State v. Tyrell

• Citation: 122 A. 924,100 Conn. 101
• Court: Connecticut Supreme Court
• Decision Date: 13 December 1923
• Parties: STATE v. TYRELL.

122 A. 924

100 Conn. 101

STATE v. TYRELL.

Supreme Court of Errors of Connecticut.

December 13, 1923

Appeal from City Court of Waterbury; William J. Larkin, Jr., Judge.

Frederick A. Tyrell was convicted of vending milk without a license and he appeals. Reversed.

Information for vending milk in Waterbury without a license, contrary to an order of the board of health of the city of Waterbury brought to the city court of Waterbury, where a demurrer to the information was overruled, and, upon the refusal of the accused to plead over, the court sentenced him to pay a fine of $25, and the costs of prosecution, and stand committed until judgment be performed, and from this judgment the accused appealed. Error, judgment to be entered for defendant.

Charles G Root, of Waterbury, for appellant.

Charles E. Hart, Jr., and Charles S. O'Connor, both of Waterbury for the State.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG JJ.

WHEELER, C.J.

The information charges that the accused unlawfully vended milk in the city of Waterbury, without a license issued by the department of public health, contrary to an order of the board of public health of the city of Waterbury. The information does not purport to give either the terms or the substance of the order of the board of public health. This court cannot take judicial notice of the orders of the board of health of Waterbury. The order charged to have been violated should have been set out, either in its terms, or in their substance. An information which is not so framed will be held bad upon a proper motion to quash or demurrer. State v. Cruickshank, 71 Vt. 94, 42 A. 983; State v. Soragan, 40 Vt. 450; Bray, Police Justice, v. Damato, Prosecutor, 70 N.J.Law, 583, 57 A. 394; Moss v. Appenoose County, 109 Iowa, 671, 81 N.W. 159; Commonwealth v. Lagorio, 141 Mass. 81, 6 N.E. 546; Dillon on Mun. Corp. (5th Ed.) vol. 1, § 231.

In State v. Stokes, 91 Conn. 67, 98 A. 294, the information sets out, in accordance with our ordinary practice, the terms of the regulation of the board of health violated. Our rule requires an information based upon a penal statute, to set forth the terms of the statute or every fact necessary to bring the case within the statute. Crandall v. State, 10 Conn. 339.

So far as the information alleges, the board of health under its order may issue a license with or without a fee. It may issue it to one and deny it to another; in short, the issuance of the license rests in its uncontrolled discretion. There is no standard set up, no conditions named, no terms given to govern its action. The state may require vendors of milk to take out a license and " charge a license fee proportionate to the cost of supervising the business." " The justification for such interference is the preservation of the public health, safety, or welfare." State v. Porter, 94 Conn. 639, 642, 110 A. 59, 60.

In State v. Conlon, 65 Conn. 486, 487, 33 A. 519, 521 (31 L.R.A. 55, 48 Am.St.Rep. 227) we state the conditions upon which the regulation of a nondangerous business must rest:

" The Legislature has full power to regulate such a business, but its regulations must be governed by very different principles from those which may govern the regulations of a business in its nature dangerous to the public. In the one business no citizen has an absolute right to engage; in the other, all citizens have the right and an equal right to engage. The difference is vital. What is the

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