CHAPTER III. MUNICIPAL OFFICERS AND THEIR ACTS. 38. Corporate meetings.-The corporate affairs of a municipality must be transacted at a corporate meeting of the members of the governing body, duly convened at the stated or notified time and place, a quorum being present, and a majority thereof expressly favoring the action taken. Meetings are of two kinds: stated or regular, and called or special; the stated meeting being fixed in time and place by charter, ordinance, or usage; the called meeting, one specially convened in emergency. Of a stated meeting every member has due notice by the statute, rule, or usage under which it is held; but of the called meeting reasonable notice of the time and place is required to be given. If extraordinary business is to be transacted, then notice must also be given of its nature. Actual presence of a member not protesting at a called meeting is equivalent to notice. All members must be present or notified to make a valid special meeting. The notice must be personally served, if practicable. Unnotified members who are actually present may avoid the presumption of notification by protesting against the meeting for want of notice. A majority of the body constitute a quorum, unless it is otherwise provided by law. A quorum is compe tent to transact corporate business, and a majority of such quorum is sufficient to take any lawful action, or make an election. Thus, if the body be composed of nine, then five make a lawful meeting and three of these may pass any ordinance or resolution, or commit the corporation to legal obligation. 39. Mayor and council.-The executive head of the municipality is the mayor, who is generally also a member of the governing body, and presides over it ex officio. The mayor's functions are prescribed in the charter, and differ in various municipalities. In some, as the executive head of the corporation he possesses the veto power, in others the appointing power, and yet in others both of these; in some, as the presiding officer he has power to cast only the deciding vote in case of tie; in others, his functions and duties are the same as those of any other member. A council composed of de facto members, in whole or in part, may lawfully transact corporate business. Corporate council proceedings can only be conducted in corporate meetings, and they cannot be delegated to others to be performed by them. An adjourned meeting is merely a continuation of the original meeting, and notice is not required for it. At such meeting any business may be transacted which could properly have come before the board at the original meeting, and the mode of proceeding at such meeting is the same as that in the original meeting. 40. Records.-Minutes of the proceedings at a meeting of the council duly recorded in the books of the municipality are public records, and as such are competent evidence either for or against the corporation, as well as third parties, of the corporate acts and proceedings therein recorded. But such proceedings may be proven by other corporate evidence. And any inhabitant, taxpayer, or other person having an interest under the proceedings may inspect the record and have copy thereof on tendering the usual fee. 41. Ordinances.-An ordinance is a by-law of a municipality, enacted by the council or governing body as a local law prescribing a general and permanent rule for persons or things within the corporate boundaries. "By-law" 14 is a general term now applicable to the self-adopted rules of all classes of corporations; "ordinance" is used to describe the selfgoverning rule of a municipality. It is not so comprehensive as "regulation" and is more solemn and formal than "resolution." "Ordinance" is a continuing regulation, while "resolution," though sometimes held to enact a law, is usually declared not to be the equivalent of an ordinance. 42. Enactment.-Where the charter, or the general law, prescribes the procedure for the enactment of ordinances, it must be complied with, else the ordinance is void. For example, if the law requires that the ordinance shall be read at three different meetings before final passage, such provision is mandatory and essential to a valid ordinance. An ordinance should be legislative in form; but this is not essential to its validity. It must be duly recorded, and formally approved, where approval is essential to 14 Literally, law of the by, and so the local laws of Rugby, Scrooby and Derby. validity. Publication must be made in the manner and to the extent prescribed in the statute. 43. Essentials of valid ordinance.-An ordinance may be void not only for want of corporate power to enact it, or for the failure to observe the prescribed procedure essential to its validity, but also because it is contrary to certain well-established doctrines of the law in regard to such regulations, chief of which are that a municipal ordinance, in order to be valid: (a) must not contravene constitution or statute; (b) must not be oppressive; (c) must be impartial, fair, and general; (d) must not prohibit, but may regulate, trade; (e) must not contravene common right; (f) must be consistent with public policy; (g) must not be unreasonable. Ordinances have been declared invalid which empower purchasers of land at a tax sale to call upon the police to put them into possession; which impose a license upon towboats engaged in interstate commerce; which required a cotton dealer to report to the police the names of all sellers of loose cotton, with the amount purchased by him; which discriminate between resident and non-resident traders; which donated the bodies of dead animals to certain third parties; also an ordinance imposing the cost, upon abutting property-owners, of repaving a street where the old pavement was still in serviceable condition.15 44. Ordinances.-Must not be oppressive. The courts have not hesitated under this wholesome doctrine to invalidate mandatory ordinances which interfere with the ordinary liberty of the citizen, as, for 15 Chicago v. Brown, 205 Ill. 568, LEADING ILLUSTRATIVE CASES. example, an ordinance ordering the arrest, imprisonment and punishment of a free negro found out of doors after ten o'clock at night; one punishing any person knowingly associating with persons having the reputation of being thieves and prostitutes; so one committing the right to erect and maintain a steam engine and boiler to the unbridled discretion of the mayor; also one denying the use of water from the city waterworks to anyone who owed, or whose tenant owed, a bill for water supplied in a previous year, or to a different house; so one committing to an arbitrary official discretion to allow or prohibit street parades; also one forbidding a licensed retailer of liquors to sell between the hours of six p. m. and six a. m.; and likewise one forbidding such sale whenever any denomination of Christian people are holding divine services. Must be impartial, fair, and general. A regulation requiring certain water consumers to put in expensive meters under penalty of cutting off the water supply was held void for unwarranted discrimination; so one requiring a certain individual named to do certain acts in respect to a building, and imposing a penalty for non-compliance, was held void; as also one requiring particular individuals by name to construct local improvements in front of their lots; so also one forbidding the repairing, altering, or rebuilding any frame building within fire limits, the cost of which should exceed three hundred dollars; also one prohibiting dairies within certain designated limits without the consent of the city council. Must not prohibit, but may regulate, trade. Under |