Opinion
No. 4640.
Argued April 1, 1958.
Decided April 24, 1958.
1. On trial of a criminal complaint for operating a motor vehicle on a public way while under the influence of intoxicating liquor it was not error for the justice of the municipal court to take judicial notice of the fact that a principal street of the city on which the offense was alleged to have been committed was a public way.
2. Proof that the city council had invalidly adopted a resolution which sought to restrict traffic to one direction only on a public highway would not change the status of the highway as a public way.
3. Nor could the fact that travel was restricted in mistaken reliance upon such action by the council constitute an abandonment of rights by the public so as to affect the public status of the highway.
COMPLAINT, charging that the respondent on April 16, 1957, operated a motor vehicle on Main Street, a public highway in Dover, while under the influence of intoxicating liquor. RSA 262:19. At the trial the special justice stated that he proposed to take judicial notice that Main Street was a public highway. The respondent thereafter introduced evidence that on March 21, 1952, the city council had adopted a resolution purporting to amend the revised ordinances of the city by adding new sections prohibiting travel in a southerly direction along specified portions of Main Street. At the close of the evidence, the respondent moved to dismiss the complaint upon the grounds that the State had failed to establish that Main Street was a "legal public way," and that Main Street is not a public way because the city "through illegal action of the City Council" had restricted the use of that street "thereby removing [it] from the classification of a public way within the meaning of said term."
To the denial of its motion to dismiss, the respondent duly excepted. All questions of law raised by the exception were transferred by Michael, special justice.
Louis C. Wyman, Attorney General, John J. Zimmerman, Assistant Attorney General, and T. Casey Moher, city solicitor (Mr. Zimmerman orally), for the State.
Philip C. Keefe (by brief and orally), for the respondent.
The resolution of the city council which purported to amend the ordinances of the city and to restrict portions of Main Street to one-way travel was not in the form prescribed by the city charter (Laws 1949, c. 430, s. 2, Pt. I, subs. 13, as amended by Laws 1953, c. 358, s. 5); nor was it shown to have been published as required by the compiled ordinances of the city. Compiled Ordinances of Dover (1939) c. I, s. 3. As the respondent's argument is understood, it is his contention that a public highway is one which is open to the public at large for travel, without restriction except by validly adopted police regulation (25 Am. Jur., Highways, p. 339, s. 2); that the purported regulation relating to Main Street was not legally adopted; and that Main Street, by virtue of the invalid regulation and consequent abandonment of full use of the highway, ceased to be a public highway, and will not again become one until it has been used as such for a period of twenty years. RSA 230:1. From this conclusion it is argued that the State failed to establish that the alleged offense occurred upon public highway.
The action taken by the city council is in issue only as it bears upon the status of Main Street as a public highway. If it be assumed, arguendo, that the resolution adopted by the council was invalid for want of compliance with requirements of the charter (but see, Town of Walkerton v. N.Y.C. St. L. R.R. Co., 215 Ind. 206, 211, 212 ), we are of the opinion that the result for which the respondent contends does not follow. An invalid restriction would have no legal effect. It is not contended that Main Street was not a public highway prior to adoption of the resolution by the council. It follows that its status as a public highway was unchanged by reason of any invalid restriction.
If travel upon the highway was in fact restricted in mistaken reliance upon invalid action by the council, this would not constitute such an abandonment of rights by the public as to change the status of the highway as a public way. State v. Morse, 50 N.H. 9, 20; Thompson v. Major, 58 N.H. 242, 244. We therefore find it unnecessary to determine the validity of the action taken by the city council.
There was no error in the use of judicial notice in determining that the State had sustained its burden of proving the offense charged, and the respondent's motion to dismiss was properly denied. State v. Duranleau, 99 N.H. 30; State v. Deane, 101 N.H. 127, 131.
Exception overruled.
All concurred.