48 Ill. App. 202 | Ill. App. Ct. | 1892
Opinion of the Court, the
This was a prosecution against the appellant for a violation of an ordinance of the village. It came first for trial before a justice of the peace, who was at the time, one of the village trustees. The appellant, upon the theory that the justice, by reason of the fact that he was one of the village trustees, could not entertain jurisdiction of the cause, moved its dismissal.
The justice ruled that he was not so incapacitated by the trusteeship, and proceeded with the trial of the case, in which the appellant did not participate. The result was a judgment against the appellant, from which he appealed to the County Court. He renewed his motion in the County Court, where it was again overruled, whereupon the cause was tried before a jury, both parties participating. This trial resulted in a verdict and judgment against the appellant, to reverse which he brings this appeal.
Justices of the peace are given jurisdiction of prosecutions for the violation of village ordinances by Sec. 69, Chap. 24, Rev. Stat., which is the subject-matter of this suit. The justice in question"had jurisdiction of the person of the appellant, and if there was any infirmity affecting his right to try the case it was because of his official connection with the village. Appeals from .justices are wholly matters of statutory regulation, and the statute (Sec. 72, Chap. 79 R. S.) provides that appeals, so taken, shall be heard and determined in a summary manner, according to the justice of the case and without exception to any proceeding before the justice, unless it is that such justice had not jurisdiction of the subject-matter of the suit. (Sec. 73, Chap. 79.) By prosecuting an appeal under this statute the appellant must lie held to have waived this objection, if it was ever good, as it does not question the jurisdiction of the subject-matter.
The appellant objected to the introduction of the ordinance upon which the prosecution was based, in evidence, the grounds of the objection being that the ordinance had not been filed by the village clerk, and that the certificate of the clerk thereto was defective.
Section 46, Chap. 24, R. S., requires all ordinances of a city or village to be deposited in the office of the clerk before they become effective. The village of Lovington adopted an ordinance to the same effect, though in terms requiring the ordinance to be filed—that is, the word “ filed ” is used in the ordinance, instead of the word “ deposited,” as in the statute. A paper is in legal effect filed when it is delivered to the proper officer and by him received to be kept on file. The deposit with the proper officer is the thing essential, of which the filing is but evidence.
Depositing the ordinance with the clerk was in compliance with the statutory requirement, and is, we think, sufficient so far as the validity of the ordinance is concerned, whether the ordinance be marked filed or not. The clerk should, by placing the file-mark upon it, note the date and fact of its deposit in his office. If deposited, the ordinance would not be inoperative simply because the clerk neglected to file it.
The ordinance offered was printed in a book or pamphlet, which purported, as the clerk’s printed certificate clearly shows, to have been published by authority of the village trustees.
Ordinances may so be proven prima facie under Sec. 65, Chap. 25, of our statutes. Nor is it necessary that any certificate of the clerk, written or printed, be appended to or accompany such work or pamphlet. It is sufficient if the book, on its title page or by printed certificate of the clerk, or otherwise on its face, purports to have been published by the authority of the trustees. To this effect Eagan v. Connelly, 107 Ill. 458.
The proof thus made of ordinances is only prima facie and may be rebutted, but it is prima facie proof of compliance with all legal requirements.
The appellant contends that he was denied the right to so rebut this proof.
Appellant claimed, and in his brief argues, that the ordinance, to be effective, must have been filed by the clerk according to the liberal reading of the ordinance upon that subject, and with this view introduced as a witness, Francis Hewlin, village clerk of Lovington, and legal custodian of the records of the village, and propounded the following question to. him:
Question : Has ordinance Ho. 4 been filed in your office ?
An objection to this question was entertained, to which ruling appellant excepted. The appellant had, we think, the right to show that the ordinance had not been deposited for filing in the office of the clerk, but we think it immaterial whether it had been marked filed or not. The question was irrelevant and the objection to it therefore properly sustained.
Various objections made touching the alleged insufficiency of the certificate of the village clerk, which is appended to the printed ordinances, do not require consideration, if we are right in the conclusion hereinbefore expressed that no certificate whatever is required. Finding no error, the judgment must be affirmed.
