It affirmatively appears from the judgment entry in the circuit court, from which judgment this appeal is taken, that, upon the failure of appellant to pay the fine assessed against him, and the costs incident to the trial, the court sentenced him to perform hard labor for the city of Tuscaloosa, for a period of 187 days, at the rate of 40 cent per day, to pay the fine of $75, as provided by the ordinance of said city, and for 87 days' additional to satisfy the costs due said city.
No ordinance of the city of Tuscaloosa, authorizing the imposition of hard labor to satisfy the fine and costs at the rate of 40 cents a day, was introduced in evidence upon the trial of this cause in the circuit court. It is self-evident, therefore, that the trial court took judicial cognizance of a municipal ordinance, and this the court is without the authority to do. For a party to obtain the advantage of a municipal ordinance, such ordinance must be in evidence before the court. Excelsior Steam Laundry Co. v. Lomax, 166 Ala. 612,52 So. 347; Case v. Mobile, 30 Ala. 538; Furham v. Huntsville,54 Ala. 263; N. Bham. Ry. Co. v. Calderwood, 89 Ala. 247,7 So. 360, 18 Am. St. Rep. 105; Benjamin v. City of Montgomery,16 Ala. App. 653, 81 So. 145; Cabaniss v. City of Tuscaloosa,20 Ala. App. 543, 104 So. 46.
I do not accord to many of the expressions and conclusions reached in the majority opinion, but, as this question must of necessity work a reversal of the judgment appealed from, I shall not write to these questions which to my mind are wholly unsound.