#### Incorporated Town of Scranton, Iowa, v. Gus Danenbaum, Appellant.

JumcAi. notice of ORDINANCE. A town or city court takes judical 1 notice ot ordinances of the municipality, and stands in the samp relation to them as the state court to public statutes.

*96ON appeal xo DISTRICT court. Under Code, section 603, relating to appeals from a town or city court to the district court, providing 2 that on the hearing of such appeal or writ of error the court shall take judicial notice of the ordinances of the city or town, averment and proof of an ordinance need not be made, as the district court takes judicial notice of it, the same as of a public statute.

Presumptions. No presumption obtains for or against the existence 3 of an ordinance but the court is bound to ascertain on its own motion whether an ordinance covers the particular crime charged

*Appeal from Greene Dislricl Gourk.*— IioN. S. II. Elwood, Judge.

Wednesday, October 4, 1899.

The defendant was fined for failing to- pay tbe license required "of him as a transient merchant, and appeals.—

*Affirmed.*

*F. M. Powers*for appellant.

*Pose & Henderson*for appellee.

Ladd, J.

The trial court fo-und the defendant to have been a transient merchant at the time the information was filed, and this conclusion has such support in the evidence as to preclude any interference on our part. But the ap-pel-.lant contends there was no .proof of an ordinance fixing the license for transient merchants, or imposing a penalty fo-r its violation. Formerly such an objection would have been fatal to the record, as an ordinance, being in the nature of a private statute, must have been pleaded and proven. *Garvin v.*Wells, 8 Iowa, 286; *Goodrich v.*Brown, 30 Iowa, 291; *Wolf*
      1
      *v. City of*Keokuk, 48 Iowa, 129. The'town or city court, however, has always taken judicial notice of the ordinances of the municipality in which sitting, as it stands in the same relation to- these as the state court to public statutes. *Conboy v. Town City,*2 Town, 90; *State v. Leiber,*
      *9711 Iowa, 407; *Town of Laporte City v. Goodfellow,*47 Iowa,2572; 12 Am. & Eng. Enc. Law, 168. Under section 692 of the Code the same rule obtains in the district court when a case is carried on appeal to that tribunal. That section reads in part: “On the hearing of such appeal, or writ of error, the court shall take judicial notice of the ordinances of the city or town.” Under this statute the ordinances must be recognized and acted upon as such without averment or proof; that is, in so far as the case on appeal or writ of error is concerned, the ordinances of the municipality will be taken judicial notice of precisely the same as public statutes. Such' has been adjudged the rule in Kansas without the aid of legislation. *Downing v. City of Milton*villa, 36 Kan. 740 (14 Pac. Rep. 281); *City of Solomon v.*Hughes, 24 Kan. 211. This does not put the onus of proving the absence of an ordinance upon the accused, but requires the court to know or inform itself as to the fact of its existence. 3 No presumption is indulged in favor of or against there being a certain ordinance any more than a particular statute. The court is simply bound to ascertain whether there is' an ordinance condemning the particular act, without the aid of the parties. This disposes of the contention that the statute is unconstitutional because of involving a presumption of guilt. That there was such an ordinance is not questioned. — Aottemed.