Schofield v. Village of Hudson

Mr. Justice Pleasants delivered the opinion or the Court. Judgment below was rendered against appellant for a penalty of $3 for a violation of an alleged ordinance concerning animals running at large, and the sole question here is whether the supposed ordinance was duly passed, . The statute requires that the village board “ shall keep a journal of its own proceedings,” that “ the yeas and nays shall be taken upon the passage of all ordinances * * * which shall be entered on” it, and that “the concurrence of a majority of all the members elected shall be necessary to the passage of any such ordinance.” B. S., Oh. 24, Art. Ill, Secs. 12, 13. But Sec. 8 declares that a majority of those elected shall constitute a quorum to do business. The journal entry respecting the ordinance in question is as follows: “ Hudson, March 14, 1888. • Board met at call of president. Members present, Cast-man, Cox, Dement, Sater, Wallace and Miller. Minutes of last meeting read and approved. Motion made and carried that the resolution declaring the village of Hudson duly incorporated under the laws of the General Assembly be entered upon the record of the said village. Hew ordinances numbers 1, 2, 3 and 10 were adopted and passed by the board. Motion made and carried to adjourn, to meet tomorrow, March 15, at one o’clock p. m. George W. Gastman, President. Ira Barsby, Village Clerk.” Hew ordinance number 3, therein mentioned, is the one here considered. Doubtless the chief object in requiring the vote in such cases to be taken by yeas and nays and recorded, was to make it certainly appear that a majority of all the members and not merely of a quorum concurred in the passage of the proposed ordinance, though another and proper one may have been to show who voted, and how, and who failed to vote, if any, on the question of such passage. Hor is there°any doubt that the requirement is imperative; but whether a strict literal compliance is required is not clear from decisions of other States as to like provisions. In Barr v. The Village of Auburn, 89 Ill. 361, a record not in literal compliance was somewhat doubtfully held sufficient by a majority of the court, and positively denied by one member. There, the entry on the journal, after giving the name of one member of the board as the only absentee, stated that the ordinance was passed “unanimously;” and the court held it sufficiently showed, though only by implication, that the other five were present and concurred in the affirmative vote. Thus it identified those so voting, and showed that they constituted a majority of all the members elected, as matter of fact and not of opinion or understanding, which is the full and precise effect of a vote by yeas and nays. We would therefore feel bound, in alike case, to do likewise. Here, though all six of the members are named as being present at the meeting, it is not stated in any form of expression that they voted unanimously. Thus it entirely fails to show, with reasonable certainty, that the vote was taken by yeas and nays, or that all or any certain member voted in any other manner, or how any particular number voted. It is said that this expression, in connection with the statement of the members present, clearly imports or implies that as many as four concurred. We think the journal entry does not of itself so import or imply. From the entry, with the laws making six the full number and requiring the concurrence of a majority of all elected, and the further presumption that the board and the clerk complied with this requirement, such would be the inference. But whether they did so comply, is the very question in issue, upon which the burden of proof was on the village throughout the case, and the evidence was the journal entry. To presume that the law was complied with, is to shift the burden and beg the question. Upon this reasoning an entry stating that six,'five or four members were present, and that the ordinance was passed, would suffice, though simply and wholly ignoring the statute, which imperatively requires a record showing with reasonable certainty who voted for its passage and that they constituted a majority of all the members elected. It is apparent from the opinion in the Barr case that the word “ unanimously ” was what saved the ordinance, and hardly saved it. Nothing tantamount to it appears here, and we are of opinion that by the material difference thus shown, the evidence here falls short of what is required. The judgment will therefore be reversed.