Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-06-29
AN IMPORTANT DECISION.
Ordinance Number Seventeen Knocke
Ont of Cnurf

OAoAhanCc XNuhDcT seventeen hnOCheu
Out of Court.
In the Police Court yesterday G. Giaba-
tista was tried for misdemeanor in main
/ tanning boot black stand on Third street,
between ] and X. The prosecution was
conducted by City Attorney Church, as
sisted by z. c. Hart, and Grove L. Johnson
appeared for the defendant. A Jury of
twelve citizens was sworn to try the issue
and the case was contested at every point
There was no dispute as to the fact of the
maintenance of the boot black stand but
it was contended for the defense that no
law was violated by its maintenance. The
prosecution claimed that it was violation
of Section 3, City Ordinance No. II. In
| establishing their case they sought to intro
duce in evidence Ordinance II, as pub
lished in what is known as the Devlin
Compilation. This was objected to by MIR.
Johnson on the ground that the compila-
ton was not published by authority The
Court sustained the objection. The prose-
cution then called TO the stand CITY Auditor
Mckee with the records of the Board of
trustees containing copy of Ordinance
IL, and offered the record in evidence To
TINS Mr.. johnson objected on the ground
that 1t was necessary to prove the publica-
ton OF the ordinance in order to give it
effect. The Court a SO sustained this obiec-
ton. after an extended argument bv coun-
sci, during which numerous authorities
were quoted. The records of the Board of
Trustees showed no order of the Board di-
recting the publication of the ordinance
MIR. johnson asserted that he had occasion
some time ago to thoroughly examine into
the history of this ordinance and had found
that Ordinance II had never been pub
hshed by order of the Board of Trustees.
The City Attorney asked the Court, if
possible, to sustain the validity of the ordi-
nance, stating that if it was not sustained
many other ordinances could be declared
invalid on the same ground
The prosecution then asked to call Chris
TOPPER Green, who was Mayor of the city
at the time Ordinance No. II was passed,
in 1872, to show that the order of publica-
tlCn WAS made, but that 1t had been left out
of the record by mistake
Mr.. Johnson said that it was funda-
mental principle of law that the records of
corporation was the only evidence of the
acts OF the corporation. 1t was not compe-
tent to introduce parole evidence to correct
the records of a corporation.
Mr.. Hart made a strong appeal to the
Court to allow the evidence in order to sus-
tain the ordinance. He said that if it was
not sustained the City Attorney had better
decline hereafter TO attempt to prosecute
any one under these ordinances
Mr.. Johnson insisted, in an eloquent
speech, that each case should stand by it.
self and that it was the duty of the Court to
administer the law as he found it and not
with reference to any other case or the effect
1t would have on future prosecutions. He
said that if the ordinances were defective
the Board of Trustees could cure all defects
in two weeks time.
The Court sustained the objection, and
Mr.. Johnson asked that the Jury be in
structed to acquit the defendant, to which
the prosecution made no objection.
In instructing the jury to acquit the de-
PENDANT, Judge Buckley stated that this
was the first time this question had been
raised and it appeared to him that the re-
suit was very serious and of considerable
moment. Some of the important questions
had been passed upon rather hurriedly and
without much argument, because the Court
did not desire 10 detain the jury any
longer than necessary. 1t was possible
that he had erred in some of his rulings,
but if so ii could do no harm, as he could
hold differently in another case should he
discover that his position in this one was
not correct. He intended to examine the
subject thoroughly and be prepared to
pass upon it with more satisfaction to him
self in case the same question was raised
again. If the Court had been mistaken
this prosecution could be brought again, as
the bootblack stand was still maintained.
As he looked at it at present, the ordinances
were in very bad shape.