The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-27

grcunds:-l. That the bylaw q In RESTRAINT Of trade
and q unreasonable and void. I think otherwise.
II plainly regulating ordinance and with the OK
press sanction Of the Legislature, have no doubt
such restrictions upon the exercise Of public em
ployment like the keeping Of an intelligence ONCE
within the limits Of the city, as they may think
expedent for the general welfare even TO the extent
OF prohibiting such onices ailogetner. but, second,
1t Is urged that it does not appear that the byelaw
or ordinance was passed, that 1t ever, in fact,
took effect as law of the city OF New York The
act Of the legislature upon which the plaintiffs rely
In terms provides that evey ordinance or resolution
which shall have passed the two Boards OF the Com
mon Council before 1t shall take effect shall be pre-
scented to the Mayor Of the city for his APPRECIATION
And then as moro fully detailed in the above state
ment Of the complaint, prescribes the manner In
which aEd In which alone. it can take effect as a
Law Of the corporation if the Mayor do not approve
Of and sign it. All that is avowed In the complaint
Is that the byeaw in question was made and passed
Eat meeting and assemblage of the said Common
Council, duly held and convened" &C., &c. This
is not enough. The act requires that although
made and passed at meeting, &C., Of the Common
shall take effect It must be presented to the Mayor
for his approval and if he do not sign it but returns
it with objections, it must be reconsdered and again
passed before it can take effect as law. The
making power, legislating for tho public, does not
apply to the acts Of municipal corporation in this
respect The courts cannot take judicial notice
OF the acts Of the latter. They are not presumed
to know anything of the ordinance, or OF the manner
Of its passage, except what is laid before them.
Everything, therefore, must be av0wed In support
Of such bye-law that Ia necessary to enable the
court to see that it has the effect Of law within the
city. The powers of the corporation are limited,
and in this case the manner in which those powers
are to be exercised is specifically pointed out To
sustain their acts therefore, 1t must appear not
only that the powers exercised were within their
authority, but that they were exercised in the man.
ner in which alone they are declared by the statute
to have any effect. II is true that the demurrer
herein admits the bylaw in question was made and
passed at q meeting, &C., Of the Common Council
duly convened; but it does not admit by any impl-
cation that the bylaw was as duly made and passed so
passed by the Common Council, it was condition
precedent to its taking effect law that 1t should
be presented to the Mayor for his approval. Pos
sibly the precedent to be found in Coates Vs. the
Mayor, &C., C0wan, 500, may have guided the
plcader in the present case, for observe that the
complaint in this case and in that ESQ far as relates
TO the point under consideration) are in almost
iisdtn' cerbis But It should be noticed that at the
case, the law authorizing its passage gave power to
"the Mayor, aldermen and commonality of the city
in Common Council convened" to make and pass
the bylaw, &C., and the declaration avowed that
lat meeting and assemblage of the said Common
Council, duly held and convened" the law was
passed; thus in terms averring that It was passed
in the manner authorized by the laws then In force.
! am therefore clear in my opinion that the COM
plant should state all the facts which by law
necessary to make valid bylaw of the corporation,
and that in this respect the present complaint is
defective and does not show the existence
Of any law in the city Of New York under
which the defendants are liable to the penalty
sued for. How far it might have been suffi,
cient on demurrer, had the plaintiffs avowed
the due enactment Of the bylaw in general
terms and f the want Of specification Of particulars
was not urged on motion, under section 1907 leave
the particulars Of the mode of its taking effect to de-
NAL or proof it is unnecessary to say. But am Of
opinion, that besides averring its passage by the
Common Council, it is strictly necessary to aver
the approval by the Mayor, or if he have not
approved, then the subsequent steps without
which it cannot take effect-its mere passage by
the Common Council gives it no effect as a law.
The principles upon which these views depend
will be found considered and to extent stated,
in Rex v. Head, Burr. 252l Parry v. Berry, Com.
r. 269; Watson v. Clerke, Garth. IS; Kyd on Cor
porations, l67, and cases cited; ANGEL Il Ames on
Corp $685. and cases there cited, and also 306
10. The last named authors state" Ii the charter
prescribe the mode in which bye-laws shall be made
and adopted in order to their validity, that mode
must be strictly pursued" See also opinion of Court
in Coates v. the Mayor, DC, Cow. 6O7-s And that
corporations must show their power to bring them
selves within it, and that nothing is to be intended
in favor Of their jurisdiction, &c. See Durham v.
Trustees Of Rochester, Cow. 465. The demurrer
must be sustained, with leave to the plaintiffs to
amend within twenty days, on payment OF costs.