Parkway Cabs, Inc. v. Cincinnati

The affidavit and warrant show that the charge against Parkway Cabs, Inc., was the violation of Section 74-102 (6), of the "Code of Ordinances of the city of Cincinnati," in that it unlawfully parked an automobile within twenty feet of a water hydrant used by the Fire Department of the city of Cincinnati. The bill of exceptions refers to the ordinance as Section 74-102; but nowhere in the record is found a copy of the ordinance upon which the prosecution was based.

The first question is whether this court can take judicial notice of the terms of this ordinance. The authorities are conflicting on this subject. 17 Ohio Jurisprudence, 53 and 54; 15 Ruling Case Law, 1077; Wergin v. Voss, 179 Wis. 603,192 N.W. 51, 26 A.L.R., 933. That the Municipal Court of Cincinnati should take judicial notice of the ordinances of the city of Cincinnati is clear. But an entirely different problem is presented when a reviewing court is asked to treat an ordinance as within its judicial cognizance. The city court has easy access to the city ordinances, which are the product of the city legislative body, and undoubtedly the Municipal Court has authority to call upon administrative officers of the city to furnish it with reliable information as to the status of ordinances at all relevant times. This is not true of a reviewing court that may be sitting at a great distance from the municipality, whose ordinances are involved in the case. And even when the reviewing court is sitting in the city whose ordinance is brought in question, information concerning the ordinance, of the dependable character that should surround the rule or law to be applied, is not always attainable without great labor, and, even though the reviewing court does exert itself the result of the search lacks certainty. What has happened in this case illustrates this. Judge Hamilton's investigation of the available published ordinances revealed that Section 74-102, in the annual supplement of 1932, has nothing to do with parking, but that in the "Code of Ordinances" of 1928 there is a section numbered 74-148 that makes it unlawful to park within twenty feet of a fire hydrant. Inquiry of a deputy clerk of the Council of the city of Cincinnati discloses that an amendment was passed in 1933, and was in effect in 1934, making parking near fire hydrants unlawful, and that this amendment is Section 74-102 (6), which is the section mentioned in the affidavit and warrant in this case, but nowhere else. Further search reveals that there is a provision in Title VII (Section 703) that indicates that the city council recognized that a corporation might be charged with the violation of a penal ordinance, and provided for the method of summoning it.

The briefs do not set forth the terms of the ordinance, and counsel in oral argument referred to the ordinance in general terms only, without quoting it in haec verba. So we have reached the point of deciding, without knowing the terms of the ordinance, whether this ordinance has been violated. This, it seems to me, makes manifest the unsoundness of the rule requiring a reviewing court to take judicial notice of a municipal ordinance. The true rule, and the one which should be followed in this case, is the one followed inVillage of Euclid v. Bramley, 20 C.C. (N.S.), 453, 31 C.D., 396, at 456, which I quote:

"To entertain any presumption in favor of the existence of a valid ordinance defining an offense and providing penalty therefor, has been criticized as, in a sense, a departure from the rule frequently announced by this court that it will not take judicial notice of municipal ordinances. But it is not, in fact, any exception to said rule, where error is alleged by one convicted before the mayor or magistrate. Being plaintiff in error, he must file a bill of exceptions setting forth the ordinance, so that it may come before the reviewing court. His own neglect to bring the ordinance into the record does not entitle him to a reversal; rather the judgment should be affirmed because no error is shown."

The litigant desiring a review of the judgment of a municipal court could without any inconvenience have incorporated in the bill of exceptions a copy of the ordinance, and in that way could have removed all uncertainty of the subject of the applicable ordinance.

Applying the rule of Euclid v. Bramley, supra, to this case what is the result?

This court, of course, takes judicial notice of constitutional and statutory provisions conferring authority upon municipalities. We, therefore, take judicial notice that the city of Cincinnati had authority under the law to pass an ordinance making it unlawful for any person — natural or artificial — or both — to park an automobile near a fire plug, and that it could impose an absolute liability upon the owner, or operator, or both, for so doing. That the city of Cincinnati has the power to pass such an ordinance we know, because it is the law of the state of Ohio, but we do not know whether it has exercised such power.

Judgments of courts are reversed only for errors apparent upon the face of the record presented for review, and every reasonable presumption is indulged in favor of the validity and regularity of the judgment of the trial court.

The bill of exceptions shows that this automobile was parked on the opposite side of the street, in front of the office of Parkway Cabs, Inc., and apparently within plain view of the executive officers of that corporation as they transacted the corporation's business. Under such circumstances it is surely within the competency of the municipality to charge the corporate owner with criminal responsibility for the parking of the automobile at a place where it was a menace to life and property.

As error does not affirmatively appear, the judgment should be affirmed.

For these reasons I am unable to concur in the judgment of reversal.