11

with municipal affairs is construed as in addition to the power of making by-laws, which is incidental to the creation of a corporation. A power to pass ordinances and appoint officers to enforce them includes all necessary power to make such ordinances effectual; hence, municipal corporations have implied power to impose reasona ble and proper fines upon those who violate their ordiuances. But where the charter or act of incorporation prescribes the mode of enforcing ordinances, that mode must be followed. City ordinances, duly enacted. are binding upon all the inhabitants of the city, and operate throughout the actual boundaries of the city, even after they are enlarged.8 An ordinance must be intelligible;9 and to be good, it must be reasonable, 10 and not oppressive, nor be in restraint of trade, 12 or in contravention of common right.18 And a grant of power to pass ordinances is understood to be subject to the implied limitation that they shall not be contrary to the general laws of the state.14 If part of an ordinance is void, another essential and connected part of the same is also void. 15 Ordinances have been held void for want of publication in the manner prescribed by the charter; 16 and an ordinance not published in a newspaper properly appointed by a municipal corporation to be its official paper, was held to be void. An ordinance imposing a forfeiture, fine, or imprisonment, without giving the party an opportunity to be heard on reasonable notice before the penalty is inflicted, is invalid. 18 And one who is affected by an ordinance is entitled to a hearing in the courts to determine the validity of the ordinance, even before any attempt had been made to enforce it.19 But authority may be conferred by charter upon a municipal legislative body to prohibit, by ordinances, practices which are against good morals or public decency; 20 and when such body determines as a fact, that a particular practice is against good morals, and prohibits it by ordinance, its decision is final, and the courts will not review it.21 And ordinances

enacted by a department of a city government, relating to some particular subject, are not rendered invalid by the fact that acts forbidden by the ordinances under a penalty are also punishable under the general laws of the state; 22 but both laws cannot be enforced in a particular case, thus subjecting the party to a double penalty for the same offense.28 The repeal of an ordinance pending a prosecution under it ends all proceedings founded thereon,24 and operates to release the defendant.25

1 St. Paul v. Coulter, 12 Minn. 41; Stater. Clark, 8 Fost. 176; Trigally v. Memphis, 6 Coid. 382; Hill v. Decatur. 22 Ga. 203; Brieswick v. Mayor etc. 51 id. 639; Horn e. People, 26 Mich. 221. An ordinance prescribes a permanent rule of conduct or government: Blanchard r. Bissell, 11 Ohio St. 96. See also St. Louis v. Bank, 49 Mo. 574; Heland v. Lowell, 3 Allen, 407. And a resolution has ordinarily the same effect as an or dinance: See Gas Co. v. San Francisco, 6 Cal. 150; Kepner v. Com monw. 40 l'a. St. 124; Sower v. Philadelphia, 35 Pa. St. 231.

2 Blazier v. Miller, 10 Hun, 435; People v. Special Sessions, 7 id. 214. 3 Stater. Morristown, 33 N. J. L. 57. Compare Williams v. Augusta, 4 Ga. 509; State v. Ferguson, 33 N. H. 424; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505; and see tit. BY-LAWS.

4 Reinhard v. New York, 2 Daly, 243; and see State v. Cleveland, 3 R. I. 117; Roddy v. Finnegan, 43 Md. 490.

5 Trigally v. Memphis, 6 Cold. 382; Fisher v. Harrisburg, 3 Grant Cas. 291; Ewbanks v. Ashley, 36 Ill. 178.

6 Williamson v. Commonw. 4 Mon. B. 146; Miles v. Chamberlain, 17 Wis. 446; Goldthwaite v. City Council, 50 Ala. 486; Heise v. Town Coun cil. 6 Rich. 404; Hart v. Mayor etc. 9 Wend. 571. See State v. Threadgill, 76 No. Car. 17; Davenport v. Bird, 34 Iowa, 524; City of Brown. Ville v. Cook, 4 Neb. 101; City of Huntington v. Pease, 56 Ind. 305.

7 Whitfield v. Longest, 6 Ired. 268; City Council e. Pepper, 1 Rich. 364; Jones v. Insurance Co. 2 Daly, 307; Reed v. People, 1 Park. 481.

8 St. Louis Gas Light Co. v. St. Louis, 46 Mo. 121. But see New Orleaus r. Anderson, 9 La. An. 323.

9 State v. Plainfield, 38 N. J. L. 95; Merriam v. New Orleans, 14 La. An. 318; Burr v. Newcastle, 49 Ind. 322. Effect must, however, be given to all ordinances, if possible: Commonwealth v. Robertson, 5 Cush. 438.

10 State v. Mayor etc. 37 N. J. L. 348; Peoria v. Calhoun, 29 Ill. 317; Commonw. v. Wilkins, 121 Mass. 356; Corrigan v. Gage, 68 Mo. 541.

11 Mayor . Winfield, 8 Humph. 767; Pieri v. Shieldsboro, 42 Miss. 493; St. Louis v. Weber, 44 Mo. 547; and see Gridley v. Bloomington, 88 Ill. 554; 30 Am. R. 566.

12 Commonw. r. Stodder. 2 Cush. 562; Barling v. West, 29 Wis. 307. Compare Cronin v. People, 10 N. Y. Week. Dig. 565.

13 Clason v. Milwaukee, 30 Wis. 316; Willard v. Killingworth, 8 Conn. 247; Tugman v. Chicago, 78 Ill. 405; City of Shreveport v. Levy, 26 La. An. 671; 21 Am. R. 553. Compare Taylor v. Griswold, 2 Green, 222.

14 St. Louis r. Kaime, 2 Mo. App. 66; Canton v. Nist, 9 Ohio St. 439; Thomas v. Richmond, 12 Wall. 349; Petersfield v. Vickers, 3 Cold. 205; People v. Pratt, 22 Hun, 300.

15 State v. Mayor etc. 38 N. J. L. 110. Compare Shelton v. Mobile, 30 Ala. 540.

16 See Philadelphia v. Edwards, 78 Pa. St. 62; Olds v. Erie City, 79 id. 380; State v. Mayor etc. 38 N. J. L. 110; Barnett v. Newark, 28 Ill. 62; Klais v. Pulford, 36 Wis. 587. Compare People v. San Francisco, 27 Cal. 655; Clark Janesville, 10 Wis. 136; Stevenson v. Bay City, 26 Mich. 44; Whalin v. Macomb, 76 Ill. 49.

17 Matter of Astor, 50 N. Y. 363; and see Re Douglass, 12 Abb. Pr. N. S. 161; 46 N. Y. 42. Compare matter of Anderson, 60 N. Y. 457; Matter of Burke, 62 id. 224; Moore v. Mayor etc. 73 id. 238; Higley v. Bunce, 10 Conn. 435; Tisdale v. Minonk, 46 Ill. 9; Wasem v. Cincinnati, 2 Cin. 84.

18 Judson v. Reardon, 16 Minn. 431; Durst v. People, 51 Ill. 286.

19 State v. Paterson, 34 N. J. L. 163; State v. Jersey City, 34 id. 390. 20 See Nolin v. Mayor etc. 4 Yerg, 163; McAllister v. Clark, 33 Conn. 91; Shaffer v. Mumma, 17 Md. 331; Ex parte Delaney, 43 Cal. 478. 21 Ex parte Delaney, 43 Cal. 478.

22 Polinsky v. People, 11 Hun, 390; and see Brownville v. Cook, 4 Neb. 101; Huddleson v. Ruffin, 6 Ohio St. 604.

23 Polinsky v. People, 11 Hun, 390. 24 Naylor v. Galesburg, 56 Ill. 285. 25 Kansas City v. Clark, 68 Mo. 588.

§ 293. Regulation of streets, etc.-The legislature may, and usually does, confer upon municipal corporations full and paramount control over the streets and public ways within their limits. The municipal authorities of cities and villages may regulate the use of the streets, etc.;2 and they are the exclusive judges of the propriety and necessity of the widening or laying out of a street within the corporate limits. A general power to lay out and open streets in a city implies power to establish the grade of such streets; 4 and also the power to determine the respective widths of the streets and sidewalks. And power to grade streets, etc., includes power to make contracts relating to the same, with respect to the work to be done and compensation to be paid." The corporate authorities of a city hold the streets, whether they own the fee or have acquired an easement only, in trust for the public, and for purposes of general travel. Whatever interferes unreasonably and unnecessarily with the public right of free and unobstructed travel over the streets is a nuisance, which the authorities may prohibit by ordinance; 8 and the power of a city over

its streets, and the right of the public to them, extends upward indefinitely for the purpose of their preservation, safe use, and enjoyment. But city authorities cannot lawfully obstruct the streets with public or private buildings; 10 nor can they sell the streets so long as they are held for public use; 11 nor can they confer upon a private person a right to use a street, or any portion of the same, for any purpose except for passing and repassing; 12 and in the absence of legislative authority, ordinary city authorities have no power to release the public right in a dedicated street. 18 The streets of a city may, however, be appropriated to authorized purposes, promotive of the convenience of its inhabitants, and not substantially interfering with travel.14 And a town or city, having control of its streets, may allow property holders to adorn the same by setting out and caring for shade trees along their premises.15 The right to use the streets of a city for the purpose of furnishing gas to the inhabitants, at a profit, is a franchise, and can only emanate directly or indirectly from the sovereign power.16 But it is competent for the legislature to confer upon an individual or private company the exclusive right to manufacture and sell gas, and to erect works and lay pipes therefor within the limits of a municipal corporation; 17 and it may grant to a private company, for a term of years, the exclusive use of the streets and alleys for the erection of water-works therein, and thus revoke the power of the city to use them. 18 A charter power to prevent the encumbrance of sidewalks, etc., warrants not only the removal of what has become an obstruction thereon, 19 but also measures to stop the erection of what will be one.” Under a power "to exercise control over the streets,” and "to cause nuisances to be removed,” city authorities may enact an ordinance impounding hogs going at large in the streets.21 And a city having the control of the streets, squares, etc., within its limits may, by ordinance, prohibit the appropriation of them to private use, such as sales by individuals at auction thereon.22

1 See Baird v. Rice, 63 Pa. St. 489; Sinton v. Ashbury, 41 Cal. 525; Litchfield v. Vernon, 41 N. Y. 123; Dubuque v. Maloney, 9 Iowa, 450; State v. Graves, 19 Md. 351; Inhabitants etc. v. New Orleans, 14 La An. 452.

2 Commonw. v. Stodder, 2 Cush. 562; Commonw. v. Robertson, 5 id. 438; Washington v. Nashville, 1 Swan, 177; Railroad Co. v. Buffalo, 5 Hill, 209; Gartside v. East St. Louis, 43 Ill. 47.

3 Dunham v. Hyde Park, 75 Ill. 371.

4 Smith v. Corp. of Washington, 20 How. 135; Himmelmann v. Hoadly, 44 Cal. 213; and see Fish v. Mayor etc. 6 Paige, 268; Creal v. Keocuk, 4 Greene, 47; Macy v. Indianapolis, 17 Ind. 267. As to notice to property owners affected, of the intention to open or alter a street: see State v. Morristown, 34 N. J. L. 445; State v. Elizabeth, 32 id. 357; State v. Plainfield, 38 id. 95.

5 State v. Morristown, 33 N. J. L. 57.

6 Sturtevant v. Alton, 3 McLean, 393; and compare People v. Flagg, 17 N. Y. 584.

7 Carter v. Chicago, 57 Ill. 283; Chicago v. Wright, 69 id. 318; Kreigh . Chicago, 86 id. 407; Meth. E. Churcli v. Hoboken, 33 N. J. L. 13; Winona v. Huff, 11 Minn. 119.

8 Waco v. Powell, 32 Tex. 258; Pedrick v. Bailey, 12 Gray, 161; New York etc. R. R. Co. v. Mayor, 1 Hilt. 562; Philadelphia v. Railroad Co. 58 Pa. St. 253; Fox v. Winona, 23 Minn. 10.

9 Grove v. Fort Wayne, 45 Ind. 429; 15 Am. R. 262.

10 Lutterloh v. Mayor etc. 15 Fla. 306.

11 People v. Albany, 4 Hun, 675; Meth. E. Church v. Hoboken, 33 N. J. L. 13.

12 Green v. Portland, 32 Me. 431; Smith v. Leavenworth, 15 Kan. 81. 13 Hoboken Land etc. Co. v. Mayor etc. 36 N. J. L. 540; St. Vincent Asylum v. City of Troy, 76 N. Y. 108. Compare Anderson v. Turbe ville, 16 Cold. 150; Riggs v. Board of Education, 27 Mich. 262; Trenor . Jackson, 15 Abb, Pr. N. S. 115; 46 How. Pr. 389.

14 Tompkins v. Hodgson, 2 Hun, 146; 4 Thomp. & C. 435; State v. Cincinnati Gas Light Co. 18 Ohio St. 262.

15 Baker v. Normal, 81 Ill. 108.

16 State v. Cincinnati Gas Light Co. 18 Ohio St. 262; and see Norwich Gas Co. v. Norwich City Gas Co. 25 Conn. 19; Boston v. Richardson, 13 Allen, 146, 160; Queen v. Gas Co. 2 El. & E. 651; Reg. v. Sheffield Gas Co. 22 Eng. L. & Eq. 200.

17 State v. Milwaukee Gas Light Co. 29 Wis. 454; 9 Am. R. 598. 18 Memphis v. Memphis Water Co. 5 Heisk. 495. Compare West v. Bancroft, 32 Vt. 367; Kelsey v. King, 32 Barb. 410.

19 McCarthy v. Chicago, 53 Ill. 38; and see Sheen v. Slothart, 29 La. An. 630.

20 Fox v. Winona, 23 Minn. 10.

21 Waco v. Powell, 32 Tex. 258.

22 Shelton v. Mobile, 30 Ala. 540; White v. Kent, 11 Ohio St. 550.

ments

§ 294. Local improvements.- "Local improve are those made in a particular locality, by which the real property adjoining or near such locality is specifically benefited.1 And the legislature may, in the

BOONE CORP.-89.