City of Hammond v. York

• Decision Date: 30 September 1892
• Court: Indiana Appellate Court
• Parties: City of Hammond v. New York, C. & St. L. Ry. Co.

5 Ind.App. 526

31 N.E. 817

City of Hammond

v.New York, C. & St. L. Ry. Co.¹

Appellate Court of Indiana.

Sept. 30, 1892.

Appeal from circuit court, Porter county; H. A. Gillett, Special Judge.

Action by the city of Hammond against the New York, Chicago & St. Louis Railway Company to recover a penalty. From a judgment in favor of defendant, plaintiff appeals. Reversed.

S. Griffin and E. D. Crumpacker, for appellant. Bell & Morris, for appellee.

FOX, J.

This case was originally appealed from the Porter circuit court to the supreme court, but that court, in the case of City of Hammond v. New York, C. & St. L. Ry. Co., 126 Ind. 597, 27 N. E. Rep. 130, decided that the proper jurisdiction was in this court, and so transferred it. In order to make apparent the questions submitted for our consideration, we find it necessary to make the following abstract of the facts as they appear in the record: Upon the 13th day of August, 1888, the common council of the city of Hammond, at a regular session, enacted an ordinance, the first and third sections of which were as follows: “Section 1. Be it ordained by the mayor and common council of the city of Hammond, that it is hereby declared to be unlawful for any railway or railway company, by its officers, agents, or servants, or any other person or persons, to move or cause to be moved or propelled or driven any railroad cars or locomotives, within the corporate limits of said city, at a greater rate of speed than six miles an hour.” “Sec. 3. Any railway or railway company, or conductor, engineer, agent, servant, or other persons violating any section or provision of this ordinance, shall for any such offense forfeit or pay to the said city any sum not exceeding $100.” That upon the 11th day of September, 1888, the appellee was the owner of a line of railway, a portion of which was located within the corporate limits of said city. That, upon the day aforesaid, one Germain, an engineer in the employ of said company, being in charge of one of its locomotives and a train of passenger cars, while passing over the said line of rail way within the corporate limits of said city, ran the same at a greater rate of speed than six miles an hour, in violation of the provisions of said ordinance. That thereupon an affidavit was filed against the said company before the mayor of said city, and a trial had, ending in a judgment of $100 against the company. An appeal was taken to the Lake circuit court, from which a change of venue was taken, and the case sent to the Porter circuit court. The case was then tried before the court without a jury, and a judgment was rendered in favor of the appellee. The court, upon request, made a special finding of the facts involved, upon which were based conclusions of law. The finding of facts and the conclusions of law appear in the record. The court, after finding the necessary preliminary facts, and setting forth the ordinance in question, found the following facts in the case: “That said ordinance was duly and legally passed and adopted by the common council of said city, and was spread of record at length, and recorded in the minutes of said council proceedings, in a book kept for that purpose, which said minutes of all the proceedings of said session at which said ordinance was passed and adopted were duly signed by the presiding officer, and attested by the clerk of said city; but said ordinance was not signed apart from said council proceedings. That said ordinance, so passed and adopted as aforesaid, was duly and legally published, as by law required, in the month of August, 1888, and was in force and effect on and prior to September 11, 1888, of all of which said defendant had due notice before the 11th day of September, 1888. That said ordinance was not recorded in any other book separate from said record of said council proceedings. That before said 11th day of September, 1888, said defendant had duly notified its agents, servants, and employes operating or in charge of its trains of the provisions and terms of said ordinance, and commanded and expressly required them, and each of them, not to run trains or cars in and through the limits of the plaintiff city, in violation of said ordinance, but to conform to its requirements and be governed by its provisions. That all of the ordinances of said city were recorded in the minute book of council proceedings above mentioned, and plaintiff had no other book containing records of ordinances. (4) That on the 11th day of September, 1888, R. M. Germain, an engineer of defendant, in charge of a passenger train of defendant, en route for said city of Chicago, while running the same in and through the limits of plaintiff city, ran said train in and through said city of Hammond, in violation of said ordinance, at a rate of speed forbidden by it, to wit, in excess of eight miles an hour. (5) That said engineer had due notice of the adoption and passage of said ordinance, and had been expressly notified by said defendant, before said 11th day of September, 1888, to comply with its provisions, and not to run its trains in and through the limits of said city at a rate of speed to exceed the speed required by said ordinance; and that said railroad company never assented to the act of said engineer.” Upon the finding of facts the court based the following conclusions of law: “(1) That said ordinance was duly passed, adopted, and published, and was in full force and effect on the 11th day of September, 1888; (2) that as the violation of said ordinance herein complained of was committed by its (defendant's) engineer, R. M. Germain, as hereinafter found, against its express command, and without its assent, said railroad company is not liable herein; (3) that on the foregoing facts, for the reason stated in conclusion No. 2, the law is with the defendant.” Judgment was rendered accordingly.

The appellant's assignment of errors is as follows: “(1) The court erred in its conclusion upon the facts, and each of them; (2) the court erred in its second conclusion of law; (3) the court erred in its third conclusion of law.”

A cross error has been assigned by the appellees, “that the court erred in its first conclusion of law, which, on the facts found, should have been that said ordinance was invalid, and not in force and effect.” The judgment that we have concluded to render in this case makes it necessary for us to consider the cross error assigned. This we will do in the outset. This presents the question, was the ordinance invalid for the reason that it was not properly signed, attested, and recorded? Concerning “by-laws and ordinances” enacted by the common council of cities, section 3099 of the Revised Statutes provides as follows: “3099. All bylaws and ordinances shall, within a reasonable time after their passage, be recorded in a book kept for that purpose, and shall be signed by the presiding officer of the city, and attested by the clerk. On the passage or adoption of any by-law-ordinance, or resolution, the yeas and nays shall be taken, and entered of record.” It can well be inferred that the reason for the enactment of this statute and the purpose to be accomplished by it was to remove all uncertainty as to the identity of ordinances in force in a city, as well as to furnish proper and unmistakable evidence of their contents. For this purpose the statute requires that all ordinances shall be signed by the presiding officer of the city and attested by its clerk, and be recorded “in a book kept for that purpose.” It is a matter of common knowledge, in which the court must be held to share, that in a common council of a city, as in other legislative bodies, “bills” are prepared and introduced by the individual members, and, as a usual thing, are written upon separate and detached pieces of paper. When the “bill” is under consideration it is subject to change and modification by amendment. When it is “passed” it becomes an ordinance, and, as such, goes into the hands of the clerk, to be by him placed on file in his office. If left in the condition in which it is when it goes into his hands, and nothing further is done with it, it would contain no evidence upon its face that it was a perfect ordinance. No other evidence of its contents than the original paper would be in existence. To obviate all this, the statute requires that it shall be signed, attested, and recorded. When this is done, its identity as an ordinance is fixed, and perfect evidence of its contents furnished, easy of access to all concerned. But how shall this signing, attesting, and recording be done? Was there a substantial compliance with the provisions of the statute in this case?-are the questions to be answered. Counsel for appellee say in their brief that “this question has been squarely decided” in the case of Bills v. City of Goshen, 117 Ind. 221, 20 N. E. Rep. 115. We have read that case with some care. If it “squarely decides” the questions involved in the case before us, as counsel contend, then the matter is settled, as far as this court is concerned, for we have no power to “directly or by implication reverse or modify any decision of the supreme court.” But we do not so understand that case. The question there involved was essentially different from the one involved here. In that case the question as to whether the ordinance set forth in the opinion had been signed, attested, and recorded or not was not before the court. The real point was that the ordinance in question did not fix the amount of license fees sought to be charged against the defendant, and an attempt was made by the common council to supply the omission by an ordinary motion made by “Councilman Drake.” This, it was very properly held, could not be done. In the course of the opinion, Olds, J., says, in speaking of the legality of an ordinance: “The statute requires it to be signed by the presiding officer, and attested by the city clerk, and...