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same ordinance but which is clear in its terms or as to the applica tion of which there is no ambiguity.380

§ 559. Validity; by whom raised.

The validity of a municipal ordinance or resolution may only be raised by one whose rights are affected.387 Such a person is entitled to a hearing in the courts, it has been held, to determine. the legality of an ordinance even before any attempt has been made to enforce it.388 It is not necessary that he should wait until his liability has been fixed by the operation of the ordinance. Where an ordinance is complex in its provisions, the validity of a

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386 Webber v. City of Chicago, 148 Ill. 313, 36 N. E. 70. "But it is urged that the ordinance is invalid by reason of ambiguity and uncertainty in its classification of the various amusements upon which it imposes a license fee and because it delegates legislative power to the mayor by section 911 which authorizes him to determine in every case where application for a license is made, the class to which the entertainment belongs and the person or persons to whom the license may be granted. Even if there is uncertainty as to the class to which certain other amusements properly belong there is none as to the class in which horse races are included. And even if section 911 should be held to be invalid by reason of its making an improper delegation of legislative power to the mayor the validity of those provisions of the ordinance by which a license fee is imposed upon horse races is in no degree impaired as the class to which horse races belong is clearly determined,

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and the license fee to be charged is also fixed and ascertained by the ordinance itself."

387 Shoemaker v. Hodge, 111 Ky. 436, 63 S. W. 979; Lathrop v. Town of Morristown, 67 N. J. Law,

247, 51 Atl. 852, affirming 65 N. J. Law, 467, 47 Atl. 450.

388 Associates of Jersey Co. v. Jersey City, 34 N. J. Law, 31; Danforth v. City of Paterson, 34 N. J. Law, 163. "It is said that the prosecutor has no standing in this court; that he has not shown that anything has been done or will be done to injure him; that his action is premature; that the time for him to act is when the commissioners begin to contract and purchase under the resolution; that the mere enactment of this ordinance or resolution does him no harm, and he cannot thus interfere with or suspend the appropriate duties of the board of aldermen. The certiorari having been allowed and the parties being actually present in court there should be good cause shown to induce the court to send the prosecutor away without hearing his complaint and determining his right. * It is not necessary for a person to wait until his liability is fixed before he can have redress. It is enough that he may be affected by an illegal ordinance or resolution to entitle him to a hearing before any attempt has been made to enforce it." State v. Jersey City, 29 N. J. Law (5 Dutch.) 170.

portion not affecting the rights of an individual cannot be attacked by him even if other portions of the ordinance are invalid.389 If the portions affecting the rights of a person can be separated and enforced, the validity of other portions cannot be questioned.

§ 560. Validity; how raised.

The common principle obtains here that the validity of an ordinance is secure from attack in a collateral proceeding; 390 neither can its validity be made an issue in a case involving and determining the rights of third parties alone,391 but the violation of a municipal ordinance may be made the basis of an action between. third parties.392 The question of the legality of an ordinance may be raised in a criminal proceeding or prosecution based upon it, or where practice permits, in an appeal or writ of error from a conviction or judgment.39 The question again can be raised in habeas corpus proceedings where the court will investigate and determine the constitutionality and validity of the ordinance under the provisions of which the arrest was made and the defendant

389 See authorities cited under § 563.

390 City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 39 N. E. 943; Clark v. City of Elizabeth, 61 N. J. Law, 565, 40 Atl. 616, 737. "Contracts such as those presented in this case the city was authorized to enter into in virtue of the act of 1874 and the ordinance in question was an ordinance such as the city council was authorized to pass. The contracts were duly made, the ordinance was passed as ordinances are usually passed and the work has been done in compliance with it. The relator and those whose property was injured by the change of grade had no means of ascertaining by what vote the ordinance was passed, except by inspecting the record of the common council. Under these circumstances the city will not be allowed in this proceeding and in this collateral manner to assail its

Own ordinance for irregularity after the object of the ordinance was completely accomplished."

391 Burnett v. Com., 21 Ky. L. R. 695, 52 S. W. 965; Home Const. Co. v. Duncan, 111 Ky. 914, 64 S. W. 997; Hardwicke v. Young, 110 Ky. 504, 62 S. W. 10.

392 Oldstein V. Firemen's Bldg. Ass'n, 44 La. Ann. 492, 10 So. 928; Jelley v. Pieper, 44 Mo. App. 380. But see Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755.

393 State v. Morris, 47 La. Ann. 1660; City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 47 Am. St. Rep. 114.

394 State v. Hohn, 50 La. Ann. 432. Where the legality of a municipal ordinance is not attacked in the court below, the supreme court cannot, on the appeal, inquire into the correctness of the judgment rendered.

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held a prisoner. 395 Ordinarily, in quo warranto proceedings, the legality of an ordinance cannot be raised.396 An injunction will lie, usually, to prevent the operation or the enforcement of an ordinance or resolution,397 and in the proceedings to make permanent, all the questions involved in the validity of an ordinance may be raised.398 Some states have statutes providing a special procedure for the determination of the legality of ordinances and resolutions, notably Kentucky, where a writ of prohibition is the method established by law.399 A writ of certiorari in New Jersey and Georgia is the remedy commonly adopted to obtain an adjudication upon the validity of a municipal law. 400

§ 561. Ordinances; on whom and what binding.

Municipal ordinances and resolutions being laws are binding upon all persons 401 and interests 402 temporarily or permanently

395 Badkins v. Robinson, 53 Ga. 613. After conviction for the violation of an ordinance, its validity cannot be inquired into on the hearing in habeas corpus proceedings. Flack v. Fry, 32 W. Va. 364; Ex parte Smith, 135 Mo. 223, 58 Am. St. Rep. 576, 33 L. R. A. 606.

396 State v. City of Newark, 57 Ohio St. 430. But see State v. City Council of Charleston, 1 Mill. Const. (S. C.) 36.

307 Burnett v. Craig, 30 Ala. 135. A court of chancery has no jurisdiction to restrain quasi-criminal proceedings on the part of municipal authorities for the violation of an alleged invalid ordinance. City of Baltimore v. Gill, 31 Md. 375. But see Schulz v. City of Albany, 27 Misc. 51, 57 N. Y. Supp. 963, where it is held that the enforcement of an alleged illegal ordinance cannot be restrained until its illegality has been determined in an action at law.

398 Cleveland City R. Co. v. City of Cleveland, 94 Fed. 385; City of Americus v. Perry, 114 Ga. 871, 40

S. E. 1004, 57 L. R. A. 230; City of Cincinnati v. Cincinnati St. R. Co., 2 Ohio N. S. 298.

399 Bybee v. Smith, 22 Ky. L. R. 467, 57 S. W. 789.

400 Stroup V. Pruden, 104 Ga. 721, 30 S. E. 948; Mohrman v. City Council of Augusta, 103 Ga. 841. A party applying for a writ of certiorari is under no obligation to give a bond with good security as required by Civ. Code, § 4639; this applies exclusively to civil cases. Treasurer of Camden v. Mulford, 26 N. J. Law (2 Dutch) 49; Gregory v. Jersey City, 34 N. J. Law, 390; Danforth v. City of Paterson, 34 N. J. Law, 163.

401 North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247; Com. v. Worcester, 20 Mass. (3 Pick.) 462; Bott v. Pratt, 33 Minn. 323; Town of Knox City v. Whiteaker, 87 Mo. App. 468; City Council of Charleston v. King, 4 McCord (S. C.) 487; Grace v. Walker, 95 Tex. 39, 64 S. W. 930, 65 S. W. 482.

402 Folmar v. Curtis, 86 Ala. 354; City of Cartersville v. Lanham, 67

within the limits of municipal jurisdiction. Aliens or transients equally with citizens and residents are bound by, and it is their duty to respect and obey, the laws of that government or governmental agency within whose borders they may be. They cannot evade, in organized or civilized communities, their duty to society.

(a) Notice. All persons upon whom ordinances are binding are chargeable with notice of their existence and the extent of their operation. 404 An ordinance is a law and the familiar maxim that ignorance of the law excuses no one applies. 405

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(b) Licenses. This rule applies to the imposition of licenses and the exaction of fees for the transaction of business or the carrying on of any occupation within the municipal limits. ** Nonresidents cannot escape the payment of a license or occupation tax because of that condition or circumstance.407 Ordi

Ga. 753; City & Suburban R. Co. v. City of Savannah, 77 Ga. 731; Horney v. Sloan, Smith (Ind.) 136; Gosselink v. Campbell, 4 Iowa, 296; McKee v. McKee, 47 Ky. (8 B. Mon.) 433; Gilmore v. Holt, 21 Mass. (4 Pick.) 258; Parker v. City of New Brunswick, 30 N. J. Law, 395; Rose v. Hardie, 98 N. C. 44. "It is the hog that is not permitted to run at large and whether it be the property of a resident or nonresident the mischief is the same and there can be no difference." City of Knoxville v. King, 75 Tenn. (7 Lea) 441. But see exceptions to the general application of estray ordinances, Spitler v. Young, 63 Mo. 42, and Plymouth Com'rs v. Pettijohn, 15 N. C. (4 Dev.) 591.

403 In re Vandine, 23 Mass. (6 Pick.) 187. "The by-laws which are made by corporations having a local jurisdiction are to be observed and obeyed by all who come within it in the same manner as aliens and strangers within the commonwealth are bound to know and obey the laws of the land notwithstanding they may not know the

language in which they are writ ten." Plymouth Com'rs v. Pettijohn, 15 N. C. (4 Dev.) 591; Whitfield v. Longest, 28 N. C. (6 Ired.) 268; Town of Marietta v. Fearing, 4 Ohio, 427.

404 North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247; Central R. & Banking Co. v. Brunswick & W. R. Co., 87 Ga. 386; Mather v. City of Ottawa, 114 Ill. 659; Inhabitants of Palmyra v. Morton, 25 Mo. 593; Jackson v. Grand Ave. R. Co., 118 Mo. 199.

405 Central of Georgia R. Co. v. Bond, 111 Ga. 13; Trigally v. City of Memphis, 46 Tenn. (6 Cald.) 382.

406 In re Vandine, 23 Mass. (6 Pick.) 187; Wilmington Com'rs V. Roby, 30 N. C. (8 Ired.) 250; Edenton Com'rs v. Capeheart, 71 N. C. 156; State v. Wernwag, 116 N. C. 1061, 21 S. E. 683, 28 L. R. A. 297. But see City of St. Charles v. Noelle, 51 Mo. 122, and Garden City v. Abbott, 34 Kan. 283.

407 City of Charleston v. Pepper, 1 Rich. Law (S. C.) 364.

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nances, however, imposing a license fee upon nonresidents only have generally been held invalid because of such discrimination,* and also because, in some cases, such ordinance or resolution is in effect a regulation of interstate commerce."

§ 562. Ordinances; where operative.

409

On the other hand, municipal ordinances or resolutions can have no extra territorial force or effect,410 and this is true even in cases where a municipality may have acquired property outside its geographical limits. But within the territorial limits municipal ordinances or resolutions apply to every part included within their operation.411 Where the power to pass them exists, ordinances or resolutions applying only to certain restricted and designated parts of the municipality are valid.12 These include the greater number of peace ordinances. Many acts done upon private premises cannot be controlled by a municipality, that can, however, prohibit or regulate the doing of the act in a public place or upon the streets.413 The condition of drunkenness illustrates well this proposition.14 The rule also applies to local improvement ordinances. On the contrary many authorities hold that ordinances passed by virture of the police power can be made to apply to every place within the limits of the municipality including private property. This rule has been applied more frequently in connection with regulations respecting the speed of

408 Bennett v. Borough of Birmingham, 31 Pa. 15.

409 Caldwell v. City of Alton, 33 Ill. 416; City of Nashville v. Althrop, 45 Tenn. (5 Cold.) 554.

410 South Pasadena v. Los Angeles Terminal R. Co., 109 Cal. 315; Taylor v. City of Americus, 39 Ga. 59; Strauss v. Town of Pontiac, 40 Ill. 301; Robb v. City of Indianapolis, 38 Ind. 49; Wells v. City of Weston, 22 Mo. 384; Gass v. City of Greenville, 36 Tenn. (4 Sneed) 62.

411 The Palmetto, 1 Biss. 140, Fed. Cas. No. 10,699. Municipal ordinances concerning vessels have, however, no force in admiralty courts. Gilmore v. Holt, 21 Mass. Abb. Corp. Vol. 11-27.

(4 Pick.) 258; Ex parte McNair, 13 Neb. 195.

412 Richmond, F. & P. R. Co. v. City of Richmond, 96 U. S. 521;. Barbier v. Connolly, 113 U. S. 27; L'Hote v. City of New Orleans, 177 U. S. 587; City of Chicago v. Brownell, 146 Ill. 64; City of Chicago v. Stratton, 162 Ill. 494, 35 L. R. A. 84; Com. v. Patch, 97 Mass. 221; People v. Lewis, 86 Mich. 273; City of Chattanooga v. Norman, 92 Tenn. 73; Grace v. Walker, 95 Tex. 39, 64 S. W. 930, 65 S. W. 482.

413 Hayden v. Noyes, 5 Conn. 391. 414 State v. Sevier, 117 Ind. 338; 'State v. Garrett, 80 Iowa, 589; Com. v. Morrisey, 157 Mass. 471;

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