The Montgomery advertiser., 1905-03-31

eNcfcise or the power conferred there m IS m no sense legislative act. It purely executive and quasi judicial, clearly and unauestionably so. It is a power of which they cannot divest themselves, and with which they can not invest another, under the charter.
 Sections 10 and 4S.
 Much stress Is being laid by some on the general clause of Section 10 of the charter, notwithstanding, and in spite Of the plain. unequivocal and unmis- takabie provisions of Section 4s of the charter. fixing upon, and them solely. the Council, as now constituted by the amended charter, the power. right and duty or suspending or deposing any of ncer, employe or agent of the city, for one or more of the three specified grounds. Then what does this clause mean, and how must 1t be construed? MT Dillon. in his most excellent work, vo. l, p. BPS. S. 3I5. says .. More frequently. however the charter or incorporating act authorizes the en- actment of bylaws in certain specified cases and for certain purposes; and after this specific enumeration a gen. eral provision is added. that the cor poration may make any other by-laws or regulations necessary to its welfare, good order, etc., not inconsistent with the constitution or laws of the State. This difference is essential to be ob- served, be termed the general welfare clauses if 1t stood alone. may be linn tied, qualified. or. when such intent is manifest. impliedly taken away by pro- visions specifying the particular pur- pose for which bylaws may be made. It is clear that the general clause can confer no authority to abrogate the limitations contained in special pro- visions"
 Sec. 16. When there arc both spe- cial and general provisions, the power to pass bylaws under the special or express grant can only be exercised in the case and to the extent, as respects those matters. allowed by the charter or incorporating act; and the power to pass bylaws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject mat ters, but gives authority to pass by laws, reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the constitution and gen eral laws of the State" (The authori- ties to above propositions are too nu- merous to include here). And yet it is being gravely contended by some that under this general, almost meaningless clause that the Council has the granted right to, in effect. repeal and change one whole section, to wit, IS, of the or ganic law of the city!
 The so-called general welfare clause of Section 10 of the charter is q general provision, and Section AS is a specific provision, of one and the same act Construing tho two together. how shall it be done? The rule is simple and clear and positive. MT Enllich, on the Interpretation of Statutes, Section PIG, says:
 Specific Provisions.
 And so, when there are, in an act, specific provisions relating to par ticular subject, they must govern, Tn respect of that subject, as against gen eral provisions, in other parts of the statute, although the latter, standing alone, would be broad enough to In clude the subject to which the more particular provisions relate (Cit- ing authoritiesD Again, in the same section: Hence, if there are two acts. or two provisions in the same act. of which one is special and particular. and clearly includes the matter in con troversy, whilst tho other Is general and would, if standing alone, include it also: and, if. reading the general provision side by side with the particu- lxr one, the inclusion of that matter in the former would produce conflict between 1t and the special provision- it must be taken that the latter was designed as an exception to the gen eral provision" Authorities are cited in support of the teXt)
 Again. in applying the maxim of expressio unius est exclusio alterius. the same standard author says: Where. therefore, there is. in the same statute. a particular enactment, and, also. a general one. which. In its most comprehensive sense, would in clude what is embraced in the former, the particular enactment must be operative, and the general enactment must he taken to affect only such cases within It's general language as are not within the provisions of the particular enactment Section 399, p 56O, citing authoritiesO
 Construing the provisions of the charter separately. as affecting section 93 of the City Code, the rule Is plain. clear and emphatic MT. Dillon. sec tion 317. says Since all the powers of corporation are derived from the law and It's charter. it is evident that no ordinnacc or bylaw of q corpora tion can enlarge. diminish. or vary its powers. similar rule obtains in England, where 1t is held that neither
 
 introduce an alteration in rules which have been prescribed to a corporation by an act of parliament. Bylaws are, in their nature, strictly local, and sub ordinate to the general laws" (Cit- ing numerous authorities.) See. also, sections 6S5, 1S1 same work.
 1 Smiths Modern Law Municipal Corp. section 52l. lays down the prin- ciple that a municipal ordinance must be consistent with the State statutes and with the charter of the corpora ton, saying: And in general all ordi- nances which irreconcilably conflict with either the charter or with the State statutes are void. (Citing d great number of authoritiesD
 Mir. Cooley's matchless work, 7th cd D. 27S-9. says: (2) Municipal bylaws must also be in harmony with the general laws of the State, and with the provisions of the municipal charter Whenever they come in conflict with either, the bylaws must give way" The same identical language is used in l Smiths Modern Law of Nun. Corp, $. 494 D. 462. And both works cite d great number of Supreme Court decisions covering nearly every State in the Union. The proposition of law is not contradictcd by any standard writers, of court decisions. They are uniform.
 Conflicting Laws.
 Section AS of the charter clearly, positively, and unequivocally puts the power to suspend or depose for spcci-