City of Lewiston v. Frary

• Citation: 420 P.2d 805,91 Idaho 322
• Decision Date: 02 December 1966
• Docket Number: No. 9766,9766
• Parties: CITY OF LEWISTON, Plaintiff-Respondent, v. Frances W. FRARY and Raymond E. Grider, Defendants-Appellants.
• Court: United States State Supreme Court of Idaho

Page 805

420 P.2d 805

91 Idaho 322

CITY OF LEWISTON, Plaintiff-Respondent, v. Frances W. FRARY and Raymond E. Grider, Defendants-Appellants.

No. 9766.

Supreme Court of Idaho.

Dec. 2, 1966.

Rehearing Denied Dec. 22, 1966.

Rapaich & Knutson, Lewiston, for appellants.

William A. Stellmon, Lewiston, for respondent.

TAYLOR, Justice.

Defendants (appellants) Frances W. Frary and Raymond E. Grider, with one Thomas Anderson, were separately charged with violation of § 22-31 of the Code of Ordinances of the City of Lewiston, Nez Perce County, which provided:

'No person shall collect in bodies or crowds in the streets or elsewhere within the city for unlawful purposes or for any purpose to the annoyance of citizens or travelers.'

Each defendant was charged separately; however, the charge in each case was in the same language. The charge against Frary was as follows:

'That on the 24th day of January, 1965, in the City of Lewiston, County of Nez Perce, State of Idaho, the crime of Gathering for Unlawful Purpose Code 22-31 was committed, to-wit: By Frances W. Frary, who then and there within the corporate limits of the City of Lewiston, Idaho, did willfully and unlawfully violate Sec. 22-31, Code of Ordinances, City of Lewiston, 1960, to-wit: no person shall collect in bodies or crowds in the streets or elsewhere within the city for unlawful purposes or for any purpose to the annoyance of citizens or travelers, i. e., that said Frances W. Frary did, at about 3:36 A.M., January 24th, 1965, gather and collect in a bodie (sic) in front of the Police Station on 3rd St. within the City for the unlawful purpose of doing physical combat with Ron Wallace and Duane Hollis to their annoyance, said body consisting of Raymond E. Grider, Frances Frary and Tom Anderson, contrary to the form, force and effect of the ordinances in such cases made and provided and against the peace and dignity of the people of the City of Lewiston, Nez Perce County, Idaho, * * *.'

Defendants were convicted in the police court and upon appeal were tried de novo and again convicted in the district court in and for Nez Perce County, sitting in the City of Lewiston. After denying defendant's motions in arrest of judgment and for a new trial, the district court adjudged each defendant guilty and imposed a fine of $300.00 and imprisonment in the Lewiston city jail for the term of thirty days. From these judgments the defendant appealed to this court. Thereafter the defendant Anderson served the term of imprisonment and paid the fine imposed, and upon his motion his appeal was dismissed.

On the evening of January 23, and early morning of January 24, 1965, an altercation occurred between defendants and the complaining witnesses Hollis and Wallace, arising out of a suspicion or accusation by the complaining witnesses that defendants or someone in their group had let the air out of, or slashed, the tires of vehicles belonging to persons attending a party in Clarkston, Washington. Clarkston is located across the Snake River from Lewiston, Idaho. The altercation resulted in the pursuit of the complaining witnesses, who were in one automobile, by the defendants Frances W. Frary, Raymond E. Grider and Thomas Anderson, and a brother of defendant Grider, riding in another automobile. Hollis and Wallace were thus pursued through the streets of Clarkston and across the river into Lewiston, where the complaining witnesses stopped their car in front of the police station. The defendants and Anderson alighted from the pursuing car and by words and conduct threatened assault and battery upon the persons of Hollis and Wallace. Actual combat, however, was prevented by intervention of the Lewiston police.

By one of their assignments of error defendants contend that the verdict was not supported by the evidence. We have examined the record and find the evidence amply sufficient.

By their first assignment defendants contend that the failure of the plaintiff to plead and prove the ordinance charged to have been violated, requires that the judgment be reversed, citing State v. Egli, 41 Idaho 422, 238 P. 514 (1925). In the Egli case, originally commenced in the police court, the substance of the ordinance was set out in the complaint and its provisions were contained in the district court's instructions to the jury, but the ordinance was not offered or admitted in evidence. In that case this court held that the district court, on appeal from the police court, could not take judicial notice of the ordinance, reversed the judgment and remanded the cause for further proceedings. In the case at bar the exact language of the ordinance was set out in the criminal complaints and in the instructions given to the jury by the district court. We have examined the cases cited in support of the rule adopted in the Egli case, and find that by reason either of differences in the law of the forum or in the facts involved, a majority of those cases are not in point on the question here involved. The court in that case relied upon the terms of the statute, I.C. § 9-101 (now a rule of this court, see appendix vol. 2, Idaho Code) where facts judicially noticed are listed, and observed that municipal ordinances are not included therein. However, it must be remembered that the statutory rule, I.C. § 9-101, is not exclusive and is not one of limitation. Facts within common knowledge are not mentioned in the statute, yet universally such facts are judicially noticed by the courts.

California Code of Civil Procedure, § 1875, is the same as our rule I.C. § 9-101. In Wood v. Kennedy, 117 Cal.App. 53, 3 P.2d 366 (1931), the court was concerned with the issue as to whether the insolvency of a bank was revealed by official records and whether it was a fact of common knowledge. Referring to § 1875, of the Code of Civil Procedure of that state, the court said:

'It has been held that the provisions of this section do not limit the matters of which judicial notice should be taken by the courts to those coming within its express terms. The subjects of which judicial notice should be taken have been extended far beyond the strict language of his section by many well-considered decisions. * * * 10 California Jurisprudence * * * and Supplement'. 3 P.2d at 368, 369.

In Ex parte Davis, 115 Cal. 445, 47 P. 258 (1896), the Supreme Court of California said:

'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, § 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 legilature, and may notice their provisions because they are among the things which, as to it, are established by law.' 47 P. at 259.

The rule in the Davis case was adhered to in People v. Cowles, 14i Cal.App.2d Supp. 865, 298 P.2d 732 (1956); Ex parte Hansen, 158 Cal. 494, 111 P. 528 (1910); Ex parte Luening, 3 Cal.App. 76, 84 P. 445 (1906); Ex parte Childs, 1 Cal.App. 39, 81 P. 667 (1905).

Defendants concede that the police court may take judicial notice of municipal ordinances, but urge under the authority of the Egli case that the district court upon trial de novo on appeal from the police court, cannot take such notice.

'Usually the cirucit court will on appeal from the police court on trial de novo, take judicial notice of ordinances of the city and their substance in the same manner as the police court. So it is held that the circuit court during the time of the trial on appeal is substituted for the police court, and hence, whatever the police court could have taken judicial notice of while the case was in that court, the circuit court should take judicial notice of after the removal of the case to the circuit court.' McQuillin, Municipal Ordinances, § 363, p. 566.

'Usually local courts will take judicial notice of ordinances in force within their respective jurisdictions, and where this is the case, a reviewing court may take judicial notice of an ordinance judicially noticed in the court below in the same proceedings.' 9 McQuillin, Municipal Corporations, 3rd Ed. Revised, § 27.44, pp. 716, 717, and cases there cited.

In Watt v. Jones, 60 Kan. 201, 56 P. 16 (1899), the court held that the district court could not take judicial notice of the municipal ordinance 'relating to elections' in an election contest commenced and prosecuted in the district court. In distinguishing that case from one in which the district court hearing was on an appeal from a municipal court, the court said:

'* * * where an appeal is taken from the police court of a city to the district court, the latter will take judicial notice of the ordinance under which the defendant is being prosecuted. In such cases the district court is pro hac vice the police court. City of Solomon v. Hughes, 24 Kan. 211; Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. 281.' 56 P. at 17.

In California the rule is that an appellate tribunal will judicially notice any fact which was properly so noticed in the tribunal from which the appeal is prosecuted. Varcoe v. Lee, 180 Cal. 338, 181 P. 223 (1919), was an action commenced in the Superior Court, City and County of San Francisco, by a father for damages for the death of his daughter resulting from negligence in the operation of an automobile on Mission Street. The Supreme Court held that the trial court sitting and exercising...