Foley v. State

CourtSupreme Court of Nebraska
Writing for the CourtPOST
PartiesFOLEY v. STATE.
Decision Date16 October 1894

42 Neb. 233
60 N.W. 574

FOLEY
v.
STATE.

Supreme Court of Nebraska.

Oct. 16, 1894.



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.

[60 N.W. 574]

Silas Cobb, for plaintiff in error.

H. E. Cochran and Geo. H. Hastings, Atty. Gen., for the State.


POST, J.

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...

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31 practice notes
  • State v. Lewis, No. S-90-1236
    • United States
    • Nebraska Supreme Court
    • May 8, 1992
    ...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......
  • Tipp v. District of Columbia, No. 7110.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 23, 1939
    ...Ga. 63, 44 S.E. 845; Incorporated Town of Scranton v. Danenbaum, supra note 6; State v. Fulco, supra note 7; Foley v. State of Nebraska, 42 Neb. 233, 60 N. W. 574; West v. Columbus, 20 Kan. 633; Information against Oliver, 21 S.C. 318, 323, 53 Am.Rep. 9 Ex parte A. J. Hansen, 158 Cal. 494, ......
  • State v. Kolosseus, No. 40983
    • United States
    • Supreme Court of Nebraska
    • April 27, 1977
    ...is somewhat obscure. This court apparently had occasion for the first time to classify an ordinance violation as civil in Foley v. State, 42 Neb. 233, 60 N.W. 574, and cited as authority for the distinction 1 Bishop, Criminal Law, § 32; 1 Bishop, Criminal Procedure, § 892; and Liberman v. S......
  • Griffin v. Gass, No. 29942.
    • United States
    • Supreme Court of Nebraska
    • June 22, 1937
    ...not alleged; and, in addition, courts of appeal will not as a general rule take judicial notice of municipal ordinances. 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 appears that this ......
  • Request a trial to view additional results
31 cases
  • State v. Lewis, No. S-90-1236
    • United States
    • Nebraska Supreme Court
    • May 8, 1992
    ...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......
  • Tipp v. District of Columbia, No. 7110.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 23, 1939
    ...Ga. 63, 44 S.E. 845; Incorporated Town of Scranton v. Danenbaum, supra note 6; State v. Fulco, supra note 7; Foley v. State of Nebraska, 42 Neb. 233, 60 N. W. 574; West v. Columbus, 20 Kan. 633; Information against Oliver, 21 S.C. 318, 323, 53 Am.Rep. 9 Ex parte A. J. Hansen, 158 Cal. 494, ......
  • State v. Kolosseus, No. 40983
    • United States
    • Supreme Court of Nebraska
    • April 27, 1977
    ...is somewhat obscure. This court apparently had occasion for the first time to classify an ordinance violation as civil in Foley v. State, 42 Neb. 233, 60 N.W. 574, and cited as authority for the distinction 1 Bishop, Criminal Law, § 32; 1 Bishop, Criminal Procedure, § 892; and Liberman v. S......
  • Griffin v. Gass, No. 29942.
    • United States
    • Supreme Court of Nebraska
    • June 22, 1937
    ...not alleged; and, in addition, courts of appeal will not as a general rule take judicial notice of municipal ordinances. 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 appears that this ......
  • Request a trial to view additional results

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