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Violation and Enforcement

Municipalities have general powers, subject to other provisions of law to enforce ordinances and to prescribe penalties for violations.  A municipality’s right to regulate matters within its powers by ordinance and provide penalties and imprisonment to punish violations may be granted by state statute or by constitutional provision.  If no authority is given to impose penalties by an ordinance, then any such penalty is void unless the power is implied.  Similarly, if a city ordinance penalty conflicts with that of the general law of the state covering the same subject, then the ordinance penalty is void.  Therefore, the charter or ordinance penalty cannot exceed that of the state law[i].

In some jurisdictions, the legislature by law may authorize each city, village, and town to establish a municipal court.  All municipal courts will have uniform jurisdiction limited to actions and proceedings arising under ordinances of the municipality in which established[ii].  These courts may impose penalties under ordinances that accomplish important public goals.

In State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271 (W. Va. 1992), the court observed that a grant of the police power to a local government or political subdivision necessarily includes the right to carry it into effect and empowers the governing body to use proper means to enforce its ordinances.  Pursuant to this rule, it was held that even in the absence of an express grant of authority, the power to punish by a pecuniary fine or penalty is implied from the delegation by the legislature of the right to enforce a particular police power through ordinances or regulations.

It is to be noted that statutes and ordinances that fix crimes, or quasi crimes, must fix them without any uncertainty.  An ordinance of a regulatory nature must be clear, certain and definite so that an average man may, with due care, after reading the same understands whether s/he will incur a penalty for his/her actions or not[iii]. The ordinance must not be worded leaving its substantive elements to the caprices of either judge or jury.  In other words the law must be complete and definite[iv].

A person who is convicted and imprisoned under an invalid law or ordinance can test the constitutionality and validity of such law or ordinance by writ of habeas corpus[v].  Similarly, any statute or ordinance that purports to vest arbitrary discretion in a public officer, without prescribing a definite rule for his/her guidance, is unconstitutional[vi].  However, a statute or ordinance must not be declared unconstitutional unless it appears unconstitutional beyond a reasonable doubt[vii].

In some jurisdictions, the violation of an ordinance is punished with fine or imprisonment or both.  Under appropriate circumstances, an ordinance can also be enforced through suspension of license.  It is proper for penal ordinances to leave a margin for the discretion of a court so that the fine or imprisonment imposed may be graded in some proportion to the aggravation of the circumstances[viii].

However, a municipality has no power to punish a violation of its ordinances unless the ordinance involved forbids the specific activity alleged.  It is to be noted that the amount or limitation of a penalty imposed by or under an ordinance must comply with a specific governing provision of law.  If the penalty is fixed by statute, the penalty imposed by the ordinance cannot exceed the limit prescribed[ix].

It is to be noted that a municipality is not precluded or estopped from enforcing an ordinance merely because certain persons are permitted to violate it without prosecution or punishment.  Under some statutes, persons accused of violating a municipal regulatory ordinance imposing penal sanctions are protected from intentional discrimination in the enforcement of the ordinance[x].

[i] Allgood v. Larson, 545 P.2d 530 (Utah 1976).

[ii] City of Milwaukee v. Kilgore, 185 Wis. 2d 499 (Wis. Ct. App. 1994).

[iii] Diemer v. Weiss, 343 Mo. 626 (Mo. 1938).

[iv] Hannibal v. Minor, 224 S.W.2d 598 (Mo. Ct. App. 1949).

[v] Ex parte Taft, 284 Mo. 531 (Mo. 1920).

[vi] Ezell v. City-Parish Plumbing Board, 234 La. 441 (La. 1958).

[vii] State v. Maciolek, 101 Wn.2d 259 (Wash. 1984).

[viii] Arnett v. Cardwell, 135 Ky. 14 (Ky. 1909).

[ix] Huron Twp. v. City Disposal Sys., 448 Mich. 362 (Mich. 1995).

[x] State v. Vadnais, 295 Minn. 17 (Minn. 1972).

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