49 Vt. 282 | Vt. | 1877
The opinion of the court was delivered by
The charter of the village of Winooski, which is made a part of the exceptions, is not set forth in the declaration, and is only referred to by stating the date of its approval. If the charter is to be regarded as a public law, the court will, ex officio, take notice of it, and the reference made is all that is required*
When the charter under consideration was accepted by a majority of the legal voters in the territory defined in it, it became binding upon all persons who then were or might thereafter become residents in said territory ; and we think it was so far public and general in its purposes and objects, as to make it a public act.
It is claimed that the ordinance that the defendant is charged with violating, was not authorized by the charter. The 11th sec. of the charter conferred upon the village the power to make, establish, alter, amend, or repeal ordinances, regulations, and bylaws, to suppress and restiain disorderly and gaming houses, billiard tables, and all descriptions of gaming ; and under this
The right and power given by the charter to suppress and restrain the use of billiard tables, gave the corporation the right to pass an ordinance imposing reasonable penalties upon those who used them without permission, and the term license, as it is used in said ordinance, means consent or permission ; and since an ordinance without a penalty would be nugatory, a corporation that has the power to pass the ordinance, has an implied power to' provide for its enforcement by proper and reasonable fines against those who break it.
The causes of demurrer set down by the defendant, and which have been relied upon in argument, are none of them sustained. The two first" are based upon the manner of stating the facts, and •particularly the ordinance. All material facts must be stated in positive and direct terms, so as to admit of a direct negative, and these facts are so stated in this declaration.
The fourth cause relates to the description of the offence, and it was sufficient to describe it in the language of the ordinance.
The fifth cause is that it is not averred nor alleged that the keeping of said billiard tables was contrary to the form of the statute. The right of action accrued under and by virtue of the-ordinance set out in the declaration, and the act of the defendant was not contra formam statuti, and should not have been so alleged.
It would seem that the use of the quod cum, in this ease was technically correct, as it introduced matter only by way of inducement. Bac. Ab. Pleas and Pleadings, (B) 4; Lawes PI. [* 29] ; Steph. PI. (9 Am. ed.) 387 n. (d). — Repobtek.