¶1The city of Montpelier is authorized by its charter to make ordinances directing the location and management of all private drains, and compelling their construction under such regulations and inspection as the council may adopt. Acts 1894, No. 166, §§ 21-29; Acts 1896, No. 149, § 2. It has made an ordinance that “all drain and soil pipes when within a building, and for a distance of not less than five feet outside the foundation walls thereof, shall be of iron, with leaded or screwed joints, not less than four inches in diameter, supplied with a running trap, of the same size and diameter as the pipe, placed near the foundation wall, with an accessi*318ble clean-out,” and that “a person neglecting or refusing to comply with the requirements, or violating any of the provisions, shall be fined not more than twenty-five dollars,- nor less than one dollar, for each offense.”
¶2The complaint is that the respondent “did erect, build and maintain a drain and soil pipe within his building,” which is described, “and for a distance of five feet or more outside the foundation, walls of said building, of tile, and without leaded or screwed joints, and without being supplied with a running trap placed near the foundation wall or elsewhere, and without an accessible clean-out, and caused the same to be connected with the public sewer;” all of which is alleged to be “contrary to sections” so and so “of the general ordinances of said city,” —being the same we have just quoted. It then recites the sections word for word, and concludes regularly against the form of the statute.
¶3The respondent demurred, and now insists that the complaint is bad in that it does not say whether the respondent built a new drain or only maintained an old one; but it plainly charges him with constructing one contrary to the ordinance, and such was the evidence on trial.
¶4He also- insists that it is bad in that it fails to- allege that the ordinance was adopted by the city. This is matter of fact to be alleged and proved; for the court cannot take judicial notice of the ordinance,- — -though it can of the charter, as that is a public act. Winooski v. Gokey, 49 Vt. 282; State v. Cruickchank, 71 Vt. 94, 42 Atl. 983; State v. Soragan, 40 Vt. 450.
¶5The demurrer was overruled, pro forma, in the county court, and the defendant ordered to plead over, which he did; but this being a criminal case, he has not thereby Waived his right to insist upon his demurrer, and he does so- here by pointing out that there is no direct averment that the by-law was *319ever adopted, nor that it wa's in force when the acts that are complained of were committed. There is an indirect averment of the adoption, for the acts are alleged to have been done contrary to an ordinance of the city, which implies that the ordinance had been adopted. But this is not enough. The complaint is bad for want of a direct averment that the ordinance was in fact adopted, and in force at the time in question.
¶6It was claimed below, and is here, that the ordinance is unreasonable if, and in so far as, it may require changes in existing drains. We do not stop to consider this, for the complaint and proof here are that the respondent constructed a drain such as the ordinance forbade.
¶7It is said the court erred in telling the jury that, so far as the case showed, the soil pipe was never outside the walls. It made no difference whether it was all within or not, if the part within and for five feet without — i. e. as far as the ordinance undertook to regulate it — was constructed, as this was, in violation of the ordinance. So that the respondent was not harmed.
¶8It is said the fine should be to the city, not to- the state. The city court had exclusive original jurisdiction, but the case being criminal in its nature, there was the same right of appeal as from a justice of the peace. Acts 1894, No. 166, § 36. Fines imposed by the city court are payable to the judge, who is to account for the same to- the proper treasurer, as provided by law in case of justices of the peace. Id. § 37. In all cases appealed and entered in county court, the fine and costs shall be payable to the state, and the state shall pay the justice bill of costs. V. S. 2016. The fine goes to the state.
¶9The respondent's exceptions are sustained, the verdict, judgment and sentence set aside and the cause remanded.