restaurants to close at 10 o'clock at night; 175 that require keepers of hotels, restaurants, and boarding houses to report the names of lodgers or boarders, and pawnbrokers to report property received, and description of persons delivering the same,170 and which prohibit them from purchasing the articles pawned. Also ordinances requiring garbage to be removed in a closed vehicle labeled "Garbage"; 178 and one requiring a lot owner to remove filth from a private way adjoining his land; 179 also one cutting off gas and water from consumers delinquent for 10 days.180

177

Discordant Rulings.

It will be noted from the foregoing cases that the decisions are not harmonious on this topic. What is reasonable in one city is unreasonable in another; and what seems reasonable to one court appears unreasonable to another, the decisions varying no doubt in accordance with the character of the city, the usages of the locality, the civic and municipal standards of the population, and the temperament of the judges. Recent and present tendencies are obviously towards stricter regulation and stronger presumption of the reasonableness of ordinances.

Gridley v. Bloomington, 88 Ill. 554, 30 Am. Rep. 566; City of Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640. See, also, Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603.

175 State v. Freeman, 38 N. H. 426.

176 City of Topeka v. Boutwell, 53 Kan. 20, 35 Pac. 819, 27 L. R. A. 503; Kansas City v. Garnier, 57 Kan. 412, 46 Pac. 707. See City of Grand Rapids v. Braudy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472.

177 Kuhn v. Chicago, 30 Ill. App. 203.

178 People v. Gordon, 81 Mich. 306, 45 N. W. 658, 21 Am. St. Rep. 524.

179 Commonwealth v. Cutter, 156 Mass. 52, 29 N. E. 1146.

180 Commonwealth v. Philadelphia, 132 Pa. 288, 19 Atl. 136.

FINES AND PENALTIES.

76. A penalty is an essential part of an ordinance, and a corporation having authority to enact an ordinance has the implied power to impose a fine as a penalty; but the power of imprisonment or forfeiture must be expressly conferred by the legislature upon the municipality.

This doctrine of the common law has been generally recognized and enforced by the courts in America, but further than this the decisions are not in harmony, except that the fine may be recovered by a civil action.181 The statutes of the various states are not uniform, and it is difficult to formulate any general rules in regard to the penalty of an ordinance.

Imprisonment and Forfeiture.

Whether imprisonment may be used as a means of coercing payment of a fine, whether labor may be imposed as part of the sentence, whether the costs stand upon the same basis with fines, are questions on which the courts do not agree; but there seems to be general concurrence in the view that imprisonment for nonpayment of a fine, though recovered in an action for debt, is not imprisonment for debt; 182 and also that costs and fines stand upon the same basis.183 It has likewise been generally held that the particular penalty imposed must be expressly authorized by the legislature or it will be void; and that consequently, under a statute authorizing fine or imprisonment, imprisonment could not be used to enforce pay

181 Coates v. Mayor, 7 Cow. (N. Y.) 585; Ewbanks v. President, etc., 36 Ill. 178; In re Jones, 90 Mo. App. 318; City of De Soto v. Brown, 44 Mo. App. 148; In re Miller, 44 Mo. App. 125.

182 Hardenbrook v. Ligonier, 95 Ind. 70; Caldwell v. State, 55 Ala. 133; Hibbard v. Clark, 56 N. H. 155, 22 Am. Rep. 442; In re Miller, 44 Mo. App. 125.

183 Horr & B. Mun. Ord. § 203. Contra, State v. Cantieny, 34 Minn. 1, 24 N. W. 458.

ment of a fine; 184 nor could forfeiture be adjudged as a penalty without due notice or process. 185 Some courts hold that a fine must be fixed in amount by the terms of the ordi186 while others have sustained as valid an ordinance giving the court some measure of discretion.18

nance,

PROCEDURE.

77. The nature and form of complaint, evidence, and trial for violation of municipal ordinances are so varied in the several states by constitutions, statutes, and decisions therein as to be regarded as matters of local rather than of general law, and therefore are not susceptible of general statement and treatment.

184 Brieswick v. Brunswick, 51 Ga. 639, 21 Am. Rep. 240. See Ex parte Rosenheim, 23 Pac. 372, 83 Cal. 390; Ex parte Green, 94 Cal. 387, 29 Pac. 783; Ex parte Smith (Cal.) 29 Pac. 785. Also Lewis v. Forehand, 117 Ga. 798, 45 S. E. 68.

185 Rose v. Hardie, 98 N. C. 44, 4 S. E. 41; Ft. Smith v. Dodson, 46 Ark. 296, 55 Am. Rep. 589; Donovan v. Vicksburg, 29 Miss. 247, 64 Am. Dec. 143; Gosselink v. Campbell, 4 Iowa, 296; Moore v. State, 11 Lea (Tenn.) 35; Darst v. People, 51 Ill. 286, 2 Am. Rep. 201; Hanscom v. Burmood, 35 Neb. 504, 53 N. W. 371; Spitler v. Young, 63 Mo. 42; Gilchrist v. Schmidling, 12 Kan. 263; McKee v. McKee, 8 B. Mon. (Ky.) 433; Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 17 L. R. A. 773, 32 Am. St. Rep. 513. That part of an ordinance which provides that a city street commissioner may sell a vessel or its loading, which, having been sunk in the channel of the river within the city's jurisdiction, is removed as an obstruction, is invalid as being in excess of the amount named in the act permitting the city to enforce its ordinances by fines and penalties, as it creates a forfeiture. Coonley v. Albany, 132 N. Y. 145, 30 N. E. 382.

186 State v. Worth, 95 N. C. 615; In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; Slocum v. Ocean Grove, 59 N. J. Law, 110, 35 Atl. 794; Bowman v. St. Jolin, 43 Ill. 337. See, also, Landis v. Vineland, 54 N. J. Law, 75, 23 Atl. 357.

187 Atkins v. Phillips, 26 Fla. 281, 8 South. 429, 10 L. R. A. 158; Bills v. Goshen, 117 Ind. 221, 20 N. E. 115, 3 L. R. A. 261; Town of Huntsville v. Phelps, 27 Ala. 55; State v. Cainan, 94 N. C. 880; City of Keokuk v. Dressell, 47 Iowa, 597; State v. Cantieny, 34 Minn. 1, 24 N. W. 458; State v. Carpenter, 60 Conn. 97, 22 Atl. 497.

195

In some states these proceedings are regarded as civil, in others criminal, and in others they are mixed. Recent authors, 188 in a treatise oft-quoted with reference to the nature of this proceeding, have classified the states as follows: (1) Criminal: California,189 Massachusetts,190 Maine, 191 Nebraska,192 New Hampshire.198 (2) Civil: Colorado,194 Georgia," New Jersey,196 Wisconsin,197 Wyoming.198 (3) In some cases criminal and others civil: Alabama,199 Ohio,200 Kansas, 201 Tennessee.202 (4) In the following states appears to be assumed a mesne position: Illinois,203 Indiana,204 Iowa,205 Michigan,206 206 Minnesota,207 Missouri,208 New York. 209 In the first class formal complaint under oath is necessary, and any pleadings required must be formal and particular; 210 in the sec

188 Horr & B. Mun. Ord. § 170.

189 City of Santa Barbara v. Sherman, 61 Cal. 57.

190 In re Goddard, 16 Pick. 504, 28 Am. Dec. 259.

191 O'Malia v. Wentworth, 65 Me. 129.

192 City of Brownville v. Cook, 4 Neb. 101.

193 State v. Stearns, 31 N. H. 106.

194 McInerney v. Denver, 17 Colo. 302, 29 Pac. 516.

195 Williams v. City Council, 4 Ga. 509; Floyd v. Commissioners,

14 Ga. 354, 58 Am. Dec. 559.

196 Brophy v. Perth Amboy, 44 N. J. Law, 217.

197 City of Oshkosh v. Schwartz, 55 Wis. 483, 13 N. W. 553.

198 Jenkins v. Cheyenne, 1 Wyo. 287.

199 City of Mobile v. Jones, 42 Ala. 630.

200 Larney v. Cleveland, 34 Ohio St. 599.

201 Nietzel v. Concordia, 14 Kan. 446.

202 Theilan v. Porter, 14 Lea, 622, 52 Am. Rep. 173; Town of

Bristol v. Burrow, 5 Lea, 128.

203 Town of Lewiston v. Proctor, 23 Ill. 533.

204 Miller v. O'Reiley, 84 Ind. 168.

205 City of Davenport v. Bird, 34 Iowa, 524.

206 Cooper v. People, 41 Mich. 403, 2 N. W. 51.

207 State v. Lee, 29 Minn. 445, 13 N. W. 913.

208 City of St. Louis v. Vert, 84 Mo. 204.

209 Wood v. Brooklyn, 14 Barb. 425.

210 Campbell v. Thompson, 16 Me. 117; Kansas City v. Flanagan, 69 Mo. 22.

ond class the liberty of civil procedure prevails; 211 in the third class the procedure is dependent upon the nature of the particular case; and in the fourth class, without specifying the degree of particularity, the courts declare that criminal rules need not be followed, but the proceeding is necessarily stricter than in civil cases.212 Careful attention will disclose discord not only between the decisions of different states, but even in those of the same states, so as to unsettle the classification of those given above.

Jury Trial.

The much mooted question of trial by jury in these cases has been variously decided, the decisions generally concurring, however, in the doctrine that the proceeding is valid if the accused may obtain a jury trial on appeal without oppressive restrictions. 218

Proof of Ordinance.

There is a general concurrence of decisions that the municipal courts will take judicial notice of all municipal ordinances, but that in other courts ordinances must be duly proven.214 Some of the cases have gone to the extent of holding that the original record must be produced, and due enactment of the ordinance proven therefrom; 215 others hold that its due enactment will be presumed from its being recorded among the municipal ordinances, and that a certified copy is

211 Keeler v. Milledge, 24 N. J. Law, 142; Sutton v. McConnell, 46 Wis. 269, 50 N. W. 414.

212 Furhman v. Mayor, 54 Ala. 263; City of Goshen v. Croxton, 34 Ind. 239; City of Emporia v. Volmer, 12 Kan. 622.

213 Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; McInerney v. Denver, 17 Colo. 302, 29 Pac. 516.

214 Shanfelter v. Mayor, 80 Md. 483, 31 Atl. 439, 27 L. R. A. 648; Munson v. Fenno, 87 Ill. App. 655; City of St. Louis v. Roche, 128 Mo. 541, 31 S. W. 915; Watt v. Jones, 60 Kan. 201, 56 Pac. 16.

215 Lindsay v. Chicago, 115 Ill. 120, 3 N. E. 443; City of Ottumwa v. Schaub, 52 Iowa, 515, 3 N. W. 529; City of Independence v. Trouvalle, 15 Kan. 70; Town of Tipton v. Norman, 72 Mo. 380.