State v. Page, 386-81

• Decision Date: 07 February 1983
• Docket Number: No. 386-81,386-81
• Citation: 457 A.2d 653,142 Vt. 522
• Parties: STATE of Vermont v. Guy M. PAGE.
• Court: Vermont Supreme Court

Page 653

457 A.2d 653

142 Vt. 522

STATE of Vermont v. Guy M. PAGE.

No. 386-81.

Supreme Court of Vermont.

Feb. 7, 1983.

John R. Churchill and J. Dena Monahan, Chittenden County Deputy State's Attys., and Robert Andres, Law Clerk (on brief), Burlington, for plaintiff-appellee.

Guy M. Page and Villa, Tiballi & Hazelett, Burlington, for defendant-appellant.

Before BILLINGS, HILL, UNDERWOOD and PECK, JJ., and DALEY, J. (Ret.), Specially Assigned.

BILLINGS, Justice.

The defendant was charged and convicted of driving in excess of the 35 mph speed limit imposed by a Colchester town ordinance. Defendant appeals, claiming the State failed to prove due enactment of the ordinance pursuant to 23 V.S.A. § 1007. More specifically, he claims that the State did not prove that the speed limit was adopted as a result and on the basis of the requisite engineering and traffic investigation. 23 V.S.A. § 1007(a).

23 V.S.A. § 1007 authorizes the legislative body of a municipality to establish the speed limits prevailing within its borders. That statute provides, in part, as follows:

Whenever the legislative body of a municipality determines, on the basis of an engineering and traffic investigation, that a maximum speed permitted under this chapter is greater or less than is reasonable and safe under conditions found to exist upon all or a part of any city, town or village street or highway within its jurisdiction, it may determine and declare a reasonable and safe maximum limit ....

As we have often stated, however, under our law a court may not take judicial notice of a local ordinance. State v. Atwood, 140 Vt. 301, 302, 438 A.2d 387, 388 (1981); State v. Pelletier, 123 Vt. 271, 272, 185 A.2d 456, 457 (1962); Hambley v. Town of St. Johnsbury, 130 Vt. 204, 208, 290 A.2d 18, 20 (1972). Thus, in order to prevail in a case involving a violation of a local speed limit, the State must prove not only the fact of excessive speed, but also the content of the ordinance and that it had legal effect. State v. Atwood, supra, 140 Vt. at 302, 438 A.2d at 388.

At trial, the State introduced as an exhibit a certified copy of the certificate of adoption of the speed limit, duly signed by the Colchester Board of Selectmen. The certificate read, in part, as follows:

Pursuant to § 106-109 of the Colchester Town Charter and Title 23 V.S.A. Secs. 1007 & 1008, the Board of Selectmen held a public hearing ..., and adopted without amendment the following amendment to the Colchester Ordinance of Traffic, Chapter 12: ... Malletts Bay Avenue: ... 35 mph from the Thibault Farm (so-called) to the intersection of ... Lakeshore Drive (Town Highway # 1).

In addition, the State introduced a certified copy of Chapter 12 of the Colchester Ordinance of Traffic, which incorporated this 35 mph speed limit. Further, through testimony of the arresting officer, the State established both the rate of speed of defendant's vehicle, and the fact that speed signs were posted visibly along the portion of road in question.

Defendant on appeal makes the same argument he offered in support of his motions to dismiss and for new trial. That is, by its own evidence the State failed to prove that the ordinance had legal effect, for the certificate of adoption did not recite that the selectmen were acting on the basis of an "engineering and traffic investigation" when they lowered the speed limit. 23 V.S.A. § 1007(a). This, without more, he argues, was sufficient evidence to rebut the presumption that action taken by selectmen within the scope of their official duties is regular and in accordance with statute. Murray v. Webster, 123 Vt. 194, 200, 186 A.2d 89, 93 (1962); Town of Manchester v. Town of Townshend, 110 Vt. 136, 143, 2 A.2d 207, 209 (1938). Defendant offered no other evidence to buttress this claim of invalidity, and although in making the motions his attorney stated that "[d]efendant has reviewed the Minutes of the Selectmen's meetings and has been unable to locate any reference to an 'engineering and traffic investigation,' " defendant inexplicably offered neither sworn testimony nor documentary evidence in...