52 Ill. App. 617 | Ill. App. Ct. | 1894
delivered the opinion of the Court.
This case was tried by the court below on the following stipulation of facts: “ The only question in this case is as to the validity of the passage of the ordinance under which the defendant was fined by the village magistrate. It was admitted that defendant was guilty of violating No. 4, of the village ordinances. Ordinance No. 4 is in the words following, viz.: ‘ Whoever shall make or assist in making, or encourage another in making any improper noise, disorder or tumult, or who shall permit such noise or tumult to be made in or about his, her or their house or premises, or who shall at any time disturb the peace or quiet of any neighborhood, family or person by loud or boisterous whooping, screaming, cursing, challenging to fight, fighting or mock-fighting, using obscene language, or by creating false alarms, or by any other device or means whatever, shall be fined in any sum not exceeding one hundred dollars.’ It is admitted that the only record of the passage of said ordinance appearing on the journal of the proceedings of the board of trustees of the village, is as follows:
‘ Belknap, Ill., March 2, 1887.
The village board met at the store of W. L. Currey on the above date, with the president in the chair, and proceeded to business by reading minutes of last meeting and approving of the same. Motion made and carried to draft ordinances for village seal. Motion made and carried to have the village ordinances printed and bound in book form, as many copies as could be bought for $10 or $12.
Motion made and carried to adjourn until March 11,1887.
The board met pursuant to adjournment and proceeded to business by adopting ordinances from number 1 to number seventeen (17) inclusive. All members present.
James R. Evers, Clerk.’
It is admitted that said ordinance No. 4, together with ordinance No. 1 to 17 inclusive, as stated in the journal, were printed in book form by the village and purported to be published by authority of the board of trustees, as required by statute, with the date of the passage as appearing in the journal.
It is also admitted that the village was duly incorporated under the general incorporation law of the State.
Now, if the court shall be of the opinion that ayes and nays should appear on the journal in order to give validity to the ordinance, then the defendant is to go acquit; otherwise the judgment of the village magistrate to be affirmed with cost.
It is understood that on February 22,1892, defendant was fined $3 and cost by the village magistrate of Belknap, from which the present appeal is prosecuted.
Dated this 7th day of April, 1893.
W. A. Spaptst, attorney for defendant.
James C. Cocrtjxey, for Village of Belknap.”
The foregoing was all the evidence offered in this case both by the plaintiff and defendant.
The court thereupon rendered a judgment finding the defendant not guilty, and rendered judgment against plaintiff for costs. To the rendition of this judgment the plaintiff then and there objected and excepted.
The single legal question presented for our consideration under the stipulation is, whether the yeas and nays must appear on the village journal of a village incorporated under the general incorporation act of 1872, in order to give validity to an ordinance purporting to have been passed and adopted by the authorities of such village.
The first clause of Sec. 13, Art. 3, Part 1, Chap. 24, of the general act for the incorporation of cities and villages, provides: “ The yeas and nays shall be taken upon the passage of all ordinances * * * which shall be entered on the journal of its proceedings.” This provision is immediately followed by, “ and the concurrence of a majority of all the members elected in the city council (or village board of trustees) shall be necessary to the passage of any such ordinance.”
In the base of Barr v. Village of Auburn, 89 Ill. at p. 362, it is held that the latter clause is the “ mandatory portion of this section.”
In that case the journal showed “ the following ordinance (the one in question) was unanimously adopted.” Ho yeas or nays were entered on the journal. It was held that the above section did not require they should be entered, as “ it appeared on the face of the journal that the ordinance passed with the concurrence of a majority of the members elected of the body passing the same.”
This decision has not been overruled. It is sustained by many authorities cited in note to Sec. 291, Vol. 1, p. 364, 4th Ed., Dillon on Municipal Corporations. On that construction and on the faith of its stability, doubtless the authorities of cities and villages of this State have relied for the last fifteen years. By the express terms of the stipulation the only legal question submitted was, whether the “ ayes and nays should appear on the journal, in order to give validity to the ordinance.” For aught we know there may have been a distinct purpose in so limiting the question for decision. While it appears to us, the record showing that nil the members were present, that the word “ adopted ” necessarily signifies that a “majority” of the members of the village board voted for the passage of the ordinance, vet if this should not be the correct legal position and the word “ majority ” or “ unanimously ” should be entered in the journal, in addition to the word “ adopted,” according to what the actual fact may have been, the village board has the right on proper proof to supply an omitted or correct an erroneous entry and thus make the record complete, if it is not so now. Hutchinson v. Pratt, 11 Vt. 402. If the same clerk who made the entry is still in office, he can, without an order of the board, amend the journal entry according to the truth, being liable for an abuse of the right. Dillon on Municipal Corporations, Vol. 1, Sec. 232. To deny corporations-, such as cities and villages, the right to complete or correct the clerk’s journal entries according to the facts, might involve them, and the officials executing their laws or ordinances, in most serious trouble, without subserving any good purpose. Dupage Co. v. Martin, 39 Ill. App. 298.
The conditions may be such that the appellant may desire to and can have the journal entry made to fully comply with the rule laid down in the Barr case, supra, and thus remove any doubt of the proper passage of the ordinance, should the question ever reach the Supreme Court.
The judgment is reversed and the cause remanded.
