Village of Hardwick v. Vermont Telephone & Telegraph Co. , 70 Vt. 180 ( 1897 )

Tyler, J.

Y. S. 4229 requires that a person or corporation owning or operating a line of wires in a city or village shall cause the poles upon which the wires are strung to be kept suitably painted to the satisfaction of the aldermen of the city or the trustees of the village, and substitute straight poles for crooked ones. The next section provides that a person or corporation neglecting or refusing to paint such poles or make such substitution, after a prescribed notice has been given, shall forfeit one hundred dollars to such city or village, to be recoverable in an action upon the statute.

This is a penal statute and must be construed according to the intention of the legislature as discovered by the import of the words used. Ellis v. Hull, 2 Aik. 41. It is not sufficient that the declaration follows the precise terms of the statute; it must set forth the cause of action according to the legal meaning thereof.

The provisions of §§ 4229 and 4230 apply to all cities and villages where telephone and telegraph wires are maintained, and it is to be presumed that the legislature intended that a notice from the aldermen or trustees should indicate by streets or other localities where a substitution of poles. should be made, and also direct what color they should be painted, inasmuch as the statute requires that they shall be painted to the satisfaction of such aldermen or trustees.

An offense under the statute was not committed by the defendant’s maintaining unpainted and crooked poles, but by neglecting to do certain things within twenty days after notice to do them; and it follows that the notice should state specifically what was required. It is not alleged in the declaration that such notice was given, but that notice was given to the defendant to paint the poles in the village and substitute straight poles for crooked ones. As the statute does not prescribe the form of action, the declaration should set forth with particularity the facts upon which the plaintiff relies to constitute the offense. Bigelow v. Johnson, 13 Johns. 428.

The averment that “the defendant had not and did not, on, etc., substitute straight poles for crooked ones then or thereafter erected, but, on the contrary, then and thereafter maintained crooked and unsatisfactory poles,” is not a sufficient averment that the crooked poles were poles upon which wires were strung in the plaintiff village. It is not within the rule of “certainty to a certain intent in general,’.’ and is bad on special demurrer.

Jtidgment affirmed and cause remanded.