§ 532. Miscellaneous matters in connection with publication of ordinances. Statutory provisions in respect to the proof of publication of an ordinance as a technical requirement of law, like all others of similar character, must be strictly followed.232 The law may provide for a publication of the proceedings of municipal councils223 which, when thus published, becomes competent evidence of the facts stated and the legality of the ordinances in respect to their form of passage.234 The publication of the proceedings may be considered as a sufficient official promulgation.2 $533. Record. 235 The publication of the proceedings in official form may serve as a record of ordinances or resolutions passed. In the absence of a requirement of this kind, city charters often contain provisions for the permanent entry and record of all legislative action by the Watkins v. Hillerman, 73 Hun, 317, 26 N. Y. Supp. 252; Town of Oak Grove v. Village of Juneau, 66 Wis. 534. 232 Vincent V. City of Pacific Grove, 102 Cal. 405; Hutchison v. City of Mt. Vernon, 40 Ill. App. 19; Rowland v. City of Greencastle, 157 Ind. 591, 62 N. E. 474; Larkin v. Burlington, C. R. & N. R. Co., 91 Iowa, 654; Preston v. City of Cedar Rapids, 95 Iowa, 71, 63 N. W. 577; De Loge v. New York Cent. & H. R. R. Co., 92 Hun, 149, 36 N. Y. Supp. 697, affirmed 157 N. Y. 688; Clinton v. City of Portland, 26 Or. 410, 38 Pac. 407. Oral evidence is admissible to supply a defective proof of publication. Klais v. Pulford, 36 Wis. 587. Parol evidence is inadmissible proof of compliance with a city charter in respect to publication and record. Schwartz v. City of Oshkosh, 55 Wis. 490. 233 City of Leavenworth v. Douglass, 3 Kan. App. 67; Reed v. City of Louisville, 22 Ky. L. R. 1636, 61 S. W. 11. Such a provision will be directory only. State v. Village of Cloquet, 52 Minn. 9, 53 N. W. 1016; Waln's Heirs v. City of Philadelphia, 99 Pa. 330. 234 San Diego County v. Seifert, 97 Cal. 594, 32 Pac. 644; Boyer v. Yates City, 47 Ill. App. 115; Louisville, N. A. & C. R. Co. v. Patchen, 167 III. 204, 47 N. E. 368; McGregor v. Village of Lovington, 48 Ill. App. 208; State v. Curry, 134 Ind. 133; Larkin v. Burlington, C. R. & N. R. Co., 85 Iowa, 492. City of Troy v. Atchison & N. R. Co., 11 Kan. 519, and City of Troy v. Atchison & N. R. Co., 13 Kan. 70. Both hold that a city may be estopped to urge irregularities and defects in the passage and record of an ordinance where a third party has acted in good faith and without knowledge of such irregularities and has made large expenditures of money. City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202. 235 Reed v. City of Louisville, 22 Ky. L. R. 1636, 61 S. W. 11. municipal council or legislative body;236 the record to contain a recital of those facts and acts which are necessary to constitute a legal passage of an ordinance or resolution.237 A failure to properly record and enter as thus required will, usually, invalidate an ordinance238 and, to repeat again a common principle of law, 236 Amey v. Allegheny City, 24 How. (U. S.) 364. A city was authorized by the legislature to incur an indebtedness. The ordinance, the basis of the issue of the bonds was not published as required by the city charter; this, it was held, did not affect the validity of the bonds as the legislature in its act of authority gave power to the council of Alleghany to do what it could not do by charter. Beaumont v. City of Wilkes-Barre, 142 Pa. 198; City of Rutherford v. Swink, 90 Tenn. 152, 16 S. W. 76. 237 Jones v. McAlpine, 64 Ala. 511; Merced County v. Fleming, 111 Cal. 46, 43 Pac. 392; Santa Clara County v. Southern Pac. R. Co., 66 Cal. 642. The omission of the clerk to add the official seal to the record of an ordinance in the ordinance book does not render it invalid. Schofield v. Village of Hudson, 56 Ill. App. 191. A record entry that "New Ordinances Nos. one, two, three and ten were adopted and passed by the board" is insufficient to show the legal passage of an ordinance under a statutory provision that a board shall keep a general record of its proceedings; that the yeas and nays shall be called and entered and that the concurrence of a majority of all the members elected shall be necessary to the passage of any ordinance. Schofield v. Village of Tampico, 98 Ill. App. 324; City of Hammond v. New York, C. & St. L. R. Co., 5 Ind. App. 526, 31 N. E. 817; City of Billings v. Dunnaway, 54 Mo. App. 1; Abb. Corp. Vol. II-24. Beaumont v. City of Wilkes-Barre, 142 Pa. 198, 21 Atl. 888. 238 Reynolds v. Schweinefus, 1 Cin. R. (Ohio) 215. Parol evidence is not admissible to supply the place of the record required to be made under such a provision. National Bank of Commerce v. Town of Granada (C. C. A.) 54 Fed. 100, affirming 48 Fed. 278; State v. Curry, 134 Ind. 133, 33 N. E. 685; Stevenson v. Bay City, 26 Mich. 44. A failure to comply with the provisions requiring ordinances to be recorded does not make such record a condition precedent to the validity of an ordinance regularly adopted unless that fact is clearly expressed in the charter. The adoption of another principle would practically give to the recorder the power to veto all ordinances by simply failing to properly record them. Kepner v. Com., 40 Pa. 124; Marshall v. Com., 59 Pa. 455; Com.. v. Marshall, 69 Pa. 328. The failure: to record an ordinance is a technical defect only which the legislature can remedy by the passage of proper legislation. Waln's Heirs v. City of Philadelphia, 99 Pa. 330; Borough of Verona's Appeal, 108 Pa. 83. But see Shea v. City of Muncie, 148 Ind. 14, 46 N. E. 138, which holds that such provisions is directory only, and Crebs v. City of Lebanon 98 Fed. 549, where it is held that the omission by a clerk to copy upon the city records an ordinance does not affect its validity. Also Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532. Such all details with respect to the exercise of the law-making power are construed strictly and a failure to follow the plain provisions of the law will result in a holding by the courts of invalidity.259 § 534. Validity in respect to subject-matter and general characteristics. Municipal or quasi public corporations are subordinate agents of government and possess, therefore, restricted and limited powers. All laws or commands of governmental organizations of a higher grade must be respected and obeyed by them and the application conversely of this principle prevents them from passing ordinances, resolutions or from taking action which is in conflict with the provisions of the Federal and state constitutions or general laws: this subject has been briefly referred to in a previous section240 and will now be considered in detail. § 535. Constitutional provisions. The Constitution of the United States, in so far as specified, is the paramount law of this nation241 and contains many provisions which operate as prohibitions upon the powers of all other governments or governmental agencies. Municipal action, therefore, which violates its provisions, is void. This instrument gives to the Federal government the exclusive right of exercising certain powers; among others, that of regulating commerce with foreign nations, among the several states and with Indian tribes;242 of coining of money and fixing a standard of weights and measures;243 of laying and collecting of taxes, duties, imposts and excises and the establishing of post roads and post offices.2** a provision directory only. Town of Crowley v. Rucker, 107 La. 213; Barton v. City of Pittsburg, 4 Brewst. (Pa.) 373, and Central Irr. Dist. v. De Lappe, 79 Cal. 351; Trustees of Erie Academy v. City of Erie, 31 Pa. 515. 239 Higley v. Bunce, 10 Conn. 436. 240 Section 521, ante. 244 U. S. Const. art. 1, § 8, pars. 1 and 7; Ware v. United States, 71 U. S. (4 Wall.) 617; Chase v. United 241 United States v. Hart, Pet. C. C. 390, Fed Cas. No. 15,316. 242 See §§ 538-542, post; U. S. Const., art. 1, § 8, cl. 3. 243 The Miantinomi, 3 Wall., Jr. 46, Fed. Cas. No. 9,521; Harris v. Rutledge, 19 Iowa, 388. "Under the national constitution Congress has power 'to fix the standard of States, 155 U. S. 489; Power of The Federal Constitution also contains certain express prohibitions upon the powers of the states and, therefore, their subordinate agents, including those clauses preventing a state from enacting any law impairing the obligation of a contract;245 the passing of a bill of attainder or ex post facto law;246 the laying of any impost or duty on imports or exports, except such as may be absolutely necessary for executing their inspection laws; the laying of duties on tonnage;247 the making or exercising of any law which shall abridge the privileges or immunities of citizens of the United States; 248 the denial to any person within its jurisdiction of the equal protection of the law,249 and the passage of laws depriving any person of life, liberty or property without due process of law. 250 weights and measures.' This power v. Dawson, 61 Ky. (4 Metc.) 123; 245 U. S. Const. art. 1, § 10, par. 1; sections 528, 529, post; Fletcher V. Peck, 6 Cranch (U. S.) 87, 137; New Jersey v. Wilson, 7 Cranch (U. S.) 164; Trustees of Dartmouth College v. Woodward, 4 Wheat. (U. S.) 519; Neill v. Gates, 152 Mo. 585; Nottage v. City of Portland, 35 Or. 539. 246 U. S. Const. art. 1, § 9, par. 3; People v. Crockett, 9 Cal. 112; Cozens v. Long, 3 N. J. Law (2 Penning) 331; Green v. Shumway, 39 N. Y. 430; People v. Hayes, 140 N. Y. 484, 23 L. R. A. 830; Browne v. Blick, 7 N. C. (3 Murph.) 518. 247 U. S. Const. art. 1, § 9, par. 5; 10, par. 2; Neary v. Philadelphia, W. & B. R. Co., 7 Houst. (Del.) 419; Worsley v. Second Municipality, 9 Rob. (La.) 324; Crow v. State, 14 Mo. 237; Hancock v. Singer Mfg. Co., 62 N. J. Law, 289, 42 L. R. A. 852. 248 U. S. Const. amend. art. XIV, § 1; Cumming v. Board of Education of Richmond, 175 U. S. 528, affirming 103 Ga. 641. The failure to maintain by a board of education a high school for colored children when maintaining one for white children does not constitute a denial to colored persons to the equal protection of the law or the equal privileges of citizens of the United States within the meaning of the 14th amendment. State v. Kuntz, 47 La. Ann. 106. 249 U. S. Const. amend. art. XIV, § 1; Jacksonville, T. & K. R. Co. v. Prior, 34 Fla. 271; Owen v. Sioux City, 91 Iowa, 190; Sullivan v. Haug, 82 Mich. 548, 10 L. R. A. 263; People v. Board of Excise, 13 Misc. (N. Y.) 537. 250 See, also, the following cases holding ordinances unconstitutional because of containing discriminatory provisions directed against certain individuals because of their class, race or religious belief, thus The Federal Constitution contains in addition in common with state constitutions what has been commonly termed a bill of rights. These provisions apply to all public corporations and they constitute a guaranty of certain personal rights and privileges. coming within that clause of the Federal Constitution cited above. Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546. This case considered and held unconstitutional. An ordinance passed by the city of San Francisco which provided that for all its violations, each jail prisoner "should have the hair of his head cut or clipped to a uniform length of one inch from the scalp thereof." It being directed against the Chinese of San Francisco and was commonly known and called the "queue" ordinance. "This inhibition upon the state applies to all the instrumentalities and agencies employed in the administration of its government; to its executive, legislative and judicial departments and to the subordinate legislative bodies of counties and cities." "The reason advanced for its adoption, and now urged for its continuance is, that only the dread of the loss of his queue will induce a Chinaman to pay his fine. That is to say, in order to enforce the payment of a fine imposed upon him, it is necessary that torture should be superadded to imprisonment. Then it is said, the Chinaman will not accept the alternative, which the law allows, of working out his fine by his imprisonment, and the state or county will be saved the expense of keeping him during the imprisonment. Probably the bastinado, or the knout, or the thumbscrew, or the rack would accomplish the same end; and no doubt the Chinaman would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity, that an ordinance of this character was possible." Soon Hing v. Crowley, 113 U. S. 703; Barbier v. Connolly, 113 U. S. 27; Yick Wo v. Hopkins, 118 U. S. 356; Gilham v. Wells, 64 Ga. 192; City of Shreveport v. Levy, 26 La Ann. 671; City of Memphis v. Winfield, 27 Tenn. (8 Humph.) 707. The following cases hold ordinances attempting to regulate personal association or employment unconstitutional because being an invasion of personal liberty: In re Maguire, 57 Cal. 604; Hechinger v. City of Maysville, 22 Ky. L. R. 486, 57 S. W. 619; Gastenau v. Com., 108 Ky. 473; City of St. Louis v. Roche, 128 Mo. 541, and Ex parte Smith, 135 Mo. 223, 33 L. R. A. 606. But ordinances directed against public drunkenness have been commonly held constitutional for the reason as given: "No one has the constitutional right to appear in a state of intoxication in the streets and public places and thereby degrade the public morals to the annoyance and inconvenience of citizens in the discharge of their daily duties and to destroy the peace, comfort and good order and well being of society." City of St. Joseph v. Harris, 59 Mo. App. 122; Drunkenness cannot be made the subject of municipal |