Opinion
No. 28,191.
Filed September 25, 1946. Rehearing Denied October 31, 1946.
1. EVIDENCE — Judicial Notice — City Ordinances Not Known Judicially. — The Supreme Court does not take judicial notice of city ordinances. p. 508.
2. MUNICIPAL CORPORATIONS — Police Power — Penalty Imposed by Ordinance — Action to Recover — Complaint Need Not Set Forth Ordinance. — It is not necessary that a city suing for a penalty imposed by an ordinance file with or attach to the complaint a copy of the ordinance, or the section thereof violated. p. 508.
3. MUNICIPAL CORPORATIONS — Police Power — Penalty Imposed by Ordinance Action to Recover — Defense of Invalidity of Ordinance — Burden of Pleader. — If defendant in an action charging a violation of the ordinance thinks such ordinance which he admitted violating is invalid, the burden is upon him to bring the question of its validity forward by way of defense, and, where the ordinance was not filed with the complaint and not brought before the court by defendant's demurrer, the court, in ruling on the demurrer, did not have before it such ordinance and its validity was not before the court. p. 508.
4. MUNICIPAL CORPORATIONS — Police Power — Penalty Imposed by Ordinance — Action to Recover — Appeal by Defendant — Ordinance Not Before Supreme Court — Validity Not Determined. — Where an appeal from a judgment of conviction of violating a city ordinance was presented to the Supreme Court only on demurrer to the complaint which did not set out the ordinance violated, the Supreme Court could look only to the allegations of the complaint in determining the validity of the conviction and could not consider the validity of the ordinance. p. 509.
5. AUTOMOBILES — Criminal Offenses — Violation of Parking Ordinance — Complaint by City Sufficient. — A complaint of a city which alleged acts constituting a violation of a parking ordinance but which did not set forth the ordinance or show any of the grounds upon which the claim of its invalidity by defendant was predicated was sufficient as against a demurrer for want of facts. p. 509.
From the Marion Circuit Court; Lloyd D. Claycombe, Judge.
George S. Rainey was convicted of parking his automobile in a place prohibited by an ordinance of the City of Indianapolis, and he appealed.
Affirmed.
George S. Rainey, of Indianapolis, for appellant. Arch N. Bobbitt, Corporation Counsel, and Henry B. Krug, City Attorney, both of Indianapolis, for appellee.
A complaint was filed in the Municipal Court of Marion County in which, after amendment, it was alleged that appellant, in violation of General Ordinance 49, 1943, of the City of Indianapolis, parked his automobile on the southeast side of Massachusetts Avenue at a time and place prohibited by said ordinance, and judgment for $300.00 and imprisonment for 180 days, the maximum penalty named in said ordinance, was prayed in said complaint. Appellant demurred for want of facts and his demurrer was overruled. He thereupon entered a plea of not guilty, but was convicted by the court and fined $2.00 and costs and the costs were suspended. Thereupon appellant appealed to the Marion Circuit Court and renewed his demurrer. The demurrer again was overruled and evidence was heard, including certified copies of the ordinances involved and the facts concerning his appearance before the traffic violation bureau. Appellant again was found guilty and fined $10.00 and costs, from which judgment this appeal has been taken.
No motion for a new trial was filed and the only error assigned in this court is the overruling of the demurrer to the complaint, which is based upon the alleged unconstitutionality of the ordinance violated as supplemented by the ordinance creating a traffic violation bureau.
This court does not take judicial notice of city ordinances. Indianapolis Traction, etc., Co. v. Hensley (1917), 186 Ind. 479, 487, 115 N.E. 934; Clevenger v. Town of 1-3. Rushville (1883), 90 Ind. 258. It is not necessary that a city suing for a penalty imposed by an ordinance shall file with or attach to the complaint a copy of the ordinance, or the sections thereof, violated. . §§ 48-401, 402 Burns' 1933. The City of Frankfort v. Aughe (1887), 114 Ind. 77, 79, 15 N.E. 802. It did not do so in this case and the ordinances, therefore, were not brought before the court by the demurrer. There was nothing in the complaint to which the demurrer was directed to disclose the substance or effect of the ordinances under attack. If the defendant thought the ordinance he admits violating was invalid the duty and burden was upon him to bring the question of its validity forward by way of defense. The City of Frankfort v. Aughe, supra; Gordon v. City of Indianapolis (1932), 204 Ind. 79, 86, 183 N.E. 124. See also: City of Elkhart v. Calvert (1890), 126 Ind. 6, 7, 25 N.E. 807. Neither ordinance involved had, at the time of the ruling on the demurrer to the complaint, been brought before the court and, therefore, in ruling upon the demurrer to the complaint the court did not have before it either of these ordinances and the validity of neither was before the court.
As the matter is presented to us only on the demurrer, we can look only to the allegations of the complaint, which, we think, are sufficient. It alleges acts constituting violation 4, 5. of the ordinance, and does not show any of the grounds upon which the claim of invalidity of the ordinance is predicated.
The judgment is affirmed.
NOTE. — Report in 68 N.E.2d 545.