Foley v. State
| Decision Date | 16 October 1894 |
| Citation | 60 N.W. 574,42 Neb. 233 |
| Parties | FOLEY v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Courts will not, as a rule, take notice of municipal ordinances, unless required to do so by special charter or general law.
2. But to that rule an exception is recognized in favor of the courts of municipal corporations, which will take notice of their own ordinances, since they stand in the same relation to the municipal laws as do courts of general jurisdiction towards the general laws of the state.
3. On appeal from a judgment of conviction before a police judge for the violation of a city ordinance, the district court will, upon a trial de novo, take notice of whatever facts the former could have noticed judicially before the removal of the cause.
4. The strict rule of the common law in that respect held not applicable to our more liberal practice.
Error to district court, Douglas county; Keysor, Judge.
Bart Foley was convicted of keeping his saloon open after hours, and brings error. Affirmed.Silas Cobb, for plaintiff in error.
H. E. Cochran and Geo. H. Hastings, Atty. Gen., for the State.
This was a prosecution in the police court of the city of Omaha, where the accused, plaintiff in error, was convicted of the violation of an ordinance of said city which prohibits the keeping open of saloons between the hours of 12 o'clock at night and 4 o'clock in the morning. An appeal was taken to the district court for Douglas county, where a trial was had, resulting in a verdict of guilty, upon which judgment was entered, and which it is sought to reverse by this proceeding.
The first proposition argued in the brief of counsel for the accused is that the information is insufficient for the reason that the ordinance above referred to was not therein set out. It is proper to state, in this connection, that the trial in the district court was upon the information filed before the police judge, and which, after an allegation of the acts relied on by the prosecutor, concludes as follows: “Contrary to the ordinances of said city and the statutes of the state in that behalf made and provided, and against the peace and dignity of the state.” 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 ordinances. The ground of the exception noted is that such courts stand in the same relation towards the municipal laws of the city or other corporation as do courts of general jurisdiction towards the public laws of the state. And, on appeal from a judgment of conviction before a police magistrate of a city for the violation of an ordinance thereof, the court will, upon a trial de novo, take notice of such ordinance. In short, the district court or court of like general jurisdiction will, on appeal from a municipal court, take notice of whatever facts the latter could have noticed judicially before the removal of the cause therefrom. The court exercising appellate jurisdiction in such cases is, as remarked by Horton, C. J., in Smith v. City of Emporia, 27 Kan. 528, for the time being, regarded as a substitute for the police magistrate. See, also, West v. City of Columbus, 20 Kan. 633; City of Solomon v. Hughes, 24 Kan. 211; Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. 281;Town of Moundsville v. Velton, 35 W. Va. 217, 13 S. E. 373; State v. Lieber, 11 Iowa, 407. Cases are not wanting which sustain a different rule, and holding in effect that, in every prosecution under a city ordinance, it is essential to set out, or in unmistakable terms refer to, the section or provision thereof relied upon for a conviction. In...
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State v. Lewis, S-90-1236
...from Perry v. State, 37 Neb. 623, 56 N.W. 315 (1893), which Judge Grant quotes in his concurrence was expanded upon in Foley v. State, 42 Neb. 233, 60 N.W. 574 (1894). That expansion makes clear that the assumptions we presently make are outgrowths of the requirements that a municipal court......
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Steenerson v. Great Northern Railway Company
...to it, also take judicial notice of such ordinance, although in some other cases such appellate court would not do so. Foley v. State, 42 Neb. 233, 60 N.W. 574; Smith v. City, 27 Kan. 528; Town v. Velton, 35 W.Va. 217, 13 S.E. 373. See, also, Lloyd v. Matthews, 155 U.S. 222, 15 S.Ct. 70, 39......
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Griffin v. Gass, 29942.
......The proper use and application of the term “club,” in connection with the liquor business in this state, is determined by subsection (18) of section 2, c. 116, Laws 1935 (Comp.St.Supp.1935, § 53-302(18). The allegations of plaintiffs' petition fully ...Foley v. State, 42 Neb. 233, 60 N.W. 574. It follows that for the purpose of this case Ordinance No. 784 is the only one now for consideration. It also ......
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State v. Buescher, S-91-285
...391 (1980); State v. Korf, 201 Neb. 64, 266 N.W.2d 86 (1978); State v. Sator, 194 Neb. 120, 230 N.W.2d 224 (1975); Foley v. State, 42 Neb. 233, 60 N.W. 574 (1894). Without benefit of the ordinances in question, neither can we determine whether the trial court should have granted a jury tria......