People v. Fisch

Hooker, J.

Defendant was convicted of violating the local-option law, and has appealed, claiming that it does not appear that such law was in force in the county.

The errors alleged and relied on appear to be that the resolution of the board as to publication was invalid, in that:

1. It omitted to name and designate a newspaper. "We understand the admitted fact to be that, as originally adopted, the resolution required “publication in every newspaper within the county.” This was amended the following day to read “in the Presque Isle News and all the other newspapers in the county.”. Either was a sufficient designation to comply with the law. See Madill v. Midland Common Council, 156 Mich. 56 ( 120 N. W. 355 ).

*682 2,3, That the clerk failed to indorse the filing and fact of filing on the affidavit of publication on the day of its delivery to him, and that he did not spread the affidavit of publication on the records of the official proceedings of the board. The law (2 Comp. Laws, § 5425) provides:

“ Such original affidavit of publication shall be filed with the clerk of the board of supervisors and he shall spread the same on the records of the board, following the record of the adoption of the resolution of prohibition, and the said clerk shall state next on the record the date when said notice and affidavit of publication was entered for record, and shall sign the record officially.”

This is what was done: The affidavit was delivered to the clerk, and on May 2d the original affidavit was posted upon the record of the board of supervisors following the record of the adoption of the resolution of prohibition. This was done on the 2d day of May; the affidavit having been sworn to before a notary on April 30th. It is evident that this affidavit was delivered to the clerk on or before May 2d. That was a sufficient "filing with the clerk ” under the statute, which does not in express terms require him to indorse anything upon it. Moreover, an examination of the record at the hearing showed that the filing was indorsed on the affidavit, being concealed by pasting. It was then his duty to spread the same upon the records, etc. He did literally spread the original affidavit on the record by pasting it there, and this was in exact compliance with the exact terms of the statute, which requires that such original affidavit " * * * shall be filed with (not by) the clerk and he shall spread the same (i. e., the original affidavit) on the records,” etc. We do not mean to imply that a transcription of said affidavit would not have been a compliance with the law, but we hold that the course taken was valid.

4. The further contention is made that the clerk failed to comply with the requirement that—

** The said clerk shall state next on the record the date *683 when said notice and affidavit of publication was entered for record, and shall then sign the record officially.”

What was done is shown by the entry:

“ The above proof of publication was affixed to this page on the 2d day of May, A. D. 1910.”

We must necessarily infer from this record that the affidavit was entered on or before May 2d, and after April 30th. Respondent’s brief states that it was not in the clerk’s office on May 1st. It certainly appears that it was not received after May 2d, and we are of the opinion that this was sufficient. It was filed May 2d. See Madill v. Midland Common Council, 156 Mich. 61, 62 ( 120 N. W. 355 ); Bauer v. Township Board of Denmark, 157 Mich. 395 ( 122 N. W. 121 ); Wightman v. Village of Tecumseh, 157 Mich. 330 ( 122 N. W. 122 ); People v. Hamilton, 143 Mich. 1 ( 106 N. W. 275 ).

It is unnecessary to refer to other questions raised, as they are covered by what has been said.

We find no error, and the judgment is affirmed.

Ostrander, O. J., and Bird, Moore, and McAlvay, JJ., concurred.