85

36

of persons. But all by-laws or ordinances of municipal corporations which are in restraint of trade, or which tend to create monopolies, are void, unless they are distinctly justifiable as police regulations. Thus, ordinances in relation to public markets are not valid if they make unreasonable restrictions, or operate to restrain trade, or tend to create a monopoly.37 The same is true of an ordinance which attempts to restrain persons from employing others in a lawful business beyond certain limits."

Impartiality.

40

39

Municipal ordinances must be impartial. For instance, an ordinance which gives to one sect or religious denomination privileges which it denies to others violates the constitution and is void. So, an ordinance which prevents one citizen from engaging in a particular kind of business in a certain locality, under a penalty, while another is permitted to engage in the same business in the same locality, is unreasonable and void. Again, a municipality may provide modes of punishment for offenders against its police ordinances, by general ordinances affecting all persons alike, but has no power to single out any individual, and denounce his trade, occupation, or conduct." And so, a city ordinance exacting a license fee for selling goods, which fixes one rate of license for selling goods which are within the city or in transit to it, and another and much larger license for selling goods which are not in the city, is invalid, as being unjust, unequal, oppressive, and in restraint of trade."2 Certainty.

It is next required of municipal ordinances that they shall be definite and certain. This requirement is specially important if the ordinance is penal; that is, enjoining or prohibiting the doing

85 Williams v. City Council, 4 Ga. 509.

36 City of Chicago v. Rumpff, 45 Ill. 90; Hayes v. City of Appleton, 24 Wis. 542.

87 City of Bloomington v. Wahl, 46 Ill. 489; Bethune v. Hughes, 28 Ga. 560. 88 Ex parte Kuback, 85 Cal. 274, 24 Pac. 737.

89 City of Shreveport v. Levy, 26 La. Ann. 671.

40 Tugman v. City of Chicago, 78 Ill. 405.

41 Board of Councilmen of Baton Rouge v. Cremonini, 36 La. Ann. 247.

42 Ex parte Frank, 52 Cal. 606.

48 San Francisco Pioneer Woolen Factory v. Brickwedel, 60 Cal. 166.

of some act under a penalty. In such cases it is necessary that it should describe the offense with certainty, and also it must fix the penalty with precision, and not leave its measure to the discretion of any officer. For instance, where an ordinance provided that for a certain offense the offender might be fined by the mayor not more than five dollars, it was held that the ordinance was void because the amount of the fine was not fixed and definite; though it might have been valid if the ordinance had imposed a fine of a certain amount, with power in the mayor to remit a portion thereof in his discretion." A city ordinance providing for grading and macadamizing a street is not void for uncertainty because the specifications for the work are not embodied in the ordinance, they being referred to as on file in the office of the city clerk.*" Delegation of Power.

A general rule of constitutional law prohibits the delegation of legislative power. But it is not regarded as a violation of this rule for the legislature, in creating municipal corporations, to invest them with appropriate powers of legislation for the due administration of the affairs of the municipality. But no such principle will justify the municipal authorities in attempting to make a delegation of the powers confided to them. All such powers as are essentially legisla tive in their nature must be exercised by the municipality itself or its duly authorized agents and officers pointed out by law. No such power can lawfully be turned over to the discretion of a private person, or to any officer or board of officers not authorized by the charter to exercise it.

44 State v. Cainan, 94 N. O. 883.

45 Becker v. City of Washington, 94 Mo. 375, 7 S. W. 291.

193. With respect to the constitution of civil society, and in the sense in which the term is used in public law, "rights" are powers of free action.

194. Rights are classified as

(a) Natural.

(b) Civil.

(c) Political.

Some rights are created by law, but others exist antecedently and independently of law. The latter class includes such rights as belong to a man merely in virtue of his personality. His existence as an individual human being, clothed with certain attributes, invested with certain capacities, adapted to a certain kind of life,

and possessing a certain moral and physical nature, entitles him, without the aid of law, to such rights as are necessary to enable him to continue his existence, develop his faculties, pursue and achieve his destiny. But some other rights are the offspring of law. They imply not only an individual but a state. They are not grounded alone in personality, but in an organized society with certain juristic notions. Still others add to these pre-requisites the idea of a participation in government or in the making of laws. We perceive, therefore, that for the purposes of constitutional law, rights are of three kinds. They may be classified as natural, civil, and political rights.

Natural Rights.

It was formerly the custom to use this term as designating certain rights which were supposed to belong to man by the "law of nature" or "in a state of nature." But clearer modern thought

has shown that the "state of nature" assumed by the older writers is historically unverifiable and inadequate to account for the origin of rights. Even in savagery there is a rudimentary state. The law of physical nature recognizes no equality of rights; its rule is the survival of the fittest. In a state of nature, such as was once supposed, there could be no right but might, no liberty but the superiority of force and cunning. In reality, the only true state of nature is a civil state, or at least a social state. But it is permissible to use the phrase "natural rights" as descriptive of those rights which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law and depend upon civilized society. An example of these natural rights is the right to life.

Civil Rights.

But since organized society is the natural state of man, and not an accident, it follows that natural rights must be taken under the protection of law, and although they owe to the law neither their existence nor their sacredness, yet they are effective only when recognized and sanctioned by law. Civil rights therefore will include natural rights, as the same are taken into the sphere of law. But there are also civil rights which are not natural rights. Thus, the right of trial by jury is not founded in the nature of man, nor does it depend upon personality. But it comes within the definition

of civil rights, which are the rights secured by the constitution of any given state or country to all its citizens or to all its inhabitants, and not connected with the organization or administration of gov ernment. Hence it appears that while the term "civil rights" is broader than "natural rights," and indeed includes it, there are important differences between those civil rights which are properly described as "natural" and those which are not. Natural rights are the same all the world over, though they may not be given the fullest recognition under all governments. Civil rights which are not natural rights will vary in different states or countries.

Political Rights.

Political rights are such rights as have relation to the participation of the individual, direct or indirect, in the establishment or administration of government. For example, the right of citizenship, that of suffrage, the right to petition government for a redress of grievances, the right of free criticism of public officers and government measures, are political rights. They are not natural rights in any sense, since they owe their existence entirely to law. They are civil rights in a qualified sense, since they concern the citizen in his relations with other citizens, but only in respect to the administration of the state. But they are best considered as a separate class. Political rights vary in different countries even more widely than civil rights. Under a despotism they scarcely exist. In our own country they have reached their maximum.1

OF LIBERTY.

195. Liberty, whether natural, civil, or political, is the lawful power in the individual to exercise his corresponding rights. It is greatly favored in law. But it is restrained by the rights of the state and by the equal rights of all other individuals living under the same government.

1 The natural rights of a citizen are inalienable, and no law, restrictive or prohibitory, of those rights can be passed by the legislature or the people of the state. But a political right stands on a different footing, and may be extended or recalled at the will of the sovereign power. Ridley v. Sherbrook, 8 Cold. (Tenn.) 569.