansas v. White, 69 Mo. 26; In re Deering, 14 Daly (N. Y.) 89; Earnhart v. Village of Lebanon, 5 Ohio Circ. R. 578.

335 Pardridge v. Village of Hyde Park, 131 Ill. 537, 23 N. E. 345; People v. Davis, 61 Barb. (N. Y.) 456; Van Denburgh v. Village of Greenbush, 66 N. Y. 1; City of New York v. Broadway & S. Ave. R. Co., 97 N. Y. 275; Town of Rutherford v. Swink, 96 Tenn. 564.

336 Bradley v. City of Rochester, 54 Hun (N. Y.) 140; City of Charleston v. Pinckney, 3 Brev. (S. C.) 217; Batsel v. Blaine, 4 Willson, Civ. Cas. Ct. App. (Tex.) 295; Ould

v. City of Richmond, 23 Grat. (Va.) 464.

337 Siloam Springs v. Thompson, 41 Ark. 456; Hamilton v. City of Carthage, 24 Ill. 22. A public corporation de facto as well as one de jure can maintain an action for a penalty. Waters Pierce Oil Co. v. Town of New Iberia, 47 La. Ann. 863; City of Reinhard v. City of New York, 2 Daly (N. Y.) 243; Sands v. City of Richmond, 31 Grat. (Va.) 571; City of Charleston v. Beller, 45 W. Va. 44, 30 S. E. 152. A violation of a city ordinance is an offense against the public, not merely a private wrong; and is, therefore, criminal in its character. 338 Ford v. City of Denver, 10 Colo. App. 500, 51 Pac. 1015; Moran v. City of Atlanta, 102 Ga. 840, 30 S. E. 298. The power to pass a penal ordinance cannot be inferred from the general welfare clause of

ases hold, as a rule, do not possess an inherent or implied power to impose penalties for the violation of their laws, or to enforce them in any other manner than that prescribed by the charter.339

The power to impose a penalty for the violation of an ordinance is usually derived directly by legislative grant.340 The right to legislate would be of no avail or substantial benefit if the corporation had no power to punish those violating ordinance provisions or regulations in the nature of laws.341 The constitution prohibits restraining all legislative bodies, the imposition of cruel and inhuman or unreasonable punishments.342 Municipal corporations are permitted only to legislate in regard to petty offenses against the good order of the community; they have no right, as a rule, to make laws or regulations in respect to what are technically and

properly speaking, considered as crimes.343 Because of this difference in the nature and character of offenses solely dealt with by municipal corporations, as compared with those graver acts against society regulated by the state and considered as crimes, and also because they deal exclusively with local affairs, munici pal corporations are not permitted, even where the express power to enforce ordinances is given, to impose severe fines or long terms of imprisonment.344 The customary penalty for the violation of ordinance or local regulations is the imposition of a fine or imprisonment,345 in extreme cases both,843 or imprisonment in

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