An ordinance is generally used to designate a local law of a municipal corporation, duly enacted by the proper authorities that prescribe general, uniform, and permanent rules of conduct, relating to the corporate affairs of the municipality[i]. An ordinance, a local law, or a regulation enacted by a city council or other similar body under powers delegated to it by the state is legislative in nature by its own definition[ii].
A local ordinance is a municipal legislative enactment. An ordinance passed in pursuance of express legislative authority is a law and has the same effect as a local law, and it may prevail over a general law upon the same subject[iii]. Therefore, an ordinance is equal to a municipal statute and it governs matters not already covered by federal or state law.
In Baltimore v. Clunet, 23 Md. 449 (Md. 1865), the court observed that a valid law may be passed, to take effect upon the happening of a future contingent event, even if that event involves the assent to its provisions by other parties. The same principle applies to an ordinance passed by a municipal corporation provided:
- the subject matter of the ordinance is within the legislative powers delegated to the corporation;
- it does not appear that the contingent event is foreign to the subject matter of the ordinance.
However, ordinances that directly or indirectly permit acts or occupations which the state statutes prohibit, or to prohibit acts permitted by statute or constitution, then the validity of ordinances will be null and void[iv].
It is to be noted that a municipal ordinance differs from a resolution. They are two significantly distinct government actions. The term “ordinance” means something more than a mere verbal motion or resolution. It must be carried out with the formalities, solemnities, and characteristics of an ordinance, as distinguished from a simple motion or resolution[v].
Whereas, a resolution encompasses all actions of the municipal body other than ordinances. A resolution deals with matters of a special or temporary character and an ordinance prescribes some permanent rule of conduct or government to continue in force until the ordinance is repealed. An ordinance is a legislative act and a resolution is an expression of opinion or mind or policy concerning some particular item of business coming within the legislative body’s official cognizance[vi]. It is to be noted that an ordinance can be repealed only by another ordinance and not by resolution[vii].
Generally, the adoption of documents outside of an ordinance or regulation through the principle of incorporation by reference is valid if such document is sufficiently identified and is made a part of the public record. However, the principle of incorporation by reference applies only in the absence of a statutory or charter provision to the contrary[viii]. Similarly, an ordinance cannot at the same time establish a paper as a public record and incorporate it by reference as a previously established public record[ix].
Municipalities have general powers, subject to other provisions of law to enforce ordinances and to prescribe penalties for violations. In some jurisdictions, the violation of an ordinance is punished with fine or imprisonment or both[x]. However, a municipality has no power to punish a violation of its ordinances unless the ordinance involved forbids the specific activity alleged.
[i] Smith v. City of Papillion, 270 Neb. 607 (Neb. 2005).
[ii] Tanner v. Green Forest, 302 Ark. 170 (Ark. 1990).
[iii] Gould v. Baltimore, 120 Md. 534 (Md. 1913).
[iv] Heubeck v. Baltimore, 205 Md. 203 (Md. 1954).
[v] Rushing v. Georgiana, 374 So. 2d 253 (Ala. 1979).
[vi] Benson v. De Soto, 212 Kan. 415 (Kan. 1973).
[vii] Smith v. City of Papillion, 270 Neb. 607 (Neb. 2005).
[viii] McKee v. City of Geneva, 280 Ga. 411 (Ga. 2006).
[ix] Durand v. Love, 254 Mich. 538 (Mich. 1931).
[x] Bookey v. Kenai Peninsula Borough, 618 P.2d 567 (Alaska 1980).