Ex parte Davis

47 P. 258, 115 Cal. 445, 1896 Cal. LEXIS 1030

• Court: California Supreme Court
• Decided: December 29, 1896
• Docket: Crim. No. 243
• Status: Published

Opinion

The Court.

The petitioner was convicted in the recorder’s court of the city of Watsonville upon a complaint charging him with keeping open a saloon in said city for the sale of intoxicating drinks, between the hours of twelve o’clock at night and five o’clock the following morning. “All of which [so the complaint charges] is contrary to the form of the ordinance in such cases made and provided, and against the peace and dignity of the people of the state of California.”

It is claimed that the imprisonment of petitioner in pursuance of said conviction is unlawful, because the complaint charges no offense, and that it charges no offense because it does not plead the ordinance by title, date of passage, or in any manner except in the general terms above quoted.

The argument in support of this position is, that the ordinances of municipal corporations are private statutes; that courts do not take judicial notice of private statutes; and, consequently, that they must be pleaded and proved like other material facts.

It is true, as a general proposition, with reference to proceedings in the courts of superior or general jurisdiction, that municipal ordinances are regarded as private statutes, and must be pleaded and proved. In this state, however, even in the superior courts, it is sufficient to refer to them by title and date of passage, whereupon the court must take judicial notice of them. (Pen. Code, sec. 963.) But when the proceeding is in a municipal court, instituted for the express purpose of enforcing the municipal ordinances, and vested with full jurisdiction for that purpose, the rule ought to be and is different. In such case, the ordinances are the peculiar law of that forum, and it is bound to take notice of their existence. To such laws it holds the same relation that the superior courts hold to the laws enacted by the legislature, and may notice their provisions because they are among the things which, as to it, are established by law. (Code Civ. Proc., sec. 1875, subd. 2.) The following authorities bear out this view: Solomon v. Hughes, 24 Kan. 211; McPherson v. Nichols, 48 Kan. 430; note to Lanfear v. Mestier, 89 Am. Dec. 668, 669; State v. Leiber, 11 Iowa, 407; Laporte v. Goodfellow, 47 Iowa, 572.

These cases show that the practice in municipal courts, with respect to municipal ordinances, constitutes an exception, and a proper and necessary exception, to the rule invoked by the petitioner. The complaint, therefore, was sufficient, if there was an ordinance prohibiting the acts charged,, and, as to that, we must presume, in this proceeding, which raises only the question of jurisdiction, that there was such an ordinance of which the recorder’s court took judicial notice.

Prisoner remanded.