Sisk v. Town of Shenandoah
| Decision Date | 13 October 1958 |
| Docket Number | No. 4862,4862 |
| Citation | 200 Va. 277,105 S.E.2d 169 |
| Parties | ZULA MAE SISK v. TOWN OF SHENANDOAH. Record |
| Court | Virginia Supreme Court |
Bedford B. Uhler, Jr., for the plaintiff in error.
No appearance for or brief filed by the defendant in error.
JUDGE: I'ANSON
Zula Mae Sisk was arrested on a warrant charging her with unlawfully operating a motor vehicle while under the influence of alcohol, in violation of an ordinance of the town of Shenandoah. She was convicted in the trial justice court and appealed to the circuit court. On October 4, 1957, trial by jury was waived with consent of the defendant and the town attorney, and the case was tried by the court, which found the defendant guilty as charged in the warrant and fixed her punishment at a fine of One Hundred Fifty ($150.00) Dollars. To this judgment was granted a writ of error and supersedeas.
In her assignment of errors the defendant makes the following contentions:
(1) The court erred in finding her guilty without proof of the ordinance.
(2) The court erred in taking judicial notice of the ordinance.
Thus the sole issue is did the circuit court err in taking judicial notice of the town ordinance? If it was not authorized to do so the motion to strike the prosecution's evidence should have been sustained.
The evidence discloses that on May 27, 1957, at about 8:30 P.M. the defendant was driving north on Front street in the town of Shenandoah when her automobile sideswiped and damaged two other cars parked along the street just north of its intersection with Virginia avenue. A town officer and a state trooper heard the collision and arrived at the scene within a minute or two. They found the defendant seated in her automobile under the influence of intoxicants. A witness who was seated in one of the automobiles that was sideswiped stated that the defendant did not get out of her car before the officers arrived. A blood test made within thirty minutes after the collision showed an alcoholic content of .15%.
At the conclusion of the prosecution's case the defendant moved to strike the evidence on the ground that the town had failed to introduce any evidence as to the town ordinance and that no request had been made that the court take judicial notice of such ordinance. The court requested authority in support of the defendant's position and continued the case to October 8.
On October 8, the town, by counsel, moved the court to allow it to introduce in evidence a copy of the ordinance. This motion was denied. Neither the court nor counsel for the defendant read or saw the purported copy of the ordinance. The defendant offered no evidence and rested on her motion to strike the town's evidence.
In denying the defendant's motion to strike the evidence the lower court relied upon Collins v. City of Radford, 134 Va. 518, 524, 525, 113 S.E. 735.
Section 8-270, Code 1950, provides the manner of proving statutes and ordinances of the United States, other states and municipal corporations and reads in part as follows:
'A copy of any ordinance or joint resolution of a municipal corporation in this state, certified by the clerk or secretary of the corporation or a printed copy thereof which purports to have been printed by authority of the corporation, shall be received as prima facie evidence for any purpose for which the original ordinance or joint resolution could be received.'
This provision of the statute providing the manner of proving certain specified official documents and referring specifically to municipal ordinances would appear to negative the authority of the circuit court to take judicial notice of the town ordinance in a case on appeal from the trial justice court. State v. Egli, 41 Idaho 422, 238 P. 514.
In Norfolk & Portsmouth Traction Company v. Forrest's Administratrix, 109 Va. 658, 661, 64 S.E. 1034, this court held that 'Courts do not take judicial notice of municipal ordinances as they do of statutes, and evidence must be offered to prove them, but when proved they stand upon the same footing as statutes.'
This is in accord with the general...
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...212 A.2d 537 (D.C.Ct.App.); Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R. 954; Sisk v. Town of Shenandoah, 200 Va. 277, 105 S.E.2d 169; State v. Duranleau, 99 N.H. 30, 104 A.2d 519, 47 A.L.R.2d The warrant for an administrative tribunal to recognize the ru......
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