4 Iowa 296 | Iowa | 1856
The only question is upon the validity of the ordinance, for the authority of the marshal depends upon that. As this is a very usual provision in a town or city charter, and as the ordinance is of a very common character, it is not, on first view, altogether apparent, what are the objections intended to be urged against it, and therefore the propositions of counsel will be given as they have advanced them. They say, first, that a corporation has no power to pass by-laws or ordinances which are contrary to the constitution of the State, or of the United States, or to the common law, as it is accepted and received in the juris
The statute before referred to, confers1 ample authority to adopt a charter, with provisions similar to these, and the charter in the present case, in various and in express terms, permits an ordinance, whose object is the same with that before us. Whether it is required to be in any respect different from this one, we will consider under another head. Neither do we apprehend the force of the assertion, that the ordinance is unreasonable, which is the fourth proposition of the plaintiff.
Another, and probably the leading objection made by the plaintiff, is, that no power is conferred ujoon the town to create a forfeiture of property, and that this ordinance creates one,, and is therefore void; this point will be treated as briefly as may be. The terms, fine, forfeiture, and penalty, are often used loosely, and even confusedly. But when a discrimination is made, the word “penalty” is found to be. generic in its character, including both fine and forfeiture. A fine is a pecuniary penalty, and is commonly (perhaps always,) to be collected by suit in some form. A “ forfeiture ” is a penalty by which one loses his rights and interest in his property. See Webster’s Diet, and Jac. Law Diet., &e. .It is true, as claimed by the plaintiff, that a town cannot pass an ordinance creating a forfeiture, unless clear and distinct authority be given therefor. Hart & Hoyt v. Mayor and City of Albany, 9 Wend. 571; Cotter v. Doty, 5 Ohio, (Ham.) 394; City of New York v. Ordreman, 12 Johns. 122; A. and Ames on Corp., (ed. 1832,) chap. 9, § 8, and seq.; 1 Bac. Ab. tit. By-laws.
The Code, chapter 42, under which this charter is adopted, authorizes penalties to be collected by civil action. A civil
Proceedings for the abatement of nuisances are of a more summary nature than actions, from the necessity of the case. This ordinance does not, strictly speaking, create a forfeiture, for after paying the expenses and fine, the remainder of the proceeds of sale are paid to the owner. It is then, in effect, but the abatement of the nuisance, and as such, is regular. It is sufficient for the abatement of the nuisance and the payment of the charges, but not for the enforcement of the fine. Nor do we' apprehehend that it can be contemplated to deduct the fine from the proceeds of a sale, in such a case; for the fine is not fixed, and the marshal would not presume to settle it. Especial reference is made to the case of Hart & Hoyt v. The Mayor and City of Albany, 9 Wend. 571.