State v. Richards , 74 Conn. 57 ( 1901 )

To make an order of the court of common council of New London, for the repair of a sidewalk by the owner of the abutting lands, sufficient to support a criminal prosecution against him for neglecting to obey it, it is necessary that a time should be limited, by reference to which the neglect might be ascertained. The words "may limit," in § 26 of the charter, are equivalent to "shall limit." State v.Neuner, 49 Conn. 232, 233. Such a time need not be expressed in the order, however, if it had been previously prescribed by appropriate action of the court of common council.

The ordinance upon which the present prosecution is immediately based, in § 1 imposes a penalty of $20 for a neglect or refusal to repair, in compliance with such an order, for thirty days after due notice of it; and in § 2 a like penalty for a neglect or refusal "to comply with such order after such notice for a period of thirty days as prescribed in section 1" (this being declared to constitute "a second misdemeanor"), and also "for each succeeding neglect or refusal for each successive period of thirty days thereafter."

Under the terms of § 1, construed according to the strict rule applicable to penal statutes and ordinances, no misdemeanor would be committed if the repairs were begun within the thirty days prescribed, and carried on in good faith, although not completed until that period had elapsed. But it seems impossible to give § 2 any other meaning than that, unless they be completed within the same thirty days, the owner would become guilty of a second misdemeanor. This lays down an iron-bound rule for every case, whatever may be the nature or extent of the repairs ordered. It would be competent for the court of common council to require work to be begun in thirty days. To exact its completion within that time, under all circumstances, without exception, under penalty of a criminal prosecution, is unreasonable; and § 2 is therefore void. The invalidity of the provision as to the "second misdemeanor" destroys the foundation for any succeeding one. It leaves, however, § 1 in full force. The constitution of the first misdemeanor may well stand by itself, and is unaffected by the failure of the later ones.

The order was therefore not insufficient for want of a limitation of time. Construed with reference to the ordinance, those to whom it was addressed were directed to commence the repairs within thirty days from the service of notice upon them; and it is not for them to complain that no time was set for the completion of the work.

But on another ground the order was insufficient to support the prosecution. The abutters were ordered to put the sidewalks "in good and sufficient repair, free from defects, and safe and convenient for travel." They were entitled to more certain directions as to the "manner" in which the repairs were to be made. It was not enough to describe these by the results to be accomplished by their completion. Either some particular mode of effecting them should have been prescribed, or some proper person designated to whom the owners might go for instruction or approval. The Criminal Court of Common Pleas, therefore, erred in instructing the jury that the order was passed in compliance with the charter. State v. Clarke, 69 Conn. 371.

The invalidity of the order renders it unnecessary to consider the claim of the defendant, that it is contrary to the provisions both of the constitution of Connecticut and of that of the United States to require owners of lands abutting on a street to repair sidewalks which have been once properly constructed.

There is error, and the cause is remanded to the Criminal Court of Common Pleas, with directions to dismiss the information.

In this opinion the other judges concurred.