Opinion
No. 34408.
May 12, 1941.
1. MUNICIPAL CORPORATIONS.
Where printed proof of publication of ordinance setting forth ordinance at length and date of its passage was securely pasted to a page in the municipal ordinance book, there was compliance with statute requiring ordinances to be entered in an ordinance book at length in a plain and distinct handwriting or typewriting (Code 1930, sec. 2545).
2. MUNICIPAL CORPORATIONS.
The statutory provision requiring the municipal clerk to append to an ordinance a note stating the date of its passage and to cite therein the book and page of the minutes containing the record of its passage is merely for convenience in finding the ordinance in the minutes of the city's governing body and is merely directory, and failure to comply therewith has no effect on the ordinance or on the copy thereof in the ordinance book required to be kept under statute (Code 1930, sec. 2545).
APPEAL from the circuit court of Lafayette County, HON. T.H. McELROY, Judge.
J.W.T. Falkner, of Oxford, for appellant.
The court cannot take judicial notice of the ordinances of a municipal corporation.
Thomas v. State, 101 Miss. 74, 57 So. 364; City of Jackson v. Herron, 112 So. 673, 147 Miss. 507; Kyle v. Town of Calhoun City, 86 So. 340, 123 Miss. 542; Bohan v. City of Louisville, 144 So. 44, 164 Miss. 97; Naul v. McComb City, 70 Miss. 699, 12 So. 903.
The page from the ordinance book offered on the trial of this case in the lower court in no conceivable way meets the requirements of Section 2545, Code of 1930. It does not contain, in "plain and distinct handwriting or typewriting," any ordinance written by the Clerk of the City of Oxford, nor does it contain a citation showing the book and page of the minutes of the Board containing any record of the passage of a city ordinance, and appellant contends that the requirement of law that a municipal ordinance be introduced on the trial of a person charged with the violation thereof was not complied with, hence there was no law to guide the action of the court and jury on the trial of the case, that it was error for the court to grant an instruction to govern the jury in the deliberation of the case, and hence there was no authority for the verdict returned by the jury. R.L. Smallwood, Jr., of Oxford, for appellee.
For the past ten or twelve years the various clerks of the City of Oxford, Mississippi, instead of typing the ordinances in the ordinance book with a typewriter or writing the ordinances in longhand in the ordinance book, have taken from the paper an exact copy of the ordinance as published, pasted it on a large piece of plain white paper and then pasted all of it in the ordinance book. The proof of publication of the ordinance is also pasted on the same page as the ordinance. We submit that an ordinance entered in an ordinance book as above described is not merely introducing a newspaper clipping of the ordinance. Entering the ordinance in this manner complies with the statute when it says, "plain and distinct handwriting or typewriting." The proof of publication was on the same page to show the ordinance had been published according to law.
McQuillin on Municipal Corporations (2 Ed.), Par. 909; Eubanks v. Ashley, 36 Ill. 177.
The entering of an ordinance in the ordinance book is merely directory to the clerk.
City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161.
This is an appeal from a conviction for having intoxicating liquor in possession. The appellant's only complaint is that the court below erred in admitting the city's evidence of the ordinance under which he was convicted. This ordinance was not proven by a certified copy thereof, but by the introduction of the ordinance book in which it appears. Section 2545, Code of 1930, provides for the keeping of a municipal ordinance book and that ordinances shall be entered therein "at length, in a plain and distinct handwriting or typewriting." This ordinance was not so entered, but a printed proof of the publication thereof setting forth the ordinance at length and the date of its passage was securely pasted to one of the pages in the book. While this copy of the ordinance was printed instead of being typewritten, to hold that the statute was not thereby complied with would be hypercritical, and would sacrifice substance to shadow.
The municipal clerk did not append to the ordinance "a note stating the date of its passage, and cite therein the book and page of the minutes containing the record of its passage," as provided by the statute. This requirement is merely for convenience in finding the ordinance in the minutes of the city's governing body, is merely directory, and the failure to comply therewith has no effect on the ordinance or on the copy thereof in the ordinance book.
Affirmed.