State v. Duranleau

• Decision Date: 21 April 1954
• Citation: 99 N.H. 30,104 A.2d 519
• Parties: , 45 A.L.R.2d 1166 STATE v. DURANLEAU.
• Court: New Hampshire Supreme Court

Page 519

104 A.2d 519

99 N.H. 30, 45 A.L.R.2d 1166

STATE v. DURANLEAU.

Supreme Court of New Hampshire.

Argued April 7, 1954.

Decided April 21, 1954.

Louis C. Wyman, Atty. Gen., Warren E. Waters, Dep. Atty. Gen., and Arnold P. Hanson, County Sol., Berlin, for the State.

John E. Gormley, Lancaster, for defendant, filed no brief.

KENISON, Chief Justice.

It is an elementary principle that it is incumbent on the State to show that violations of the motor vehicle law occur on a public 'way.' R.L. c. 115, § 1, subd. XXXIV; State v. Michaud, 98 N.H. 356, 100 A.2d 899, 900; R.L. c. 90, as amended by Laws 1945, c. 188, Pt. 1, § 1. This burden incumbent on the State is customarily satisfied by direct proof that the highway was legally 'laid out in the mode prescribed therefor by statute', State v. Michaud, supra, or by other proof that it had been in use for public travel for twenty years. Summerfield v. Wetherell, 82 N.H. 513, 516, 135 A. 147. See Wilson v. Goodnow, 98 N.H. 110, 111, 95 A.2d 112. Of course the burden may be satisfied by admission or stipulation but this was not done in this case. The precise question in this proceeding is whether a municipal court may take judicial notice that a certain street or avenue within the municipality is a public highway. It is not disputed that Glen Avenue is the only main highway leading south from Berlin. That it has been used for over twenty years for public travel was a fact of sufficient notoriety to be the subject of judicial notice. Com. ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191, 29 A.L.R. 626; 8 Blashfield, Cyc. of Automobile Law and Practice, s. 5394, p. 258.

In this case we have been furnished with a certified copy of an ordinance of the city of Berlin which reads as follows: 'The highway now laid out, and extending from Green Square to the Gorham town line, shall hereafter be known as Glen Avenue, and shall be so designated on the official plan and map of streets and avenues in said Berlin.' Except as modified by statute, courts of general jurisdiction do not take judicial notice of municipal ordinances. Danovan v. Jones, 36 N.H. 246, 248; Cerwonka v. Town of Saugus, 316 Mass. 152, 55 N.E.2d 1. However a different rule applies when a municipal court takes judicial notice of its own municipal ordinances. IX Wig.Ev. (3rd ed.) s. 2572. 'Thus, judicial notice of a municipality's ordinances generally is taken by its city, police or municipal courts, since in these courts the ordinances are the peculiar law of the forum.' 6 McQuillin, Municipal Corporations (3rd ed.) s. 22.19; O'Malia v. Wentworth, 65 Me. 129; Tipp v. District of Columbia, 669 App.D.C. 400, 102 F.2d 264, 265. The cases are summarized in an annotation in 111 A.L.R. 959 as follows: 'As a well-recognized exception to the general rule that judicial notice may not be taken of a municipal ordinance, it has been held in numerous cases, and appears to be generally well established, that a municipal court must, or at least will, take judicial notice of the existence of an ordinance of the municipality in which the ordinance is sought to be enforced or with a violation of which a person is charged in that court, even in the absence of any statute in that regard.'

In this state a court may or may not take judicial notice of a municipal ordinance as convenience and expediency suggest. Walsh v. Public Service Co., 92 N.H. 331, 334, 30 A.2d 494. If the Presiding Justice is unacquainted with the existence of the ordinance, he is under no compulsion to apply it until it is proved in the ordinary manner. Hall v. Brown, 58 N.H. 93, 95. From the record we are unable to ascertain whether the defendant had any opportunity to dispute the applicability or validity of the ordinance in this proceeding. While there is authority for the proposition that judicial notice should be conclusive, Morgan, Judicial Notice, 57 Harv.L.Rev....