State v. Olinger , 109 Iowa 669 ( 1899 )

Ladd, J.

Chapter 16 of tbe Acts of tbe Twenty-third General Assembly was not self-enforcing. Tbe salaries of mayors continue as before, unless changed in tbe manner 1 therein provided, and in that event must be limited to tbe amounts named.- This plainly appears from tbe wording of tbe first section: “Cities incorporated under special charters are hereby granted the power to fix tbe compensation of their mayors by ordinance of their respective city councils as follows: * * * For cities of over 20,000 [population] not to exceed $1,500 per annum, which amount shall be in full compensation of all services of such mayor of every kind and character whatsoever, connected with bis official duties. City of Council Bluffs v. Waterman, 86 Iowa, 691. No more than that previously fixed as salary might be received by tbe defendant, unless tbe increase were made as here contemplated, and then not to exceed tbe sum mentioned in tbe statute. It is not charged in tbe indictment that the defendant received anything not authorized by tbe ordinances of tbe city at the time tbe Laws of 1890 went into effect. Nor do we think any ordinance enacted by tbe city council of Dubuque in pursuance thereof is pleaded. Judicial notice is taken of special charters. Section 43 of chapter 210 of tbe Acts of tbe Sixth General Assembly. Chapter 16 of the Acts of tbe Twenty-third General Assembly, must be treated as amendments 2 thereto. State v. King, 37 Iowa, 462. It is the ordinance, not the charter, which must be pleaded, for of that courts of record will not take judicial notice, except in appeals from inferior tribunals. Garvin v. Wells, 8 Iowa, 286; Goodrich v. Brown, 30 Iowa, 291; Incorporated Town of Scranton v. Danenbaum, 109 Iowa, 361. Every law and fact essential to make out the charge, of which the court does not take judicial notice, must be averred in the indictment. The authorities uniformly hold, in the absence of statutory provisions, that nothing less than the substance of that part of an ordinance violated can be set out, and many require the ordinance, or the portion involved, to be pleaded in haec verba. Dillon Municipal Corporations, section 413; Bishop Statutory Crimes (2d ed.), section 406; City of Miles City v. Kern, 12 Mont. 119 (29 Pac. Rep. 720); Wagner v. Town of Garrett, 118 Ind. 114 (20 N. E. Rep. 706); Phillips v. City of Atlanta, 78 Ga. 773 (2 S. E. Rep. 431); 15 Enc. Pl. & Prac. 426. Here no part, of the pretended ordinance, nor its substance, is set out. Not even the title, or date of passage, or where found, is mentioned. The 3 statement that the salary had been fixed “under and in accordance with the provisions of chapter 16 of the Laws of the Twenty-third General Assembly” was but a legal conclusion, and identified the ordinance in no possible way. Because of the entire failure to plead the ordinance, the indictment was defective, and the demurrer rightly sustained.- — Affirmed.

GbaNUee and WatermaN, JJ., took no part.