Opinion
No. 26475.
May 23, 1927.
1. MUNICIPAL CORPORATIONS. Validity of ordinance was not raised by demurrer to affidavit for alleged violation thereof, where ordinance was not before court.
Validity of city ordinance held not properly raised by demurrer to affidavit for alleged violation thereof, where ordinance was not before court, since question of validity can be determined only after ordinance is properly brought before court.
2. CRIMINAL LAW. Judicial notice is not taken of municipal ordinance.
Judicial notice cannot be taken of municipal ordinance.
APPEAL from circuit court of Hinds county; HON. W.H. POTTER, Judge.
Morse Bryan, for appellant.
The record does not contain, nor was there before the circuit court, the ordinance of the city of Jackson upon which the affidavit was made. Before the constitutionality of chapter 201, Laws of 1926, could be attacked herein, it must appear that the affidavit in the instant case was absolutely predicated thereon; that is, that an ordinance, either blanket (adopting the state statutes defining misdemeanors) or special, was in existence.
If this court will not take judicial knowledge or notice of the existence of municipal ordinances and their provisions, can it assume that there was an invalid ordinance of the city of Jackson upon which the affidavit in this case was predicated?
This court has heretofore held repeatedly on appeals taken by defendants charged with violation of municipal ordinances that it was absolutely necessary for the municipality to introduce and make ordinances alleged to have been violated, a part of the record. Puyper v. City of Picayune, 99 So. 16. See, also, Naul v. State, 12 So. 903.
This is a prosecution for an alleged violation of an ordinance of the city of Jackson.
A demurrer to the affidavit, predicated on the alleged invalidity of the ordinance, was sustained, and the city has appealed.
The ordinance was not before the court below, and, consequently, does not appear in this record, and, since judicial notice cannot be taken of municipal ordinances, the validity vel non of the ordinance here in question was not raised by the demurrer. That question can be determined only after the ordinance has been properly brought before the court.
Reversed and remanded.