Tipp v. District of Columbia , 102 F.2d 264 ( 1939 )

MILLER, Associate Justice.

Appellant was convicted in the lower court under an information which charged that he occupied public parking space contrary to the provisions of Section 19 of Article IV of the Police Regulations of the District of Columbia.¹ He contends that the judgment should be reversed because the District failed to offer in evidence the regulation upon which the prosecution was grounded and that since the court could not take judicial notice thereof it had “no law before it upon which to enter a finding of guilty.”

The rule has been frequently stated that municipal ordinances, regulations and by-laws may not be judicially noticed by courts of general jurisdiction, but must be pleaded and proven as any other fact,² except when it is otherwise expressly provided by statute.³ The rationale of the rule as stated in some of the cases is that such ordinances and regulations stand upon the same footing as private laws, the laws of other states and of foreign countries,⁴ which must be averred and proven like other facts. But the reason for the rule fails where a municipal court is asked to notice an ordinance of the same municipality,⁵ because such ordinances come within the particular and original jurisdiction of such courts,⁶ and an exception to the general rule is recognized in most jurisdictions accordingly.⁷ Such courts stand in the same relationship to municipal laws as do courts of general jurisdiction to public laws and, consequently, as to them, the local ordinances are the peculiar law of the forum.⁸ There is nothing to the contrary in District of Columbia v. Petty, 37 App.D.C. 156, relied upon by appellant. Section 22, Title 9, D.GCode, 1929, upon which he also relies, provides a method of proving municipal ordinances and regulations under conditions and in courts in which such proof must be made. It does not require such proof under the circumstances of the present case.

.... . The reason of the rule winch requires a municipal court to take judicial notice of a regulation of the same municipality applies with equal force to a court invested with fuH jurisdiction to enforce such regulations even though it may have jurisdiction to enforce other laws as well.⁹ The lower court was invested by Congress with original jurisdiction “of all offenses against municipal ordinances and regulations in force in the District of Columbia.”¹⁰ The fact that it was also given original jurisdiction of other offenses does not alter the fact that it functioned in the present case as a municipal court specially charged with original jurisdiction of offenses arising under the regulation in question; hence that it .had judicial knowledge thereof.¹¹

Appellant’s contention that because it ■was created by Congress the Police Court of the District of Columbia is a United States court and not a municipal court is without merit.¹² It is neither exclusively a United States court nor exclusively a municipal court hut a hybrid exercising the functions of both. It has original jurisdiction, subject to a few exceptions, concurrently with the District Court, of all crimes and offenses committed in the District of Columbia “not capital or otherwise infamous and not punishable by imprisonment in the penitentiary ** * * .”¹³ In this respect it is a court of the United States, although not a constitutional one.¹⁴ On the other hand, when it acts in the exer- ^ Qf itg jurisdiction «of an offenses ¡nst munid al ordinances and regulatfons ¡n force in the District of Columbia„ ¹⁵ it ses all the attributes and essential c¿racterístícs of a municipal court of justice of the -court which it wag ¿tended tQ ¿sede-¹⁶

Appellant’s next contention is that he was improperly convicted, under the facts 0f the case, because he came within the exception of the regulation which permits “the customary and necessary use of such [public] space by the occupants of abutting property in handling goods in trans¡t * * * during business hours only * * * » -p^g evidence is uncontradicted that the’use which appellant made of the public space was during business hours only. There seems to be no dispute also that the use consisted of a continuous process of unloading paper from trucks onto a pile which occupied the public space, and a similarly continuous process of moving the paper from the pile into appellant’s building. Consequently, although from moment to moment the pile consisted of different paper, nevertheless the space was continuously occupied by a pile of paper. As one of appellant’s witnesses described the situation: “ * * * the pile was continuously being added to and taken away from in the process of his business.”

The question is whether this constituted “an occupation of public space for storage purposes.”¹⁷ In our view it did. The definition of the word storage, for which appellant contends, is a type of dead storage in which goods come to rest for safe keeping. The cases upon which he relies refer to that type of storage.¹⁸ But live storage is equally well known to this modern age; examples of which are to be found in the storage of automobiles in daily use.¹⁹

The customary and necessary use of public space by business people, their clients, customers and friends may be a considerable one, just as may be a similar use of the public street, in front of a place of business, for “handling goods in transit.” Perhaps even a greater use of the public space may be-justified, than of the public street, for such purposes. To this extent the right and privileges of other members of the public may be appropriately cut down. But somewhere, short of the point of sole occupation and exclusive use, the rights and privileges of the rest of the public must be recognized. Appellant’s occupation of the public space during business hours, being a continuous one, appropriated it to his sole use. So far as the other members of the public were concerned, the space was as effectually deprived of its public character during business hours as if it had been used for dead storage. That, in our view, is what the regulation is designed to prevent.

We have carefully considered all of appellant’s assignments and contentions and find them to be without merit.

Affirmed.

1 “That occupation of public space beyond the extent permitted by existing law or regulation, or as those laws or regulations may be amended from time to time, is hereby forbidden: Provided, however, That the customary and necessary use of such space by the occupants of abutting property in handling goods in transit is permitted during business hours only, but this permissible use shall not he construed to authorize an occupation of public space for storage purposes.”

2 District of Columbia v. Petty, 37 App.D.C. 156, 161; Richards v. Davison, 45 App.D.C. 395, 403; Garlich v. Northern Pac. R. Co., 8 Cir., 131 F. 837; Robinson v. Denver City Tramway Co., 8 Cir., 164 F. 174; Brodsky v. Fine, 263 Mass. 51, 160 N.E. 335; Hinderer v. Ann Arbor R. Co., 237 Mich. 232, 211 N.W. 734; Ex parte Wacholder, 1 Cal. App.2d 254, 36 P.2d 705; Shanfelter v. Baltimore, 80 Md. 483, 31 A. 439, 27 L.R.A. 648; Risk v. Shamrock, Tex.Civ. App., 61 S.W.2d 153; State of Vermont v. Soragan, 40 Vt. 450; Spomer v. Allied Elec. & Fix. Co., 120 Neb. 399, 232 N. W. 767; Norfolk & P. Traction Co. v. Forrest’s Adm’x, 109 Va. 658, 64 S.E. 1034.

3 See Humbard Const. Co. v. Middlesboro, 237 Ky. 652, 36 S.W.2d 38; Alabama Lumber & Building Material Ass’n v. Mason, 230 Ala. 168, 160 So. 232; People v. Badamo, 105 Misc. 516, 173 N.Y.S. 872; Moore v. Dresden Inv. Co., 162 Wash. 289, 298 P. 465, 77 A.L.R. 1258. See also, City of Chicago v. Tearney, 187 Ill.App. 441.

4 City of Austin v. Walton, 68 Tex. 507, 509, 5 S.W. 70, 71.

5 Rafferty v. Court of Common Pleas, 102 N.J.L. 489, 133 A. 524; City of Wheeling v. Black, 25 W.Va. 266, 281.

6 Incorporated Town of Scranton v. Danenbaum, 109 Iowa 95, 80 N.W. 221.

7 Collins v. Radford, 134 Va. 518, 113 S.E. 735; Spomer v. Allied Elec. & Fix. Co., 120 Neb. 399, 232 N.W. 767; Bateman v. Atlanta, 51 Ga.App. 10, 179 S. E. 403; Steiner v. State of Nebraska, 78 Neb. 147, 110 N.W. 723; City of Milbank v. Cronlokken, 29 S.D. 46, 135 N. W. 711, Ann.Cas.l914C, 1231; State v. Fulco, 135 La. 269, 65 So. 239; Portland v. Yick, 44 Ore. 439, 75 P. 706, 102 Am. St.Rep. 633; Byer v. Harris, 77 N.J. L. 304, 72 A. 138.

8 Ex parte Davis, 115 Cal. 445, 47 P. 258; Taylor v. Sandersville, 118 Ga. 63, 44 S.E. 845; Incorporated Town of Scranton v. Danenbaum, supra note 6; State v. Fulco, supra note 7; Foley v. State of Nebraska, 42 Neb. 233, 60 N. W. 574; West v. Columbus, 20 Kan. 633; Information against Oliver, 21 S.C. 318, 323, 53 Am.Rep. 681.

9 Ex parte A. J. Plansen, 158 Cal. 494, 497, 111 P. 528, 529.

10 D.C.Code (1929) tit. 18, § 152.

11 See People v. Quider, 172 Mich. 280, 287-288, 137 N.W. 546, 548.

12 The District of Columbia is a municipal corporation- without legislative powers, its function being confined to mere administration. See Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 4 et seq., 10 S.Ct. 19, 33 L.Ed. 231, where the governmental history of the District is exhaustively outlined by the Supreme Court. Congress, the creator of the municipality, is the sole legislator and exercises- general control. It is the only body which may establish its courts and enact regulations to be enforced by them, although the latter function may be delegated to the Commissioners. See also, District of Columbia v. Tyrrell, 41 App. D.C. 463, 471-472; Coughlin v. District of Columbia, 25 App.D.C. 251; Newman v. Willard’s Hotel Co., 47 App.D.C. 323.

13 D.C.Code (1929) tit. 18, § 152. See Palmer v. Lenovitz, 35 App.D.C. 303.

14 See Huyler’s v. Houston, 41 App.D.C. 452; Green v. Peak, 62 App.D.C. 176, 65 F.2d 809; United States v. Mills, 11 App.D.C. 500, 506.

15 D.C.Code (1929) tit 18, § 152; United States ex rel. Morris v. Scott, 25 App. D.C. 88.

16 See United States v. Mills, 11 App. D.C. 500, 507.

17 D.C.Police Regulations, Art. IV, § 19.

18 Roberto v. Schmadeke, 180 App.Div. 143, 167 N.Y.S. 397; Monroe v. Greenhoe, 54 Mich. 9, 19 N.W. 569.

19 Hogan v. O’Brien, 123 Misc. 865, 206 N.Y.S. 831; cf. Southern R. Co. v. Stearns Bros., Inc., 4 Cir., 28 F.2d 560, 562; Wright v. Louisiana Ice & Utilities Co., 14 La.App. 621, 129 So. 436, 439.