sufficient; 1 while others apply to municipal ordinances the rule of state laws, and hold that an ordinance may be proven by the production of a printed pamphlet or volume containing the same, purporting to be published by authority.217

Courts-Jurisdiction.

When the charter or statute provides that a certain court shall have jurisdiction of violations of municipal ordinances, this jurisdiction is usually held exclusive.218 Such jurisdiction is generally given to the municipal court, whether held by mayor, recorder, or police judge or justice, and the action or prosecution is usually brought in the name of the municipality; 219 but in some states it is brought in the name of the state.220 If no court is named as having jurisdiction, the ordinances are not thereby rendered nugatory, but the action may be brought in the court having general jurisdiction.

Twice in Jeopardy.

When the same act is made an offense both by statute and ordinance, it has been held that it is a breach of the constitutional provision against putting a citizen twice in jeopardy for the same act to prosecute and punish the offender under both laws, and that a conviction under either may be pleaded in bar of the prosecution under the other.221 But the weight of authority is opposed to this holding, upon the rather specious

216 McChesney v. Chicago, 159 Ill. 223, 42 N. E. 894; Bailey v. State, 30 Neb. 855, 47 N. W. 208.

217 Chicago & A. Ry. Co. v. Winters, 65 Ill. App. 435; Napman v. People, 19 Mich. 352; St. Louis v. Railroad Co., 89 Mo. 44, 1 S. W. 305, 58 Am. Rep. 82; City of Rutherford v. Swink, 90 Tenn. 152, 16 S. W. 76; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370, 19 S. W. 1053.

218 Horr & B. Mun. Ord. § 166.

219 1 Dill. Mun. Corp. §§ 427 (note 1), 429.

220 North Dakota; Washington.

221 State v. Cowan, 29 Mo. 330; City of Corvallis v. Carlile, 10 Or. 139, 45 Am. Rep. 134; State v. Welch, 36 Conn. 215; Menken v. Atlanta, 78 Ga. 668, 2 S. E. 559; Slaughter v. People, 2 Doug. (Mich.) 334; State v. Keith, 94 N. C. 933.

distinction that one prosecution is for the violation of the state law, and the other for breach of the municipal ordinance only, and only quasi criminal.222

Repeal.

An ordinance once duly enacted remains in force until repealed. 223 The same vote is required to repeal as to enact.224 Repeal may be effected by implication as well as by expression.225 But here the same rules apply as to state statutes.226 The legislature may also repeal a municipal ordinance by express legislation or by necessary implication, the rule being that if the subsequent state statute, or a subsequent ordinance, is necessarily repugnant to the ordinance, and the intention to repeal is obvious, then the ordinance is thereby repealed.227

222 Town of Bloomfield v. Trimble, 54 Iowa, 399, 6 N. W. 586, 37 Am. Rep. 212; City of St. Louis v. Bentz, 11 Mo. 61; Hankins v. People, 106 Ill. 628; State v. Oleson, 26 Minn. 507, 5 N. W. 959; Blatchley v. Moser, 15 Wend. (N. Y.) 215; McInerney v. Denver, 17 Colo. 302, 29 Pac. 516; McRea v. Mayor, 59 Ga. 168, 27 Am. Rep. 390; Riley v. Inhabitants, 51 N. J. Law, 498, 18 Atl. 116, 5 L. R. A. 352; City of Indianapolis v. Huegele, 115 Ind. 581, 18 N. E. 172.

223 A valid city ordinance when passed never becomes obsolete, but remains in force until repealed by the corporation. Shroder v. Lancaster (Pa. 1875) 6 Lanc. Bar, 201; Wilson v. Spencer, 1 Rand. (Va.) 76, 10 Am. Dec. 491.

2241 Dill. Mun. Corp. § 282; Seattle v. Barto, 31 Wash. 141, 71 Pac. 735; Robinson v. Baltimore, 93 Md. 208, 49 Atl. 4. An ordinance cannot be repealed, amended, or suspended by a resolution. People v. Latham, 203 Ill. 9, 67 N. E. 403; Joliet v. Petty, 96 Ill. App. 450.

225 Staples v. Bridgeport, 75 Conn. 509, 54 Atl. 194; Joliet v. Petty, supra; Schmidt v. Lewis, 63 N. J. Eq. 564, 52 Atl. 707; Budd V. Railway Co., 63 N. J. Eq. 804, 52 Atl. 1130; City of Grand Rapids v. Norman, 110 Mich. 544, 68 N. W. 269; Knight v. West Union, 45 W. Va. 195, 32 S. E. 163; Smyrk v. Sharp, 82 Md. 97, 35 Atl. 411; Dutton v. Aurora, 114 Ill. 138, 28 N. E. 461; Van Der Leith v. State, 60 N. J. Law, 46, 37 Atl. 436.

226 Booth v. Carthage, 67 Ill. 102; City of Providence v. Railroad Co., 12 R. I. 473.

227 Southport v. Ogden, 23 Conn. 128; Town of Marietta v. Fearing, 4 Ohio, 427; Horr & B. Mun. Ord. §§ 60, 61.

91. Reimbursement of Municipality for Loss.
92. Agents.

78. A municipal officer is one who holds for a time a permanent municipal position of trust and responsibility, with definite municipal powers, duties, and privileges.

A municipal agent is one employed and intrusted by a municipality with discretionary power to represent it in dealings with third persons.

A municipal employé is one engaged in the service of the

municipality.

At common law an office was defined to be "a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, whether public or private." 1 But in America "public offices are created for the purpose of effecting the ends for which government has been

12 Bl. Comm. p. 36.

instituted, which are the common good, and not the profit, honor, or private interest of any man, family, or class of men. In our form of government it is fundamental that public offices are a public trust, and that the persons to be appointed should be selected solely with a view to the public welfare." " Right they may have to fees and emoluments; but these are purely incidental to the office they hold, the controlling idea being not the right of the officers, but the welfare of the public whose servants they are. The office endures; the officer is temporary. His term is usually fixed by law, and for a certain period. The law also defines the scope of his powers, duties, and privileges, and thus endows him with a portion of the governmental authority. He is not master, but servant, of

2 Field, C. J., in BROWN v. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357; Grieb v. Syracuse (Sup.) 87 N. Y. Supp. 1083; United States v. Addison, 6 Wall. (U. S.) 291, 18 L. Ed. 919; Shaw v. Jones, 6 Ohio Dec. 453, 4 Ohio N. P. 372; Livaudais v. Municipality No. 2, 16 La. 509; Burns v. New York, 3 Hun (N. Y.) 212, 5 Thomp. & C. 371; State v. Kiichli, 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779; Clark v. Stanley, 66 N. C. 59, 8 Am. Rep. 488; In re Corliss, 11 R. I. 638, 23 Am. Rep. 538; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; State v. Douglas, 26 Wis. 428, 7 Am. Rep. 87; Cooley, Const. Lim. (6th Ed.) p. 331. * Hendricks v. State, 20 Tex. Civ. App. 178, 49 S. W. 705; Grieb v. Syracuse (Sup.) 87 N. Y. Supp. 1083; Commonwealth v. Gamble, 62 Pa. 343, 1 Am. Rep. 422; Bowers v. Bowers, 26 Pa. 74, 67 Am. Dec. 398; People v. Stratton, .28 Cal. 382. In the absence of law, ordinance or express contract, he is not entitled to compensation. Bosworth v. New Orleans, 26 La. Ann. 494; Haswell v. New York, 9 Daly (N. Y.) 1, 81 N. Y. 255; Blackburn v. Oklahoma City, 1 Okl. 292, 31 Pac. 782, 33 Pac. 708.

• BROWN v. RUSSELL, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357; Attorney General v. Drohan, 169 Mass. 534, 48 N. E. 279, 61 Am. St. Rep. 301; McCornick v. Thatcher, 8 Utah, 294, 30 Pac. 1091, 17 L. R. A. 243; Burns v. New York, 3 Hun (N. Y.) 212; Doyle v. Raleigh, 89 N. C. 133, 45 Am. Rep. 677; State v. Kirk, 44 Ind. 401, 15 Am. Rep. 239; Ogden v. Raymond, 22 Conn. 379, 58 Am. Dec. 429; Sheboygan Co. v. Parker, 3 Wall. (U. S.) 93, 18 L. Ed. 33; Prather v. Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585.

the law-the common sovereign of all. His duties may be ministerial only, though usually they call for the exercise of discretion within the limited scope of his powers. He is appointed or elected by the municipality to exercise its functions. in dealing with the citizen. His position, therefore, is a place of high trust and responsibility, whether he be mayor or alderman, recorder, or police officer.

Agents.

An agent also holds a position of like trust, responsibility, and discretion. His relation is fiduciary, and he may contract with third persons in the name of the corporation, and in matters committed to him may create corporate obligations; but he is distinguished from an officer in the fact that his position is not permanent, but temporary, and for a special object.5 When the service is performed, the relation ceases; the agency begins and ends with the special business. The duration of the agency is indefinite, but it usually terminates with the completion of the special business committed to it. If the agency becomes permanent, it then is called an office.

Employes.

"Employé" is used to describe one occupying a permanent position and performing a continuing service, so that, just as in an office, when one person goes out of the place another goes in. But the duties and services are purely ministerial; the employé is not clothed with discretion, and has no power to represent or bind the employer. These general rules fur

5 Barnes v. Philadelphia, 3 Phila. (Pa.) 409; Egan v. St. Paul, 57 Minn. 1, 58 N. W. 267; City of Baltimore v. Eschbach, 18 Md. 276; Baldwin v. Logansport, 73 Ind. 346; Davis v. Philadelphia, 3 Phila. (Pa.) 374; Detroit Free Press Co. v. State Auditor, 47 Mich. 135, 10 N. W. 171; In re Newport Charter, 14 R. 1. 655; Sanford v. Boyd, 2 Cranch (C. C.) 79, Fed. Cas. No. 12,311; Travelers' Ins. Co. v. Oswego, 59 Fed. 58, 7 C. C. A. 669; United States v. Hartwell, 6 Wall. (U. S.) 385, 18 L. Ed. 830; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169.

Fletcher v. Lowell, 15 Gray (Mass.) 103; Shanley v. Brooklyn,