State v. Notes

Bell, J.

The case does not call for the discussion of the question of the constitutionality of submitting general laws to the vote of the people, and making their enactment dependent upon the popular vote. Many laws have been so presented to the people, and acted upon by them, and it is not at once apparent that there can be any sound objection to the enactment of laws to take effect upon the occurrence of future events, such as the Legislature may prescribe. Laws, framed to take effect upon conditions dependent upon the pleasure of parties to be affected by them, are common every where.

It seems to be generally conceded that powers of local legislation may be granted to cities, towns, and other municipal corporations. And it would require strong reasons to satisfy us that it could have been the design of the framers of our constitution to take from the Legislature a power which has been exercised in Europe, by governments of all classes from the earliest history, and the exercise of which has probably done more to promote civilization than all other causes combined, which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among us many of our most valuable institutions.

The Legislature are vested with the power “ to make, *293 ordain, and establish all manner of wholesome and reasonable laws,” in the most broad and general terms, and their power can hardly be held to be limited in cases where such power has been constantly exercised in all former times, unless by provisions distinctly indicating such design. None such are pointed out. No mischiefs are suggested as having resulted, or being likely to result from local legislation, which could be supposed to require the prohibition to the Legislature to confer such powers. In the nature of things, such legislation must be not inconsistent with the laws of the State, and must be subject to the revision and repeal of the Legislature of the State. We are, therefore, unable to entertain a doubt that the Legislature may rightfully confer upon the cities, towns, and other municipal corporations, the power to pass such local regulations ; and that the laws made by such bodies, in consistency with the general laws of the State, are valid.

This question arose in the case of The State v. Clark, 8 Foster’s Rep. 176, upon an ordinance of the city of Concord, prohibiting the keeping of intoxicating liquors in restaurants and refreshment saloons, and the ordinance was held to be authorized by the charter, and the charter to be consistent with the constitution. Of the soundness of this decision we are unable to entertain any doubt.

Assuming that the Legislature has the right to confer the power of local legislation upon cities and towns, that is, the power to pass ordinances and by-laws, in such terms and with such provisions, in the classes of cases to which the power extends, as they may think proper, it seems to us hardly possible seriously to contend that the Legislature may not confer the power to adopt, within such municipality, a law drawn up and framed by themselves. If they may pass alaw authorizing towns to make ordinances to punish the keeping of billiard rooms, bowling alleys, and other places of gambling, they may surely pass laws to punish the same acts, subject to be adopted by the town, before they can be *294 in force in it. It is not suggested that there is any rule which forbids the making of places for gambling public nuisances, and, consequently, punishable like other nuisances, or which prohibits the grant of authority to towns to declare such places to be nuisances; and there is, therefore, no difference in principle between the case of the statute before us, and any other statute proscribing certain conduct as criminal, and punishable within such jurisdictions as may adopt the law.

It is objected to this law, that if otherwise constitutional, it is forbidden by the constitution, because it undertakes to determine questions of fact and law, and is judicial in its character. What is or is not a nuisance is a judicial question, it is said, to be determined by courts, and this is clearly so. Nothing is a nuisance unless it is made such by the law, and to determine what is by the law a nuisance, is an exercise of judicial power. But the Legislature do not exceed their legitimate authority, when they make a change of the law, and constitute that an offence which was not such before, nor when they make certain acts an offence of a particular kind, within which they were not previously in-, eluded. There may be an apparent unfitness sometimes in such legislation, but its validity has never been questioned. When the long list of offences given by Blackstone, (4 Com. 86,) were made treason, to which most of them had no pretence of resemblance; when lotteries were made common nuisances, (4 Black. Com. 168 ;) when the slave trade was made piracy by Congress; or, in our State, embezzlement was made larceny, it was never doubted, so far as this point was concerned, that the laws were effectual for the purposes designed. But it is not to be conceded that places of gambling are not nuisances, in the proper and legitimate sense of that word. They are certainly nuisances of the worst kind, in the sense in which disorderly houses are so called. And at common law, keeing a gaming house is a nuisance. 1 Hawk. P. C. 198; Bos. Cr. Ev. 795; 2 Ch. Cr. Law 674; *295 Arch. Cr. Pl. 363; Commonwealth v. Pray, 13 Pick. 359 . It may be said that a bowling alley is not of itself a nuisance, since it may either remain unused, or it may be used only as a place of innocent amusement; that its injurious character depends upon the improper use alone. But the Legislature may well determine that an instrument which tends to facilitate vicious practices, is of itself an evil which ought to be prohibited.

There seems to us, then, to be no sound foundation for this exception.

It is further objected that no offence is sufficiently and properly described in this indictment. As the statute merely declares bowling alleys to be public nuisances, in certain situations, \ve have to look to the common law for the requisites of an indictment in such a case. Persons only are subject to indictment, and they must, therefore, be charged in an indictment in such terms as show that they create, keep up, or continue a nuisance, or are parties responsible for its existence. As nuisances are of very various kinds, agreeing in nothing but the common character of being annoying and injurious to the community, it is obvious that the terms of the charge must be as various as the nuisances themselves. The terms suitable to charge a nuisance by digging a dangerous pit in a highway, or causing it to be flooded with backwater, would not be suitable to allege the keeping of a disorderly house, or the making of a neighborhood unwholesome by offensive smells or poisonous gases. We have examined the forms of indictments in the books within our reach, and find the general form to be, “unlawfully did keep and maintain a certain common gaming house,” “ and cause and procure divers idle, &c., persons to come together to play at a certain unlawful game,” &c., Arch. Cr. Pl. 363; “ did keep and maintain a certain disorderly, &c., house, and cause persons of evil name, &c. to come together, there drinking,” &c., C. C. C. 533; “ did keep and maintain a certain disorderly room for *296 public dancing, and cause persons of evil name, &c. to come together,” &e.; “ did keep and maintain a certain disorderly house, and cause certain evil disposed persons to come together, fighting cocks,” &c.; “ a certain gaming house did unlawfully keep and maintain, and cause idle persons to come together, and game and play together,” &c.; “ a certain common gaming house, and in it a common gaming table, &c., commonly called an E. O. table, unlawfully did keep and maintain, for divers idle, &c. persons to come together to play, &c., and caused and permitted such persons to remain and game,” &c. Chitt. Cr. Law 673, 674, 675, 676, 677.

The allegations of the present indictment are somewhat peculiar. After reciting the adoption of the law, it alleges that the defendant, well knowing that fact, did on, &c. at &c. open and let to use and for use, a bowling alley, situate within twenty-five rods of certain buildings named, all situate and being within twenty-five rods of said bowling alley, so erected and kept in and for said use by said defendant.

The question is whether this indictment sets forth “ distinctly and formally ” such acts of the defendant as connect him criminally with the bowling alley, and subject him to punishment. The direct allegations are that “ he did open and let to use and for use a bowling alley, situate,” &c.

In most cases, the things which are in law deemed nuisances, because of their injurious or offensive character, may be of themselves indifferent, or they may be nuisances only under special circumstances. In all such cases it is, therefore, necessary to allege the injury or inconvenience they occasion. As in the case of a disorderly house, that idle and ill behaved people resort there. But it may be that a fact is in itself a nuisance, or, as in the present case, it may be made a nuisance by statute. In such a case, it is not necessary to allege any fact, in addition to those required by statute, to give it the character of a nuisance. Thus, in the present case, the statute declaring that a bowling alley, *297 situate within twenty-five rods of a dwelling-house, is a nuisance, it is not necessary to allege any other fact to give it that character.

To charge a man with an offence connected with a nuisance, it must be alleged that h.e neglected some duty, or he did some act promotive of the nuisance, and in violation of his duty as a citizen. In this case, there is no question of negligence. The inquiry is, what must a man do to make himself liable. The first principle is, that it is a misdemeanor to occasion a nuisance; and the second, that in misdemeanors all are principals. Any act, then, that would make a man an accessary before the fact to a higher offence, will make him a principal in a misdemeanor. To erect, to maintain; to keep, to make use of, to assist, or encourage others to do either of these things, is to participate in an unlawful act, and, of course, to be guilty. Ordinarily we should expect a charge of this kind to be that the party did erect, or keep, or maintain such a bowling alley. Those, as we have seen, are the usual allegations, but they are by no means essential, and cases may be supposed where these terms would not, either technically or naturally, describe the part taken by a defendant; and they are, consequently, by no means essential, and any language which properly describes the acts done by the party in connexion with the nuisance, may be equally sufficient in an indictment. Here the words used are, “ did open and let for use,” which seem to us to be, substantially, did offer for use and let for use. Now it seems to us very clear that, to offer a bowling alley for use, or to let a bowling alley for use, after it has been declared by law a nuisance, is an illegal act, which subjects the party to prosecution and punishment. They are acts having a direct tendency to encourage others to make use of such alley. A party can have no agency in encouraging the use of a thing thus obnoxious, without liability to punishment. We think, therefore, that enough is alleged in this indictment to sub» - ject the respondent to punishment.

*298 If the indictment had alleged that the defendant, on, &c. at, &c., a certain bowling alley, erected and kept for use as such, did open and let to others for use, it would be a sufficient charge that he unlawfully promoted a nuisance. Though this indictment fails a little in distinctness, we think it admits of no other construction, and that a party accused could not be misled nor left in uncertainty, as to the nature of the charge intended to be brought against him.

Supposing the indictment sufficiently to describe the of-fence intended, there seems to us no difficulty growing out of expressions which seem to be applicable to offences created by other statues. So far as they are not pertinent to the real accusation, they are to be merely rejected.

There can be no question that a party, charged with causing or continuing a nuisance, is, upon conviction, to be punished by fine and imprisonment at common law. 4 Black. Com. 167; Steph. Cr. Law 102; Arch. Cr. Pl. 362; 1 Hawk. P. C. 200; State v. Hull, 21 Maine Rep. 84 .

The judgment that the nuisance be abated, can only be rendered where it appears that the nuisance is continued to the finding of the indictment. Arch. Cr. Pl. 361; King v. Stead, 8 D. & E. 143; 21 Maine Rep. 84 .

It is not contended that such continuance is here sufficiently alleged. A clerical omission has rendered the allegations, on that point, imperfect. But the residue of the indictment is not impaired by the introduction of these defective allegations.

The respondent’s objections not being sustained, there must be Judgment on the verdict.