City of Greenwood v. Jones

Oadhoon, J., delivered the opinion of the court. Appellee was convicted in a court of the police justice for the unlawful sale of intoxicating liquors. lie appealed to the circuit court, where a trial was had on an agreed statement of facts, under which the truth of the charge was not controverted, [733] and the only question was on the validity of the ordinance under which the conviction was had. By the agreed statement of facts it appears: “That an ordinance was passed on March 14, 1905, fixing the mayor’s office in the city hall as the place of meeting, and at eight o’clock p. m. on the first Tuesday of each month, or any other place the board might select by special order. It is further agreed that the municipal building, at which the present ordinance was passed under which the defendants are being tried, was the place at which the board met and passed said ordinance, and that the same is known and designated as the ' city hall,’ mentioned in the caption hereinafter stated; that no ordinance has been passed fixing the time and place of meeting of the board since March 14, 1905, as above; that the caption of the minutes of the meeting at which the ordinance against retailing was passed shows that the board met at the city hall, and a quorum was present, but does not show affirmatively on its face that the time and place of the meeting were the time and place fixed by law for holding said meeting, except that it shows that it was on the first Tuesday of August and at the city hall in Greenwood on August 7, 1906.” The first objection- by appellant is that § 8 of the ordinance passed on March 14, 1905, fixing the time and place of meeting, contains the words, “ or any place that may be selected by special order,” because of which it is said that the entire ordinance was void. We learn from the brief that the learned judge below did not concur with counsel on this objection. In this ruling we agree. It could be of no avail, unless it appeared that the board did in fact meet in a place other than that fixed by the ordinance under the law. Another objection made by counsel for the appellant is that, because that ordinance of March 14, 1905, was not re-enacted when the Code of 1906 took effect, and, because it was not thereafter passed, it was inoperative because of § 3407, Code 1906. That section is in the following words: [734] “3407. (3009.) Ordinance Book — The clerk shall keep a well-bound book, to be styled ‘ Ordinances, City (or Town or Village) of-in which he shall enter at length, in- a plain and distinct handwriting or typewriting, every ordinance in force at the time this chapter becomes operative, and which shall remain in force sixty days thereafter, and every ordinance thereafter enacted immediately after its passage; and he shall append to each a note stating the date of its passage, and cite therein the book and page of the minutes containing the record of its passage. The ordinances to be so recorded are those which are in their nature laws of the municipalities, and not mere order or decrees temporary in their nature. The clerk shall keep said book accurately indexed alphabetically.” We are also informed that the court below declined to take this view, and so do we. This section of the Code is merely a direction to the clerk as to what he shall do in reference to the recording of the general laws of the municipality which were in existence or which should remain in force sixty days. There is nothing which declares that his failure to maleé that book shall produce the result of voiding all preceding valid ordinances of a general nature, and we decline to hold that such effect would be produced by the omission of the clerk. In our view, the anterior valid ordinances continued to be in force, notwithstanding the clerk might omit to transcribe them into a book indexed for the convenience of ready reference. Another objection by counsel for appellee, in which only he had the concurrence of the court below, is that the ordinance is void because the caption of the minutes of the meeting at> which the ordinance against the unlawful sale of liquor was passed does not show affirmatively that the meeting was held at the time and place fixed by law for holding it, further than to. show it was on the first Tuesday of August and at the city hall generally. The Code of 1906 provides as follows: “ 3409. Clerk may Furnish Copy of Ordinance.— Whenever in any judicial proceeding it shall be necessary to prove the [735] existence of any municipal ordinance, a copy of such ordinance, certified to by the clerk of the municipality, or the ordinance book in which said ordinance is entered, may be introduced in evidence, and shall be prima facie evidence of the existence of such ordinance and that same was adopted and published in the manner provided by law.” It is agreed that the mayor’s office was in the city hall, and it is certain that the ordinance was produced in this proceeding on this trial, and our judgment is that the presumption was that it was adopted at the proper time and at the proper place, under the facts of this case, and that such presumption remained until the defendant showed that the meeting at which it was adopted was not legally held. Under the circumstances here shown, the presumption is that the procedure was legal. This is not a ease for the application of doctrines which apply to tribunals of limited and special jurisdiction, or tribunals exercising jursdiction under limited and special power, because here there was the exercise of jurisdiction general for the establishment of public laws adapted to the municipality. Under subdivision 2, § 40, Code 1906, we can neither reverse nor affirm, but simply announce our opinion, as we have done. 3&RíR>0!Et*