Conboy v. Iowa City , 2 Iowa 90 ( 1855 )

Isbell, J.

The first question in the proper order of considering this case, is that raised by the third assignment of error, namely : “ The District Court hacl no jurisdiction of apjseals o'r writ of error from the judgment or decision of the mayor of Iowa City under the city ordinances.” Erom the fact that by the charter of the city (Laws of 1853, 101, § 12), the mayor is vested with exclusive original jurisdiction, for the violation of the ordinances of the city, and by section 13, appeals are allowed from the judgment and decisions of the mayor to the District Court, in the same cases, time and manner as may at any time be allowed by law from those of other justices, it is contended, that in those cases where the mayor has exclusive original jurisdiction, there is no appeal. Stress is laid upon the words same cases, and it is claimed that the judgment in no other cases than those which may be tried by other justices than the mayor, may be appealed from. "We do not, however, conclude that this was the intention of the legislature. The giving to the mayor exclusive original jurisdiction, implies that he is not to have- exclusive jurisdiction, or final jurisdiction, but that a review is contemplated. If so, of consequence, by the District Court. In the case of The City of Dubuque v. Rebman, 1 Iowa, 444, this question was substantially considered; and it was held, that notwithstanding an appeal was not expressly given, an appeal lay from the judgment of a justice for a violation of a city ordinance. The language of the charter, section 13, “ Appeals to the District Court in the same county, shall be allowed from the judgments and decisions of the mayor, in the same cases, time and manner, as may at any time be allowed by law from those of other justices, and they shall be tried as other cases,” we do not regard as restrictive, but as intending to confer a general right of appeal. At present, any person aggrieved by the final judgment of a justice, may appeal (Code, § 2328), in a civil case, within twenty days, by filing a bond, &c.; but in case of a misdemeanor, this right is restricted. As the law now stands, we understand the charter- to mean, that appeals from the final judgment of the mayor, may be taken by any person aggrieved, but in similar cases they must be taken in the same time, and in the same manner, as from a justice. We conclude that the plaintiff can take nothing by the third assignment. The first error assigned in the affidavit for the writ of error to the mayor, is, that the court erred in overruling the demurrer tó the amended petition. There is nothing 'in the record showing the ground of this demurrer, and therefore the District Court, or this court, would not be justified in disturbing the judgment of the mayor, on that account.

The other errors assigned in the affidavit, resolve themselves into the question, did the mayor err in sustaining plaintiff’s demurrer to the first and last clauses of defendant’s answer ? These clauses are substantially, that there was no ordinance in force whereby defendant was liable; in effect, denying the existence of the ordinance. We hold that the mayor was authorized to take judicial notice, ex officio, of the city ordinances. The presumption on this question, as others, is in favor of the correctness of his decision. If he erred, the party wishing to bring his decision in review, should have the grounds of his ruling so put upon the record, as to show the error. There is nothing of record, to repel the presumption of the correctness of the decision of the mayor in this particular. But from the admissions of the plaintiff? and the whole tenor of the record, we conclude that the ruling of the District Court, was based upon the idea that the ordinance under which the suit was brought, had not taken effect. It is admitted, that the recorded copy of the ordinance had not been signed by the mayor. This admission shows, that the original draft of the ordinance after its passage, was signed by the mayor, and attested by the recorder, and published for ten days or more, in the Iowa Capital Reporter, a newspaper published in the city. The ordinance had been also recorded in a book kept for the purpose of recording ordinances, and attested by the recorder, but not signed by the mayor. And the question is, Was tbe signature of tbe major to tbe recorded copy, essential to tbe taking effect of tbe ordinance ?

Tbe language of tbe charter is as follows': “Ordinances ■passed by tbe city council, shall be signed by tbe mayor, attested by tbe recorder, and before tbey take effect, be pub■lished in one or more newspapers, published in tbe city, at least ten days; and if there be no such newspaper, tbey ■shall be posted up in each ward tbe same length of time. Tbey shall also be recorded in a book to be ke¡et for that purpose, and-signed by the mayor, and attested by tbe re>■corder.” Tbe requirements of this section, preceding tbe period, relate to tbe publication of ordinances, andaré essential to tbeir taking effect. But those following, relate to tbe preservation of tbe ordinances, and we are inclined to bold that tbey are simply directory; and that tbe signature of tbe mayor to tbe copy of record, was not essential to tbe taking effect of tbe ordinance. "We bold, therefore, that tbe court erred in reversing tbe decision of tbe mayor.

Judgment reversed and cause remanded.