Woodruff v. Deshazo , 1915 Tex. App. LEXIS 1169 ( 1915 )

HENDRICKS, J.

[1] The appellee, Des-hazo, sued the appellant, Woodruff, alleging the death of a horse owned by him, on account of falling into a cistern on appellant’s premises, which was negligently left unfenced and unprotected. The defendant, Woodruff, as a special defense, pleaded the existence of a city ordinance of the city of Wellington, prohibiting the running at large of live stock contrary to the provisions of the same, and that said horse was at large in violation of said ordinance. If it were unlawful for the plaintiff to permit his horse to run at large within the corporate limits of the town of Wellington, the ordinance was a complete defense to the plaintiff’s action, unless the defendant was guilty of gross negligence in permitting the cistern to remain open. The ordinance provided for the impounding of the animals running at large by the city marshal, and also prescribed a penalty by fine for the violation of same.

[2, 3] The defendant produced an ordinance book of the city of Wellington, entitled Minutes of City Council, exhibiting the passage by the city council of the ordinance in question, June 1, 1911. Defendant offered to prove by the city marshal that the ordinance enacted “was an ordinance of the city of Wellington.” The objection was made that the publication of the ordinance was not shown as a predicate to the introduction of same in evidence. The bill by qualification exhibits that when the objection was made the court suggested that defendant make proof of publication and offered to allow oral testimony to that end. There is some dispute as to the effect of the bill, but we think it clear from reading the whole bill that appellant was not intending to prove by his witness the publication of said ordinance in any manner. Article 819, Vernon’s Sayles’ Civil Statutes, provides that every ordinance imposing a penalty or forfeiture—

“shall, after the passage thereof, be published in every issue of the official paper for ten days; if the official paper be published weekly, the publication shall be made in one issue; * * * and proof of such publication shall be made by the printer or publisher * * * making affidavit * * * and filed with the secretary of the city pr town, and [such affidavit] shall be prima facie evidence of such publication and promulgation of such ordinances in all courts of the state; and such ordinances so published shall take effect, and be in force, from and after publication thereof.”

Article 821, same statutes, also provides that:

“All ordinances of the city, where printed and published by authority of the city council, shall be admitted and received in all courts and places without further proof.”

Justice Gaines said, in the case of City of Austin v. Walton, 68 Tex. 507, 5 S. W. 71:

“The courts do not take judicial knowledge of the ordinances of municipal corporations. They stand upon the same footing as private and special statutes, the laws of other states, and of foreign countries, and must be averred and proved like other facts.”

It is clear, viewing article 819, that the publication of the ordinance after passage is a necessary prerequisite to the same becoming a law. The purpose of publication is to inform the citizens of a municipality that such a law is to come into existence. Hence, if the statute requiring publication is not directory, but mandatory, as affecting the vitality of the ordinance passed, and if an ordinance does not take effect and become in force until, after its publication, necessarily such a prerequisite is required to be proved under Justice Gaines’ decision; otherwise, if not shown, no law is exhibited. The statute suggests two methods of proof: The affidavit of the publication filed with the secretary of the city or town constituting “prima facie evidence of such publication * * * in all courts of the state”; also, the ordinances of the city, “where printed and published by authority of the city council,” are to be admitted and received in all courts without further proof.

The only argument that Could be urged in favor of the admissibility of the ordinance by the mere production of the ordinance in the minutes as proving the publication is that under the statute it could be said it was the duty of the city council to provide for the publication of such ordinance, and hence it would be presumed that said body had performed such duty. These statutes, however, do not end with the mere imposition of duty to publish the ordinance, but suggest two methods of evidence of prima facie proof in showing performance of said duty. To say that the mere production of the ordinance, without further proof, is sufficient is against the spirit of the statute. The statute evinces the necessity of proof of publication, by its terms, before proof of the law is established. We are not to be understood as suggesting that these two methods are exclusive, and that some other equivalent method of primary proof could not be made showing the performance of such duty, but that it has to be done to show that the law exists.

There are cases holding that, where a book, containing ordinances of a city published presumably in obedience to the city charter, imposing the duty of publishing the ordinance, is offered as proof of an ordinance contained therein, the same is admissible without further authentication. Street Ry. Co. v. Hawes, 48 Tex. Civ. App. 487, 107 S. W. 556; G., H. & S. A. Ry. Co. v. Washington, 25 Tex. Civ. App. 600, 63 S. W. 538 —in both of which cases writs of error were denied by the Supreme Court, but which clearly have no application here.

The Supreme Court of Illinois said, in the case of Schott v. People, 89 Ill. 195, citing several other cases of that state, that the publication of the ordinance prescribed by the statute was mandatory.

“The proof failing' to show a publication as required by the charter, the evidence of the ordinance should have been rejected. Trustees of Elizabeth Town v. Leffer, 23 Ill. 90; Newlan v. President & Trustees of Aurora, 14 Ill. 364; Barnett v. President & Trustees, etc., 28 Ill. 62.”

In the case of Shaw v. New York Central, 85 App. Div. 137, 83 N. Y. Supp. 93, one of the Supreme Courts of New York said:

“An ordinance passed under said act * * * must be published * * * as provided by the village law. * * * No evidence was offered to show that the ordinance in question was ever published or posted as required by. law, and, so far as appears from the record, it never took eSect. * * * As there is no sufficient evidence that the ordinance had been promulgated, the trial court was in error in allowing the same to be considered by the jury.”

[4] There is a suggestion of fundamental error by the appellant in its brief, on account of the action of the court, in granting and giving certain special charges. There are no objections and exceptions to these charges brought forward in the brief. The purpose of the act of the Thirty-Third Legislature was to enjoin upon the party complaining of the charge to suggest to the court the errors in the charge and object and except to the same, which was not done in this instance. The action of the court could not be considered as fundamental error.

We think the trial court correctly ruled out the ordinance in question, and the judgment is affirmed.

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