By-law

Last updated

A by-law (bye-law, by(e)law, by(e) law), also known in the United States as bylaws, is a set of rules or law established by an organization or community so as to regulate itself, as allowed or provided for by some higher authority. The higher authority, generally a legislature or some other government body, establishes the degree of control that the by-laws may exercise. By-laws may be established by entities such as a business corporation, a neighbourhood association, or depending on the jurisdiction, a municipality.

Contents

In the United Kingdom and some Commonwealth countries, the local laws established by municipalities are referred to as by(e)-laws because their scope is regulated by the central governments of those nations. Accordingly, a bylaw enforcement officer is the Canadian equivalent of the American Code Enforcement Officer or Municipal Regulations Enforcement Officer. In the United States, the federal government and most state governments have no direct ability to regulate the single provisions of municipal law. As a result, terms such as code , ordinance , or regulation , if not simply law, are more common.

Etymology

The Merriam-Webster Dictionary indicates that the origin of the word by-law is from the English word bilawe, probably from Old Norse *bȳlǫg, from Old Norse bȳr town + lag-, lǫg law. [1] The earliest use of the term, which originates from the Viking town law in the Danelaw, wherein by is the Old Norse word for a larger settlement as in Whitby and Derby (compare with the modern Danish-Norwegian word by meaning town, or the modern Swedish word by, meaning village). [2] However, it is also possible that this usage was forgotten and the word was "reinvented" in modern times through the use of the adverbial prefix by- giving the meaning of subsidiary law or side-law (as in byway ). [2] In any case, it is incorrect to claim that the word is related to the prepositional phrase "by law"; that is a modern conjecture contradicted by the evidence.

Municipal by-laws

Municipal by-laws are public regulatory laws; which apply in a certain area. The main difference between a by-law and a law passed by a national/federal or regional/state body is that a by-law is made by a non-sovereign body, which derives its authority from another governing body, and can only be made on a limited range of matters. A local council or municipal government derives its power to pass laws through a law of the national or regional government which specifies what things the town or city may regulate through by-laws. It is therefore a form of delegated legislation. Within its jurisdiction and specific to those areas mandated by the higher body, a municipal by-law is no different from any other law of the land, and can be enforced with penalties, challenged in court, and must comply with other laws of the land, such as the country's constitution. Municipal by-laws are often enforceable through the public justice system, and offenders can be charged with a criminal offence for breach of a by-law. Common by-laws include vehicle parking and stopping regulations, animal control, building and construction, licensing, noise, zoning and business regulation, and management of public recreation areas.

Japan

Under Article 94 of the Constitution of Japan, regional governments have limited autonomy and legislative powers to create by-laws. In practice, such powers are exercised in accordance with the Local Autonomy Law.

By-laws therefore constitute part of the legal system subordinate to the Japanese constitution. In terms of its mandatory powers and effective, it is considered the lowest of all legislation possible.

Such powers are used to govern the following:

United Kingdom

"Byelaws for good rule and government" in Ripon, North Yorkshire Sign in a car park in Ripon, North Yorkshire.jpg
"Byelaws for good rule and government" in Ripon, North Yorkshire

In the United Kingdom, by-laws are laws of local or limited application made by local councils or other bodies, using powers granted by an Act of Parliament, and so are a form of delegated legislation.

Australia

In Australian Law there are five types of by-law, and they are established by statute:

Organizational by-laws

Corporate and organizational by-laws regulate only the organization to which they apply and are generally concerned with the operation of the organization, setting out the form, manner, or procedure in which a company or organisation should be run. Corporate by-laws are drafted by a corporation's founders or directors under the authority of its charter or articles of incorporation.

Typical articles

By-laws widely vary from organization to organization, but generally cover topics such as the purpose of the organization, who are its members, how directors are elected, how meetings are conducted, and what officers the organization will have and a description of their duties. A common mnemonic device for remembering the typical articles in by-laws is NOMOMECPA, pronounced "No mommy, see pa!" [10] [11] It stands for name, object, members, officers, meetings, executive board, committees, parliamentary authority, amendment. [10] [12] Organizations may use a book such as Robert's Rules of Order Newly Revised for guidelines on the content of their by-laws. [13] This book has a sample set of by-laws of the type that a small, independent society might adopt. [14]

The wording of the by-laws has to be precise. Otherwise, the meaning may be open to interpretation. In such cases, the organization decides how to interpret its by-laws and may use guidelines for interpretation. [15]

Amendment

Usually, one of the last sections in the by-laws describes the procedures for amending them. It describes who can amend them (usually the membership, but it could be the organization's board of directors), how much notice is needed, and how much of a vote is needed. A typical requirement is a two-thirds vote provided that previous notice was given or a majority of all the members. [16]

Relation to other governing documents

Cover of guideline document by United Steelworkers to form the basis of by-laws that may be adopted by a local union Usw bylaw guideline.jpg
Cover of guideline document by United Steelworkers to form the basis of by-laws that may be adopted by a local union

In parliamentary procedure, including Robert's Rules of Order, the by-laws are generally the supreme governing document of an organization, superseded only by the charter of an incorporated society. [17] The by-laws contain the most fundamental principles and rules regarding the nature of the organization. [17]

It was once common practice for organizations to have two separate governing documents, a constitution and by-laws, but this has fallen out of favor because of the ease of use, increased clarity, and reduced chance of conflict inherent in a single, unified document. [17] This single document, while properly referred to as the by-laws, is often referred to as a constitution or a constitution and by-laws. [17] Unless otherwise provided by law, the organization does not formally exist until by-laws have been adopted. [18]

Application to organizations

Unions

In some countries, trade unions generally have constitutions, which govern activities of the international office of the union as well as how it interfaces with its locals. The locals themselves can set up their own by-laws to set out internal rules for how to conduct activities.

In other countries, such as the United Kingdom, union by-laws are sometimes a subset of the union's constitution or implement the union's rules in more detail. [19]

Nonprofit organizations

Nonprofit organizations in the United States applying for Federal Tax-Exemption Status are required to adopt bylaws for their organizations. Bylaws for nonprofit organizations by themselves are more of an internal organizing document than required by most states but are necessary for filing for nonprofit 501(c)(3) tax-exemption application using the Form 1023. [20]

See also

Related Research Articles

Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.

Freedom of information laws allow access by the general public to data held by national governments and, where applicable, by state and local governments. The emergence of freedom of information legislation was a response to increasing dissatisfaction with the secrecy surrounding government policy development and decision making. In recent years Access to Information Act has also been used. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions. Also variously referred to as open records, or sunshine laws, governments are typically bound by a duty to publish and promote openness. In many countries there are constitutional guarantees for the right of access to information, but these are usually unused if specific support legislation does not exist. Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms as a means to ensure accountable, inclusive and just institutions.

The Commerce Clause describes an enumerated power listed in the United States Constitution. The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.

A decree is a legal proclamation, usually issued by a head of state such as the president of a republic, or a monarch, according to certain procedures. It has the force of law. The particular term used for this concept may vary from country to country. The executive orders made by the President of the United States, for example, are decrees.

City of Boerne v. Flores, 521 U.S. 507 (1997), was a landmark decision of the Supreme Court of the United States concerning the scope of Congress's power of enforcement under Section 5 of the Fourteenth Amendment. The case also had a significant impact on historic preservation.

Delegated legislation or secondary legislation in the United Kingdom is law that is not enacted by a legislative assembly such as the UK Parliament, but made by a government minister, a delegated person or an authorised body under powers given to them by an Act of Parliament.

<span class="mw-page-title-main">Parking enforcement officer</span> Official who issues tickets for vehicle parking violations

A parking enforcement officer (PEO), traffic warden, parking inspector/parking officer, or civil enforcement officer is a member of a traffic control agency, local government, or police force who issues tickets for parking violations. The term parking attendant is sometimes considered a synonym but sometimes used to refer to the different profession of parking lot attendant.

<span class="mw-page-title-main">Local government in the United States</span> Governmental jurisdictions below the level of the state

Most U.S. states and territories have at least two tiers of local government: counties and municipalities. Louisiana uses the term parish and Alaska uses the term borough for what the U.S. Census Bureau terms county equivalents in those states. Civil townships or towns are used as subdivisions of a county in 20 states, mostly in the Northeast and Midwest.

In United States constitutional law, the police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants. Police power is defined in each jurisdiction by the legislative body, which determines the public purposes that need to be served by legislation. Under the Tenth Amendment to the United States Constitution, the powers not delegated to the Federal Government are reserved to the states or to the people. This implies that the Federal Government does not possess all possible powers, because most of these are reserved to the State governments, and others are reserved to the people.

Massachusetts shares with the five other New England states a governmental structure known as the New England town. Only the southeastern third of the state has functioning county governments; in western, central, and northeastern Massachusetts, traditional county-level government was eliminated in the late 1990s. Generally speaking, there are four kinds of public school districts in Massachusetts: local schools, regional schools, vocational/technical schools, and charter schools.

The enumerated powers of the United States Congress are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers are listed in Article I, Section 8.

<span class="mw-page-title-main">Local ordinance</span> Ordinance applying to a municipality or other locality

A local ordinance is a law issued by a local government such as a municipality, county, parish, prefecture, or the like.

<span class="mw-page-title-main">Code enforcement</span>

Code enforcement, sometimes encompassing law enforcement, is the act of enforcing a set of rules, principles, or laws and ensuring observance of a system of norms or customs. An authority usually enforces a civil code, a set of rules, or a body of laws and compel those subject to their authority to behave in a certain way.

<span class="mw-page-title-main">Law enforcement in Canada</span> Overview of law enforcement in Canada

Law enforcement in Canada is the responsibility of police services, special constabularies, and civil law enforcement agencies, which are operated by every level of government, some private and Crown corporations, and First Nations. In contrast to the United States or Mexico, and with the exception of the Unité permanente anticorruption in Quebec and the Organized Crime Agency of British Columbia, there are no organizations dedicated exclusively to the investigation of criminal activity in Canada. Criminal investigations are instead conducted by police services, which maintain specialized criminal investigation units in addition to their mandate for emergency response and general community safety.

<span class="mw-page-title-main">Bylaw enforcement officer</span> Law enforcement officer responsible for enforcing local ordinance

A bylaw enforcement officer is an employee of a municipality, county or regional district, charged with the enforcement of local ordinance—bylaws, laws, codes, or regulations enacted by local governments. Bylaw enforcement officers often work closely with police and other law enforcement agencies, but are generally not considered emergency services.

<span class="mw-page-title-main">Voluntary association</span> Group of people with shared interests or aims

A voluntary group or union is a group of individuals who enter into an agreement, usually as volunteers, to form a body to accomplish a purpose. Common examples include trade associations, trade unions, learned societies, professional associations, and environmental groups.

The Local Government Act of Bhutan was enacted on September 11, 2009, by parliament of Bhutan in order to further implement its program of decentralization and devolution of power and authority. It is the most recent reform of the law on Bhutan's administrative divisions: Dzongkhags, Dungkhags, Gewogs, Chiwogs, and Thromdes (municipalities). The Local Government Act of Bhutan has been slightly amended in 2014.

Legal interpretation in South Africa refers to the juridical understanding of South African legislation and case law, and the rules and principles used to construct its meaning for judicial purposes. Broadly speaking there are three means by which and through which South African scholars and jurists construe their country's statutory law: linguistics or semantics, common law and jurisprudence. Although statutory interpretation usually involves a personal predisposition to the text, the goal is generally to "concretise" it: to harmonise text and purpose. This is the final step in the interpretative process. Statutory interpretation is broadly teleological, comprising as it does first the evaluation and then the application of enacted law.

South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules, but may delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.

References

  1. "Definition of BYLAW". www.merriam-webster.com. Retrieved 2017-11-05.
  2. 1 2 Oxford English Dictionary online entry for "by-law" (subscription required) [ dead link ]
  3. Subordinate Legislation Act 1989 (NSW) s 3 Definitions.
  4. Environmental Planning and Assessment Act (NSW).
  5. Hill, Gerald N.; Hill, Kathleen (2002). The people's law dictionary : taking the mystery out of legal language. New York, NY: MJF Books. ISBN   9781567315530.
  6. Strata Schemes Management Act 1996 (NSW) sections 41-60.
  7. Strata Titles Act 1985 (WA).
  8. Thomson, Jimmy (June 19, 2013). "Apartments go to the dogs". News.domain.com.au.
  9. Thomson, Jimmy (July 2, 2013). "No dog rule overturned". News.domain.com.au.
  10. 1 2 Geitner, Frank (December 2, 2014). "Point of Order". Newport News Times. Newport (Oregon) News Times. Archived from the original on January 6, 2016. Retrieved 2016-01-06.
  11. Prykucki, Bethany (1 May 2014). "Basics of bylaws". Michigan State University. Retrieved 21 January 2022.
  12. Robert, Henry M.; et al. (2011). Robert's Rules of Order Newly Revised (11th ed.). Philadelphia, PA: Da Capo Press. p. 13. ISBN   978-0-306-82020-5.
  13. Robert 2011 , pp. 570–583
  14. Robert 2011 , pp. 583–588
  15. Robert 2011 , pp. 588–591: "Some Principles of Interpretation"
  16. Robert 2011 , p. 592
  17. 1 2 3 4 Robert 2011 , p. 12
  18. Robert 2011 , p. 559
  19. "GMB Union rulebook – see rule 11.8 as an example" (PDF). Gmb.org.uk. Archived from the original (PDF) on 2010-08-03.
  20. "Nonprofit Bylaws Template for 501c3 [Sample & Example]". Form 1023 Tax Exemption Application Help & 501c3 Instructions. Retrieved 2022-05-14.