Quint v. City of Merrill

Dodge, J. l. In the view the court has taken of this case, the primary and only question needing to be considered is whether the book offered in evidence was conclusive of the regularity of the adoption and publication of the ordinance attempting to amend the city charter. Sec. 4137, Stats. 1898, provides: “ Copies of the ordinances, by-laws, resolutions and. [409] regulations of any city or village in tbis state, printed in any newspaper, book, pamphlet or other form and purporting to be published by authority of the proper common council or village board shall, to a like extent, be admitted as presumptive evidence thereof; and from and after three years from the date of the compilation and publication of such book or pamphlet shall be conclusive evidence of the regularity of the adoption and publication thereof.” "We agree with the court below in the conclusion that the book in question nowhere .purports to be published by authority. It may not be necessary to decide exactly what will suffice to meet this call of the statute, but certainly there is necessary some declaration in or upon, and as a part of, the book or pamphlet, that its publication is by reason of some competent authority. An illustration exists in our own revised statutes, which declare upon their title page that they are “ Printed and Published Pursuant to Chapter 306, Laws of 1895, and Chapter 379, Laws of 1897.” The Session Laws contain upon the title page, after the declaration that they are the laws of Wisconsin, the words, “ Published by Authority.” Stress is laid by appellant upon the committee report printed in said book, the material part of which is quoted in the foregoing statement of facts. A careful reading of that report seems to refute, rather than assert, authority in the committee to publish. The direction to “revise and reprint,” and to submit by a report the result of those labors, conveys the idea that the authority was only to take steps preliminary to publication, and that up to the time of such report the city council had reserved to itself the decision whether the “result of the labors ” of the committee should be approved and adopted, and should be published. A more conclusive answer to the efficacy of this report to purport an authority for publication of a book of ordinances is that the authority there claimed relates only to the charter. Authority even to reprint and publish the charter is not an [410] .•authority to publish a book containing the ordinances, and •one that shows itself to be under the former authority does not, as to ordinances that may be printed therein, purport to be published by authority. The book therefore failing to establish conclusively the regularity of the ordinance, the question of its validity was open; and as it was fully proved that the notice of its proposed adoption was published less than three weeks before the day specified therein, and, indeed, less than three weeks before its adoption in fact, the ¡ordinance wholly failed of effect to amend the former charter. Sec. 72, ch. 312, Laws of 1893. That remains unchanged, and offers no obstacle to the maintenance of this action. Another ordinance (No. 67) is suggested by appellant, but that ordinance was never published at all before its passage, and is quite as ineffective as ordinance No. 52. 2. The error, if any, in allowing amendment of the ad ■damnum to an amount greater than the claim or bill presented by plaintiff to the council, was not prejudicial, for the ■verdict and judgment were for less than the amount of that Lili. Conrad v. Ellington, 104 Wis. 367. By the Court.— Judgment affirmed.