court in that state.99

[§ 968] (2) Existence and Powers of Public Corporations.1 Public acts 2 creating, chartering, or conferring powers upon public corporations are judicially noticed. It has been held that, as “a part of the history of the state," judicial notice will be taken of a municipality incorporated under a general incorporation law, but there is authority to the contrary. Whether a court will take judicial notice of the time when a particular county passes from an unorganized to an organized condition is doubtful where the date is a question of fact."

[§ 969] (3) Private Corporations. Judicial no890].

Ky.-Hensley v. Com., 171 Ky. 316, 188 SW 408; Reed v. Com., 171 Ky. 225, 188 SW 365; Combs v. Com., 104 SW 270, 31 KyL 822; Ball v. Com., 99 SW 326, 30 KyL 600; Crigler v. Com., 120 Ky. 512, 87 SW 276, 280, 27 KyL 918, 925.

V.

Md.-Mitchell 360, 80 A 1020. N. C.-State v. Piner, 141 N. C. 760, 53 SE 305.

S. C.-State v. Arnold, 80 S. C. 383, 61 SE 891.

Tex.-Ryan v. State, 32 Tex. 280 (where the act prohibited the sale of liquors within a given distance of a specified town).

"It is the duty of the Courts to take judicial cognizance of public local laws, within the sphere of their operation, equally with public general laws.' Per Briscoe, J., in Mitchell v. State, 115 Md. 360, 367, 80 A 1020. 14. Hailes v. State, 9 Tex. A. 170. [a] A private statute, prohibiting the sale of liquor within a stated distance of a certain academy, could not be judicially noticed. Hailes v. State, 9 Tex. A. 170.

15. Local option elections see infra § 972.

16. See cases supra this section.

[a] In Kentucky "by section 1624, Ky. Stats., judicial notice is taken of acts of the General Assembly; and so where a corporation is created by legislative act, the court will take judicial notice that it is a corporation. (Louisville, etc., R. Co. v. Com., 11 KyL 442; Cincinnati, etc., R. Co. 17. Badgett v. State, 157 Ala. 20, v. Com., 6 KyL 308.) Judicial no- 48 S 54 (holding that the court could tice will not be taken of articles of not judicially know whether, at a incorporation filed in the office of the particular time, an incorporated secretary of state; but in view of the town had police regulations "both by rights of railroad companies, and the day and by night," within a local statutes on the subject, it will, un- law exempting towns having such less the contrary appears, be pre-regulations from the operation of sumed that a railroad company is a corporation." Madisonville, etc., R. Co. v. Com., 140 Ky. 255, 258, 130 SW 1084 [foll Louisville, etc., R. Co. v. Com., 154 Ky. 293, 157 SW 369 (foll Swann v. Com., 169 Ky. 565, 184 SW 868)].

Municipal ordinances not judicially noticed see infra § 977.

18. General elections judicially noticed see infra § 979; and Evidence [16 Cyc 901].

19. State v. Swink, 151 N. C. 726, 727, 66 SE 448, 19 AnnCas 422 [quot Cyc and dist State v. Chambers, 93 N. C. 600, because in that case the election was confined to a single town].

20. State v. Swink, 151 N. C. 726, 728, 66 SE 448, 19 AnnCas 422. 21. State v. Swink, 151 N. C. 726, 66 SE 448, 19 AnnCas 422 [cit Cyc]. See also infra § 978; and Evidence [16 Cyc 904].

22. Ala. Crider v. Tally, 77 Ala. 422, 426, 54 AmR 65 ("We judicially know the act, commonly called the 'Local Option Law,' passed in 1875, and that it is applicable to Jackson county").

Ky. Com. v. Throckmorton, 32 SW 130, 17 KyL 550; Ellison v. Com., 6 KyL 306; Huffman v. Com., 6 KyL 306.

Md. Mitchell v. State, 115 Md. 360, 80 A 1020; Whitman v. State, 80 Md.

measure of time, and the geographical divisions and political history of the world. In all these cases the court may resort for its aid to appropriate books or documents of reference. Now, we presume it would not be any more difficult for the court, if he had to take notice of the adoption of the local option statute in a county, to resort to the records of the county to ascertain whether or not the vote had been favorable to the organization of the district than it would be to ascertain the laws of nature

be amply justified by local statutory conditions,20 but in the others it is opposed to the weight of realic local laws, passed by the legisla- | think that the better line of decisions ture and approved by the governor, take the same view that we do in and as such would be judicially rec- this case." Combs v. State, 81 Ga. ognized without proof. Section 3815 780, 782, 8 SE 318. (2) After quoting of the code declares that 'all laws Rev. Codes § 5950 to the effect that and resolutions of the General As- "courts take judicial notice of sembly, as published by authority, whatever is established by law" and shall be held deemed and considered from State v. O'Brien, 35 Mont. 482, public laws, and recognized judicial- 90 P 514, 10 AnnCas 1006 (the latter ly without proof.' This was an act being adverse to the holding in the passed by the General Assembly and instant case), the court said: "It is published by authority, and will evident from the foregoing excerpt therefore be recognized without that the Montana local option law proof. But it is argued that, while does not contain a provision similar this may be true, the act itself will to sec. 12 of our local option law as be recognized without proof; yet the above set forth [providing that in a fact of its having been adopted by a complaint, information or indictment majority of the votes must be sub- it shall be "unnecessary to allege mitted to the jury, and it is for the that an election has been held, and jury to say whether it has been so that a majority of the people have adopted or not. This act provides voted in favor of prohibiting the that the managers of the election sale," etc.]. Over and above all this, shall consolidate the votes of the however, we are not satisfied with different precincts in the county, and the line of reasoning that reaches the make a return to the clerk of the conclusion that the judge of the superior court, and that the clerk court knows less about the law than shall announce the result by pub- the defendant at bar. The defendant lishing the same in a newspaper, and would not be heard for a moment to that the act shall take effect on the show in evidence that he did not day of the publication of the result in fact know that the local option by the clerk. It provides further statute had been adopted in a given that this notice shall be entered on county, while in truth and in fact he the minutes of the superior court, might not know that it was in force and it shall be competent evidence in the county in which he was to show when the act took effect. charged with its violation. He might 'Courts are created to administer live in a remote, isolated part of the and enforce the law. Therefore they county, or he might be a newcomer; do and must take judicial cogni- still, he would not be heard to say zance of all laws. Whether the law that he did not know he was in a was in existence is for them to say, prohibition district. On the other just as fully as it rests with them to hand, and according to the Montana say whether the indictment is good rule-and we are frank to say that or bad, or that the evidence to prove it seems to be a rule followed in the offence alleged is legally admis- many other states-the judge who is sible or otherwise. To the courts holding court in the county will not alone belongs the right of saying be presumed to know that the county whether a statute is in force or not.' is a prohibition county, or that the Slymer v. State, 62 Md. 237. The law local option statute has been adoptitself having provided that the re-ed therein, and the state must acsult of the election should be placed tually prove to him by competent evupon the minutes of the superior idence that the law is in force in court, and that entry should be such county. While an election is competent evidence to show when the necessary in order to create the act went into effect, and the judge county into a prohibition district and below having these minutes before put the law in operation in such him, there was no error in his read- county, still, when this is done it is ing from said minutes and instruct- a thing 'established by law, and in ing the jury, as matter of law, as to our judgment is one of the things of when the act went into effect. It is which he must take judicial notice. the duty of the judge to know the He may not know that a particular law, especially to know the law of statute printed in the Session Laws the counties in his own circuit. If has been constitutionally adopted by he should be ignorant of the local the legislature or enacted at all, and law enacted by the legislature for yet he must take judicial notice of any county in his circuit, or any it. This requirement has never been county where he may preside, it known to work any great hardship would be his duty to inform himself upon a defendant, because, notwithof what the law is. If the act of standing the fact that the court the legislature does not inform him takes judicial notice of the statute, as to when it went into effect, then if it has never been in fact enacted he can look to the means provided by by the legislature, or has been illethis act to inform himself. If the gally enacted, or not enacted in conact provides that the clerk shall an- formity with the requirements of the nounce the result of the election and Constitution, he may prove by cerplace it on the minutes of the court, tified copy of the journal entries of he may look to that. If the act pro- the House and Senate, or either, that vides, as many of them do, that the the bill was never enacted in a conreturn should be made to the ordi- stitutional manner, and therefore he nary of the county and he should is- is not liable for a violation of it. sue his proclamation declaring the The court should in the first result, then he may look to the place take judicial notice of the fact proclamation, or have it introduced, that the law is in effect in a given if necessary, in evidence before him, county in which he is holding court, but not before the jury. The proc- and if for any reason he is in error, lamation of the clerk or ordinary is or in fact the law has not been so conclusive that the law has been ac- adopted, the defendant is provided cepted by the people, and has become with ample means of proving such effectual as a law. It being conclu- fact and showing that, as a matter sive for this purpose there would be of fact, he is not amenable to the no use or propriety in submitting local option law, for the reason that the matter to a jury, because the de- it has never been adopted in the fendant would not be allowed to con- county in which he is charged with trovert it, and it would be useless to its violation. The judge of the court submit any evidence in a criminal could find out this fact just as he is case to the jury which the defendant required to find out numerous other would not be allowed to controvert. facts. Subd. 8 of sec. 5950 requires We are aware that the courts in dif- the court to perform a great feat. It ferent states have made conflicting says that courts will take judicial decisions upon this point, but we notice of the laws of nature, the

and the political history of the world.' At any rate, it would not be any more difficult for him than it is for the citizen who lives seventy-five or one hundred miles from the county seat, and although courts, as such, are not required to take notice of all things they know as men, still in the application of the law, they ought to be required to know what the laws are of the jurisdiction where they are administering the laws. This is the theory on which the trial judge proceeded, and we are very much inclined to sustain him in that view. . . The majority of the courts seem to be against the position we are taking. and to hold to the effect that it must be alleged and proven that a local option statute has been adopted in a given county' or district by a vote of the people. Since, however, it is a case of first impression in this state and in the light of the statute, and particularly sec. 12 of the local option law, we are inclined to follow what seems to us a more rational and sensible rule and allow a trial judge to know as a court what he knows as a man and a citizen, and what the law requires every citizen to know; namely, whether the local option law has been adopted in any given county in which he is trying cases. This rule is consonant with reason and is not obnoxious to justice." State v. Schmitz, 19 Ida. 566, 572, 574, 114 P 1. (3) "The [Local Option] Act of 1872 is a general law, applicable to the whole state; the election under it is to be governed by the general election laws; the result is to be duly certified and returned to the clerk of the Court of Quarter Sessions; the certificate must be laid before the judges of the Court of Quarter Sessions at the first meeting of the court after the election, and filed of record, and the judges are then to be governed by the result of the vote upon the question of granting licenses, and must, therefore, take judicial cognizance of the right to have a license. Thus, by the very terms of the law, the court is bound to know judicially whether the treasurer could grant a valid brewer's license after the result of the vote had been judicially ascertained. Besides, on general principles, a court will take judicial notice of many things which are public in their effects or relations, as seen in Mr. Greenleaf's Treatise on Evidence, § 4, vol. 1. 'In fine (says he), courts will take notice of whatever ought to be generally known within the limits of their jurisdiction' § 6, chap. 2." Rauch v. Com., 78 Pa. 490, 493. (4) "The result of an election in favor of no license, when duly certified and laid before the court, as prescribed by the statute, is to adopt in the magisterial district so voting the provisions of a public statute." Savage v. Com., (Va.) 5 SE 563 [foll Thomas v. Com, 90 Va. 92, 17 SE 788].

26. See supra note 25; and observe that Combs v. State, 81 Ga. 780, 783, 8 SE 318 supra note 25 [b] is recognized as a correct ruling_on the facts of the case in Gay v. Eugene, 53 Or. 289, 100 P 306, 18 Ann

Cas 188 infra note 27 [b].

27. Ala. Ex p. Reynolds, 87 Ala. 138, 6 S 335; Grider v. Tally, 77 Ala. 422, 54 AmR 65.

Cal-Peo. v. Mueller, 168 Cal. 521, 143 P 748, LRA1915B 788.

Ky-Hensley v. Com., 171 Ky. 316, 188 SW 408; Combs v. Com., 104 SW 270, 31 KyL 822; Com. v. Throckmorton, 32 SW 130, 17 KyL 550; Ellison v. Com., 6 KyL 306; Huffman v. Com., 6 KyL 306.

Mich.-Peo. v. Edwards, 174 Mich. 445, 140 NW 473.

Miss. Gilmore v. State, 33 S 171. Mo.-State v. Wilson, 161 Mo. A. 301, 304, 143 SW 534 [cit Cyc]; State v. Mackin, 41 Mo. A. 99. Mont.-State v. O'Brien, 35 Mont. 482, 90 P 514, 10 AnnCas 1006.

N. C.-State v. Chambers, 93 N. C. 600 (where the election was confined to a single town). But see State v. Swink, 151 N. C. 726, 66 SE 448, 19 AnnCas 422 [dist State v. Chambers, supra] (where the election judicially noticed was a general election covering the entire state). Or.-Gay v. Eugene, 53 Or. 289, 100 P 306, 18 AnnCas 188.

Tex.-Johnson v. State, 70 Tex. Cr. 582, 157 SW 1196; Kinnebrew V. State, 67 Tex. Cr. 599, 150 SW 775; Dorman v. State, 64 Tex. Cr. 104, 141 SW 526; Poudrill v. State, 61 Tex. Cr. 431, 135 SW 126; Pointer v. State, 60 Tex. Cr. 355, 132 SW 136; Ellis v. State, 59 Tex. Cr. 419, 128 SW 1125; Woodward v. State, 58 Tex. Cr. 411, 126 SW 270; Allen v. State, (Cr.) 98 SW 869; Lively v. State, (Cr.) 72 SW 393; Scott V. State, (Cr.) 44 SW 495; Russell V. State, 38 Tex. Cr. 590, 44 SW 159. See also Bills v. State, 55 Tex. Cr. 541, 544, 117 SW 835 (where Ramsey, J., said: "Besides, local elections may be held for other purposes than to prevent the sale of intoxicants").

30

criminal cases.
It has been said that there are
much stronger reasons for holding that courts must
take judicial notice of the result of local option elec-
tions in proceedings to obtain a license to sell in-
toxicating liquors as a beverage than in criminal
prosecutions.31

Question for court. In states where the result of
local option elections must be proved it is held that
such proof is for the court and not for the jury;32
sary in all cases, except possibly in
the county court of that county,
which must have issued the order, if
any existed, absolutely prohibiting
the sale of intoxicating liquors.
Courts will take cognizance of gen-
eral State elections (16 Cyc. 869),
but it is usually held that they will
not take judicial notice of special
elections
unless the result of
the latter is by law required to be
made a matter of record in the court
originally having jurisdiction of a
cause involving the inquiry. Combs
v. State, 81 Ga. 780, 80 SE 318.
In Savage's Case, 84 Va. 582, 5 SE
563, and Thomas v. Com., 90 Va. 92,
17 SE 788, it was ruled, however,
that judicial notice would be taken
of districts voting against the grant-
ing of licenses; but we do not think
the determination thus reached
controlling herein, since no reasons
are there assigned for such conclu-
sion." But in another part of the
opinion it was said: "If the adop-
tion of the local option law in that
county had been effectuated by the
passage of an ordinance by the com-
mon council of Eugene so that the
recorder of that city would have been
obliged to take cognizance thereof,
the circuit court [on appeal] might
have been bound by a knowledge of
the fact thus assumed." Gay v. Eu-
gene, 53 Or. 289, 294, 100 P 306, 18
AnnCas 188. (2) Neither a trial nor
an appellate court can take such ju-
dicial notice. Robinson v. State, 69
Tex. Cr. 496, 154 SW 997; Pierce v.
State, 69 Tex. Cr. 175, 154 SW 559.
28. See statutory provisions.

is

what shall constitute the evidence of the fact that the provisions of the law are in force in a particular county.'" Per Steere, C. J., in Peo. v. Edwards, 174 Mich. 445, 450, 140 NW 473. (3) In deciding that the courts will not take judicial notice of the result of an election by which a local option law is put in operation, or prevented from operation, in local territory, the court based its decision on the grounds that the decisions of the courts of Alabama, Michigan, Mississippi, Missouri, Montana, Oregon, and Texas on this point are more in accord with general principles than those of the courts of Georgia, Idaho, Indiana, Maryland, and Virginia; that the local status or condition determined by the election is not a fact established by law but a simple fact to be established by evidence; that the holding of the election and the record of the result are matters similar to the records of the votes and resolutions of city councils and county boards in adopting and passing ordinances, of which matters judicial notice is not taken; that the statute in question, by providing that certain matters shall be prima facie evidence that the territory in which the election was held is "no-license" territory, justifies the inference that the legislature believed that proof would be required; and that the condition produced by the election is not stable or fixed but is subject to be changed by another election or as the result of a contest; and hence that there is not the same reason for making it the subject of judicial no- [a] In Mississippi, by Code (1892) tice as there is in the case of a per- $ 1621, the courts are required to manently established institution, take judicial knowledge of the result such as a municipal corporation. of local option elections, and since Peo. v. Mueller, 168 Cal. 521, 143 P no sources of information are pointed 748, LRA1915B 788. (4) "The hold-out, it is incumbent on this and all ing of a special election, such as the [a] Reasons for rule.-(1) "These one in question here, is not among local option laws are special laws, the matters of which the court may and must be put into operation in the take judicial notice (Code Civ. Proc., territory in the manner specified by sec. 3150), because the court may the statute, and the court does not not take judicial notice of extrinsic judicially know when these laws are facts, the establishment of which put into operation." Craddick V. must depend upon the testimony of State, (Tex. Cr.) 88 SW 347, 348 (per witnesses." Per Brantly, C. J., in Davidson, C. J.). (2) "It is generally State v. O'Brien, 35 Mont. 482, 500, held that courts cannot, unless re- 90 P 514, 10 AnnCas 1006. (5) "A quired by statute, take judicial notice report showing the result of any of the local adoption of a general law election held under the local option by the votes of cities, counties, or vil- act, is required to be made to the lages, unless the statute particularly board of supervisors of the county, relates to functions of government, and recorded in their minutes; and and in harmony with that rule the how could any court, without proof, adoption of local option has been so know the result of any such election treated, and we think so held, in this any more than it could, in the abState. Paul V. Benzie Cir. Judge, sence of proof, know any other fact 169 Mich. 452, 135 NW 283; Peo. V. evidenced by the minutes of the Bennett, 107 Mich. 430, 65 NW 280: board of supervisors? Without Peo. v. Keefer, 97 Mich. 15, 56 NW proof, the court could not take 105: Peo. v. Adams, 95 Mich. 641, 55 knowledge of such fact." Per ArNW 461; Peo. v. Murphy, 93 Mich. 41, nold, J.. in Norton v. State, 65 Miss. 52 NW 1042. In the latter case it is 297, 300, 3 S 665 [foll Gilmore v. said: It is contended by the prose- State, (Miss.) 33 S 171: West V. cution that the court was authorized State, 70 Miss. 598, 12 S 903; Bryant to take judicial notice that prohibi- v. State. 65 Miss. 435, 4 S 343: tion was in force in Van Buren Loughbridge v. State, (Miss.) 3 S county. Without passing upon the 667 (where Cooper, C. J., said: "The question of whether it would be com-fact of the adoption of that law rests petent for the legislature to provide upon matters in pais")]. But see inthat the resolution or enactment of fra note 28 [a]. the board of supervisors be treated as a general law, of which courts may take judicial cognizance, it is sufficient to say that by the very clear provisions of the act in question the legislature negatived any such purpose, but has prescribed

[b] Extent and limits of rule.(1) "The adoption of the act by a majority vote of the electors of Lane County or of a subdivision thereof or of a precinct therein, depends upon a compliance with the conditions prescribed, proof of which was neces

other courts to inform themselves by recourse to any and all sources of information. Puckett v. State, 71 Miss. 192, 14 S 452. See also Irby v. State, 91 Miss. 542, 44 S 801 ("the court judicially knows that Panola is a dry county"). Prior to statute see supra text and note 27.

29. Johnson v. State, 70 Tex. Cr. 582, 157 SW 1196. See also supra 949.

30. See supra text and note 25. 31. Jay v. O'Connell, 178 Ind. 282, 98 NE 349, AnnCas1915C 325 (per Monks, J.). To same effect Rauch v. Com., 78 Pa. 490.

32. Jay v. O'Donnell, 178 Ind. 282, 98 NE 349, AnnCas1915C 325 [cit State v. Gamma, 149 Mo. A. 694, 704, 705, 129 SW 734; State v. Brown, 130 Mo. A. 214, 109 SW 99; State V. O'Brien, 35 Mont. 482, 90 P 514, 10 AnnCas 1006; Neal v. State, 51 Tex. Cr. 513, 102 SW 1139; Cantwell v. State, 47 Tex. Cr. 511, 85 SW 19; Sebastian v. State, 44 Tex. Cr. 508, 72 SW 849; and also referring to Combs v. State, 81 Ga. 780, 784, 785, 8 SE 318]. To the same point in addition to the cases above cited in brackets see Johnson v. State, 70 Tex. Cr. 582, 157 SW 1196; Robinson v. State, 69 Tex. Cr. 496, 154 SW 997; Pierce v. State, 69 Tex. Cr. 175, 154 SW 559. [a] Reason for rule.-"If it were otherwise, as is said in Crouse v. State, 57 Md. 327, we might have the anomalous state of things of one jury finding the law operative and the traverser guilty; and another jury finding the law had not been

and if the court finds that such law has been adopted, it is proper to instruct the jury that such law is in force in the territory in which the election was held;33 and where the court has once, upon the proofs, found that the law has been adopted in a particular locality and is operative therein, and that decision stands unreversed by the court of last resort, "no further proof should be required in any case, but that question should be held decided and all Judges should take judicial notice thereof.'' 34

Mandatory election. It has been held that, where a local option election at a given date is made mandatory by statute, the court will judicially notice that such an election took place.35

[§ 974] (5) Local Adoption of Other Than Liquor Laws.36 It has been held that a court cannot take judicial notice that a general law for working public roads by contract has been put in operation in a certain county by vote of a board of supervisors, nor that a township organization law has been adopted by election in a particular county,38

[§ 975] c. Private Statutes. In the absence of statutory provision to the contrary, courts will not take judicial notice of private acts of the legisla

adopted, and for that reason acquitting the accused. Reason and necessity alike require stability in the law." Per Irving, J., in Slymer v. State, 62 Md. 237, 241.