Chicago & Alton Railroad v. Engle

76 Ill. 317

Opinion

Mr. Justice McAllister

delivered the opinion of the Court:

In order to a recovery under his declaration, it was indispensable that appellee should have shown the ordinance of the town of Greenview to have been in force at the time of the alleged killing of his horse by appellant’s train. The act incorporating the town provides, that “no ordinance shall be of any force until the same shall have been advertised, by publishing copies in three public places in said town for ten days,” but contains no provision as to how proof of publication shall he made. In the absence of any such provision, common law evidence of the fact of posting copies in three public places should ha%-e been adduced.

The court below permitted the ordinance to be read in evidence, against the defendant’s objection, upon the mere certificate of the town clerk that it had been “published on the 19th day of June, A. D. 1868, by posting up three copies as required by law.” There being no statute making such certificate evidence of the fact of publication, it was incompe- . tent, and the ordinance not admissible in evidence, or, if it was, no force could be attributed to it, until the fact of publication, as required by the charter, was shown by competent evidence.

The judgment will be reversed, and the cause remanded.

Judgment reversed.