Terre Haute & I.R. Co. v. Voelker

• Citation: 129 Ill. 540,22 N.E. 20
• Court: Supreme Court of Illinois
• Decision Date: 17 June 1889
• Parties: TERRE HAUTE & I. R. CO. v. VOELKER.

129 Ill. 540

22 N.E. 20

TERRE HAUTE & I. R. CO.

v.VOELKER.

Supreme Court of Illinois.

June 17, 1889.

Appeal from appellate court, Fourth district.

John G. Williams and A. S. Wilderman, for appellant.

W. C. Kueffner, for appellee.

BAILEY, J.

This was an action on the case, brought by Julia Voelker, administratrix of the estate of Edward Voelker, deceased, against the Terre Haute & Indianapolis Railroad Company, to recover damages for the death of the plaintiff's intestate. The trial, which was had before the court and a jury, resulted in a verdict in favor of the plaintiff for $3,500, and for that sum and costs the court, after denying the defendant's motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the appellate court on appeal, and by an appeal from that court the record is brought here for review.

The declaration contains five counts, but, a demurrer having been sustained to the first and second, only the remaining three are brought up by the transcript of the record. Each of said counts alleges that the deceased, at the time he received the injuries of which he died, was riding, with all due care and caution, in a wagon drawn by two horses, along St. Clair avenue, in the city of East St. Louis, and that at the point where said avenue crosses the track of the defendant's railroad the wagon in which he was riding was struck by a locomotive engine running on said railroad, and that the deceased thereby received the injuries of which he soon thereafter died. The third count alleges a breach by the defendant of its statutory duty to cause a bell of at least 30 pounds weight to be rung or a steam-whistle to be sounded on the engine, at least 80 rods from the highway, and kept ringing or whistling until the highway was reached, and that by reason of such breach of its statutory duty said locomotive engine collided with said wagon, and inflicted said injuries. The fourth count alleges an ordinance of the city of East St. Louis limiting the speed at which passenger trains should be run in or through said city to 10 miles per hour, and also alleges that the servants of the defendant, at the time the deceased was injured, were running its engine and train within said city at a rate exceeding 10 miles per hour, to-wit, at the rate of 30 miles per hour, and that in consequence thereof the deceased received said injuries. The fifth count merely alleges that the defendant, by its servants in charge of said locomotive engine and train, so negligently and carelessly run and drove the same that, by reason of such negligence and carelessness, said engine run against said wagon, and inflicted said injuries, thereby causing the death of the deceased.

The first question presented by the counsel for the defendant arises upon the evidence offered to prove the existence of the ordinance alleged in the fourth count. A document was offered containing what purported to be certified copies of two ordinances of the city of East St. Louis, and said ordinances were thereupon objected to by counsel for the defendant upon the specific ground that they were not signed by the mayor or city clerk of said city. This was the only objection made, and, it being overruled, an exception was duly preserved by the defendant. The first of said ordinances provided, among other things, that no locomotive or train of cars should run or be drawn within the limits of said city at a greater rate of speed than six miles an hour, and the second was an amendstory ordinance, providing that no passenger train should run or be driven, within the limits of said city, at a greater rate of speed than ten miles an hour, and no other locomotive or train at a greater rate of speed than six miles an hour. Appended to each was a certificate of the city clerk, under his hand and the corporate seal of the city, that such ordinance was a true and correct copy of the original ordinance of the city, as the same appeared of record in his office. The signature of the mayor did not appear at the bottom of either ordinance.

The charter of the city of East St. Louis empowers the city council of said city, by ordinance, to provide for an regulate valious matters, and, among others, ‘to direct and regulate the speed of locomotive engines and cars.’ Said charter also authorized the city council to make, pass, publish, amend, and repeal all ordinances not inconsistent with the constitution of the United States, or of this state, for the good government, peace, and order of the city, and the trade and commerce thereof, that might be necessary and proper to carry into effect the powers vested by said charter in said city. A subsequent section, and the one upon which the objection now under consideration is based, is as follows: ‘All ordinances and resolutions shall, before they take effect, be placed in the office of the mayor, and, if he shall approve thereof, he shall sign the same; and such as he shall not approve of he shall return to the city council, with his objections thereto; upon which return the vote by which such ordinance or resolution was passed shall be reconsidered, and if, after such reconsideration, a majority of all members elected shall agree (by the ayes and noes, which shall be entered upon the journal) to pass the same, it shall go into effect; and if the mayor shall neglect to approve or object to or retain any such ordinances or resolutions for a longer period than five days after the same shall be placed in his office, as aforesaid, the same shall go into effect.’ 1 Priv. Laws 1869, p. 896.

By this section three separate modes are provided by which an ordinance, after being passed by the city council, may become operative, viz.: (1) by the approval of the mayor, evidenced by his signature; (2) by a majority vote of the council, on reconsideration, after being returned by the mayor with his objections; and (3) by being retained by the mayor more than five days. The objection offered is merely that the ordinances in question did not appear to have become operative by a particular one of these modes. The fact alleged, viz., that they had not been signed by the mayor, may be admitted, and the conclusion that they have never taken effect by no means follows. A specific objection, based solely upon a particular fact, is, strictly, a waiver of all objections based upon other facts not specified or relied upon. This rule is based upon the equitable consideration that, if the other objections had been made, it might have been within the power of the party offering the evidence to obviate them. If it had been objected that the ordinances had not gone into effect in either of the modes provided by the charter, the plaintiff might have been able to show that they had been passed by the council over the mayor's veto, or that they had become operative by his retaining them more than five days without signing them.

But the propriety of the admission of said ordinances in evidence may be placed on other grounds. The signature of the mayor, where he approves an ordinance, is manifestly no part of the ordinance itself. It is merely the evidence of his approval required by the charter. But it is no more a part of the ordinance than are the minutes of the proceedings of the city council in which is recorded the vote by which the ordinance is passed. True, an ordinance can have no validity until it has been passed by the council, and then placed in the mayor's office, and afterwards approved and signed by him, or retained without action beyond the prescribed period, or passed over his veto. The ordinance, however, need not bear upon its face the evidence of all or any of these proceedings; except, of course, where it is signed by the mayor, such signature will necessarily appear. Possibly, if no provision had been made by statute as to the made of proving the ordinances, it would have been incumbent on the party alleging their existence to prove each of the steps by which they were passed and given effect. Article 7, § 13, of the charter, however, provides as follows: ‘All ordinances and resolutions of the city may be proven by the seal of the corporation; and when printed or published in pamphlet or book form, and purporting to be printed or published by the authority of the city council, the same shall be received in evidence in all courts and places without further proof.’ Here the proof was made by the corporate seal, and a certificate of the city clerk, who was the proper custodian of the seal. This was all that was required to establish, at least prima facie, the existence of the ordinance, and its terms. In Pendergast v. City of Peru, 20 Ill. 51, it was held, under a similar provision of the charter there in question, that a copy of the city by-laws, certified by the city clerk, and verified by the corporate seal, was a literal complaince with the charter, and was properly admitted in evidence. In Lindsay v. City of Chicago, 115 Ill. 120, 3 N. E. Rep. 443, where the question arose under the provisions of article 5, § 4, of the general statute for the incorporation of cities and villages, it was contended that the passage of the ordinance could be established only by the...