It also prohibits (although it may be occupied) the use of light therein, except-what is not very likely they can have after 12 at night the natural light of day; prohibiting light from a fire in a stove, which would be necessary in the winter time for the occupation of the room by family or servants, as well to prevent the freezing of the liquids kept therein.

It goes so far as even to prohibit the light, I may say, of the moon, or the light from a gas lamp in the street penetrating the bar-room.

This conviction would meet the latter case, for the defendant is convicted of having, in the bar-room of his said licensed tavern, a light other than the natural light of day, to wit, the light of and from a gas burner reflecting a light in said bar-room during the time prohibited.

What is intended or meant by reflecting a light, I can not say. Its ordinary meaning is throwing back a light; but be that as it may, in our opinion the eighteenth section of the by-law is not authorized by the statute, or within its meaning or intent.

The power to pass by-laws for regulating the houses or places to be licensed, in our judgment, means regulations in respect of the sale of spirituous liquors therein, the hours and times at which they may be sold or prohibited, and with reference to the accommodation of guests, and in respect of gambling therein, and not allowing disorderly persons to frequent the premises, as provided by the sixteenth section of the bylaws.

The regulation could hardly have contemplated that the private and domestic arrangements of the family should be interfered with, or that the bar-room could not be used by the family with a light when being closed for the sale of liquor during the prohibited hours, and that a light should be an offense.

It would be most unreasonable, I think, to hold that within those hours police commissioners could prohibit the tavern keeper, or his family, or servant, during their occupation of it, from using a light, or if they were cleaning or washing the room that the using of a light would be an offense, subjecting the tavern keeper to a penalty of $50, as provided by this by-law, or imprisonment with hard labor for six months; or, as in the case before us, where it appears, from the evidence returned, the tavern keeper and his servant were using the light clearing away dishes after a supper that had been provided that evening at the house.

It is not pretended, nor does it appear by the evidence, that the barroom was open for the sale of liquors, or that persons other than the tavern keeper, his family, or servant, were therein at the time. conviction is for merely having a light therein.

The

I notice that the by-law does not prohibit the use of a light during

the prohibited hours in a saloon; if it is proper to prohibit the use of a light in a tavern, it is equally so in a saloon, which is only a place for drinking, and frequently a den of vice.

As an authority bearing on the case, I refer to the Calder & Hebble Navigation Co. v. Pilling.1

We are quite well aware how difficult it is for the municipal authorities to enforce regulations for the orderly keeping of such licensed houses, as well to meet the devices parties may resort to for the purpose of evading and contravening them, and no doubt it was with such a view the eighteenth section of the by-law was passed; but at the same time care must be taken when creating offenses to which are attached severe penalties, that the Legislature has clearly given the power to do so. On the whole, we are of opinion that the conviction should be quashed. There will be no costs.

Conviction quashed.

LIQUOR SELLING-LEGAL HOLIDAY-INDICTMENT.

RUGE v. STATE.

[62 Ind. 388.]

In the Supreme Court of Indiana.

Under a Statute forbidding liquor selling on Sundays or legal holidays, or election days, the defendant was charged with selling liquor "on or about the fourth day of July, A. D. 1876." Held, that the statute, concerning holidays, made the fourth of July a holiday for purposes of presenting commercial paper for payment, or protesting it, etc., but not a legal holiday in the sense of the statute, and that if the fourth of July had been a legal holiday, time was of the essence of the offense, and the averment in the indictment was insufficient.

BIDDLE, J. The appellant was indicted, with John Boye, for unlawfully selling intoxicating liquor, in the following words:

"The grand jury of the State of Indiana, in and for the county of Porter, good and lawful men, duly and legally impaneled, sworn and charged in the Circuit Court, at its September term, A. D. 1876, to inquire in and for the body of said county, in the name and by the authority of the State of Indiana, upon their oaths present and charge, that on or about the fourth day of July, A. D. 1876, at and in the county of Porter and State of Indiana, John Boye and Henry Ruge did then and there unlawfully sell one gill of intoxicating liquor to one Merrill Davidson, at and for a price of ten cents, the said fourth of July being then and there a legal holiday."

1 14 M. & W. 76.

The appellant moved to quash the indictment. The court overruled the motion, and he excepted. Trial; conviction; fine; judgment; appeal.

This indictment is founded on the following section of the act of March 17, 1875.1 "Section 9. "Section 9. A license granted under the provisions of this act shall not authorize the person so licensed to sell or barter any intoxicating, vinous or malt liquors on Sunday, nor upon any legal holiday, nor upon the day of any State, county, township or municipal election in township, town or city where the same may be holden, nor between the hours of 11 p. m. and 5 a. m., and upon conviction thereof, he shall be deemed guilty of a misdemeanor, and be fined in any sum not less than ten, nor more than fifty dollars, and for a second conviction, he shall forfeit his license, which shall be a part of the judgment of the court trying the same."

This indictment can not be sustained. At the time it was found there was no law making the fourth day of July a general legal holiday. The act of March 16, 1875,2 makes it a holiday "for all purposes of presenting for payment, or acceptance for the maturity and protest, and giving notice of the dishonor of bills of exchange, bank-checks and promissory notes, or other negotiable or commercial paper

falling due or maturing on" that day; but that does not make it a legal holiday within the meaning of the section upon which this indictment is founded.

The act of March 5, 1877,3 prohibiting the sale of intoxicating liquors on the 4th of July and other legal holidays, can not affect this case. And, if the fourth of July was a legal holiday, within the meaning of section 9, the averment that the sale was made "on or about the fourth day of July," is not sufficient. Time is of the essence of such an offense, and when the time at which it is committed is a part of the offense, it must be directly averred, or, in the language of our statute, "where the time is an indispensable ingredient in the offense."4 In this case, the sale not having been made without license, time would be "an indispensable ingredient in the offense," if the fourth of July was a legal holiday.5

The judgment is reversed; cause remanded, with instructions to sustain the motion to quash the indictment.

1

11 Rev. Stats. 1876, p. 871.

2 1 Rev. Stats. 1876, p. 637.

3 Acts 1877, Reg. Sess. 92.

42 Rev. Stats. 1876, p. 385, sec. 56.

5 Clark v. State, 34 Ind. 436; Busk. Prac.

390; 2 Russ. Cr. 326.

OBSTRUCTING PUBLIC ROADS-NEGLECT OF OFFICERS.

WARD V. STATE.

[12 Lea, 469.]

In the Supreme Court of Tennessee, 1883.

1. Where the Overseer of a Public Road in opening the road does not follow the line of the survey of the commissioners who laid it off, but goes through the farm and lot of an adjacent land owner, and throws down the fences, the putting up the fences by such land owner is not an offense.

2. It is the Duty of Commissioners, in opening a publio road, to go upon the ground after giving the notice required by law, and determine whether the change is a public necessity, and if so, lay off the road in such manner as to work the least injury to the land owners.

APPEAL from the Circuit Court of Lincoln County.
J. J. WILLIAMS, J.

Holman & Holman, for Ward.

Attorney-General Lea, for the State.

TURNEY, J., delivered the opinion of the court.

Plaintiffs in error were indicted for obstructing a public road. The grand jury made a report to the court that the offense had been committed, and that it knew of no one who would agree or could be procured to become prosecutor therefore the court ordered "that the attorney-general file an indictment officially, and prosecute the same officially without a prosecutor," which was done and a conviction had.

The facts are that certain citizens of Lincoln County petitioned the road commissioners to change a road and locate it upon the line between the lands of Catharine Tucker, Emiline Waggoner and T. C. Sallinger, on one side and E. Ward on the other side.

The commissioners, without knowing where that line was, without a survey, reported to the court that they had so changed and located the road. The report was confirmed and an overseer appointed, who undertook to establish the road from the statement of a chain carrier as to the line between the parties named.

Instead of pursuing the line, he nowhere touched it, but went through the heart of the farm of Ward, and through his horse lot, and threw down the fences. Putting up the fences is the obstruction complained of. It was the duty of the commissioners to have gone upon the ground after giving the notice required by law, to have determined whether the change was a public necessity, and if so to have laid off the road in such a manner as would have worked the least injury to land The interest of the public or the wishes of petitioners should

owners.

not have controlled altogether, that of the land owners must be consulted as well, and the just compensation provided for by the constitution should have been fixed.

The overseer and his hands were liable to civil and criminal prosecution for the trespass they committed. The defendants were not guilty of any offense in putting up the fences thrown down.

It is evident, if the facts shown by the record are true, that the grand jury and court were imposed upon, and that one J. W. Stiles, a witness for the State, is father to the prosecution, which is malicious on his part. He was road commissioner when the litigation was had in the County Court, and is proven, and in the main admits to have said, "it did not cost him anything to law the Wards, that the State would do his lawing, and that he was going to make it cost the Wards as much as possible; that if it had been anybody else but E. C. Ward, he would not have run the road over his field." It is clear to us, that it was through his manifestations, in some way, the grand jury was induced to make its report to the court that no one would prosecute, and that an offense had been committed.

He was carrying out his declared purposes of having the State to do his lawing and heaping costs upon the Wards. Through this prosecution he seeks to visit a malicious, wicked vengeance upon a neighbor. He was wholly unfit for the trust confided to him. It was he who directed the overseer to go and open the road and to get a chain-carrier to show him the line.

The court refused to charge as requested: "If the commissioners, in their report, located the road on a line between Ward on one side, and Tucker, Waggoner and Sallinger on the other, and that the line was a marked and notorious line, and their report was confirmed by the County Court, the overseer of said road would be allowed only to open the road on said line, and if instead of opening the road on said line, he went to another place forty or fifty yards down in Ward's field and threw the fence down, the defendants would have a right to put the fence up at that point, as an order to open the road on said line would not be legal authority to open a road at another place."

The refusal was error. It was the duty of the overseer to work the road as laid out, and he was not authorized to select another and different site or location, whatever may have been his reasons or motives. There is absolutely no evidence to support the verdict. The judgment is reversed and if the attorney-general thinks proper a nolle prosequi will be entered.