Whalim v. City of Macomb

Mr. Justice Scholfield delivered the opinion of the Couyt: There are but íavo grounds of reversal insisted on in the ai-gument filed on behalf of appellant, and they may be briefly disposed of. First—It is argued that by section 28 of the charter of the city of Macomb, a digest of the ordinances of the city is required to be published in one year after granting the charter, and a like digest within every period of five years thereafter ; and that this duty has been disregarded by the city, as the last digest of its ordinances was published on the 13th of Ho-Arember, 1868 Whether it is intended to insist that the city has thereby forfeited its charter, or only that the ordinances, a digest of which has not been published within five years, are void, is not entirely clear. If the former is intended, it would seem to be a sufficient answer that the question of whether the charter has been forfeited can only be raised in a direct proceeding for that purpose—by scire facias or quo warranto. If, however, as is more probable, it is only intended to be claimed that the ordinances are void, it will be readily seen that this requirement in the charter belongs to that class of legislation which is held to be directory merely. It is not declared in the section under consideration, that the ordinances shall be void if not thus published, nor is there any other language used showing that such publication was to be a condition precedent to the further exercise of municipal powers by the city. The publication seems designed merely for the convenience of those whose duties or necessities require that they should be familiar with the ordinances, it being entirely independent from that required prior to the ordinance being in force as a municipal law—which is shown by the record to have been properly made. A familiar common law rule, repeatedly recognized by this court, is : “Where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language used by the legislature, shows that the designation of the time was intended as a limitation of the power of the officer.” This applies with equal force where, as in the present instance, the act to be done requires the co-operation of several officers. Second—It is claimed that, under the ordinance by virtue of which the suit is brought, appellant, if liable at all, could only be sued on his bond, which he was required to execute to secure his faithful compliance with the law and ordinances while engaged in his business. We fail to appreciate the force of this argument. The ordinance, as copied in the record and published in appellant’s abstract, is explicit in its language, that the penalties thereby imposed “may be recovered in an action of debt, or as damages in a suit on his or their bond.” The causes for which these penalties may be imposed are distinctly stated; and they are none the less offenses under the ordinance because they are also breaches of the conditions of the bond. The judgment is affirmed. Judgment affirmed.