Booth v. Town of Carthage
Booth v. Town of Carthage
Opinion of the Court
delivered the opinion of the Court:
It is a correct principle, that a party can not be liable to a penalty imposed by an ordinance of an incorporated town, •unless it appears the ordinance took effect and was in force at the time the act complained of was committed. Newlan v. Town of Aurora, 14 Ill. 364, and 17 ib. 379. And that the provisions of the charter must have been complied with in passing it, and that fact shown to the court by proper proof, is also required. Trustees of Elizabethtown v. Lefler, 23 ib. 90.
Appellant did not make the specific objection that Ordinance 21. had not been published, as required by the charter, but confined his objection to reading the whole of it, contending that only certain sections of it should go in evidence. The whole ordinance, on the admission it had been properly published, was competent evidence to the jury, and properly admitted.
The ordinance designated as “47” has no title, and was offered in evidence by appellant without objection, and was passed nearly three years subsequent to Ordinance 21, and seems to embrace the whole subject of selling or dealing in spirituous or other prohibited liquors, in the town of Carthage. It is a revision of the whole subject by the town authorities; and, though there be no words of repeal in the last ordinance, it must, under the authority of adjudged cases in this court, be taken as a substitute for all prior ordinances on the same subject. Illinois and Mich. Canal v. City of Chicago, 14 Ill. 334; Culver v. Third National Bank of Chicago, 64 Ill. 528.
This last ordinance covers the whole ground, and, for aught we know or can discover, the prosecution may have been brought for its infraction. The title is not given, and it may have the same title as the one recited in the complaint. The recovery in this case can be sustained under 47, as the amount recovered is no more than is reasonable under that ordinance.
The instructions were properly disposed of by the court, and the proof is clear that appellant, had violated the ordinance to an extent even greater than the amount of the recovery.
Justice seems to have been done, and we must affirm the judgment.
Judgment affirmed.
Reference
- Full Case Name
- James Booth v. The Town of Carthage
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Ordinance of incorporated town—action for penalty for violation of. It is a correct principle, that a party can not be liable to a penalty imposed by an ordinance of an incorporated town, unless it appears the ordinance took effect and was in force at the time the act complained of was committed; and the provisions of the charter must have been complied with in passing it, and that fact must be shown by proper proof. 2. Same—objection on error confined to grounds urged below. Where the defendant, when sued for a violation of an ordinance, on the trial below did not object to the introduction of the ordinance on the ground that it had not been published as required by the charter, but confined his objection to reading the whole of it, contending that only certain parts of it should go in evidence: Held, by admitting that the ordinance had been properly published, the whqle of it was properly admitted as evidence. 3. Same—repeal by implication. Where the authorities of a town adopted a subsequent ordinance revising the whole subject of selling or dealing in spirituous liquors:. Held, that this must be taken as a substitute for all prior ordinances on the same subject, although the last contained no words of repeal. 4. Same—to what ordinance complaint refers. Where a complaint in a suit for violation of an ordinance recited the ordinance violated, by its title, and such ordinance was superseded by a subsequent one revising the whole subject, the title of which did not appear in the record, the defendant objected that no recovery could be had, as the ordinance referred to in the complaint had been repealed: Held, that the recovery could be sustained under the subsequent ordinance, as its title may have been the same as the one repealed.