State v. S. H. O. Bosworth
| Decision Date | 12 May 1902 |
| Citation | 52 A. 423,74 Vt. 315 |
| Parties | STATE v. S. H. O. BOSWORTH |
| Court | Vermont Supreme Court |
January Term, 1902.
COMPLAINT for violation of an ordinance of the city of Montpelier, appealed from the municipal court of that city. The respondent's motion to quash and his demurrer to the complaint having been overruled, pro forma, he pleaded not guilty. Trial by jury at the March Term, 1901, Washington County, Watson, J., presiding. Verdict guilty. Motion in arrest of judgment overruled. Judgment on verdict, and respondent sentenced to pay a fine to the state. The respondent excepted.
The respondent's exceptions are sustained, the verdict, judgment and sentence set aside and the cause remanded.
T J. Deavitt and Edward H. Deavitt for the respondent.
Present TAFT, C. J., ROWELL, TYLER, MUNSON, START and STAFFORD, JJ.
The city of Montpelier is authorized by its charter to make ordinances directing the location and management of all private drains, and compelling their construction under such regulations and inspection as the council may adopt. Acts 1894, No. 166, § § 21-29; Acts 1896, No. 149, § 2. It has made an ordinance that "all drain and soil pipes when within a building, and for a distance of not less than five feet outside the foundation walls thereof, shall be of iron, with leaded or screwed joints, not less than four inches in diameter, supplied with a running trap, of the same size and diameter as the pipe, placed near the foundation wall, with an accessible clean-out," and that "a person neglecting or refusing to comply with the requirements, or violating any of the provisions, shall be fined not more than twenty-five dollars, nor less than one dollar, for each offense."
The complaint is that the respondent "did erect, build and maintain a drain and soil pipe within his building," which is described, "and for a distance of five feet or more outside the foundation walls of said building, of tile, and without leaded or screwed joints, and without being supplied with a running trap placed near the foundation wall or elsewhere, and without an accessible clean-out, and caused the same to be connected with the public sewer;" all of which is alleged to be "contrary to sections" so and so "of the general ordinances of said city,"--being the same we have just quoted. It then recites the sections word for word, and concludes regularly against the form of the statute.
The respondent demurred, and now insists that the complaint is bad in that it does not say whether the respondent built a new drain or only maintained an old one; but it plainly charges him with constructing one contrary to the ordinance, and such was the evidence on trial.
He also insists that it is bad in that it fails to allege that the ordinance was adopted by the city. This is matter of fact to be alleged and proved; for the court cannot take judicial notice of the ordinance,--though it can of the charter, as that is a public act. Winooski v. Gokey, 49 Vt. 282; State v. Cruickshank, 71 Vt. 94, 42 A. 983; State v. Soragan, 40 Vt. 450.
The demurrer was...
To continue reading
Request your trial