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*A by-law to be reasonable should be certain. If it [* 202] affixes a penalty for its violation, it would seem that such penalty should be a fixed and certain sum, and not left to the discretion of the officer or court which is to impose it on conviction; though a by-law imposing a penalty not exceeding a certain sum has been held not to be void for uncertainty.1

So a by-law to be reasonable should be in harmony with the general principles of the common law. If it is in general restraint of trade, - like the by-law that no person shall exercise the art of painter in the city of London, not being free of the company of painters, it will be void on this ground.2 To take an illustration from a private corporation : it has been held that a by-law of a bank, that all payments made or received by the bank must be examined at the time, and mistakes corrected before the dealer leaves, was unreasonable and invalid, and that a recovery might be had against the bank for an over-payment discovered afterwards, notwithstanding the by-law. So a by-law of a town, into the expense of a license with a view to adjudge it a tax, where it does not appear to be unreasonable in amount in view of its purpose as a regulation. Ash v. People, 11 Mich. 347; Johnson v. Philadelphia, 60 Penn. St. 451; Burlington v. Putnam Ins. Co., 31 Iowa, 102. And in some cases it has been held that license fees might be imposed under the police power with a view to operate as a restriction upon the business or thing licensed. Carter v. Dow, 16 Wis. 299; Tenney v. Lenz, ib. 567. But in such cases, where the right to impose such license fees can be fairly deduced from the charter, it would perhaps be safer and less liable to lead to confusion and difficulty to refer the corporate authority to the taxing power, rather than exclusively to the power of regulation. See Dunham v. Trustees of Rochester, 5 Cow. 462, upon the extent of the police power. Fees which are imposed under the inspection laws of the State are akin to license fees, and if exacted not for revenue, but to meet the expenses of regulation, are to be referred to the police power. Cincinnati Gas Light Co. v. State, 18 Ohio, N. S. 243. On this subject in general, see Dillon, Mun. Corp. § 291 to 308.

1 Mayor, &c., of Huntsville v. Phelps, 27 Ala. 55, overruling Mayor, &c., of Mobile v. Yuille, 3 Ala. 144. And see Piper v. Chappell, 14 M. & W. 624.

2 Clark v. Le Cren, 9 B. & C. 52; Chamberlain of London v. Compton, 7 D. & R. 597. Compare Hayden v. Noyes, 5 Conn. 391; Willard v. Killingworth, 8 Conn. 247. But a by-law is not void, as in restraint of trade, which requires loaves of bread baked for sale to be of specified weight and properly stamped, or which requires bakers to be licensed. Mayor, &c., of Mobile v. Yuille, 3 Ala. 137.

3 Mechanics and Farmers Bank v. Smith, 19 Johns. 115; Gallatin v. Bradord, 1 Bibb, 209. Although these are cases of private corporations, they are cited here because the rules governing the authority to make by-laws are the same with both classes of corporations.

which, under pretence of regulating the fishery of clams and oysters within its limits, prohibits all persons except the inhabi

tants of the town from taking shell-fish in a navigable [* 203] river, is void as in contravention of common right.1 *And for like reasons a by-law is void which abridges the rights and privileges conferred by the general laws of the State, unless express authority therefor can be pointed out in the corporate charter. And a by-law which assumes to be a police regulation, but deprives a party of the use of his property without regard to the public good, under the pretence of the preservation of health, when it is manifest that such is not the object and purpose of the regulation, will be set aside as a clear and direct infringement of the right of property without any compensating advantages.3

1 Hayden v. Noyes, 5 Conn. 391. As it had been previously held that every person has a common-law right to fish in a navigable river or arm of the sea, until by some legal mode of appropriation this common right was extinguished, -Peck v. Lockwood, 5 Day, 22,- the by-law in effect deprived every citizen, except residents of the township, of rights which were vested, so far as from the nature of the case a right could be vested. See also Marietta v. Fearing, 4 Ohio, 427. That a right to regulate does not include a right to prohibit, see also Ex parte Burnett, 30 Ala. 461; Austin v. Murray, 16 Pick. 121. And see Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y. 611.

2 Dunham v. Trustees of Rochester, 5 Cow. 462; Mayor, &c., of New York v. Nichols, 4 Hill, 209. See Strauss v. Pontiac, 40 Ill. 301.

3 By a by-law of the town of Charlestown all persons were prohibited, without license from the selectmen, from burying any dead body brought into town on any part of their own premises or elsewhere within the town. By the court, Wilde, J.: "A by-law to be valid must be reasonable; it must be legi, fidei, rationi consona. Now if this regulation or prohibition had been limited to the populous part of the town, and were made in good faith for the purpose of preserving the health of the inhabitants, which may be in some degree exposed to danger by the allowance of interments in the midst of a dense population, it would have been a very reasonable regulation. But it cannot be pretended that this by-law was made for the preservation of the health of the inhabitants. Its restraints extend many miles into the country, to the utmost limits of the town. Now such an unnecessary restraint upon the right of interring the dead we think essentially unreasonable. If Charlestown may lawfully make such a by-law as this, all the towns adjoining Boston may impose similar restraints, and consequently all those who die in Boston must of necessity be interred within the precincts of the city. That this would be prejudicial to the health of the inhabitants, especially in the hot seasons of the year, and when epidemic diseases prevail, seems to be a well-established opinion. Interments, therefore, in cities and large populous towns, ought to be discountenanced, and no obstacles should be permitted to the establishment of cemeteries at suitable places in the vicinity.

* Delegation of Municipal Powers.

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Another and very important limitation which rests upon municipal powers is that they shall be executed by the municipality

The by-law in question is therefore an unreasonable restraint upon many of the citizens of Boston, who are desirous of burying their dead without the city, and for that reason void. And this by-law would seem to be void for another reason. A by-law for the total restraint of one's right is void; as if a man be barred of the use of his land. Com. Dig. By-Law, c. 4. The land where the bodies were interred was the land of the Catholic Bishop of Boston, purchased by him in 1830, and then consecrated as a Catholic burying-ground, and has ever since been used as such, for the interment of Catholics dying in Charlestown and Boston. It is true the by-law does not operate to the total restraint or deprivation of the bishop's right, but it is a total restraint of the right of the burying the dead in Boston, for which a part of the burying-ground was appropriated. The illegality of the by-law is the same, whether it may deprive one of the use of a part or the whole of his property; no one can be so deprived, unless the public good requires it. And the law will not allow the right of private property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation. Now we think this is manifest from the case stated in regard to the by-law in question. It is a clear and direct infringement of the right of property, without any compensating advantages, and not a police regulation made in good faith for the preservation of health. It interdicts, or in its operation necessarily intercepts, the sacred use to which the Catholic burying-ground was appropriated and consecrated, according to the forms of the Catholic religion; and such an interference, we are constrained to say, is wholly unauthorized and most unreasonable." Austin v. Murray, 16 Pick. 125. So in Wreford v. People, 14 Mich. 41, the common council of Detroit, under a power granted by statute to compel the owners and occupants of slaughter-houses to cleanse and abate them whenever necessary for the health of the inhabitants, assumed to pass an ordinance altogether prohibiting the slaughtering of animals within certain limits in the city; and it was held void. See further State v. Jersey City, 5 Dutch. 170. Upon the whole subject of municipal by-laws, see Angell and Ames on Corp. c. 10; Grant on Corp. 76 et seq. See also Redfield on Railways (3d ed.), Vol. I. p. 88; Dillon, Mun. Corp. c. 12. The subject of the reasonableness of by-laws was considered at some length in People v. Medical Society of Erie, 24 Barb. 570, and Same v. Same, 32 N. Y. 187. In the first case it was held that a regulation subjecting a member of the County Medical Society to expulsion, for charging less than the established fees, was unreasonable and void. In the second, it was decided that where a party had the prescribed qualifications for admission to the society, he could not be refused admission, on the ground of his having previous to that time failed to observe the code of medical ethics prescribed by the society for its members. Municipal by-laws may impose penalties on parties guilty of a violation thereof, but they cannot impose forfeiture of property or rights, with

itself, or by such agencies or officers as the statute has pointed out. So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority. So strictly is this rule applied, that when a city charter authorized the common council of the city to make by-laws and ordinances ordering and directing any of the streets to be pitched, levelled, paved, flagged, &c., or for the altering or repairsame, "within such time and in such manner as

[* 205] ing the *

they may prescribe under the superintendence and direction of the city superintendent," and the common council passed an ordinance directing a certain street to be pitched, levelled, and flagged," in such manner as the city superintendent, under the direction of the committee on roads of the common council, shall direct and require," the ordinance was held void, because it left to the city superintendent and the committee of the common council the decision which, under the law, must be made by the council itself. The trust was an important and delicate one, as the expenses of the improvement were, by the statute, to be paid by the owners of the property in front of which it was made. It was in effect a power of taxation; and taxation is the exercise of sovereign authority; and nothing short of the most positive and explicit language could justify the court in holding that the legislature intended to confer such a power, or permit it to be conferred, on a city officer or committee. The statute in question not only contained no such language, but, on the contrary, clearly expressed the intention of confining the exercise of this power to the common council, the members of which were elected by and responsible to those whose property they were thus allowed to tax.1

This restriction, it will be perceived, is the same which rests upon the legislative power of the State, and it springs from the

out express legislative authority. State v. Ferguson, 33 N. H. 430; Phillips v. Allen, 41 Penn. St. 481. See also Kirk v. Nowell, 1 T. R. 124; White v. Tallman, 2 Dutch. 67; Hart v. Albany, 9 Wend. 588; Peoria v. Calhoun, 29 Ill. 317; St. Paul v. Coulter, 12 Minn. 41.

1 Thompson v. Schermerhorn, 6 N. Y. 92. See also Smith v. Morse, 2 Cal. 524; Oakland v. Carpentier, 13 Cal. 540; Whyte v. Nashville, 2 Swan, 364; East St. Louis v. Wehrung, 50 Ill. 28; Rogers v. Collier, 43 Mo. 359; State v. Jersey City, 1 Dutch. 309; Hydes v. Joyes, 4 Bush, 464; Lyon v. Jerome, 26 Wend. 485; State v. Patterson, 34 N. J. 168; Dillon, Mun. Corp. § 60.

same reasons.

The people in the one case in creating the legislative department, and the legislature in the other in conferring the corporate powers, have selected the depository of the power which they have designed should be exercised, and in confiding it to such depository have impliedly prohibited its being exercised by any other agency. A trust created for any public purpose cannot be assignable at the will of the trustee.1

* Equally incumbent upon the State legislature and these [* 206] municipal bodies is the restriction that they shall adopt no irrepealable legislation. No legislative body can so part with its powers by any proceeding as not to be able to continue the exercise of them. It can and should exercise them again and again, as often as the public interests require.2 Such a body has no power, even by contract, to control and embarrass its legislative powers and duties. On this ground it has been held, that a grant

1 The charter of Washington gave the corporation authority "to authorize the drawing of lotteries, for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided that the amount raised in each year shall not exceed ten thousand dollars. And provided also that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved by him." Per Marshall, Ch. J., speaking of this authority: "There is great weight in the argument that it is a trust, and an important trust, confided to the corporation itself, for the purpose of effecting important improvements in the city, and ought, therefore, to be executed under the immediate authority and inspection of the corporation. It is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used, and would take as many precautions against its abuse as was compatible with its beneficial exercise. Accordingly, we find a limitation upon the amount to be raised, and on the object for which the lottery may be authorized. It is to be for any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; and it is subjected to the judgment of the President of the United States. The power thus cautiously granted is deposited with the corporation itself, without an indication that it is assignable. It is to be exercised like other corporate powers, by the agents of the corporation under its control. While it remains where Congress has placed it, the character of the corporation affords some security against its abuse, some security that no other mischief will result from it than is inseparable from the thing itself. But if the management, control, and responsibility may be transferred to any adventurer who will purchase, all the security for fairness which is furnished by character and responsibility is lost." Clark v. Washington, 12 Wheat. 54.

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2 East Hartford v. Hartford Bridge Co., 10 How. 535; Dillon, Mun. Corp.

§ 61.

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