The respondents .justified the alleged trespass complained of, some as members of the board of health, and the others as acting under authority of the board of health, of the city of Mineral Point.
The charter of the city (ch. 78 of 1861), ch. 4, sec. 3, subd. 11, gives-power to the common council, by ordinance, resolution or by-law, to establish and regulate boards of health. Ch. 4, sec. 3, provides that such ordinances, resolutions and by-laws shall be passed by an affirmative vote of a majority of the common council, and be signed by the mayor, and be published in a newspaper' of the city selected by the common council, before they shall be in force ; and that upon proof of *591publication, and not before, they shall be recorded together with the affidavit of publication.
The respondents gave in evidence, under exception, the record of a resolution of the common council, all the members present voting therefor, appointing two of the respondents and another person a board of health; and of an ordinance of the common council conferring powers, etc., on the board of health; without other proof of them, or of their passage, or of their publication.
They then called the city clerk, who testified that he saw the resolution and ordinance published in the official newspaper. The appellant moved to exclude this testimony; the court refused; and the appellant excepted.
It is unnecessary to consider the questions, whether the resolution and ordinance constituted a valid exercise of the power to establish and regulate boards of health, or whether they appeared to be validly passed ; because the evidence given of the resolution and ordinance was incompetent.
The record of the resolution and ordinance, without record of the affidavit of publication, was not only not authorized, but is expressly forbidden, by the charter; and the record admitted in evidence is a mere nullity. If the parol evidence would have been competent to support the original resolution and ordinance, on which we express no opinion, it certainly was incompetent to support the record.
Had the respondents pleaded that the culvert in the appellant’s premises created a public nuisance, and that as such they abated it, the record of the case would hav.e raised questions not now before us. But they did not so plead. They only plead what the members of the board of health found and believed, and rest .their' justification wholly on the authority of the board of health.
By the Court. — The judgment of the court below is reversed, and the cause remanded for a new trial.