dissenting.
In its original brief, and in its argument, the City contended that it “has power to pass an ordinance which makes proof of one fact prima facie evidence of another fact.” It did not rely upon the separability provision in its Code. It asks us to declare its entire ordinance valid.
Furthermore, in its petition for a rehearing it contended “that Code, § 18-301 is not sufficiently comprehensive to combat each step in the numbers game.” It claimed that the portion of the ordinance now declared invalid by this Court was a provision necessary to enable it to attain the end intended, that is, the elimination of lotteries.
The contentions and the facts relied upon in support demonstrate beyond doubt that the council intended to change the rule of evidence so as to impose a burden upon an accused not contemplated by the legislature. If the objectionable portion of the ordinance be eliminated, there appears to have been no necessity for the enactment of the ordinance. Undoubtedly, the void portion of the ordinance *182was the controlling inducement to its enactment, and it is so interwoven in its texture, that its elimination will prevent the ordinance from becoming operative in accordance with the will of the council. For that reason the rule of separability should not be applied. Hannabass v. Maryland Casualty Co., 169 Va. 559, 194 S. E. 808; and Boyles v. City of Roanoke, 179 Va. 484, 19 S. E. (2d) 662.
Code § 8-264 provides: “Acts and resolutions of the General Assembly, though local or private, may be given in evidence without being specially pleaded; and an appellate court shall take judicial notice of such as appear to have been relied on in the court below.”
The Code of the City of Norfolk was not introduced in evidence. There was no contention in the brief or argument that the City relied on a separability provision of the Code to sustain the contested ordinance in part or whole. Yet, contrary to the rule established in Virginia, the majority takes judicial notice of such a provision in the Code of the City. Norfolk & P. Co. v. Forrest, 109 Va. 658, 661, 64 S. E. 1034, 20 Am. Jur. Evidence §§37 and 38, pages 61 et seq., 31 C. J. S. Evidence § 27, page 540.
I would adhere to our former opinion.