LAWS.
They are not in a constitutional sense, public laws, but mere local rules or by-laws, police or domestic regulations, devoid in many respects of the characteristics of pub lic or general laws ; McInerney v. Denver, 17 Colo. 302, 29 Pac. 516.
This word is more usually applied to the laws of a corporation than to the acts of the legislature. The following account of the difference between a statute and an ordi nance is from Bacon's Abridgment, Statute (A). "Where the proceeding consisted only of a petition from parliament and an an swer from the king, these were entered on the parliament roll; and if the matter was of a public nature, the whole was then styled an ordinance: if, however, the petition and answer were not only of a public but a novel nature, they were then formed into an act by the king, with the aid of his council and judges, and entered on the statute roll." See Co. Litt. 159 b, Butler's note ; -3 Reeve, Hist. Eng. Law 146.
According to Lord Coke, the difference be tween a statute and an ordinance is that the latter has not had the assent of the king, lords, and commons, but is made merely by two of these powers. Co. 4th Inst. 25. See Barrington, Stat. 41, note (x).
A resolution of a council is but another name for an ordinance, and if it is a legislative act it is immaterial whether it is called a resolution or an ordinance, so long as the re quirements essential to the validity of an or dinance be observed; Waln's Heirs v. Phila delphia, 99 Pa. 330; but if the action is mere ly declaratory of the will of the corporation, it is proper to act by resolution, which is more in the nature of a ministerial act ; Alma v. Bank, 60 Fed. 203. 8 C. C. A. 564, 19 U. S. App. 622.
A municipal ordinance not passed under legislative authority, is not a law of the state within the meaning of the constitution al prohibition against state laws impairing the obligation of contracts; Hamilton G. L. & C. Co. v. Hamilton, 146 U. S. 258, 13 Sup. Ct. 90, 36 L. Ed. 963 ; but if properly adopted under a power granted by the state legisla ture, it is to be regarded as an act of the state within the fourteenth amendment; North American C. S. Co. v. Chicago, 211 U..
S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195, 15 Ann. Cas. 276.
Equity will not restrain a city council from passing an ordinance allowing a gas company to lay pipes in its streets, although it has granted the exclusive privilege to do so to another company ; Montgomery G.-L. Co. v. Montgomery, 87 Ala. 245, 6 South. 113, 4 L. R. A. 616. An illegal ordinance may be enjoined before passage; Roberts v. Louis
ville, 92 Ky. 95; 17 S. W. 216, 13 L. R. A. 844; or the enforcement of an invalid ordi nance ; Rushville v. Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321.
While it is not per se negligence for a railroad company to run its cars at a higher rate of speed than the limit specified in a city ordinance, yet the fact that it did so in the particular case may be taken into consideration by the jury, with other evi dence, in ascertaining whether or not the de fendant was negligent ; Lederman v. R. Co., 165 Pa. 118, 30 Atl. 725, 44 Am. St. Rep. 644. In Mahan v. Transfer Co., 34 Minn. 29, 24 N. W. 293, it was held that running a railroad train at a speed exceeding the limit fixed by ordinance was evidence of negligence which should go to the jury. That it is negligence per se is held in Schlereth v. R. Co., 96 Mo. 509, 10 S. W. 66 ; South & N. A. R. Co. v. Donovan, 84 Ala. 141, 4 South. 142; Chicago & A. R. Co. v. Esten, 178 Ill. 197, 52 N. E. 954. (Also where the rate of speed is fixed by statute; Dodge v. R. Co., 34 Ia. 276.) An ordinance as to the right of way between two street cars is not conclusive of the ques tion of negligence; it is merely evidence of negligence on the part of the driver of a car whose duty under it was to give way; Con nor v. Traction Co., 173 Pa. 602, 34 Atl. 238.
An ordinance requiring an opening in a street to be guarded is admissible in evi dence in an. action against a city for in juries sustained by falling into such open ing; McNerney v. Reading. City, 150 Pa. 611, 25 Atl. 57.
An ordinance which has the effect of denying to the owner of property the right, to conduct a lawful business thereon is in valid, unless the business is of such a nox ious or offensive character that the health, safety, or comfort of the community require its exclusion from the neighborhood ; Ex parte Whitwell, 98 Cal. 73, 32 Pac. 870, 19 L. R. A. 727, 35 Am. St. Rep. 152; this does not extend to an asylum for the treatment of mild forms of insanity; id.; or to a laundry; In re Hong Wah, 82 Fed. 623.
The burden of proving the unreasonable ness of an ordinance is upon him who denies its validity ; Trenton Horse R. Co. v. Tren ton, 53 N. J. L. 132, 20 Atl. 1076, 11 L. R. A 410; Twilley v. Perkins, 77 Md. 252, 26 Atl. 286, 19 L. R. A. 632, 39 Am. St. Rep. 408.• A copy of an ordinance having the seal of the city attached is admissible in evi dence without further proof; 113 Mo. 395.
See MUNICIPAL CORPORATIONS ; NUISANCE; POLICE PowERs; McQuillin, Ordinances.