City of Greeley v. Hamman

17 Colo. 30 | Colo. | 1891

Mr. Justice Elliott

delivered the opinion of the court.

This was a prosecution under a municipal ordinance for the illegal sale of intoxicating liquors. There is no controversy in this court as to the violation of the ordinance as a question of fact; but the validity of the ordinance is challenged upon the ground that it was not legally passed. It was passed at a special meeting; and the contention is, that the evidence does not show that the meeting was legally called as required by law.

By the act-concerning towns and cities it is provided that the city council “ shall determine the times and places of holding their meetings, which shall at all times be open to the public ; and the mayor and any three members may call special meetings by notice to each of the members of the council personally served or left at his usual place of residence.”

The act further provides that the city council “ shall determine the rule of their own proceedings and keep a journal thereof, which shall be open to the inspection and examination of any citizen ; * * * they shall also appoint from the qualified electors of the city a city clerk who shall have the custody of all the laws and ordinances of the city, and shall keep a regular and correct journal of the proceedings of the council. * * * ” Mills’ Ann. Stats., sees. 4490, 4492.'

The official records of the city of Greeley, containing the ordinances of said citj'- and the minutes of the proceedings of the city council of said city attested by the proper officers, having been produced and identified by the proper custodian thereof, were competent evidence for the prosecution. They were official records required by law to be kept by a public officer; and the presumption is that they were “regular and correct,” as the statute requires. 1 Dillon Mun. Corp., 3d ed., sec. 304.

The official records thus introduced show every fact essential to the validity, of the passage of the ordinance. They show that the ordinance was passed at a special meeting called for the purpose of passing or amending ordinances; that the mayor, the clerk and all the aldermen were present at such meeting; that the ordinance was passed by a unanimous vote of all the aldermen upon a call of the yeas and nays, which were duly recorded. Town of Durango v. Pennington, 8 Colo. 261.

The fact that the clerk could not find among the records and files of his office the original notice of the special meeting did not under the circumstances proye that the meeting was illegal. Conceding that the statute (sec. 4492, supra) contemplates that each member of the council shall be served with written notice, it does not provide when the service shall be made, nor how the proof of such service shall be preserved, nor does it require that the original notice shall be kept on file by the clerk. We do not intimate that these details are of no consequence. In some controversies, perhaps, they might be important. 1 Dillon Mun. Corp., sec. 286. But, in this case, the fact that every member of the council was present at the meeting and voluntarily participated in all the proceedings precludes any contention that they did not one and all have due and timely notice. Moreover, the clerk did keep a record of the call of the meeting ; and the record shows that it was a special meeting called for the purpose of transacting the very business which was transacted. In the absence of evidence to the contrary, the presumption from such record is that the call was duly and regularly made. Omnia presumuntur rite et solemniter esse acta donee probetur in contrarium. 1 Broom’s Legal Maxims, 944; State v. Smith, 22 Minn. 218; Bank of U. S. v. Dandridge, 12 Wheaton, 69; State v. Vail, 53 Iowa, 550; McCormick v. Bay City, 23 Mich. 457.

The maxim that, “illegality will not be presumed, but the contrary,” as applied in this opinion, in no way conflicts with what was said in Tracy v. The People, 6 Colo. 155. In that case it was held that inasmuch as the statute (Gen. Laws, p. 896, sec. 26 ; 2 Mills’ sec. 4445,) requires that on the passage of every ordinance “ the yeas and nays shall be called and recorded,” the court was not at liberty to presume that the statute was complied with, unless the record affirmatively showed that the yeas and nays were recorded. The statute was held to be mandatory; and further, that the actual entry-of the yeas and nays in the record was an essential requirement. Of course the court could n'ot presume that the yeas and nays were recorded, when by an inspection of the record it was found that they were not recorded.

The question in this case is quite different. The statute provides for the calling of a special meeting of the council by .notice to be served personally or to be left at the usual place of residence of each member.. But it is not required that such notice or the record of such service shall be preserved iñ any particular manner. Hence, when the record shows that a special meeting was called and held, it is to be presumed that the call was regular and that the service of notice was duly made as required by the statute, at least, until the contrary is proved, as the maxim asserts.

From the proceedings of the council it appears that it was deemed necessary to pass the ordinance without delay to take the place of a similar one which had been held defective; and that upon the report of the ordinance by the judiciary committee the rules which interfered with its passage were upon motion duly suspended by a formal unanimous vote before the vote upon the ordinance was taken. So far as appears the rules so suspended were not rules prescribed by any superior authority, as by the constitution or laws of the state, but such rules as the council itself had adopted, and which it was authorized to adopt to govern its own proceedings. Sec. 4490, supra. Such rules might properly be thus suspended by unanimous consent. Cushing Law & Pr. of Legislative Assemblies, secs. 794, 1478, et seq.

The judgment of the county court dismissing this action is reversed and the cause is remanded for trial de novo.

Reversed.