Downing v. City of Miltonvale

• Citation: 14 P. 281,36 Kan. 740
• Parties: WILLIAM DOWNING v. THE CITY OF MILTONVALE
• Decision Date: 11 June 1887
• Court: United States State Supreme Court of Kansas

14 P. 281

36 Kan. 740

WILLIAM DOWNING v. THE CITY OF MILTONVALE

Supreme Court of Kansas

June 11, 1887

Appeal from Cloud District Court.

PROSECUTION for a violation of an ordinance of the City of Miltonvale, by disturbing the peace and quiet of certain persons in said city. Trial before the police judge, conviction, and appeal to the district court. Trial at the October Term, 1886 conviction, and sentence to pay a fine of $ 10 and costs. The defendant Downing appeals.

Judgment affirmed.

J. W Sheafor, for appellant.

S. D Houston, Jr., and D. Scott, for The City.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The only question in this case is: Was the ordinance under which the defendant was convicted, valid? The objections urged are, first, that the court erred in admitting in evidence the ordinance book containing the ordinance under which the defendant was prosecuted; second, that the ordinance book and journal of the proceedings of the city council show that the said ordinance was not legally passed and published. The journal shows that the ordinance, being ordinance number 12, came regularly up at a public meeting of the city council, and was passed, all the members of the council present, and voting in favor of its passage; and that it was approved October 31, 1883, signed by the mayor, and attested by the city clerk.

The record of ordinances offered in evidence shows that the ordinance was regularly entered, with a note appended thereto by the city clerk, as follows:

"These three ordinances passed the city council October 31, 1883, and were approved October 31, 1883. C. E. Daniels, Mayor. Attest: E. E. Husted, City Clerk. Published November 9, 1883. Journal, page 17."

The defendant claims that because the ordinance book failed to show in what paper the ordinance was published, that therefore there was a failure on the part of the city to prove a valid ordinance. It is true the record of ordinances ought to show when they were published, and the name of the paper in which published, but because the city clerk failed to make the record so state, it does not make the ordinance invalid, if in fact it was published. The court ought to have sustained the objection of the defendant to the introduction of the ordinance book. It was the duty of the court to take judicial notice of the existence and substance of the ordinance, without having the ordinance offered in evidence but the introduction of the ordinance book in evidence could not prejudice the defendant -- it was putting in evidence only what the court must know without proof. Therefore it was immaterial. (City of...