Schwartz v. City of Oshkosh

| Wis. | Oct 10, 1882

Cole, C. J.

"We are inclined to the opinion that the city charter requires that an ordinance before it becomes operative must not only be published in the official paper of the city, but it must also be recorded in the book provided for that purpose, together with the proper affidavit of the publication of such ordinance. The charter makes the recording of the affidavit with the ordinance one of the essential conditions to its validity. It will be observed that.the language ■of the charter on the subject is imperative; that before the ordinance shall be recorded, the publication thereof may be proven by affidavit, “ and said affidavit shall be recorded therewith, and at all times shall be deemed and taken as sufficient evidence of the time and manner of such publication.” Laws of 1877, ch. 123, subch. 6, sec. 3. It is quite beside the inquiry to speculate as to what object the legislature had in view in providing that the ordinance and affidavit of publication should be recorded as prerequisites to the ordinance taking effect. The legislature might have deemed it a matter of public concern that there should be not only a record of the ordinance, but also a record of the affidavit, to which all persons might resort in order to ascertain what ordinances had been published and were in force. But, whatever may have been the object of the legislature in that regard, certain it is that a record of the affidavit is made essential to an ordinance taking effect. The charter so reads, and we have no right to make void the provision by saying it does not mean what the language plainly implies. It follows from this construction of the charter that the ordinance approved January 24, 1878, was never in force, for the reason that no affidavit of its publication was ever made, and of course none was ever recorded.

Again, the charter provides that the city printer, or printers, immediately alter the publication of an'ordinance, shall file with the city clerk a copy of such publication, “ with his- or their affidavit, or the affidavit of his or their foreman,” of the length of time the same has been published, and such affidavit is made conclusive evidence of the publication of such ordinance. Sec. 18, subch. 5. Now, in respect to the ordinance approved September 11, 1879, the one approved June 4, 1880, and the one passed January 4, 1881, the affidavit of the publication of each respectively was made by “ one of the publishers ” of the official paper. Now it is objected that this is not a compliance with the charter, which requires the affidavit of publication to be made by “ the printer ” or “foreman? It is made the duty of the common council to let all the printing and publication necessary to be done by the city to the lowest bidder, who shall be styled “ the city printer.” The charter makes the person who does the work, or causes it to be done, the city printer; or, in other words, makes the publisher of the official paper the city printer. It may well be that the publisher, or the responsible party who obtains the contract, may not do any of the manual labor performed in printing the paper, still we think he is one of the persons who may, under the charter, come within the designation of “ city printer.” We therefore conclude that the affidavit made by the publisher of the city paper is sufficient.

The money in this case was exacted of the plaintiff under the ordinance passed January 4, 1881. That ordinance attempts to amend the previous ordinances in regard to license, but is not signed by the mayor. But the clerk certifies, under date of January 5 th, that it was passed by the common council on the 4th of January; that on the 5th he presented it to the mayor for his approval; that the mayor bad not approved it, nor returned it with bis objections in writing witbin five days after be received it. Tbe counsel for tbe city claimed that tbe ordinance took effect under sec. 8, subcb. 6, notwithstanding the failure of tbe mayor to approve it. That section provides that if an ordinance is not signed by tbe mayor nor returned by him to tbe city clerk, with bis objections in writing, witbin five days from tbe time be received it, tbe ordinance shall be in force in tbe same manner as if tbe mayor bad signed it. It is apparent that tbe certificate of tbe clerk is self-contradictory, and it is not clear what effect, if any, it should have as a record. But not to dwell on tbe point, the ordinance must be deemed invalid because it is an amendment to one which was never in force. Tbe same counsel further claimed that this ordinance might well stand as a valid independent ordinance, embracing witbin itself all the essentials of a legal ordinance. But professedly it was passed as an amendment to previous ordinances which never took effect. It is very manifest that tbe common council would never have adopted it, except on tbe assumption that the ordinances which it did attempt to amend were in force. The ordinance in question contains no penalty for a violation of its provisions; the common council, doubtless, supposing that the 6th section of tbe ordinance of January 24, 1818, was in force and would apply. There is no reference to that section, it is true, and tbe ordinance stands without the sanction of any penalty. It seems to us it would be a violation of tbe plain intention of the common council, manifest in all these' ordinances, should we sustain tbe last one as an independent, subsisting ordinance. ¥e think we cannot do this.

The judgment of the county court is correct, and must be affirmed.

By the Court.— Judgment affirmed.