Opinion
Application No. 4299.
Decided June 16, 1904.
Evidence — City Ordinance — Cases Distinguished.
The ruling of the Court of Civil Appeals herein (holding inadmissible in evidence, without further proof, a pamphlet purporting to be published by authority of the council of a city incorporated under the general law and to contain the city ordinances) distinguished from that in Galveston H. S.A. Ry. Co. v. Washington, 25 Texas Civ. App. 600[ 25 Tex. Civ. App. 600] (which involved the effect of provisions of the special charter of the city of Houston), and held not to be such an overruling of that case as to give the Supreme Court jurisdiction. (Pp. 100, 101.)
Application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from Falls County.
On appeal by the defendant railway company from a judgment recovered by Hall and others in the District Court, the judgment was reversed and the cause remanded; whereupon appellees, the plaintiffs below, applied for a writ of error on the ground that the decision overruled a previous decision by the court of the First District.
Rice Bartlett, for applicants.
This is a suit to recover damages for injuries resulting in death for which the plaintiffs recovered a judgment. The case was reversed and remanded by the Court of Civil Appeals. A petition for a writ of error has been filed, and as a ground to show jurisdiction in this court it is alleged that the decision of the Court of Civil Appeals in this case overrules the decision of the Court of Civil Appeals for the First Supreme Judicial District in the case of the Galveston, Harrisburg San Antonio Railway Co. v. Washington, 25 Texas Civ. App. 600[ 25 Tex. Civ. App. 600]. In this case the plaintiff offered in evidence a copy from a pamphlet, purporting to contain the printed ordinances of the city of Marlin and to have been published by authority of the city council, of an alleged ordinance of the city imposing certain duties upon railroad companies in running their trains through the city. Over the objections of the defendant the copy of the alleged ordinance was admitted in evidence without further proof; and this action was held by the Court of Civil Appeals to be erroneous.
The city of Marlin is incorporated under the general laws of the State.
In Railway Co. v. Washington it was held that a copy of an ordinance of the city of Houston taken from a printed book which purported to be published by authority of the city council was properly admitted in evidence, without proof that the publication had been authorized by the council. The general law provides: "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." Rev. Stats., art. 558. The provision as to the like subject matter in the special charter of the city of Houston, which was construed in the case of Railway Co. v. Washington, reads as follows: "Sec. 36. * * * And it shall be the duty of the city council, within six months after the passage of this charter, to have compiled, printed and published in book form, convenient of access by all citizens, all the ordinances of the city which may at the time be in force, and all such ordinances not so published shall thereafter become void. Sec. 53. And in all judicial proceedings it shall be sufficient to plead any ordinance of the city by caption without embodying the entire ordinance in the pleadings, and all printed ordinances or codes of ordinances shall be admitted in evidence in any suit, and shall have the same force and effect as the original ordinance." In the special charter construed in the case last cited, it was made the duty of the city council to publish within a specified time all ordinances in force in the city, in order to preserve their validity, from which the court might not without reason conclude that a book or pamphlet purporting to be a copy of such ordinances and to have been authoritatively published, was an authorized publication. The presumption must be indulged that the city council had performed the duty demanded of it and had caused a publication to be made. Under the general law the case is different. Article 558, Revised Statutes, merely authorizes the city council to cause the ordinances to be published and does not make it their duty to do so. Therefore in order to presume, from the mere fact that a pamphlet is produced which purports to have been published by authority of the city council of a city incorporated under the general law, that it was in truth so published, we would have to presume two other facts: first, that the council had authorized the publication, and second, that this was the publication so authorized. Certainly this would require one step further in the line of presumptions than was required under the provision of the Houston charter just quoted.
Besides, since the law made it the duty of the city council of Houston to cause its ordinances to be published under the penalty of their becoming of no effect, the Legislature may have concluded that this duty would certainly be performed, and that therefore no one would undertake their publication as a private enterprise.
We also call attention to the difference in the language of the two provisions under consideration. The language of the general law is, "All ordinances of the city, where printed and published by authority of the city council, shall be admitted," etc. That of the special charter is, "All printed ordinances or codes of ordinances shall be admitted," etc., omitting the words, "where printed and published by authority of the city council."
For these reasons we are of the opinion that the questions in the two cases are distinguishable, and that the decision of the Court of Civil Appeals in this case did not overrule the decision of the Court of Civil Appeals for the First Supreme Judicial District in the former case. We therefore conclude that we are without power to grant or refuse the application for the writ of error here presented.
Being without jurisdiction over the case, neither have we undertaken to decide, nor do we decide, whether the rulings in either or both of the cases are correct.
The application is dismissed for want of jurisdiction.
Application dismissed.