ORDINANCE.
The principles upon which rest the right to enact penal ordinances are thus stated : (1) Unless forbidden by the constitution, the legislature can clothe municipal govern ment with power to prohibit and punish any act made penal by the state laws,' when done within the municipal limits. (2) Such an ordinance is not invalid, merely because it prescribes the same penalties as the state law for the commission or omission of the same act. (3) It is no valid objection to such an ordinance, that the offender may be tried and punished for the same act un der both the ordinance and the state law.
(4) A conviction or acquittal by the mu nicipal courts, under such an ordinance, is no bar to a prosecution under the state law.
(5) Such an ordinance is not invalid, merely because the trial thereunder is without a jury. (6) Nor is it invalid, because it ex cepts from its operation certain business pursuits that are not excepted from the operation of the state law on the same sub ject; Theisen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234. To the same ef fect is Hunt v. Jacksonville, 34 Fla. 504, 16 South. 398, 43 Am. St. Rep. 214. See 1 Am. L. Reg. & Rev. N. S. 669, 869.
It has been held that the state has a con stitutional right to delegate to a municipal ity power to regulate by ordinance subjects which are already governed by the state law ; Dill. Mun. Corp. § 633. The power of the legislature to confer special authority to pass local laws which shall exclude general laws of the state on particular subjects is questioned in Washington v. Hammond, 76 N. C. 34.
That a municipality may not prohibit by ordinance that which is already made penal by state statute is held in Penniston v. New nan, 117 Ga. 700, 45 S. E. 05 ; In re Sic, 73 Cal. 142, 14 Pac. 405 ; Foster v. Brown, 55 Ia. 686, 8 N. W. 654; Washington v. Ham mond, 76 N. C. 34 ; in some cases ordinances on a subject governed by a state statute, though there is no expressed delegation of authority, are sustained; Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38, 22 Am. St. Rep. 214; Theisen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234; St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791. It is sometimes held that offenses against the proper police regulations of a municipality, which are also violations of the penal laws, may be prosecuted under either ; Ex parte Freeland, 38 Tex. Cr. R. 321, 42 S. W. 295 ;
State v. Wister, 62 Mo. 592 ; McInerney v. Denver, 17 Colo. 302, 29 Pac. 516.
Ordinances must not only not conflict with constitutional or general statute law, but they must be reasonable. It is, however, said that what may be reasonable under or dinary circumstances, as a prohibition against driving on the street at a greater speed than six miles an hour, would be un reasonable and void as applied to the mem bers of a salvage corps or fire patrol re sponding to an alarm; State v. Sheppard, 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305. An ordinance providing that "no person shall on any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad, or use any pro fane or obscene language," was held un reasonable and therefore invalid; [1896] 1 Q. B. 290. It is suggested that the real ground of objection in this case was that the words "or on land adjacent thereto," were too wide, and that the other objection alone ought to be untenable because the use of profane or obscene language necessarily implies annoyance ; 35 Am. L. Reg. N. S. 327-. But an ordinance which conforms to a definite statutory grant of power cannot be set aside as unreasonable ; Raffetto v. Mott, 60 N. J. L. 413, 38 Atl. 857. A statutory power to make ordinances regulating trade does not warrant one making it unlawful to carry on a lawful trade in a lawful man ner; [1896] A. C. 88.
Municipal ordinances may be valid in some of their provisions and invalid as to others; Ex parte Byrd, 84 Ala. 17, 4 South. 397, 5 Am. St. Rep. 328; but where the in valid provisions are inseparably connected with the valid ones, the ordinance is void; Landis v. Vineland, 54 N. J. L. 75, 23 Atl. 357; Lucas v. Macomb, 49 Ill. App. 60. When a city council'is vested with full pow er over a subject, and the mode of exercising it is not limited by the charter, it may exer cise it in any manner most convenient ; Beers v. Dalles City, 16 Or. 334, 18 Pac. 835. A city ordinance in conflict with the general policy and laws of the state is void; State v. Burns, 45 La. Ann. 34, 11 South. 878. See ORDINANCE.