67 Mo. 481 | Mo. | 1878
— In March, 1874, at a regular election for city officers in the city of Louisiana, Daniel A. Ball was elected city attorney, for the term of one year. Before the expiration of his term of office, the city ordinance providing for the election of the city attorney, was repealed by an ordinance which took effect from and after its passage, February 2nd, 1875. In March, 1875, the mayor and council appointed the defendant city attorney, and at the regular election for city officers, held in March, 1875, Ball again received a majority of the votes cast for city attorney, and claims the office by virtue of that election, contending that the city charter required the election of that officer by the qualified voters of the city, and that the ordinance repealing the ordinance providing for an election was, therefore, a nullity; and also that if the council had the power, by ordinance, to repeal the ordinance providing for the election, yet the ordinance passed March, 1875, was not, in fact, approved or passed until a month after the election, and after it purports to have been passed. On the trial, the plaintiff offered to prove that the ordinance was neither approved by the mayor nor attested by the clerk, until after the regular election in March, 1875, but defendant objected, and the court sustained the objection. The said repealing ordinance was introduced in evidence, and purported to have been passed February 2nd, 1875, and the defendant Fagg was appointed and commissioned March 16th, 1875. Sec. 1, Art. 4, of the original charter of the city, approved March 10th, 1849, declared that the chief executive officer should be a mayor, to be elected by
by the council. There is a great diversity of opinion on the question, whether the courts can go behind the formal attestation, and admit evidence to show that the requirements of the constitution were not complied with in passing the law. In this respect the same principles are applicable to the ordinances of municipal corporations, because the mischiefs which would result from permitting an ordinance of a city to be thus attacked, are the same in kind, although not in degree, as those which would follow from allowing acts of the Legislature to be thus overthrown. The weight of authority is against the admission of that kind of evidence to invalidate an act of the Legislature. In some of the States, journals of the proceedings of the Legislature, made and kept by authority of law, are held admissible to impeach an act of the General Assembly, valid upon its face. Mile v. Sterns, 3 Barb. 41; State v. Platt, 2 S. C. 150; Jones v. Hutchinson, 43 Ala. 722; People v. DeWolf, 62 Ill. 255. In the Pacific R. R. Co. v. The Governor, 23 Mo. 353, this court held otherwise, Leonard, J., dissenting.
The principle of that decision would exclude as evidence, even the record of the proceedings of the city council, to show that an ordinance, valid upon its face, was not legally passed, or was passed and approved prior or subsequent to the date of its attestation.
This evidence, however, was not offered in this case,
Affirmed.