90 Ill. 416 | Ill. | 1878
delivered the opinion of the Court:
This action was brought to recover of defendant a penalty imposed for the violation of a village ordinance regulating the sale of intoxicating liquors. On the trial, both before the justice of the peace and in the circuit court, defendant was found guilty, and judgment rendered against him for $50, and to reverse the judgment of the latter court he brings the case to this court on appeal.
Unless the village is organized under the general incorporation act of 1872, it is conceded it had no authority to pass the ordinance that imposed the penalty sought to be recovered, and as the record contains no express averment to that effect, it is said this court can not take judicial notice of its organization under the general law.
The statute makes it the duty of all courts in this State to take judicial notice of the existence of villages and cities organized under the general law, and of the change of the organization of any town or city from its original organization to its organization under that act. In Brush v. Lemma, 77 Ill. 496, it was declared that before this court could take judicial notice of the change of any city or town from its original organization to its organization under the general law, it must in some way appear in the record that the city or its authorities are acting under such new organization, and when that fact is once made to appear, the court, without proof that all the requirements of the statute have been complied with, will take judicial notice of its organization under this statute. It is apprehended it can make no difference how that fact is made to appear. All matters generally known will be deemed to be within the knowledge of courts,—such as the names of counties -in the State, and whether they are acting under township organization or not. In the case cited there was a special, public law, of which the court was bound to take judicial notice, under which the city was originally organized. The single fact, an election had been held and two persons were contesting the right to the office of mayor, was not regarded as such action as would indicate the inhabitants were acting under the general incorporation law. Such an election for such an office could, with equal propriety, have been held under the special law under which the city may have been acting, and hence that circumstance alone was not thought to be sufficient to “excite inquiry” or “arouse judicial notice, the city, as a matter of fact, had changed its organization from under the special to the general law.”
But that is not the case here. There was a special law under which the “town of Bradford” could be and no doubt was organized, but there was no law other than the act of 1872 under which it could be organized as a village. It could only be a village under the general incorporation act. Evidence is found in the record it has assumed to act as a village incorporation in the passage of ordinances and the bringing of suits in its corporate name, and it appears the offense of which defendant was convicted was committed within the corporate limits of the “village of Bradford.” This is certainly evidence of the existence of the village of Bradford, and as it is known there is no such village under any special law of the State, it must he under the general law; and, as was said in Brush v. Lemma, without proof that all the requirements of the statute have been complied with, judicial notice will be taken of the change of its organization under the general law.
The ordinance under which defendant was fined was, within five days after its passage, posted in three “public places” in the village. That is all the publication that was made of the ordinance so far as the record discloses. Primarily the requirement of the statute is, all ordinances of any city or village imposing any penalty or punishment shall, within one month after passage, be published at least once in a newspaper published in such city or village; but if no newspaper is published therein, then the publication of such ordinances may be made by posting in three public places in the city or village. A general objection to reading the ordinance in evidence was made by defendant, and was by the court overruled, to which ruling an exception was saved. It is now insisted it was not lawful to publish the ordinance simply by posting unless no newspaper was published in the village, and that such fact necessary to authorize the publication of the ordinance by posting must appear from the clerk’s certificate, or otherwise, before the ordinance can take effect. Had the objection now made in argument been made in the court below, the clerk might have been able to amend his certificate so as to show no newspaper was then. published in the village, or the fact might have been made to appear by other proof that no newspaper was published in the village, and in that event the publication of the ordinance by posting was valid. But the objection was not specifically urged, and the prosecution was afforded no opportunity to supply the necessary proof.
The same may be said as to the other point made, that it does not appear, from the record, the ordinance was passed by calling the ayes and noes. The journal of the village trustees was not introduced by either party, and we can not know what it shows upon the question made.
• The judgment must be affirmed.
Judgment affirmed.
