90 Tenn. 152 | Tenn. | 1891
On the twenty-first clay of June, 1889, the Mayor of Rutherford issued a warrant for the arrest of George W. Swink, charging him with the violation of one of the ordinances of the corporation, and on the same day he was brought before ' the Mayor, tried, and fined. The defendant prayed and obtained an appeal from the judgment to the Circuit Court of Gibson County. At the March term the case was tried before a jury, and there was a verdict for the defendant, from which the plaintiff appealed and assigned errors.
The error complained of is that on the trial of the cause in the Circuit Court the plaintiff* offered to prove the by-law or ordinance, for the violation of Avhich the defendant was being tried, by reading the same from a book upon which this ordinance, together with many other by-laws and ordinances of the town, was recorded.
Henry 0. Daniel testified that* he was the Recorder of the town of Rutherford, and had been for about three years past; that he was the custodian of the books and papers of the corporation; that the book upon which the ordinance was recorded was delivered to him by his predecessor in , office as the book upon which the by-laws and ordinances of the town were recorded; that it was kept and used as a record of the by-laws and ordinances of the town. It is a book upon which are recorded a number of the by-laws and ordinances of said corporation under which the Board of Mayor and Aldermen are now acting.
The defendant objected to the ordinance being read from the book. The Court sustained the objection, and declined to allow plaintiff to read the ordinance.
The book proposed to be introduced, upon its first page has this entry: “ Minute-book of Rutherford Corporation, the Latter Part of which Contains the By-law's and Ordinances of said Corporation.” Then follow7' the minutes of the Board of Mayor and Aldermen from January, 1867, to March, 1877. Then follow some miscellaneous matters which pertained to the corporation business. On page 154 the by-laws and ordinances begin. On this appears “ Corporation Laws,” and from this
Included in Act IV., Section 6, was the ordinance of the corporation the defendant was charged with violating. The corporation was chartered by an Act of the Legislature passed and approved February 28, 1860. The minute-books at which these ordinances of December 18, 1860, were passed cannot be found as stated. There is no general statute regulating what shall be proof of municipal ordinances, nor is there in thi's charter any section regulating how ordinances shall be proven. There is no general statute upon the manner of passing ordinances by corporations, nor is there any mode prescribed in this charter. The by-laws and ordinances of a municipal corporation, being private laws, must be proved when offered as evidence in Courts, but what proof is necessary fo prove a by-law or ordinance has not been determined by our Courts, as we are aware.
Dillon on Municipal Corporations (3d Ed.), Sec. 422, says: “When not specially regulated by charter or statute, the proof of ordinances must be by the production of the originals or the books in which they are registered, as these are the primary evidence,” referring to quite a number of authorities. Upon this authority we hold that when the cor
The judgment is reversed and a neAV trial granted. Hefendaiit will pay the cost.