
    Goodrich v. Brown.
    1. Municipal corporation: infractions of ordinances: jurisdiction of justices. A justice of the peace has not jurisdiction to hear and determine a criminal prosecution for a violation of a city ordinance under the general law for the incorporation of towns and cities, except in cases where the city council has provided therefor pursuant to section 1088 of the Revision.
    2. -city ordinances. Courts will not take judicial notice of a city ordinance. The ordinaneé must he specially pleaded.
    
      Appeal from Blade Hawk Circuit Court.
    
    Friday, December 16.
    On the 21st day of May, 1870, an information upon oath was filed before James S. George, a justice of the peace in and for the township of Waterloo, charging the appellee with “ committing the crime of knowingly allowing his mule to run at large,” against the provisions of an ordinance of the city of Waterloo.
    'On the same day appellee was arrested upon a warrant issued by the same township officer, upon information on oath, for “ hindering and obstructing an officer, in violation of an ordinance of said city of Waterloo. The venue being changed upon application of appellee, to A. M. Beman, nearest justice in the township of Waterloo, the suit was continued to June 6th. Appellee refused to enter into recognizance, but promised to appear at the adjourned day.
    Appearing at that time, and learning that at the request of the court the cause had been again continued, he refused to make further appearance in the case,.unless compelled to do so by a re-arrest. At the adjourned day the cause was tried, and the appellee, not appearing in person or by counsel, was adjudged guilty, and ordered by said Beman to pay a fine, and to stand committed until he was legally discharged. On the 13th of June, under a mittimus issued by A. M. Beman, appellee was seized, conveyed to jail, and lodged in the custody of appellant, sheriff of Black Hawk county, to be incarcerated until the fine and costs imposed were paid.
    On the 14th day of June, upon application of appellee, the Hon. S. Bagg, judge of the Black Hawk circuit court, issued a writ of habeas corpus and discharged the plaintiff from custody, upon the ground that the. justice had no jurisdiction of the subject-matter, nor of the person of appellee.
    From the order of discharge the defendant appeals.
    
      Miller dh Miller for the appellant.
    
      Hewett & Dodge for the appellee.
   Day, J.

The record presents but two questions: 1. Had the justice jurisdiction to hear and determine a crimwnal prosecution for a violation of an ordinance of the city of Waterloo? 2. Had the justice power to try the appellee in the absence both of himself and counsel ?

Section 4499 of the Revision provides that Police and city courts, in cities and incorporated towns, have exclusive jurisdiction of all prosecutions for infractions of the by-laws or ordinances of the city or town in which they are located, as provided by law, and concurrent jurisdiction with justices of the peace of prosecutions for misdemeanors in the cases provided for in the special statutes creating or regulating such courts or legally conferred upon them.”

Tips section would seem to be decisive against the jurisdiction of a justice of the peace in a criminal proceeding for an infraction of a city ordinance.

We are referred, however, by appellant, to section 1074 of the Revision, which, it is claimed, confers upon the justice the jurisdiction he assumed to exercise. This section, is as follows: “ Fines, penalties and forfeitures may, in all cases, and in addition to any other mode provided, be recovered by suit or action before a justice of the peace or other court of competent jurisdiction, in the name of the proper municipal corporation for its use. And in such suit or action, where pleading is necessary, it shall be sufficient to declare generally for the amount claimed to be due in respect to the violation of the by-law or ordinance, referring to its title,” etc.

A very little attention to this section renders it apparent that it has no reference to a criminal prosecution, but that it applies solely to a civil action for the recovery of a fine imposed or a forfeiture incurred. This appears from the language of the section. It provides that the action may be prosecuted im, the name of the proper mwmcipdl corporation, and that, where pleading is necessary, it shall be sufficient to decla/re generally for the amou/nt claimed to be due. A criminal acüon must be -prosecuted in the name and by the authority of the State of Iowa ” as a party, against the party charged with the offense. Rev., § 4435. And, if before a justice of the peace, must be commenced by an information subscribed and sworn to, and filed with the justice. Rev., § 5056. If more need be.said to show the inapplicability of section 1074 to a criminal prosecution, it is found in the fact that a different construction would place it in direct conflict with section 4499, before noticed. The jurisdiction exercised by the justice in this case cannot be based upon section 1088 of the Revision. That section provides, that it shall be lawful for any council to provide for the immediate arrest, by the proper officer of the cor poration, of any person found violating the ordinances made to preserve the peace and good order of the corporation. And any person so arrested shall be taken forthwith before the mayor, or some justice of the peace for trial.” * * This statute confers jurisdiction upon a justice only in cases where the common council has provided for the immediate arrest of one found violating the ordinances made to preserve tbe peace and good order of tbe corporation.

Tbe record does not disclose tbat tbe council of Waterloo has made any such provision. This court does not take judicial notice of the provisions of a city ordinance. Garvin v. Wells, 8 Iowa, 286.

It is incumbent upon a party alleging error to make it affirmatively appear. In a court of inferior jurisdiction tbe record must show tbe facts which confer tbe jurisdiction. State v. Berry, 12 Iowa, 58. We are of opinion tbat tbe justice bad no jurisdiction of tbe subject-matter, and tbat bis judgment is void.

As this determination of tbe question 'herein discussed is decisive in favor of tbe action of tbe circuit judge, it becomes unnecessary to consider tbe other question presented. Tbe order discharging tbe appellee -is

Affirmed.  