Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-07-10
TEE CITY ORDINANCES.
THE QUESTION OF THEIR VALID.
ITY BEING DISCUSSED.
The Decision in the Napa Case
Action Taken Yesterday by the
Board Of Trustees.

show that the ordinance had ever been
published by authority Of the Board.
The Clerk of the Board of Trustees was
on the witness stand with the book
containing the original ordinance, but
in it appeared no order of the Board
for its publication. The prosecution
had at first endeaYored to introduce in evil
dence what is known as the Devlin COM
pilation of the statutes of the State of Cali
fornia relating to the CITY of Sacramento,
with the ordinances in force, but that was
ruled out on the same ground. The result
was that the prosecution was completely
non-plussed and made no objection to the
motion that the Court instruct the Jury to
acquit the defendant
JUDGE BUCKLEY's DECISION
In this case was based on the decision of
the Supreme Court, in bank, on the 9th of
October, 1882 in the case of the City of
Napa VS.. A. Y. Easerby ct al, reported in
the 61st California Reports page 500. The
opinion was written by Justice McKinstry
and concurred in by Chief Justice Morri-
son and Justices Myrick and Ross
The Act to reincorporate the city of Napa
was approved February "a, 1874. Sections
OF the Act were amended March 30, 1876,
and again amended April /, 1878. The
proceedings were to collect street assess
ment. The plaintiff "read and put in evil
dence" without objection ordinances of the
Board of Trustees OF the city of Napa Nos.
AZ, "A and II. As they purport to be re-
cited in the bill of exceptions, they adopt
and recognize the grade and sewer
maps and system of grading and sewerage
represented on said maps and accompany
ing diagrams" prepared and reported by
w. Z. Humphreys, as the official system
OF grades and sewerage of the city of Napa"
etc. Section of the city charter provides ::
THE Board of Trustees shall cause TO be
published in some newspaper in the city, all
ordinances which shall be certified and
signed by the President and Clerk of the
Board, and no ordinance shall take effect
and be in force until ten days from the first
publicationithereof." "a copy of such ordi-
nance, published by authority in the OIL
cial newspaper of the city shall be lrinta
fdcie evidence that such ordinance has been
regularly and legally passed and authenti-
Gated, and that the provisions of the ordi-
nance are as published, and that such ordi-
nance was published by the order of the
Board of Trustees at the date when said
publication purports to have been made"
1t was urged by the appellant that plant
if failed to prove that the ordinances were
published, and failed to prove that the
Board OF Trustees caused them to be pub
lished
After reciting the above facts the learned
Judge goes on TO say
at may be said that, inasmuch as no OBJ
lection was made to the ordinances when
offered, and as by Section 8 of the Char
ter an ordinance may be proved, prima
facie, by production of a copy purporting to
be published by authority in the official
newspaper, this Court, in support of the
action of the Court below, will presume
that Ordinances AZ, "A and II were thus
proved. Further, inasmuch as the Charter
provides that no ordinance shall take effect
and be of force until after publication. they
were not valid or effective ordinances unless
published, and consequently the recital in
the bill of exceptions that plaintiff put in
evidence" the ordinances, must be held to
be recital that the ordinances were duly
published. But an ordinance, res ipSa,
though it may have no binding effect until
after appropriate publication, is different
thing from its publication. 1t may be
proved by the original entry of it in the
proper book, or perhaps by the certified
copy, or from the printed volume of ordi-
nances.
1--WE are not authorized to infer that it
was properly published because it was
passed, and the provision of the Charter
which makes the newspaper publication
evidence, prinld tdcie, of the ordinance, does
not make the ordinance itself presumptive,
or any evidence of the newspaper publ
cation"
The charter requires that the Board of
Trustees shall cause to be published all
ordinances. This means that the Board shall
he, 10 ;,,r
beIs VS.. Satterlee, 40 Cal, 52l; Donuelly vs.
Tillmen, IL Id, Al; Donnelly vs.. Marks,
i'd, l9l; Hummelmann vs. Satterlce, 40 i'd,
3S7: Refs VS.. Graft. 81 i'd, 90.l
" 1t is true, Section 8 of the Charter of the
City of Napa provides that the newspaper
copy of the ordinance shall establish, pr1ma
tacie, that the ordinance was published
by order of the Board, at the date when
said publication 'purports to have been
made But, in the absence of the notice
or publication, we cannot say what was its
purport. 1t follows that, as the case is pre-
scented, it does not appear either what was
the order of the Board of Trustees, or that
the publicatian-if made at all-was made
in accordance with any order of the Board.
''At stage of the trial different from that
at which the plaintiff put in evidence the
ordinance above mention, plaintiff called
J. E. Walden as witness, who testified:
81 am foreman of the Naps Reporter
'Q.-Was the Napa Reporter an official
paper in 1874?
Counsel for defendant objects as incom-
petent, etc.
"Witness-Ordinance No. ~ was pub
lished December II, 1874
This clearly shows that the Ordinance
No AZ was passed as an independent fact,
and that the distinct fact of its publication
was sought to De established by the oral
testimony of the witness Walden in other
words. that the Ordinance No. AZ, its con-
tents and the regularity of its passage and
adoption, and the order of the Board d.
recting it to be published, were not proved
by the production of copy of the ordi-
| nance as published. But Section of the
charter makes a copy of the order pub
| lished by authority, etc, alone presumptiye
evidence of the matters therein mentioned,
| including the fact that the ordinance was
| published by order of the Board The
statement of a witness that the ordinance
was published creates no presumption that
it was published by the order of the Board
of Trustees. II follows again that the case
| does not show that the Board caused to
be published the Ordinances AZ, "a and IL
- 1t does not appear, therefore. that the
| official grade has ever been established by
| any ordinance of the Board Of Trustees >
The judgment and order were reversed
| and the cause remanded for new trial
MANY OTHER ORDINANCES
Were found upon examination of the re-
cords TO be in the same condition. In fact
less than dozen out of the 231 city ordi
nances are valid if Judge Buckleys decision
is correct. In rendering his decision the
Judge stated that he was passing on ths
| question without giving it as much consid
Grafton as he would like to. because twelve
men were being kept from their business
and be did not like to detain them. If the
case had been tried by the Court he would
have taken the subject under advisement
and examined into it carefully before ruling
on the points raised. He stated further
that he might be wrong in the position be
bad taken, and if so no great harm could
be done, as he could hold differently in an.
other case if he found he had been in error
The question raised was a very serious enc
and the Board of Trustees at once took
steps to
REMEDY THE EVIL.
They called upon Grove L. johnson
who had given the subject careful study, &c
point wsy out of the difficulty, and re-
ceiyed from MIN a lengthy private opinion