City of Racine v. Smith

• Decision Date: 06 March 1956
• Parties: CITY OF RACINE, a Municipal Corporation, Respondent, v. Asella Katherine SMITH, Appellant.
• Court: Wisconsin Supreme Court

Page 454

75 N.W.2d 454

272 Wis. 374

CITY OF RACINE, a Municipal Corporation, Respondent, v. Asella Katherine SMITH, Appellant.

Supreme Court of Wisconsin.

March 6, 1956.

Baumblatt & Goodman, Racine, for appellant.

Thomas P. Corbett, City Atty., Jack Harvey, Asst. City Atty., Racine, for respondent.

CURRIE, Justice.

At the trial de novo had in the circuit court the plaintiff city did not offer in evidence the municipal ordinance under which the defendant was prosecuted. After return of the jury's verdict, defendant's counsel moved for judgment notwithstanding the verdict dismissing the complaint because of the failure of the city to prove the terms of the ordinance. The city countered with a motion asking the trial court to take judicial notice of the ordinance. The learned trial court denied defendant's motion and granted that of the city.

Sec. 328.02, Stats.1953, read as follows:

'Municipal courts shall take judicial notice of ordinances in cities in which they have jurisdiction.'

It is conceded that there was no statute then in effect which authorized the circuit court to take judicial notice of a city ordinance. Therefore, the question with which we are confronted is whether the circuit court, in a trial de novo had as a result of an appeal taken from a municipal court, may take judicial notice of a city ordinance of which the municipal court in the original trial was empowered so to do.

While this apparently is a case of first impression in this court, courts of other jurisdictions have passed upon it. In an annotation appearing in 111 A.L.R. 959, 963, entitled 'Judicial notice of municipal ordinances where action originates in a municipal court', it is stated:

'There is a conflict on the question whether or not an appellate court, trying de novo a case that originated in a municipal court, may take judicial notice of an ordinance of which the lower court might have taken notice, but the prevailing view apparently is that an appellate court will take such notice, or at least may do so, where the case comes before it for a trial de novo, even in the absence of express statutory authority for so doing.' (Emphasis supplied.)

See also 20 Am.Jur., Evidence, p. 62, sec. 38, and 31 C.J.S., Evidence, § 27, p. 542. Two recent decisions applying the majority rule are Wells v. State, 1950, 152 Neb. 668, 42 N.W.2d 363, and City of Huntington v. Salyer, 1951, 135 W.Va. 397, 63 S.E.2d 575.

The reasoning that has motivated courts to hold that in a trial de novo the appellate court may take the same judicial notice of a municipal ordinance, which is permitted on the part of the municipal court that originally tried the case, even though there may be no applicable statute authorizing the appellate court so to do, is well illustrated by the following quotation from the opinion of the Nebraska court in Foley v. State, 1894, 42 Neb. 233, 235, 60 N.W. 574:

'Courts will not, as a rule, take notice of municipal ordinances, unless required to do so by special charters or general law. But to that rule there are recognized exceptions, among which is that courts of a municipal corporation will take notice, without allegations or proof, of its own...