City of Benton v. Nethercutt

George Howard, Jr., Justice. We are to determine whether the trial judge committed reversible error in concluding, in a declaratory judgment proceeding, that the City of Benton’s referendum ordinance, requiring referendum petitions to be filed within 30 days after the passage of an ordinance on which a referendum is sought, is invalid, thus resulting in an order requiring a referendum on ordinances 1, 3, 33, 34, 36, 37, 38 and 39, although the referendum petitions were filed more than 30 days after the passage of the ordinances. THE FACTS On December 20, 1977, the Board of Directors of the City of Benton enacted Ordinances Numbers 33, 34, 36, 37, 38 and 39. Ordinances 1 and 3 were enacted on January 3, 1978, and January 5, 1978, respectively. On February 2, 1978, petitions bearing 1,181 signatures, requesting a referendum on the ordinances, were filed with the City Clerk by appellees.1 The appellants refused to call an election contending that the referendum petitions were not filed within the time prescribed by Ordinance No. 2 of 1949. On March 14, 1978, appellees filed their petition in the Circuit Court of Saline County for a writ of mandamus requiring appellants to call an election. After conducting a hearing, the trial court entered the following order on August 17, 1978: “The Court finds that Ordinance No. 2 of 1949 which was introduced at the trial of the above styled case should not be considered as an authentic ordinance because it indicates no signature of the Mayor or Clerk-Recorder. “Therefore, the Court finds that the Petitions are timely and the certification by the individuals is adequate certification of the entire petitions. “Therefore, the Mayor and Council of the City of Benton are hereby ordered to call a special election within the next sixty days to refer to the voters of Benton, Arkansas Ordinances No. 1, 3, 33, 34, 36, 37, 39 & 39 of the year 1978.” On September 6, 1978, the trial judge entered the following supplemental order: “The Court advises that it inadvertently omitted from the Order previously entered herein, a stay of any action under the Ordinances ...” Appellants filed their notice of appeal on September 11, 1978. Pursuant to appellees’ petition praying an order requiring appellants to “show cause why they should not be held in contempt of this court for failure to comply with the prior order of this court,” the following second supplemental order was entered by the trial court on September 28, 1978: “2. The previous injunction ordered by this Court is modified as follows: Arkansas Power & Light Company, Arkla Gas, and Southwestern Bell Telephone Company are ordered to continue collections of taxes under the appropriate Ordinances above. Any payments made to the City of Benton under said Ordinances on or before this date may be retained by the City. Further, said utilities are ordered to divide all future payments under said Ordinances as follows: Any and all increases in future payments to the City of Benton caused by such Ordinances shall be paid into the registry of this Court, pending the outcome of the election or appeal. However, said utilities shall pay such amount as was required by former Ordinances to the City of Benton.” THE DECISION Inasmuch as an election was scheduled, on the ordinances involved in this case, for November 22, 1978, pursuant to the order of the trial court, and time was of the essence, we entered our order reversing the holding of the trial judge and stated that an opinion would follow delineating the posture of this Court in this matter. Accordingly, this opinion is issued in accordance with this pledge. It is plain from the record before us that the pivotal point in the trial judge’s holding that Benton’s Referendum Ordinance is invalid is because the copy introduced into evidence, by appellees, does not reflect the manual signature of the Mayor or the City Clerk as opposed to the signatures being typed, thus culminating in the conclusion that appellees’ petitions for referendum were timely.2 The fundamental problem that confronts us, in considering the stance taken by the trial judge, is the failure on the part of the trial court in not only acknowledging other acceptable ways of establishing lost ordinances which have been duly enacted, but the trial court’s failure to consider the abundance of evidence contained in this record that clearly and unequivocally established that the municipality of Benton duly and legally enacted a referendum ordinance, namely, Ordinance No. 2 of 1949. Maurice Bennett, City Clerk of Benton, testified that although he had examined the official books containing ordinances and resolutions enacted by the City from 1944 through 1960, he neither found the original nor a copy of Ordinance No. 2 of 1949, but he did find other evidence of its existence and further found that the ordinance had not been repealed. For example, Mr. Bennett testified that he found in the Book of Minutes for the period from 1942 through 1949, minutes of the City Council of June 1, 1949, wherein Ordinance No. 2 of 1949 was adopted and that the ordinance was referred to as “an ordinance fixing the time for filing of referendum petitions.” However, Mr. Bennett admitted that the minutes, which had been duly adopted, were not signed by the Mayor and the Recorder and stated that he could not offer any explanation for this, but the minutes were the official records of the City of Benton. Moreover, Mr. Bennett further testified that he found in the records the proof of publication of notice of the enactment of the ordinance; that the notice was published in the June 23, 1949, issue of the Benton Courier, a reputable daily newspaper located in Benton, and that the proof of publication was executed by L. V. White, manager of the Benton Courier; and that the printed version of Ordinance No. 2 of 1949, attached to the sworn proof of publication, designated Henry A. Kelly as Mayor and Lowell L. White as City Clerk. Mr. Bennett denied that he had any discussions with appellees relative to the time for filing referendum petitions; that he became aware, for the first time, that there was an ordinance on the subject during the time that the petitions were being circulated; and that although there was no copy of the ordinance available in his office, the minutes delineating the steps taken by the City Council of Benton in enacting the ordinance, and the proof of publication of the ordinance were on file for the public to inspect. Noel Butler, Jr., who has lived in Benton since 1936, held office under the old mayor-aldermanic form of government as Clerk for four years and Mayor for eight years, and, is currently serving as a member of the Board of Directors, testified that he was thoroughly familiar with the procedure followed by the City of Benton over the years relating to the passage, recording and maintenance of ordinances for the City of Benton. Mr. Butler further testified that after an ordinance is passed, it is published in the local newspaper three times; and that a copy of the ordinance is filed in the official ordinance book for the city. He also testified that during his administration as Clerk, he compiled the present set or- ordinance books and that they are the official and legitimate books of the City of Benton. Mr. Butler further stated that there was a discussion, during a meeting of the present Board of Directors, concerning the current issue whether the city had an ordinance that limited the time for the filing of referendum petitions; and that no further action was taken by the Board when a microfilm of the referendum ordinance was found at the City Library. Ark. Stat. Ann. § 19-2405 (Repl. 1968), in relevant part, provides: “The printed copies of the bylaws and ordinances of any municipal corporation, published under its authority, and transcripts of any by-law, ordinance, or of any act or proceeding of any municipal corporation, recorded in any book or entered on any minutes or journal, kept under the discretion of such municipal corporation, and certified by its clerk, shall be received in evidence for any purpose for which the original ordinances, books, minutes or journals would be received with as much effect. ...” Ark. Stat. Ann. § 19-2405 is in accord with the prevailing view that the original minutes of a municipal corporation, when duly kept and maintained, are competent evidence to prove the enactment of an ordinance. See: McQuillin, Municipal Corporations, 1969 Revised Volume, Section 22.39; Lewis v. Forrest City Special Improvement District, 156 Ark. 356, 246 S.W. 867 (1923). Moreover, an ordinance read in evidence from the books of a municipality will be presumed to have been enacted, where no evidence to the contrary appears. Van Buren v. Wells, 53 Ark. 368, 14 S.W. 38 (1890); Arkadelphia Lbr. Co. v. Arkadelphia, 56 Ark. 370, 19 S.W. 1053 (1892). In the instant case, it is clear that the proof of publication of notice of the adoption of the referendum ordinance, with a printed copy of the ordinance attached, from the Benton Courier, was filed in the Ordinance Book of the City and became a part thereof. In addition, under the best evidence rule, a printed compilation of ordinances when duly authenticated as correct is admissible as proof of an ordinance contained in the compilation, where it is established that the original ordinance has been misplaced or destroyed. See: Rule 1005, Uniform Rules of Evidence, which provides as follows: “The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may bé proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted. ” (Emphasis Added) Act 36 of 1949, Ark. Stat. Ann. § 19-2404, an act prescribing the procedure for the recording of Municipal Ordinances, for the publication of ordinances and the adoption of codes for zoning, construction of buildings, installation of plumbing and the installation of electrical wiring, is neither dispositive of the issue raised in this action, nor conflicts with the posture taken by the Court. Ark. Stat. Ann. § 19-2405, among other things, is a rule of evidence. In other words, an ordinance which has been duly enacted and published, but misplaced or lost, the minutes or journal, which are official, “shall be received in evidence for any purpose for which the original ordinances, books, minutes or journal would be received with such effect.” In Adams v. Sims, 238 Ark. 696, 385 S.W. 2d 13, decided November 23, 1964, we made the following pertinent observation: “. . . While the Court does not countenance nor encourage carelessness on the part of city officials or the keeping of inadequate city records, the ordinances, resolutions or acts of municipal councils will not be invalidated if it appears from the record that the proceedings were regular and in substantial compliance with the law, and presumptions will be indulged in favor of the validity of the corporate action. . . . The weight of authority recognizes that most corporate acts can be proven as well by parole evidence as by the introduction of written instruments. The fact that the records of a city failed to disclose actions by its city council is not conclusive that the council did not take same. Parole evidence is permissible to establish the real facts of corporate acts in the absence of records, or where the record which it kept is so meager where the particular transaction, act or vote is not disclosed. ...” The posture taken by the Court in Adams was predicated in part upon Ark. Stat. Ann. § 19-2405. Therefore, it is readily apparent that Ark. Stat. Ann. § 19-2404 did not repeal § 19-2405. Aside from the aforementioned evidence establishing the enactment of Benton’s Referendum Ordinance, the lapse of 29 years since the passage of the ordinance coupled with the testimony of Charles Nickerson, City Manager, to the effect that previous revenue ordinances enacted by the City of Benton which generated referendum petitions, raises a sufficient presumption not only of the enactment of the referendum ordinance, but approval of same by the Mayor and a publication of the measure. Phenix City v. Southern Bell Telephone & Telegraph Co., 33 F. Supp. 283; Santa Rosa v. Central St. Ry. Co., (Cal.), 38 P. 986; McQuillin, Municipal Corporations, 1969 Revised Volume, Section 22.34. We, therefore, conclude that the evidence contained in this record dictates a finding that appellees’ referendum petitions were untimely, and, accordingly, we reverse the trial court. Reversed. Fogleman, J., concurs. George Rose Smith, Byrd and Hickman, JJ., dissent. Footnotes [1] Appellees-petitioners alleged in their petition for mandamus in the trial court that the petitions for referendum would have been filed within 30 days of enactment of the ordinances “except the city officials informed them they would need signatures based upon the last general election when, in fact, they needed signatures based upon the election for city directors in January, 1977.” The only issue presented by this appeal relates to the validity of the referendum measure, Ordinance No. 2 of 1949. [2] Amendment No. 7, Section 1, of the Arkansas Constitution, in relevant part, is as follows: “. . . [Referendum powers of the people are hereby further reserved to the local voters of each municipality . . . “Municipalities may provide for the exercise of the . . . referendum as to their local legislation. “. . . In municipalities and counties the time for filing ... a referendum petition is not less than 30 days nor more than 90 days after the passage of such measures by a municipal council. ...”