Inc. Town of Bayard v. Baker

• Decision Date: 19 December 1888
• Citation: 76 Iowa 220,40 N.W. 818
• Parties: INCORPORATED TOWN OF BAYARD v. BAKER.
• Court: Iowa Supreme Court

76 Iowa 220

40 N.W. 818

INCORPORATED TOWN OF BAYARD

v.BAKER.

Supreme Court of Iowa.

December 19, 1888.

Appeal from district court, Guthrie county; J. H. HENDERSON, Judge.

Information before the mayor of the incorporated town of Bayard, charging Frank Baker with the violation of an ordinance of said town entitled “An ordinance controlling the keeping and use of jacks, stallions, and bulls.” Defendant was convicted, and appealed to the district court, where he was tried by a jury, and again convicted. From the judgment of the district court he again appeals.Chas. S. Fogg, for appellant.

Applegate & Brown, for appellee.

SEEVERS, C. J.

1. It is contended that the yeas and nays were not called and recorded upon the passage of the ordinance as required by section 493 of the Code. The corporate authority is vested in a mayor, recorder, and six trustees. Code, § 511. The record discloses that it was moved and seconded that the ordinance be passed. Five trustees and the mayor voted in favor of the ordinance, and such fact was duly recorded. It is true it does not appear the nays were called, but as the record fails to disclose any other members of the council were present than those persons who voted “yea,” it was unnecessary to call for the nays.

2. It is objected that the ordinance was not read on three different days, and that three-fourths of the council did not dispense with the rule, as provided in Code, § 489. The abstract discloses that it was moved and seconded that the rules be suspended, and the ordinance read the second time; and also it was afterwards moved that the rules be suspended and the ordinance be read the third time. Three-fourths of the council voted in favor of these propositions. If we understand counsel, it is claimed there is a substantial and material difference between “dispense” and “suspend.” In this view we are unable to concur.

3. It is said the ordinance contains more than one subject, and is therefore void. Counsel have not seen proper to state wherein the ordinance is amenable to the objection, and therefore we deem it sufficient to say it is not well taken.

4. It is said the ordinance is practically prohibitory, and conflicts with or goes beyond the object and scope of the title. Clearly, in our opinion, the ordinance is not prohibitory, and therefore it is entirely consistent with the title.

5. It is urged no competent evidence of the publication of the ordinance was introduced. The recorder testified it was published in the Bayard News on the 23d day of March, 1888. This evidence was competent, (Eldora v. Burlingame, 62 Iowa, 32, 17 N. W. Rep. 148,) but not sufficient, it is further insisted. It is provided by statute that “all ordinances shall * * * be published in a newspaper of general circulation in the municipal corporation.” It is said that the Bayard News is not shown to be a newspaper of general circulation in the corporation. This, in the absence of any showing to the contrary, will be presumed, for the reason that the presumption obtains that officers perform the duties with which they are charged. Besides this, the recorder certified that the ordinance introduced in evidence was “a true copy of ordinance No. 21 of the incorporated town of Bayard, as passed by the town council at the meeting of March 21, 1888.” Conceding the sufficiency of this certificate, the ordinance was at least prima facie admissible. Such is the effect of the case cited. The ordinance was duly certified by the proper officer, and the presumption must obtain it was...