Opinion
Opinion filed October 1, 1935.
Automobiles — Insufficiency of Complaint under Parking Ordinance of City To Withstand Demurrer — Municipal Corporations — Construction of Penal Ordinance — Validity of Ordinance of Municipality as Dependent upon Compliance with Statute under Which Enacted — Insufficiency of Municipal Parking Ordinance To Have Binding Effect Because Steps Taken To Enforce It Failed To Comply with Either Its Provisions or State Statute Relating to Matter — Evidence — Judicial Notice.
1. Where city ordinance, prohibiting parking for longer than one hour at a time, in certain district of city, between specified hours of day, except Sundays and holidays, provided that "Signs shall be erected and maintained in each block of restricted area designating the provisions of this section," and State law, giving city authority to make special regulations as to parking of motor vehicles, provided that "signs indicating such regulations must be conspicuously posted in and near all areas affected thereby," complaint under ordinance which failed to show that area in question was marked by any signs other than signs reading, "Park 1 hour only," held demurrable.
2. Such ordinance, being penal, must be strictly construed.
3. Validity of city ordinance depends upon compliance with statute under authority of which it was enacted.
4. City ordinance, prohibiting parking for longer than one hour at a time, in certain district of city, between specified hours of day, except Sundays and holidays, providing that signs should be erected in each block of restricted area designating provisions of section of ordinance, held not to be of binding effect, where only signs in area read "Park 1 hour only," since such signs neither complied with ordinance, nor provision of State law under which such regulations were enacted that "signs indicating such regulations must be conspicuously posted in and near all areas affected thereby."
5. In passing upon validity of municipal ordinance, Supreme Court will take judicial notice of statutory authorization for such ordinance.
COMPLAINT brought by grand juror of city of Rutland for violation of city ordinance relating to parking. Heard by Rutland city court, Harold I. O'Brien, City Judge, presiding, on respondent's demurrer to complaint. Demurrer overruled. The respondent excepted, and exceptions passed to Supreme Court before final judgment. The opinion states the case. Demurrer sustained. Judgment reversed, and judgment that respondent is not guilty and discharging respondent.
Charles L. Howe, Fenton, Wing Morse, and R. Clarke Smith for the respondent.
The complaint was insufficient in that it failed to set forth in full the ordinance for the violation of which complaint is made, since courts will not take judicial notice of a municipal ordinance. State v. Cruickshank, 71 Vt. 94, 42 A. 983; State v. Soragan, 40 Vt. 450, 454; State v. Bosworth, 74 Vt. 315, 318, 52 A. 423; Prouty v. Pellett, 96 Vt. 53, at pp. 56, 57; 23 C.J. 138, § 1961, note 79; 43 C.J. 464, § 656, notes 99, 1, and cases cited therein; Harker v. Mayor, etc., of New York, 17 Wend. (N.Y.) 199, 200, 13 N.Y. Com. Law Rep. 109, 110; Bloomington v. Illinois Cent. R.R. Co., 154 Ill. 539, 39 N.E. 478, 481; People ex rel., Blackly v. Coffin, 279 Ill. 401, 117 N.E. 85, 87.
The complaint is insufficient because it contains no allegation that the alleged parking at the place set forth was within the so-called "business district" referred to in that portion of the ordinance set forth in the complaint. In this prosecution, the place where the alleged violation occurred is of the very essence of the offense, as the respondent might legally, in the lawful use of the public streets and highways in the city, park his car wherever he saw fit, except as some valid local law limited that right. Where it is claimed that a local law takes away a person's right to perform an otherwise innocent act merely because of the place where the act was performed, it is a primary requisite that a complaint, based on such local law, should affirmatively allege that the act complained of was performed, at the place where it was made unlawful. State v. Aaron, 90 Vt. 183; State v. Day, 3 Vt. 138; State v. Turnbull, 78 Me. 392, 6 A. 1; State v. Prescott, 129 Me. 239, 151 A. 421; Peer v. Dixon, 82 N.J. Law, 366, 83 A. 181. See, also, State v. Wilson, 79 Vt. 379; State v. Pratt, 54 Vt. 484; State v. Higgins, 53 Vt. 198.
The fact not appearing in the complaint, that the place on the street where the car was parked was in the quoted description of the "business district" where parking was prohibited for longer than one hour, except on Sundays and holidays, that street was in such area is not such fact as can be judicially noticed by the court. Anderson v. Ocola, 67 Fla. 204, 64 So. 775, 52 L.R.A. (N.S.) 287, 294; Brun v. P. Nacey Co., 267 Ill. 353, 108 N.E. 301; Woodson v. Metropolitan Street Ry. Co., 224 Mo. 685, 123 S.W. 820, 30 L.R.A. (N.S.) 931; Vonkey v. St. Louis, 219 Mo. 37, 117 S.W. 733.
The complaint alleges that section 41 of the ordinance provides that "signs shall be erected and maintained in each block designating the provisions of this section," but also alleges that the signs employed contained only the words "Park 1 hour only." The ordinance provided as well for a time when no limitation of time for parking at all was in force, viz., Sundays and holidays, and this was of equal or greater importance than the provision limiting time of parking. Noncompliance with requirement of the section of ordinance that signs be maintained designating its provision being made to appear in the complaint, and it appearing to the contrary that such provision was not complied with, the purported section was without force or validity. People v. Seventh District Magistrate's Court, 190 N.Y. 315, 83 N.E. 44; People v. Hayes, 124 N.Y.S. 417, 66 Misc. 606; Benscotter v. Long, 157 Pa. St. 208, 27 A. 674, 680, 681; Decatur v. Gould, 185 Iowa, 203, 170 N.W. 449. See, also, State v. Mack, 92 Vt. 103.
Thomas Mangan, city grand juror, and Marvelle C. Webber and Christopher A. Webber, of counsel, for the State.
The ordinance for the violation of which complaint is made is sufficiently set forth. The complaint sets forth sections 35, 41, and 47 of the ordinances in exact language. These sections cover respectively the time limit for parking, the district to which the time limit applies, and the punishment for a violation of the time limit. These sections are sufficient to cover the offense charged and its penalty, and to set forth the whole ordinance would be to allege immaterial matters which would be subject to be stricken out as surplusage. Only so much of the ordinance as is relied upon need be set forth. The following authorities show that facts were sufficiently alleged, and the demurrer should not have been sustained. Village of Winooski v. Gokey, 49 Vt. 282; 43 C.J. 464, § 656; 43 C.J. 578, § 930; Shanfelter v. Mayor, 31 A. 439, 80 Md. 483; McQuillan on Municipal Corporation, § 850, p. 1816; Wagner v. Garrett, 118 Ind. 114, 20 N.E. 706; Clennger v. Town of Rushville, 90 Ind. 259; 43 C.J., § 927, p. 577.
While there is a conflict of authority on the question of whether courts will take judicial notice of the location of streets in a city, the better view is that the court will take such notice. Collon v. Block, 232 P. 486, 70 Cal.App. 33; Paulanski's Case, 135 A. 824, 126 Me. 37; Pacific Paving Co. v. Verso, 107 P. 590, 12 Cal.App. 362; Smith v. So. Pac. Co. (Cal.), 255 P. 500; Young v. City of Los Angeles (Cal.), 260 P. 798; Katz v. Helbing, Sr. et al. (Cal.), 271 P. 1062; National Optical Co. v. U.S. Fidelity Guaranty Co., 77 Colo. 130, 235 P. 343; In re City of New York, 96 N.Y.S. 554, 48 Misc. Rep. 602; Gruber v. N.Y. City Ry. Co., 103 N.Y.S. 216, 53 Misc. Rep. 322; Krasutsky v. Clara De Hirsh Home for Working Girls, 150 N.Y.S. 1058; Tuttle Bailey Mfg. Co. v. General Electric Co., 197 N.Y.S. 683, 120 Misc. Rep. 87; Postley v. Kafka, 211 N.Y.S. 382, 213 App. Div. 595; Comm. ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191; Mabray v. Union Pac. R.R. Co., 5 Fed. Supp. 397; American Fidelity Cas. Co. v. Williams, 34 S.W.2d 396.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
This case comes before us on the respondent's exceptions to the overruling of his demurrer to a complaint charging him with parking his automobile on Center Street in the city of Rutland for a period of time prohibited by an ordinance of the municipality.
The complaint recites certain portions of the ordinance. Section 41 provides that "The driver of a vehicle shall not park such vehicle for longer than one hour at a time between the hours of 8 A.M. and 6 P.M. of any day, except Sunday, and public holidays, within the territory known and described as the Business District * * *. Signs shall be erected and maintained in each block designating the provisions of this section." Section 35 describes the boundaries of the "business district." Section 47 describes the penalty for a violation of the ordinance, and the jurisdiction of the city court and justices of the peace. It is alleged that the ordinance was duly passed, recorded, and published, and is in full force. The complaint also recites title 22 of the State Motor Vehicle Act, P.L. 5181, which gives the City Council the authority to make special regulations as to the parking of motor vehicles, and which provides that "signs indicating such regulations must be conspicuously posted in and near all areas affected thereby." It is alleged that the respondent parked his motor vehicle on Center Street for "a period of time in excess of one hour, between the hours of 8 A.M. and 6 P.M. to wit, from 2 P.M. to 4 P.M." upon the day specified, "and that the area was marked by signs conspicuously posted, reading `Park 1 hour only.'"
There are several grounds of demurrer, but it is necessary to consider only one, which is to the effect that the complaint fails to show that the area in question was marked by signs indicating the provisions of the ordinance.
This ground of demurrer must be sustained. In Incorporated Town of Decatur v. Gould, 185 Iowa, 203, 107 N.W. 449, a statute required that a sign limiting the speed of an automobile upon a highway should bear an arrow indicating the direction in which the limitation was applicable. In a prosecution for driving at a speed in excess of the specified rate, it appeared that there was no arrow upon the sign. The court said (185 Iowa, 203, 170 N.W. 449, 451): "It may be that the defendant was in no wise misled by the failure of the officers of the plaintiff to cause an arrow to be placed upon the sign in question, but the law must be given general application. The placing of an arrow upon signs displayed at highways entering cities and towns, and at points therein, where a change is required in the speed of motor vehicles, is as much a part of the legislative requirement as that same shall have certain words of sufficient size to be easily read inscribed thereon. The validity of ordinances enacted by municipal corporations in exercise of the powers conferred by the statute depends upon a strict compliance with its requirements. The power which such bodies can exercise is only that which is delegated thereto by the Legislature, and conditions imposed thereby are mandatory, and must be strictly followed. Local authorities have no discretion in the matter, and cannot say with what part of the statute they will comply or what ignore."
In the instant case the signs contained a warning that the period of parking was one hour. But this was not an indication of the regulation, as required by P.L. 5181. No more was it a designation of the provisions of section 41 of the ordinance, as prescribed therein. The ordinance was not a general limitation of parking, but applied only during certain specified hours, and upon certain specified days. Being penal, it is to be strictly construed. Its validity depends upon a compliance with the statute under the authority of which it was enacted. It is true that, so far as the respondent was concerned, and at the time of his act, the signs were not deceptive. But this is not the test. It is a question of the binding effect of the ordinance, and this, because the steps taken to enforce it complied neither with the statute nor with its own provisions, it did not possess.
It is argued, on behalf of the State, that it was not necessary to recite the statute in the complaint, and therefore that this allegation is surplusage and may be disregarded, but, even so, we take judicial notice of the statutory authorization in passing upon the validity of the ordinance.
It fairly appears that the complaint cannot be amended so as to charge the respondent with the violation of the ordinance and so the entry is:
Demurrer sustained. Judgment reversed. Judgment that the respondent is not guilty, and he is discharged.