
    Common Pleas Court of Montgomery County.
    Village of Englewood v. E. L. Bettis.
    
    Decided October 10, 1932.
    
      I. C. Delsccmp and Byron Murr, for the village of Englewood.
    
      W. S. Rhotehamel, for defendant.
    
      
       Affirmed by Court of Appeals and judgment rendered for defendant.
    
   Snediker, J.

This case, which was referred to this court for disposition, is now before us on a demurrer to the affidavit for the reason that it does not state facts sufficient to constitute a cause of action on behalf of the plaintiff and against the defendant. The charge filed in the affidavit is of a violation of an ordinance of the Village of Englewood, this county, and reads as follows:

“That on or about the third day of June, 1932, at the county of Montgomery aforesaid, in the Village of Englewood, Ohio, E. L. Bettie failed to come to a full stop when the red signal right was displayed against him while he was on the Covington pike and as he approached the intersection of the Covington pike and National Avenue, and he continued on his course on the Covington pike with his automobile which he was-driving and drove said automobile through the intersection of the Covington pike and National Avenue while said red light was displayed against him without bringing said automobile which he was driving and operating to a full stop and without waiting until the green light was displayed; contrary to Ordinance Number 37 of the Village of Englewood, State of Ohio, and contrary to the peace and dignity of the State of Ohio.”

The theory upon which counsel for the defendant proceeds in urging his demurrer is that the Village in the erection and maintenance of its traffic light had violated Section 1190 of the General Code of Ohio, which is:

“It shall be unlawful for a village to erect or maintain traffic lights upon an extension of the state highway system within such village except that the erection and maintenance of such lights be first approved by the director (of state highways) * * *.

Insisting that the approval of the director of state highways was not obtained before the passage of this ordinance, counsel says that the court should take judicial notice of that fact, and, having so taken judicial notice, must hold that the ordinance which this defendant is claimed to have violated may not be enforced against him. He contends that the Vilage, not having a right to erect and maintain the light, could not legislate to impose a penalty on those who' disregarded it.

The face of the affidavit does not reveal the fact upon which the defendant relies. In other words, it is silent as to whether or not an application had been made to the director of the state highway department at all.

We understand that there are certain records and certain rules of governmental departments of which the court should take judicial notice when they are important in litigation, but to say that the court must take judicial notice of every application for a traffic light that is made in the State of Ohio and of every order of the state highway department granting or denying such application is surely stretching the rule as to judicial notice until it cracks, and we do not regard ourselves as compelled to take such judicial notice. But the erection and maintenance of this light and the legislation of the Village in pursuance thereof is all dependent upon the approval of the state highway director and we are of the opinion that in order to state an offense this affidavit should show that the red signal light which it is contended this defendant disregarded “was maintained and erected with the approval of the state highway director”; and in the absence of any such averment we are not satisfied that this affidavit charges an offense.

Counsel for the village contends that Section 1190 of the General Code delegates to the state highway director a legislative power. We have had similar questions before us and have held the contrary. The act to be performed by the state highway director in pursuance of Section 1190, General Code, is a ministerial one; and it is generally recognized that the state has not only the right to delegate such power but that, of necessity, all ministerial duties must be so delegated.

Nor do we regard Section 1190 as in violation of Section 3 of Article 16 of the Constitution of Ohio. That article gives municipalities the right to adopt and enforce within their limits such police, sanitary, and other similar regulations as are not in conflict with general laws. The general laws of this state are the constitution and the code. And every municipality is required to observe both so far as they relate to its powers,.

The demurrer is sustained.  