It is to be noted that the requirements for the enactment or promulgation of an ordinance or resolution may be set by the constitution of a state. Under some jurisdictions, no ordinance or resolution appropriating money exceeding the sum of five hundred dollars, imposing taxes, or authorizing the borrowing of money will be passed except by a recorded affirmative vote of a majority of all members elected to the governing body[i]. It is to be noted that on the final vote on any ordinance or resolution, the name of each member voting and how s/he voted must be recorded[ii].
Whereas, in some other jurisdictions, no ordinance is binding until the same is twice publicly read and passed by the common council at two sessions held on different days, a majority of those present voting for same on both passages, a calling of yeas and nays, and entering the same upon the journal[iii]. The scope of a municipality’s power to enact ordinances is a question of state law. Under state law, a municipality has general power to enact ordinances[iv].
Generally, if a state legislature prescribes the manner in which a local government may pass an ordinance, the local government must follow those prescriptions and if they fail to do so, the ordinance will be considered void and set aside[v]. However, an ordinance or resolution of an inferior legislative body is invalid if the mandatory prerequisites to its enactment are not substantially observed[vi]. Local governments may not enact ordinances that impose greater or lesser penalties than those established by state law[vii].
Generally, the signature or approval of the mayor or some other municipal officer is not always essential to the validity of an ordinance when it is passed regularly. However, if the signature or approval by the authorized officer is made necessary by the express terms before the ordinance can become law, then such a requirement is mandatory, and the failure to observe the same is fatal to the ordinance[viii]. The act of the mayor in his/her approval of an ordinance or resolution is not a ministerial but a legislative act and the approval must be active and direct[ix].
It is to be noted that a municipal ordinance must not be inconsistent with or repugnant to the federal and state constitutions. They are considered in the same light as state laws and must conform to the supreme organic law in every respect as far as their constitutional validity is concerned[x].
While determining the validity of a local ordinance, the inquiry is two-fold:
- whether the local government has the power to enact the ordinance;
- if the local government has the power, whether the ordinance is consistent with the constitution and general law of the state.
If no such power existed with the local government, then the ordinance is invalid and the inquiry ends. However, if the local government had the power to enact the ordinance, the next step is to ascertain whether the ordinance is consistent with the constitution or general law of the state[xi].
It is to be noted that the validity of a statute or ordinance is to be judged solely by the facts in existence at the time of its passage. A legislative body is not expected to foretell the future[xii]. An ordinance to be void for unreasonableness must be clearly and plainly unreasonable. The burden of establishing the invalidity of an ordinance rests heavily upon the party challenging its constitutionality. Every presumption will be in favor of constitutionality[xiii]. However, an ordinance cannot be held invalid on any other ground than its illegality[xiv].
[i] Town of Madison v. Ford, 255 Va. 429 (Va. 1998).
[ii] Wright v. Norfolk Electoral Bd., 223 Va. 149 (Va. 1982).
[iii] Becker v. Henderson, 100 Ky. 450 (Ky. 1897).
[iv] Diamonds v. Greenville County, 325 S.C. 154 (S.C. 1997).
[v] Meadowridge Indus. Ctr. v. Howard County, 109 Md. App. 410 (Md. Ct. Spec. App. 1996).
[vi] Downtown Palo Alto Com. for Fair Assessment v. City Council, 180 Cal. App. 3d 384 (Cal. App. 1st Dist. 1986).
[vii] Beachfront Entm’t, Inc. v. Town of Sullivan’s Island, 379 S.C. 602 (S.C. 2008).
[viii] Commonwealth v. Williams, 120 Ky. 314 (Ky. 1905).
[ix] State ex rel. Osborn v. McAllen, 127 Tex. 63 (Tex. 1936).
[x] Hill v. Houston, 789 F.2d 1103 (5th Cir. Tex. 1986).
[xi] Diamonds v. Greenville County, 325 S.C. 154 (S.C. 1997).
[xii] La Mon v. Westport, 22 Wn. App. 215 (Wash. Ct. App. 1978).
[xiii] Silver Shores Mobile Home Park v. Everett, 87 Wn.2d 618 (Wash. 1976).
[xiv] State ex rel. Hardy v. Superior Court, 155 Wash. 244 (Wash. 1930).