The exceptions which were argued in this case relate to the exclusion of evidence; but the declaration is before us, and if it appears from that, that the action could not be sustained upon any evidence which could be given under it, it would be idle to pass upon the exceptions.
The action is brought under an ordinance of the city of Grand Rapids, which provides that in case any building, fence or other improvement, which now is or may hereafter be erected within said city, shall. extend into or in any manner encroach upon or obstruct' any *57highway, street, alley or public square, the City Superintendent may serve or cause to be served a written notice on the owner or occupant thereof, if a resident, and if not a resident, by posting the same in a conspicuous place, therein specifying the location and extent of such encroachment, and requiring such owner within thirty days to remove the same, from such street, &c., and if such owner shall not, within the time specified, remove such obstruction or encroachment, he shall be liable to a penalty of ten dollars for every day thereafter, until such obstruction or encroachment shall be removed.
The particular encroachment complained of in this case, is, the enclosing a portion of the Grandville road, so called, with a board and post fence, and the erection of a dwelling house within the enclosure. This appears to have been done in 1851, six years before the ordinance was passed, and before the amended city charter under which the power to pass the ordinance is claimed.
The charter empowers the Common Council of the city to pass ordinances for a great variety of purposes, and to prescribe a penalty not exceeding one hundred dollars for their violation. Among the purposes specified is, “ To prevent the cumbering of streets, side - walks, cross-walks, lanes, alleys, bridges, aqueducts, wharves or slips, in any manner whatever.” — Laws 1857, p. 285. From the record it is to be inferred that the Common Council deduce their authority to pass the ordinance in question from this provision. K so, we do not think it can •be sustained as applicable to cases like the present.
Our laws have always made a distinction between cumbering or obstructing a public way, and encroaching upon it. The former term has been applied to impediments to travel and passage placed in the open street, and tending to make its use difficult or dangerous; while the latter has embraced the actual enclosure of a portion of the street by fences or walks, or occupation by *58buildings. The mode of dealing with the two offenses has almost always been different, and the penalties also. We need only to refer to Code of 1827, p. 396 - 7, § 25 and 26; Code of 1833, p. 111; R. S. of 1838, p. 128; R. S. of 1846, p. 138; Comp. Laws, p. 366; Laws of 1861, p. 153. The city charters have 'made the same distinction, and we are not at liberty to overlook it. An encroachment upon a street may, in one sense, be said to “cumber” it, but as the legislature has n liver employed the two words as synonymous terms, we cannot hold that a power to impose penalties for cumbering or obstructing the streets will authorize proceeding in the same manner for encroachments.
The charter, however, empowers the Common Council to prevent and remove all encroachments upon the streets; and it may perhaps be. thought that this would authorize them to impose penalties as one means of preventing or removing such encroachments. But where the charter specifically enumerates various powers which the council may render effectual by means of penal prosecutions, we think this enumeration is an implied exclusion of the right to impose penalties in other cases. — Child v. Hudson's Bay Co. 2 P. Wins. 207; State v. Ferguson, 33 N. H. 424. We think, therefore, that while the legislature has fully authorized the council to impose penalties for obstructions, it has carefully withheld the power in case of encroachments.
Many reasons may have operated upon the legislative mind to induce them to make this distinction. Obstructions which “ cumber ” a street or walk are commonly the result of carelessness, negligence or mischief, and require prompt remedies; while encroachments usually proceed from a claim of legal right to the land occupied, and the ordinary legal remedies are sufficient for the trial of this right. The merchant who allows his boxes and barrels needlessly to cumber the street .after notice to *59remove them, may properly be fined for his neglect; but we doubt if any legislature would intentionally authorize ordinances under which one who many years before had erected a building upon what he claimed to be the line of the street, might be ruined by the accumulation of penalties against him at the rate of ten dollars a day if he failed to acquiesce in the public right, and destroy or remove the building when the notice was served upon him. And as the council have the same power to impose continuing penalties of a hundred dollars a day as of any smaller sum, it is easy to see that cases may arise where one acting in perfect good faith may be severely and needlessly punished for the simple assertion of what he believed to be his rights, and under an ordinance which, if not strictly ex post facto in the legal sense, is so at least to the common apprehension as well as in its consequences.
'Under the general law of the state the penalty for an obstruction to a public highway is twenty-five dollars, while that for an encroachment is limited to fifty cents a day. — Irnos of 1861 p. 153. It is not probable that the legislature supposed they were authorizing the imposition of penalties to two hundred times this amount in the city of Grand Rapids. On the contrary, it is to be inferred that when they had empowered the city authorities to proceed themselves to the removal of encroachments, they had conferred all the power over the subject that they thought was needed in addition to that which the public authorities possessed by means of the ordinary remedies.
As this disposes of the case, we do not discuss the . other questions which arise upon the ordinance. The judgment of the Recorder’s Court must be affirmed, with costs.
The other Justices concurred.