
    In re Henry Standiford.
    Criminal Docket.
    No. 16,649.
    Decided July 5, 1887.
    The Chief Justice and Justices James and Merrick sitting.
    1. The power granted a municipality to enact ordinances is special and must be strictly construed.
    3. Under the Act of Congress of 1830, the boards of aldermen and common council sent to the mayor for his approval an alleged ordinance commonly known as the Sunday Law of 1864 ; it did not appear that he took any action either to approve or disapprove this ordinance, t>r that thereafter the boards took any action in respect thereto. Held, that it never became a law; that the Act of Congress in question implies that the mayor’s approval should be in writing, and that no evidence of any other approval would be sufficient.
    Petition for the writ of Habeas Corpus.
    The Case is stated in the opinion.
    W. D. Davidge, Chas. S. Moore and Chas. A. Elliot, for petitioner.
    As all municipal corporations exercise only delegated and limited powers in the absence of statutory authority to the contrary, courts are authorized to indulge in no presumptions in favor of the validity of the ordinances, especially where they abridge general or common-law rights, or impose burdens or penalties upon the inhabitants. 1 Dill. Mun. Corp., sec. 423; Barnett vs. Newark, 28 111., 62 ; Schott vs. People, 89 111., 195.
    It is conceded that the ordinance in question was never signed, or, as we contend, approved by the mayor; and it is insisted that without such approval it is void.
    ■ In 1820 Congress passed an Act entitled “ An Act to Incorporate the Inhabitants of the City of Washington and to Repeal all Acts Heretofore Passed for that Purpose,” whereby, after providing for the office of mayor and a board of aldermen and board of common council, it was enacted, among other things, that “ All ordinances or acts passed by the two boards shall be sent to the mayor for his approbation, and when approved by him shall be obligatory as such. But if the mayor shall not approve of any ordinance or act so sent to him, he shall return the same with his reasons in writing therefor; and if two thirds of both boards, on reconsideration thereof, agree to pass the same, it shall be in force in like manner as if he had approved it; but if the two boards shall, by their adjournment, prevent its return, the same shall not be obligatory. 3 Stat. at L., p. 581, sec. 4.
    It will be observed that the charter provided two modes by which an ordinance could become operative, either by having received the approbation of the mayor, or, he having disapproved, by being re-enacted by both boards by a two-thirds majority.
    Charters of cities, being special grants- of power, are to be construed strictly ; and. whatever is not given expressly, or as a necessary means to the exercise of the powers granted, is withheld. Douglass vs. Placerville, 18 Cal., 643 ; Clark vs. Davenport, 14 Iowa, 494; Leonard vs. Cantón, 35 Miss., 189 ; Leavenworth vs. Norton, 1 Kan., 432.
    So it is true that where the char ter, pro vides a particular mode of exercising any power, such mode must be strictly., pursued by the corporation; otherwise its act is void.
    As the power to ena¡ct ordinances is a special grant to, a municipality the mode of enactment prescribed by the-charter must be strictly followed; and before any ordinance can be enforced it must affirmatively appear that everything has been done made- a condition precedent by. the. charter or organic law.
    Where ordinances are required to be ,published before-they shall go into effect this requirement is essential, and. the publication must be in the designated form. 1 Dill. Mun. Corp., sec. 331; Barnett vs. Newark, 28 111., 62; Con-., boy vs. Iowa City, 2 Iowa, 90; Higley vs-. B-unce, 10 Conn.,. 567; State vs. Newark, 30 N. J. Law, 303; People vs-Supervisors of San Francisco, 27 Cal., 655.
    Where, by the charter of a corporation, the mayor is-part of the law making power his concurrence in legisla-. tion is essential to its validity. 1 Dill. Mun. Corp., sec. 309 ; Saxton vs. Beach, 50 Mo., 488; Saxton vs. St. Joseph, 60 Mo., 153; Irvin vs. Devors, 65 Mo., 625.
    Where the charter requires the signature of the mayor to give validity to an ordinance, such signature is necessary. Kepner vs. Commonwealth, 40 Pa., 124; State vs. Newark, 1 Dutch., 399 ; Graham "os. Carondelet, 33 Mo., 262.
    The very title of the Corporation of Washington and section 4 of the charter demonstrate that the mayor was an integral part of the law making power and his approval necessary to give validity to an ordinance.
    The ordinance in question was not signed by the mayor, and is therefore void. Nor will it do to say that his failure to return it to the two boards with objection was presumably his assent. Executive approbation of any ordinance must be manifested by his official signature to the Act. Any other rule of law would be dangerous and involve too much uncertainty in the enactment of laws.
    Mr. Henry E. Davis, for respondent:
    The Act in question, if an Act, become such by virtue of the Charter of the City of Washington. That charter provides as follows:
    “ All ordinancés or acts passed by the two boards (of aldermen and common council) shall be sent to the mayor for his approbation, and, when approved by him, shall be obligatory as such. But if the mayor shall not approve of any ordinance or act so sent to him, he shall return the same within five days, with his reasons in writing therefor; and if two-thirds of both boards, on reconsideration thereof, agree to pass the same, it shall be in force in like manner as if he had approved it; but if the two boards shall, by their adjournment, prevent its return, the same shall not be obligatory.”
    The facts, as shown by the return, are that the act was passed by the two boards and sent to the mayor, and the mayor did not, within five days, or at any time, return the same with his disapproval, either in writing or otherwise ; and the boards did not by their adjournment prevent the return of the act within five days. It is conceded that the mayor did not sign the act.
    1. The charter does not, as do most charters and constitutions, prescribe signing as essential either to approval or testimony of approval. This leaves open the question: What constitutes or evidences approval within the meaning of the charier?
    On receipt of a given act the mayor could do one of two things: approve or disapprove. The charter prescribed a specific thing for him to do in case he should disapprove, viz.: return the act with his reasons in writing. Indusio unius exdusio alterius. This left it, as matter of law, that a failure to return as prescribed operated approval.
    Any other view would involve the inconceivable condition that although the two boards might unanimously pass a given act and send it to the mayor he might pocket it, and so, without any action on his part, not only prevent the act from becoming a law, but also deny to the two boards all opportunity to say whether it should become a law, notwithstanding his failure to approve. An American charter involving such a condition would be a strange anomaly, considering that the Constitution of the United States and of the several States all provide that acts not returned by the- Executive within the time allowed for veto become laws.
    It must be conceded that Congress did not intend a different rule in a case of this character, and that the construction now contended for by the respondent is in harmony with American legislative history.
    2. The argument that the charter prescribes the only method by which an act could become law without the mayor’s approval both begs the question: “ What is the mayor’s approval?” and also overlooks the fact that that method is called into exercise only after the mayor shall have positively disapproved and returned the act. Until the act was disapproved and returned, which it is not pretended was done in this case, the boards were without' power to make the act a law independently of the mayor. The real argument made for the petitioner is that the mayor had the power to prevent the boards from making any act a law,
    3. It is immaterial that the act was not signed by the mayor. 'Where no particular sort of evidence is prescribed, the thing sought to be established may be proved in any legal mode ; and appioval of an act is no exception to this rule. The true rule is thus stated by the Supreme Court of the United States:
    
      “ Whenever a question arises of the existence of a statute, or of the time when a statute takes effect, or of its precise terms, the judges who may be called upon to decide it may resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, always resorting first to that which, in its natute, is most appropriate, unless the positive law has enacted a different rule.” Gardner vs. Barney, 6 Wall., 499, 511.
    In this case, the existence of the act being in question, and sucli existence depending upon the fact of approval, and the positive law having enacted no rule qd the subject, it is competent and proper for the court to consider the facts tending to show such approval, assuming for the argument that the approval is not, as matter of law, conclusively established by the failure to disapprove, as above noted.
    As tending to show approval, the return - shows the following facts;
    The register of the corporation, as directed by law, published the act as an act, in the manner prescribed by law; the act was printed in the prescribed manner, in the usual pamphlet published by order of the council and prescribed to be furnished to the corporation officers for their information and guidance; the act was included in two collections or digests prepared by authority and with the sanction of the corporation; petitions for modification and repeal of the act were presented to and considered and acted upon by the corporation council; an act to repeal the act was introduced into and acted upon by the council; a subsequent act, approved and signed by the mayor, was passed by the council, which was unnecessary, except upon the assumption that the act had been approved and was in force; and an act amendatory of the act was afterwards passed by the council and apppoved by the mayor.
    It is not contended that these several subsequent acts of the corporation or its officers make the act in question a law, but only that those acts are evidence tending to show a prior approval which • had already made the act in question a law.
    It is submitted, therefore, that, viewed either as matter of law or matter of fact, the approval of the act is established, and that the act is a valid and subsisting law.
   Mr. Chief Justice Bingham

delivered the opinion of the court:

The matter of Henry Standiford comes before the court on the writ of habeas corpus. The petitioner shows by his petition that he is a citizen of the United States, a resident of the District of Columbia, and has been for the past thirteen years engaged in business as a druggist or apothecary in said District, and is and has always been duly licensed to carry on the said business.

That theretofore, “to wit: on the 18th instant, the petitioner was arrested on a warrant issued from the police court of said District for alleged violation of law, to wit, by selling cigars on the 17th day of April, instant, the same being the Sabbath day, contrary to the provisions of an alleged ordinance of the late corporation of Washington, passed in November or December, 1864, as will appear by reference to a copy of the complaint annexed.” That thereafter he was taken before the judge of the police court of the District of Columbia, and convicted and sentenced to pay a fine of f 20 or be committed to the custody of the superintendent of the Washington asylum, in default of thé payment of such fine. That he is now under arrest and unlawfully deprived of his liberty by the superintendent of the said asylum or those acting in authority under him, or under the aforesaid commitment.

The petitioner avers that the alleged ordinance of November or December, 1864, under which he was prosecuted, is void and of no effect, for the reason that the same did not receive the sanction of the mayor, and that it does not appear from the minutes of the legislative branch of the late corporation of Washington that the said ordinance was ever sent to the mayor, as required by law, for his approval.

The petitioner alleges other grounds upon which he claims his arrest and detention to be illegal, but it is unnecessary to recite them.

The return of the respondent, Walter H. Stoutenburgh, the intendant of the Washington asylum, admits the arrest, trial, conviction and detention of the petitioner, and, with other matters, sets forth the alleged ordinance which, it is in substance averred, was duly passed by the board of aider-men and common council of the late corporation of Washington, and that the same was duly sent to and placed in the hands of the mayor, and that the mayor did not, within five days after receiving the same, or at any time, return it with his disapproval, either in writing or otherwise, and that said boards of aldermen and common council did not by their adjournment prevent the return of the said ordinance within five days.

It is not alleged in the return that two-thirds of both boards on reconsideration ever agreed to pass the said alleged ordinance after it had been sent to the mayor; nor is it averred that the mayor ever, in any sense, approved of the ordinance.

In 1820 Congress passed an act, entitled “An Act to Incorporate the Inhabitants of the City of Washington and to Eepeal all Acts Heretofore Passed for that Purpose,” whereby, after providing for the office of mayor and a board of aider-men and board of common council, it was enacted, among other things, that “All ordinances or acts passed by the two boards shall be sent to the mayor for his approbation, and when approved by him shall be obligatory as such. But if the mayor shall not approve of any ordinance or act so sent to him, he shall return the same within five days, with his reasons in writing therefor; and if two-thirds of both boards, on reconsideration thereof, agree to pass the same, it shall be in force in like manner as if he had approved it; but if the two boards shall, by their adjournment, prevent its return, the same shall not be obligatory.”

Did the ordinance in question, by virtue of the proceedings thus disclosed and conceded by the pleadings in this case, ever become a valid enactment? It is very ingeniously argued that the effect of the mayor’s neither approving nor disapproving the ordinance was to render it a legal enactment; that, as the Constitution of the United States provides if any bill shall not be returned by the President within ten days, Sundays excepted, after it shall have been presented to him, the same shall be a jlaw in like manner as if he had signed it, unless the Congress, by its adjournment, prevents its return, in which case it shall not be a law; and, as most of the States which have invested the governor with power to veto bills passed by the legislature have a similar constitutional provision as to the non-action of the governor, that Congress must be presumed to have intended the same consequence to follow the failure of the mayor to approve or disapprove an ordinance sent to him by the board of aldermen and common council within the time limited by law. Is this the proper interpretation to be given to it?

The omission from the charter of a clause such as is contained in the Constitution of the United States, and in the constitutions of many of the States at the time it was granted by Congress cannot be presumed to have been an accident. Congress created a legislative authority, and provided that it should be in two boards and the mayor, and distinctly defined the part he should take in the enactment of laws for the municipality. The action of the mayor in this behalf can no more be dispensed with than could that of one of .the boards. The power granted to each must be exercised, and the failure of either to do so defeats the proposed enactment.

To us it is plain that Congress expected the mayor to perform the duties assigned to him. Congress said he should approve the ordinance or within five days return it with his reasons therefor in writing. The performance of this duty was just as obligatory on the mayor as that of any, the execution of which he was enjoined by the charter to perform; and naturally he would no more be presumed, in advance, to be inclined to disregard this particular duty than he would other duties pertaining to his office.

The power granted to a municipality to enact ordinances is special and must be strictly construed. Applying this well established rule of construction to the language employed by Congress in granting power to the late corporation of the city of Washington to enact ordinances, there is little difficulty in determining that an ordinance sent to the mayor by the boards for his approval, but in reference to which he took no action whatever, and in reference to which the boards never thereafter took action, did not thereby decome a law of the city.

The respondent, in his return, has recited a number of facts and circumstances tending to show that, after the date at which this proposed ordinance was so sent to the mayor, various officers of the city by their acts indicated a belief that this ordinance was a valid enactment. Having determined that the action of the mayor, or rather his failure to act in conjunction with the legislative boards, did not have the effect to enact the proposed ordinance into a law, it will hardly be seriously contended that the opinions or the views of any member of the city government or any number of officials could have any such effect; nor indeed could any act of theirs short of the proper action of the law making power de, novo give this result.

I will call attention to one point which I have thus far overlooked. It has been argued that no particular form of approval was prescribed by Congress, and that we might infer from what the mayor did and what he omitted to do, that he did approve of the ordinance. We think that this is a point not well taken; that the law implied there should be some positive action upon the part of the mayor in the way of an approval of the law, and that that action necessarily must be in writing, and must be a part of the record which shows to the world that this ordinance has become a law, and is binding upon the citizens of the corporation.

Arriving at the conclusion that the .alleged ordinance never was enacted into a law, the court has found it unnecessary to determine the other questions presented by the petitioner as grounds for his discharge, and the case will be dismissed and the defendant discharged.

There are two cases, I believe, before the court, in which it is stated that the questions involved are precisely the same as in the case in which action has just been pronounced, the case of George W. Cochran and one ether,, and the same judgment will be rendered in those cases,

Mr. H. E. Davis : I understand, then, that even if 1 averred most positively the approval by the mayor, and could not establish the approval to be in writing, it would be wholly futile ?

The Chief Justice: Precisely.

Mr. Justice James: This statute shows of itself, when all parts of it are construed together, that everything was to be in writing, the ordinance and'the approval; that there was but one way for the mayor to do, and that was to give his reasons in writing. Taking everything together, we think there is no doubt that that approval must be of record..  