engineer shall send to jail persons found working them; 1 prohibiting the slaughtering of animals on one's own premises unless the building is devoted to that purpose; 2 providing that the city sexton, whose fees are paid out of the estates of deceased persons, shall expend five hundred dollars on the public burying ground, and bury paupers free of charge; 3 compelling the owner of property to destroy or remove it, the same not shown to be a nuisance; 4 prescribing a penalty of not less than one nor more than five hundred dollars for every hour that a person shall keep his wagon within the limits of the market.5

§ 1025. Illustrations of Municipal By-laws Held not Unreasonable. The subject may also be illustrated by a collection of cases in which municipal by-laws have been challenged as being unreasonable, but in which the courts have disallowed the challenge, and held them reasonable. For some of these the writer is indebted to a learned note of Judge Dillon, but for a greater number of them to the learned and extensive note of Mr. Freeman in 34 American Decisions, 634. The following municipal by-laws have been held not unreasonable: Forbidding the placing or carrying of signboards on the sidewalks; 7 forbidding preaching, lecturing, etc., on a public common; 8 imposing an annual license of $500 on express companies, whose business extends beyond the limits of the State, and $100 on companies whose business is conducted within the State; 9 prohibiting railroad trains from standing across a public street for more than two minutes at a time; 10 forbidding wagons loaded with perishable produce to stand in the market place for more than twenty minutes between certain hours; 11 prohibiting persons from driving wagons and carts on a trot or gallop in the streets; 12 prohibiting persons who are not lessees of butchers' stalls from offering for sale fresh meat in less quantities than one quarter; 13 prohibiting the owners of lots on the lake front from removing sand therefrom; 14 prohibiting the building of awnings; 15 prohibiting restaurants from being kept open after

ten o'clock p. m.; 1 imposing a fine on the owner of a ferocious dog, which shall bite any person, etc. ; 2 prohibiting drivers of hackney coaches from standing their carriages within thirty-five feet of the front doors of places of public amusement; 3 fixing the price at which private persons may be permitted to tap a public sewer; 4 fixing market hours at from dawn to 9 o'clock a. m., and providing that fresh beef shall not be sold at any other than the market place during such hours, in quantities or portions smaller than a quarter; 5 requiring railroad companies to station flagmen at street crossings and to use lighted lanterns at night; 6 prohibiting cattle from being allowed to run at large within the corporate limits; 7 prohibiting the keeping of swine within such limits; 8 levying a tax of $150 on every retailer of spirituous liquors; 9 compelling boats loaded with vegetables or putrid substances, coming from places infected with malignant or contagious diseases, to anchor in the river until examined by the city physician; 10 forbidding the keeping of gunpowder, except in certain quantities, within the corporate limits, and providing that it shall be kept in copper canisters, and imposing a fine of not less than fifty nor more than five hundred dollars for the violation of the ordinance; requiring a license fee of $500 from retailers of ardent spirits ; punishing vagrants; 13 forbidding sales of merchandise after 9 o'clock a. m. on Sunday; 14 requiring saloons to close at 9 o'clock p. m.; 15 imposing a penalty on retail grocers for having spirituous liquors on their premises without a license; 16 authorizing the mayor to grant licenses to sell and deliver milk, and declaring the act of selling milk without such license a misdemeanor; 17 preventing the establishment of new burial grounds within the city; 18 requiring all places where intoxicants are sold to be closed at half-past ten p. m.; 19 authorizing commissioners to vacate or discontinue leasing or hiring market stalls; 20 prescribing streets as routes

1 State v. Freeman, 38 N. H. 426.

2 Com. v. Steffee, 7 Bush (Ky.),

161.

3 Com. v. Robertson, 5 Cush. (Mass.) 438.

4 Fisher v. Harrisburg, 2 Grant Cas. (Pa.) 291.

5 Bowling Green v. Carson, 10 Bush (Ky.), 64.

6 Delaware &c. R. Co. v. East Orange, 41 N. J. L. 127.

Com. v. Bean, 14 Gray (Mass.), 52. Com. v. Patch, 97 Mass. 221. Mayor v. Beasley, 1 Humph. (Tenn.) 232; s. c. 34 Am. Dec. 646. 10 Dubois v. Augusta, Dudley (Ga.), 30.

11 Williams v. Augusta, 4 Ga. 509.
12 Perdue v. Ellis, 18 Ga. 586.
13 St. Louis v. Bentz, 11 Mo. 61.

12

14 St. Louis v. Cafferata, 24 Mo. 94. 15 Smith v. Mayor, 3 Head (Tenn.), 245.

16 Council v. Ahrens, 4 Strobh. L. (S. C.) 241.

17 People v. Mulholland, 82 N. Y. 324.

18 Charleston v. Baptist Church, 4 Strobh. L. (S. C.) 306.

19 State v. Welch, 36 Conn. 215. 20 Charleston v. Goldsmith, 2 Speer (S. C.), 428.

of travel for omnibusses, and providing for their exclusion from other streets;1 requiring drawbridges crossing a river to be closed every ten minutes for the passage of persons and vehicles, and making it unlawful for navigators to attempt to pass after the signal has been displayed that the bridge is being closed; 2 providing that any person who shall unnecessarily obstruct or impede the running of street cars, by standing his team across the track, or otherwise shall be liable to a fine; 3 requiring hackmen standing their hacks at or near a railway station to obey the directions of police officers; prohibiting persons without a license from carrying offal or house dirt through any of the streets.5

4

§ 1026. By-laws Touching the Admission of Persons to the Freedom of a Place. It will be necessary, at the outset, for the reader to have some idea of what is understood to be the meaning of admitting a person to the freedom of a corporation. Many of the corporations spoken of in the early English books of reports were trade-guilds, which had come down from the middle ages, or which had been modeled after the guilds of those periods. These guilds enjoyed certain powers, either by royal charter or by prescription which presumed the existence of a charter. Among these powers was the power of admitting members to their freedom, that is to the enjoyment of their franchises or privileges. The chief privilege of one of these trade corporations appears to have been the privilege of pursuing the particular art, craft or trade with which the company was concerned. In many cases the prerequisite to the right to be admitted to such freedom was a service for the period of seven years as an apprentice, under a freeman of the particular company, to learn the trade, art or mystery of the company. Thus, in the case of the tailors of Ipswich, there was a by-law that "none should work at his trade until he had presented himself to the company of tailors," and "should prove that he had served seven years at the least, as an apprentice, and before he should be admitted by them to be a sufficient workman." This by-law was held to be void, as being against law. It was against the statute of 5 Eliz. relating to apprenticeships, and was a further restraint of trade than had been created by that statute.6 In the case of the company or fraternity of freemasons, rough masons, wallers, paviours, plaisterers, platers, and brick-layers, of the city of Durham, there was a by-law to the general effect that no person should be admitted a freeman of the company

1 Com. v. Stodder, 2 Cush. (Mass.) 562.

2 Chicago v. McGinn, 51 Ill. 266.

3 State v. Foley, 31 Iowa, 527; s. c. 7 Am. Rep. 166.

4 St. Paul v. Smith, 27 Minn. 364. Re Vandine, 6 Pick. (Mass.) 187;

s. c. 17 Am. Dec. 351.

6 Case of the Tailors of Ipswich, 11 Coke, 53.

until he should have been called, at three several meetings of the mayor and certain aldermen of the city, and the wardens and stewards of the several companies within the city, before his admittance, and that he be approved of by them and by the majority of them. This was held, in a judgment given by Lord Mansfield, in which a great many objections were stated and answered, to be a good by-law.1

§ 1027. By-Law Compelling Elected Members to Wear Livery and Pay Initiation Fee or a Forfeiture. A by-law of the Vintner's Company was, in substance, that the company might elect such of the yeomanry of their members as should seem most meet and convenient to them into the livery of their company, and that every person so elected should pay to the company for his admission into the livery, the sum of £31 13s., 4d., and on his refusal to accept the same and to pay the fee, should forfeit the sum of £25. This by-law was, in several cases adjudged to be reasonable and valid. To the answer that this by-law was grievous to the subject, the court resolved: "Was the same more or less, it could not make the by-law void, for it is to bind only the members of the corporation; and when a man will agree to be of a company, he doth thereby submit himself to the laws thereof, and we are not to take notice of the extravagancy of the charges they lay upon themselves. And it is convenient that the company have such power to keep up their reputation and the honor of the city of London; and so allowed the return to be good." Lord Mansfield, however, was of opinion that a plea of nil debit might be supported by evidence, if the defendant was really unfit to take the livery, and this he said "holds as to any reasonable excuse," but the judges were agreed that the court would not intend, for the purpose of defeating the by-law, that the defendant was an improper person to receive the livery. Mr. Justice Dennison said: "It is objected that a person elected may be a beggar. But we can never intend that they would choose persons not meet and convenient; and if this be done nil debit will bring that question before the court. This is an ancient by-law, and nothing

unreasonable appears upon the face of it." 4

3

§ 1028. Must not be in Restraint of Trade. As a general rule, by-laws which operate in restraint of trade are void, as

1 Green v. Mayor of Durham, 1 Burr. 127.

446.

3 Taverner's Case, Sir T. Raym.

4 Vintner's Co. v. Passey, 1 Burr.

2 Vintner's Co. v. Passey, 1 Burr. 235; Taverner's Case, Sir T. Raym. 235, 239, 240. 446.

against public policy; and this is true of municipal ordinances, which, as already seen, stand on the same general footing as the by-laws of private corporations. On the same principle, municipal by-laws tending to create monopolies, or to vest in particular persons the sale and exclusive right to carry on particular kinds of business, are void.3 By-laws prohibiting an inhabitant