HIGHWAYS aets,99 or for his unauthorized acts of trespass.2 AmSR 707; Rector v. Clarke, 78 N. V. 6 overpayments.NW 191. Myers, 63 Nebr. 107, 88 [c] Malice in tearing down house. -Wilding v. Hough, 37 Iowa 446. Refusal to certify to Brick v. Green, Wright (Oh.) work [d] done. 86. [e] Converting wood for private use. Makepiece v. Worden, 1 N. H. 16. 99. Ill.-Tearney v. Smith, 86 Ill. 391; Van Middlesworth v. Hill, 161 Ill. A. 592. Iowa.-McCord v. High, 24 Iowa Minn.-Tholkes 507, 147 NW 618, 52 LRANS Decock, 125 336. V. Minn. [a] Well considered case.-Tholkes Conn.-Ely v. Parsons, 55 Conn. 83, 10 A 499. Del. Cowgill v. 151, 86 A 731; Huey v. Hendrixen, Hurley, 27 Del. 1 Del. 145. III.-Barnard v. Nokomis Highway Comrs., 172 Ill. 391, 50 Tearney v. Smith, 86 Ill. 391; Lin-NE 120; blom v. Ramsey, 75 Ill. 246; Harris v. Carson, 40 Ill. A. 147; Allen v. Michel, 38 Ill. A. 313; Cottonwood Bd. of Auditors v. Peo., 38 Ill. A. 239; Yowell v. Braden, 29 Ill. A. 29. Ind.-Cauble v. Hultz, 118 Ind. 13, 20 NE 515; Conwell v. Emrie, 4 Ind. 209. Iowa.-Campbell Iowa 494; Mosier v. Vincent, 34 Iowa v. Kennedy, 34 478. Kan.-Barrett v. Nelson, 29 Kan. 594. La.-Michel v. Terrebonne Police Jury, 9 La. Ann. 67; Michel v. West Baton Rouge Police Jury, 3 La. Ann. 123; Morgan v. Pointe Coupe Police Jury, 11 La. 157. Me.-Ford v. Erskin, 109 Me. 164, Mass.-Pinkerton v. Randolph, 200 Mo.-Moore v. Hawk, 57 Mo. A. 495. Nebr.-Denver v. Myers, 63 Nebr. 107, 88 NW 191. N. H.-Waldron v. Berry, 51 N. H. V. Pa-Eisenhart v. Hykes, 4 Lanc LRev 98. [29 C. J.-37] [29 C. J.] 577 if he acts in abuse of such discretion." He has R. I.-Tucker v. Eldred, 6 R. I. 486; Cubit v. O'Dett, 51 Mich. 347, V. O'Neil Engineering Co., (Civ. A.) 176 145. 1 A highway officer's discretion is Yowell v. Braden, 29 Ill. A, 29. Mass. 24, 85 NE 892. Mich.-Nedow v. Porter, 122 Mich. Thomas, 93 Minn. 1, 100 NW 378, 106 N. H.-Adams v. Richardson, 43 N. 529, 81 NE 975, 13 LRANS 233. 479, 66 NW 1145. 3. Wis.-Schroeder v. Klipp, 120 Wis. officers Liability of local authorities see see supra § 289. ponגי 10. Brown v. Bridges, 31 Iowa 138. Bohlin, 16 11. Ala.-Jackson V. 151, 86 A 731; Huey v. Hendrixen, 1 Ill. Barnard v. Nokomis Highway Ind.-Cauble v. Hultz, 118 Ind. 13, Iowa.-Campbell v. Kennedy, Mo.-Moore v. Hawk, 57 Mo. A. 495. uel, 118 Va. 716, 88 SE 54. outside the proper location,12 or where no highway | legally exists.13 A highway officer has been held liable for refusal to perform his duty although such refusal has been based on a bona fide opinion that the statute is unconstitutional.14 17 15 16 Money in custody. Highway officers assume the risks of loss of money deposited in their custody and they may be liable to account for the same,1 regardless of their good faith, and, when unauthorized, they are liable for the wrongful sale of bonds on credit,18 although unable to sell them for cash.19 Acts of subordinates. While the officer is not liable for the acts of a subordinate who occupies an office known to the law,20 or where the employment is within the scope of the officer's authority and the officer himself is free from any blame,21 he is liable for the acts of one voluntarily employed by him,22 especially if he knows of the acts of such employee and acquiesces therein,23 or gives specific direction to commit the act.24 Acts of predecessor. A highway officer is not liable for injuries caused by the negligence of his predecessor in office.25 Liability on bond.26 The liability on a highway officer's bond is limited to its terms.27 Highway ered drain or ditch in the highway, Ind. Heagy v. Black, 90 Ind. 534. 34 S. D.-Webster v. White, 8 S. D. 479, 66 NW 1145. Wis.-Babb v. Carver, 7 Wis. 124. But see Huey v. Richardson, Del. 206 (for mistake of competent surveyor). Authority limited to highway limits see supra § 298. Extent of highway see supra §§ 23, 24, 128-137. 13. Jackson v. Bohlin, 16 Ala. A. 105, 75 S 697; Campbell v. Kennedy, 34 Iowa 494; Buskirk v. Strickland, 47 Mich. 389, 11 NW 210; Kelsey v. Burgess, 12 NYS 169; Marvin V. Pardee, 64 Barb. (N. Y.) 353. Evidence as to existence of highway see supra §§ 27-29, 195-197. 14. Clark v. Miller, 54 N. Y. 528 [aff 42 Barb. 255, 47 Barb. 38]. 15. Peo. v. Treanor, 15 App. Div. 508, 44 NYS 528. 16. Peo. v. Treanor, 15 App. Div. 508, 44 NYS 528. Duty to account see supra § 301. 17. Peo. v. Treanor, 15 App. Div. 508, 44 NYS 528. 18. Peo. v. Treanor, 15 App. Div. 508, 44 NYS 528. 19. Peo. v. Treanor, 15 App. 508, 44 NYS 528. Div. officers are liable under official bonds for expending money for materials which should be paid over to some local authority.28 It is no defense to the liability on the bond that in receiving and keeping money the officer acted without authority.29 Ordinarily the official bond of a highway officer is broad enough to include a liability for moneys illegally collected by him, under wrongful demands for compensation, in excess of that to which he was legally entitled. Liability to local authorities. A town or other supervising agency may recover against an officer for whose neglect it has been compelled to pay a fine or amercement.31 30 33 [§ 303] (2) Justification by Authority. A highway officer is, like other officers,32 free from liability to individuals for acts performed under a regular order of a judicial or quasi judicial character,35 such as an order of court 34 or other authority,35 notwithstanding irregularities in the proceeding in which the order is made.36 Thus he is not liable where the road is duly established by law,37 although the time for the appeal from the layout has not passed,38 or the land damages are not assessed.39 But to be exempt from liability the order must be legal and valid, and his acts thereunder must be 40 sons, 55 Conn. 83, 10 A 499; Robin- | Road Co., 26 N. J. L. 99. "The public official is always re- 23. Elder V. Bemis, 2 Metc. Konner v. State, 227 N. Y. 478, 25. McOsker v. Burrell, 55 Ind. 425; Gould v. Booth, 66 N. Y. 62; Lament v. Haight, 44 HowPr (N. Y.) 1. 26. Bonds generally see Bonds 9 C. J. p 1. Necessity of bond see supra § 292. 27. Jost v. King, 166 Cal. 394, 137 P 4; Coleman v. Eaker, 111 Ky. 131, 63 SW 484, 23 KyL 513; State v. Miller, 123 Mo. A. 730, 101 SW 616; State v. Fidelity, etc., Co., (S. C.) 104 SE 182. 33. Ala.-Jackson V. Bohlin, 16 Ala. A. 105, 75 S 697. Ark.-Cockrum v. Williamson, 53 Ark. 131, 13 SW 592. Ind. Chicago, etc., R. Co. v. Sutton, 130 Ind. 405, 30 NE 291; Rutherford v. Davis, 95 Ind. 245. Me.-Cyr v. Dufour, 68 Me. 492; Hovey v. Mayo, 43 Me. 322. Mo.-Crenshaw v. Snyder, 117 Mo. 167, 22 SW 1104; State v. Buhler, 90 Mo. 560, 3 SW 68; Patten V. Weightman, 51 Mo. 432; Wyatt v. Thomas, 29 Mo. 23; Walker v. Likens, 24 Mo. 298; Wooldridge V. Rentschler, 62 Mo. A. 591; Harper v. Morse, 46 Mo. A. 470; Peery v. Gill, 36 Mo. A. 685. Va.-Yeager v. Carpenter, 8 Leigh (35 Va.) 454, 31 AmD 665. 34. Cockrum v. Williamson, 53 Ark. 131, 13 SW 592; McIlvoy v. Speed, 4 Bibb (Ky.) 85; Crenshaw v. Snyder, 117 Mo. 167, 22 SW 1104; Walker v. Likens, 24 Mo. 298; Wooldridge v. Rentschler, 62 Mo. A. 591; Rousey v. Wood, 57 Mo. A. 650; Peery v. Gill, 36 Mo. A. 685; Yeager v. Carpenter, 8 Leigh (35 Va.) 454, 31 AmD 665. 35. Me.-Hovey v. Mayo, 43 Me. 322. Mass.-Gaylord v. King, 142 Mass. [a] Illustrations.—(1) Where a county supervisor in constructing a road was a mere volunteer, not acting in his official capacity, the sureties on his official bond cannot be joined in an action against him for damages for failure to complete the road, as the bond was given to indemnify against neglect of duty in the supervisor's official capacity 495, 8 NE 596. only. Jost v. King, 166 Cal. 394, Mich.-Krueger V. Le Blanc, 62 137 P 4. (2) Where a statute abol-Mich. 70, 28 NW 757. ishes the office of county supervisor Mo.-Patten v. Weightman, 51 Mo. and creates the offices of county road 432; Butler v. Barr, 18 Mo. 357. supervisor and county office super- N. H.-Rossiter v. Russell, 18 N. Du-visor, the surety on the bond of the H. 73. county road supervisor, who had for- N. Y.-Beach v. Furman, 9 Johns. merly been the county supervisor, is 229. not liable for funds which came into the officer's hands as county supervisor. State v. Fidelity, etc., Co., (S. C.) 104 SE 182. (3) No action lies on the bond for personal injuries resulting from the breaking of a bridge (Coleman v. Eaker, 111 Ky. 131, 63 SW 484, 23 KyL 513); (4) or for failure of the commissioner to take a bond from a contractor for the payment of labor and material used in his work (State v. Miller, 123 Mo. A. 730, 101 SW 616). 20. Anne Arundel County v. vall, 54 Md. 350, 39 AmR 393. But see Harris v. Carson, 40 Ill. A. 147 (holding that work done by an overseer, an inferior officer, with the knowledge of the commissioners of highways, is presumed to be done with their approval until the contrary is shown). 21. Huey V. Richardson, 2 Del. 206; Bowden v. Derby, 99 Me. 208, 58 A 993. [a] Competent surveyor.-Huey v. Richardson, 2 Del. 206. [b] The relation of master and servant does not exist between a road commissioner and the laborers employed on road work. Bowden v. Derby, 99 Me. 208, 58 A 993. See generally Master and Servant [26 Cyc 966]. 22. Wadsworth v. Middletown, 94 Conn. 435, 442, 109 A 246; Ely v. Par 28. Wells v. Stombock, 59 Iowa 376, 13 NW 339. 29. Ham v. Silvernail, 7 Hun (N. 30. Santa Barbara County V. Pa. Cook v. Deerfield Tp., 64 Pa. 445, 3 AmR 605. Vt.-Morse v. Weymouth, 28 Vt. 824; Patchin v. Doolittle, 3 Vt. 457. 36. Peery v. Gill, 36 Mo. A. 685; Yeager v. Carpenter, 8 Leigh (35 Va.) 454, 31 AmD 665. 37. Caldwell v. Evans, 85 Ill. 170; Craigie v. Mellen, 6 Mass. 7; Marshall v. Hastings, 174 N. C. 480, 93 SE 977; Robinson v. Winch, 66 Vt. 110, 28 A 884. Proceedings for establishment see supra §§ 49-197. 38. Craigie v. Mellen, 6 Mass. 7. 39. Robinson V. Winch, 66 110. 28 A 884. Vt. 40. Ark. Cockrum v. Williamson, 53 Ark. 131, 13 SW 592. Ill. Swan Tp. Highway Comrs. v. 41 45 46 authorities liable when the officers act beyond their authority.49 However, such local authorities may be liable when they direct the performance of acts not within the scope of the imposed duties,50 and for the negligence of their agents where they act within the scope of their authority,51 as for trespass committed by their officers in entering on private property in road work.52 55 lawful and in accordance therewith.42 He cannot justify under the map he received from the township clerk purporting to contain all the legal roads in the township where the road does not exist either de facto or de jure.43 [304] b. Of Local Authorities.44 Notwithstanding the fact that under some circumstances highway officers may be individually liable for individual acts, local authorities are not responsible [§ 305] 12. Liability for Penalty.53 Statutes in damages for the consequential injuries to private often impose penalties for failure of highway offiproperty which flow from or are incident to the cers to perform or properly discharge their duties.54 performance of highway duties, as when the officer The liability to such penalty is limited to those peracts as a public officer carrying into effect a public sons included within the provisions of the statute,5 law for the public good and not as agent of the and then only for breach of duties which come particular municipality in which he is working, un- within the scope of their jurisdiction.56 There is less a statute otherwise provides.48 Nor are such no liability for errors of judgment in the exercise neglect without express permission | N. J.-Wheeler Essex Public from the state itself, so these quasi Road Bd., 39 N. J. L. 291. corporations, its agents, are not liable N. Y. Niland v. Bowron, 193 N. for such negligence, and no action Y. 180, 85 NE 1012 [aff 113 App. Div. for damages arising therefrom can 661, 99 NYS 914]. be maintained against any of them, in the absence of an express statute imposing the liability and permitting the action.' Madden V. Lancaster County, 65 Fed. 188, 191, 12 CCA 566 (Nebraska). 47. Peo.. 31 Ill. 97; Guptail v. Teft, 16 Ind.-Barnard v. Haworth, 9 Ind. 103. Me.-Brown v. Neal, 36 Me. 407. Mich. Larned v. Briscoe, 62 Mich. 393, 29 NW 22. 75. Miss.-Stockett v. Nicholson, Walk. Mo.-Peed v. Barker, 61 Mo. A. 556; Rousey v. Wood, 57 Mo. A. 650; Rousey v. Wood, 47 Mo. A. 465; Peery v. Gill, 36 Mo. A. 685. N. Y.-Peo. v. Marlette, 94 App. Div. 592, 88 NYS 379 [aff 41 Misc. 151, 83 NYS 962]. N. C.-Welch v. Piercy, 29 N. C. 365. But see Sweet v. Conley, 20 R. I. 381, 39 A 326 (where mandamus was refused, when it was sought thereby to compel a surveyor of highways to restore at his own expense the grade of a street which, acting under unauthorized orders of the town council, he had raised above the established grade so as to injure an abutting property owner). 41. Cal.-Smithers V. Fitch, 82 Cal. 153, 22 P 935: Sherman v. Buick, 32 Cal. 241, 91 AmD 577. Ill. Shoup v. Shields, 116 Ill. 488, 6 NE 502; Caldwell V. Evans, 85 Ill. 170; Guptal v. Teft. 16 Ill. 365. Ind. Rutherford v. Davis, 95 Ind. 245. 86. Mich.-Clark v. Dasso, 34 Mich. Mo.-Patten v. Weightman, 51 Mo. 432. N. Y.-Marvin v. Pardee, 64 Barb. 353: Kelsey v. Burgess. 12 NYS 169. Oh.-Beckwith v. Beckwith, 22 Oh. St. 180. [a] Wanton trespass.-Such order has been held no justification in case of wanton trespass. Patten V. Weightman, 51 Mo. 432. And see supra 302. 42. Cowgill v. Hurley, 27 Del. 151, 86 A 731; Huey v. Hendrixen, 1 Del. 145. 43. Campbell V. Kennedy, 34 Iowa 494. Cal-Crowell v. Sonoma Co., 25 Cal. 313. Ind. Jackson County v. Branaman, Kan.- Quincy Tp. v. Sheehan, 48 Ky.-Hutchison v. Pulaski County, Md.-Anne Arundel County v. Du- Mass-MacManus v. Weston, 164 Mass. 263. 41 NE 301, 31 LRA 174; Pratt v. Weymouth, 147 Mass. 245, 17 NE 538, 9 AmSR 691; Clark v. Easton, 146 Mass. 43, 14 NE 795; McKenna v. Kimball, 145 Mass. 555, 14 NE 789; Tindley v. Salem, 137 Mass. 171, 50 AmR 289; Cushing v. Bedford, 125 Mass. 526; Barney v. Lowell, 98 Mass. 570; Walcott v. Swampscott, 1 Allen 101; Hafford v. New Bedford, 16 Gray 297; White v. Phillipston, 10 Metc. 108. Mo.-Swineford v. Franklin County, 73 Mo. 279 [aff 6 Mo. A. 39]; Reardon v. St. Louis County, 36 Mo. 555. N. H.-O'Brien v. Derry. 73 N. H. 198, 60 A 843; Hall v. Concord, 71 N. H. 367, 52 A 864, 58 LRA 455; Downes v. Hopkinton, 67 N. H. 456, 40 A 433; Wakefield v. Newport, 62 N. H. 624; Cofran v. Sanbornton, 56 N. H. 12; Hardy v. Keene, 52 N. H. 370; Ball v. Winchester, 32 N. H. 435. N. Y.-Winchell v. Camillus, 190 N. Y. 536, 83 NE 1134 [aff 109 App. Div. 341, 95 NYS 688]; Peo. v. Esopus, 74 N. Y. 310; Robinson v. Fowler, 80 Hun 101, 30 NYS 25; Lyth v. Evans, 33 Misc. 221, 68 NYS 356. Evidence as to existence of highway see supra §§ 27-29, 195-197. 44. Liability for: Construction of drain where highway benefited see Drains § 214. Damages from construction and repair of highway see infra § 355. Defective highway see infra §§ 439-20 A 278, 22 AmSR 95, 9 LRA 363. 443. County see Counties § 274. State see States [36 Cyc 881]. 46. Rudnyai V. Harwinton, 79 Conn. 91, 63 A 948, 6 AnnCas 988; Short v. Orange, 175 App. Div. 260, 161 NYS 466. "Inasmuch as the sovereign power is not amenable to individuals for neglect in the discharge of public duty, and cannot be sued for such R. 1-Smart v. Johnston, 17 R. I. 778, 24 A 830. Vt.-Bates v. Rutland, 62 Vt. 178, Wis.-Dodge v. Ashland County, 88 V. Pa.-Moore V. Coal Tp., 56 Pa. Super. 55. Man.-Atcheson V. Portage La Prairie, 10 Man. 39. [a] Rule applied. To acts of: (1) Selectman. Goddard v. Harpswell, 88 Me. 228, 33 A 980. (2) Supervisors. Moore v. Coal Tp., 56 Pa. Super. 55. 50. Rudnyai V. Harwinton, 79 Conn. 91, 63 A 948, 6 AnnCas 988. 51. Conn.-Bronson V. Washington, 57 Conn, 346, 18 A 264. Me.-Getchell v. Oakland, 89 Me. 426, 36 A 627; Haskell v. Knox, 3 Me. 445. Mass.-Hawks v. Charlemont, 107 Mass. 414. Minn.-Hutchinson Tp. v. Filk, 44 Minn. 536, 47 NW 255; Woodruff v. Glendale, 23 Minn. 537. Nebr.-Denver v. Myers, 63 Nebr. 107, 88 NW 191; Douglas County v. Taylor, 50 Nebr. 535, 70 NW 27. Tex.-Watkins v. Walker County, 18 Tex. 585, 70 AmD 298. 52. Platter v. Seymour, 86 Ind. 323; Hendershott V. Ottumwa, 46 Iowa 658, 26 AmR 182; Waldron v. Haverhill, 143 Mass. 582, 10 NE 481. 53. Penal actions see infra § 307. 54. See statutory provisions. [a] Applications of statute.-(1) A statute, which provides that certain highway officers shall cause permanent bounds to be erected "at the termini and angles of all ways laid out by them," and prescribes a penalty for neglect to do so, to be recovered by the owner of land abutting on the way, applies merely to the laying out of ways, and not to alteration by relocation, widening or otherwise. Harvey v. Easton, 189 Mass. 505, 75 NE 948. (2) A statute as to guideboards does not apply to roads by dedication or use. State v. Siegel, 54 Wis. 86, 11 NW 435. [b] Excavating in front of house. -(1) Under a statute declaring that a road supervisor shall, for excavating in a highway in front of a house, forfeit and pay to the owner of the house a penalty, recoverable in a civil action, the penalty vests in the owner at the time of the excavation, and does not pass by a deed of the property executed before the action for the penalty is brought. Sell v. Erns[a] Thus, if the statute imposes berger, 8 Oh. Cir. Ct. 499, 4 Oh. Cir. a duty of repairing roads upon cer- Dec. 100. (2) Malice is immaterial tain commissioners or other officer, to the liability. Sell v. Ernsberger, and not on the district, the highway supra. (3) The inconvenience to district is not made liable for injuries the owner of the house is not a preoccasioned by defects in the high-requisite to the liability. Sell V. ways. Lamar V. Bolivar Special Ernsberger, supra. Road Dist., (Mo.) 201 SW 890. of reasonable discretion;57 and the liability may be restricted to acts of willful neglect of duty.58 One who is not an officer de jure, but only an officer de facto, is not liable to the penalty;59 neither is one who has not been notified of his appointment;60 nor one refusing to open a road pending a petition for review.61 An overseer may be liable to the penalty for neglect to obey the order of the commissioners.62 Refusal to serve. In some jurisdictions the refusal of a highway officer to serve, after his appointment or election, may subject him to a penalty.63 Several penalties. The neglect of a town to erect and maintain guideposts at all intersections of the highways within its limits is one entire offense, and a separate penalty does not accrue for each intersection of roads at which the town has neglected to erect guideposts.64 [§ 306] 13. Criminal Responsibility." While in some cases it is assumed that highway officers are criminally liable for misfeasance or neglect of their duties, such liability may be and often is imposed by express statute.67 Under such statutes, highway officers cannot be prosecuted for misuse of their discretion,6s and their liability is generally restricted to cases in which the act or neglect is willful; but road officers are not vested with discretion to refuse entirely to perform their duties in any way. It is no defense that the officer is liable to a civil action for neglect of duty as an officer in another capacity.71 69 70 Refusal to serve. Under some statutes it is an offense for a highway officer to refuse to serve after 57. Moll v. Pickaway, 14 Ill. A. 343. Discretion of highway officers generally see supra § 298. 58. Salt Creek v. Mason County Highway Comrs., 25 Ill. A. 187. And see Fines, Forfeitures and Penalties § 104 text and note 34. 59. Bentley v. Phelps, 27 Barb. (N. Y.) 524. 60. U. S. v. Custis, 25 F. Cas. No. 14,909, 1 Cranch C. C. 417. 61. 62. Several offenses. Where each road in a road district, as is generally the case, is the subject of particular duties on the part of road officers,75 a failure to perform his duties in respect to each road constitutes a separate offense.76 [§ 307] 14. Actions by and against-a. Civil Actions. Subject to the general rules,78 where a statute provides an exclusive mode of redress against the unauthorized acts of highway officers, that mode of redress must be pursued,78 79 and an action at law will not lie against such officers for damages.80 They are not personally liable for the taking of land for a public highway where there has been a legal condemnation and appropriation;1 the statutes provide other remedies for the owner.82 It has been held that where the statute imposes a penalty on a highway officer for failure to perform his duties, taxpayers cannot maintain a petition for his removal on that ground, but that the remedy is by action to enforce the penalty.83 But where the statute merely makes the remedy cumulative, the common-law remedy is not repealed by the statute.* A statute prescribing the mode of proceeding against highway officers has been held not to extend to the executors of the delinquents.85 Venue. The action should be brought in the county where the cause of action arose.86 Roads, etc., Comrs., Walk. (Miss.) v. 67. See statutory provisions. [c] Failure to notify residents to [d] Failure to open road.-Com. v. Reiter. 78 Pa. 161; Edge v. Com., Pa. 275. (Tex. Cr.) 77 SW 452. § 305. see supra 73. See statutory provisions. 74. Com. v. Pate, 110 Ky. 468, 61 SW 1009, 22 KyL 1890. [a] Presumption.-Where the officer is discharging the duties of the office and receiving its emoluments it will be presumed that he had taken the oath. Com. v. Pate, 110 Ky. 468, 61 SW 1009, 22 KyL 1890. 75. See statutory provisions. 76. State V. Chappell, 20 S. C. L. 391. But compare supra § 305 text and note 64. 77. Capacity of board to sue and 78. See Actions §§ 101-109. Com. v. House, 4 PaLJ 327. Hizer v. Rockford, 86 Ill. 325. 63. See statutory provisions. [a] Sufficiency of performance. Under a statute declaring that a per-7 son chosen to a highway office shall [e] Failure to repair bridge.transmit to the town clerk his ac- Peo. v. Adsit, 2 Hill (N. Y.) 619; be sued see supra § 288. ceptance of the office and that if he State v. Chappell, 20 S. C. L. 391. neglect, such neglect shall be con- [f] Failure to report to grand sidered a refusal to serve, and that jury.-Williams v. State. 45 Ala. 55. the person so refusing shall be sub- [g] Voting for unauthorized ject to a penalty, it has been held claims.-Pegram v. State, 121 Miss. that mere neglect to file the accept-564. 83 S 741. ance is insuflicient to subject him to the penalty where he performs the duties of his appointment. Winnegar v. Roe, 1 Cow. (N. Y.) 258. [b] Minor.-Where there is no legal objection to the appointment of a minor to a highway office, his minority is no defense to an action for the penalty, State v. Russell, 3 Head (Tenn.) 165. [c] Second refusal.-Where the penalty has been recovered for his refusal to serve he is not liable for his refusal to fill the vacancy created by his original refusal. Haywood v. Wheeler, 11 Johns. (N. Y.) 432. Criminal liability see infra § 306. 64. Clark v. Lisbon, 19 N. H. 286. See also Fines, Forfeitures, and Penalties § 78. But compare infra § 306 text and note 76. 65. Criminal responsibility for: Failure to maintain or repair sec infra 333. Obstructions see infra § 402. Criminal prosecutions see infra § 307. [h] Where the statute fails to provide a punishment no indictment will lie. Zorger v. Peo., 25 Ill. 176. See generally Criminal Law § 30. 68. Eyman V. Peo.. 6 Ill. 4: Shanks v. Pearson, 66 Kan. 168. 71 P 252; Pegram v. State, 121 Miss. 564, 83 S 741; Com. v. Thompson, 126 Pa. 614, 17 A 754. Discretion see supra § 298. 69. Eyman v. Peo., 6 Ill. 4; Salt 71. Edge v. Com.. 7 Pa. 275. 72. [a] 66. State v. Adams County Pub. is no 79. Elder V. Bemis, 2 Metc. (Mass.) 599; McConnell v. Dewey, 5 Nebr. 385; Thornton v. Springer, 5 Tex. 587. [a] Recovery of penalty.-McCon nell v. Dewey, 5 Nebr. 385; Thornton v. Springer, 5 Tex. 587. 80. Elder V. Bemis, 2 Metc. (Mass.) 599, [a] Illustration. Where the statute gives a landowner a right of appeal to the town selectmen, if the highway surveyor turns a watercourse upon such person's land, no action will lie against the surveyor for damages. Elder v. Bemis, 2 Metc. (Mass.) 599. 81. Denniston v. Clark, 125 Mass. 216; Marshall v. Hastings, 174 N. C. 480, 93 SE 977. 82. See Eminent Domain §§ 515581. 83. In re North Union Road Master. 18 Pa. Dist. 263, 35 Pa. Co. 363. 84. Adams v. Richardson, 43 N. H. 212. [a] Trespass.-Adams v. Richardson, 43 N. H. 212. 85. Shronk v. Penn Tp., 3 Rawle (Pa.) 347. 86. Peo. V. Hayes, 7 HowPr (N. Y.) 248. Parties generally. Actions by or against highway officers in their official capacity should join all the parties interested 87 by their official names. 88 Where there has been a change in the personnel of a board, those who are its members at the time the suit is brought are proper parties.89 In a tort action against a highway officer in his individual capacity it has been held that the addition of defendant's title of office does not make the action other than an individual one.90 Highway commissioners may severally sue for their compensation. The action for a penalty must be brought by the person upon whom the right of action is conferred by statute.92 Parties to action on bond. In an action by a town against the sureties on an official undertaking of the commissioner of highways, it is not necessary to join the commissioner as a party defendant.93 Prerequisite to action on bond. It is not necessary, as a prerequisite to an action on the official undertaking of a highway commissioner, that a demand be made upon him for the records of his office under a statute which has reference only to a proceeding to secure such records.94 98 99 is so made and not made by one in his individual capacity;97 it must distinctly aver the nature and extent of plaintiff's interest in the land in question; and the damages must be alleged with definiteness. In an action against a highway officer to compel him to turn over the property and funds in his hands to his successor a demand for such property must be alleged; the mere allegation that he was the proper officer is insufficient.2 Defendant's pleadings. Subject to the general rules governing the plea of justification in an action of trespass, justification under legal authority is not available as a defense to an action of trespass against a highway officer unless specially pleaded,* but matters in mitigation may be shown under the general issues without being specially pleaded." Questions of fact. Provided the evidence is sufficient to entitle plaintiff to go to the jury, disputed questions of fact should be submitted to the jury 8 under proper instructions by the court." Burden of proof.10 The burden is on a highway officer to establish the facts that constitute his defense.1 11 Thus he must prove his official capacity 12 and that he acted within territorial limits of his authority.13 Plaintiff's pleadings. The general rules governing the sufficiency of the complaint, declaration, or petition in other civil actions apply in actions by or against highway officers.95 The allegations of the complaint must be averred with certainty;96 thus, where the claim is made in an official capacity, the complaint should show by proper averments that it Ill-Blanchard v. La Salle, 99 |tween highway commissioners and 393. others. Impr. Dist. v. Hocott, (Ark.) 217 SW 258. 87. Ill. 278. Ind.-White River Tp. v. Cottom, Miss. Attala v. Niles. 58 Miss. 48. 24. Admissibility of evidence. The general rules governing the admissibility of evidence in other civil actions 14 are ordinarily applicable in these actions.15 Competent evidence is admissible to show justification by authority 16 and to show the amount of 2. Com. V. Osborne, 7 Ky. Op. [b] Action on bond.-(1) An allegation that the bond was executed in the County court or approved by that court is necessary. Coleman v. Eaker, 111 Ky. 131, 63 SW 484. 23 KyL 513. (2) When the official undertaking of a commissioner of highways states that J of the town of H has been duly elected commissioner of highways, without stating 393. 3. 6. See generally 88. Sheaff V. Peo.. 87 Ill. 189. for what town he was elected. a [a] Questions held for jury.—(1) 29 AmR 49; Rutland Highway Comrs. v. Dayton Highway Comrs., 60 Ill. 58; Lange v. Soffell, 33 Ill. A. 624; Boots v. Washburn, 79 N. Y. 207; St. Bartholomew's Parish Road Comrs. v. Murray, 30 S. C. L. 335; St. Peter's Parish Road Comrs. v. McPherson, 28 S. C. L. 218. [a] In name of town.-O'Fallon v. Ohio, etc., R. Co., 45 Ill. A. 572 (a suit against a railroad company to recover the cost of constructing and maintaining proper approaches to its crossing is properly brought by the highway commissioners in the name of the town). [b] In South Carolina, where the rule of the text is recognized, it has been held that where the commissioners of roads sued for a fine and the general issue was pleaded, and a decree rendered for plaintiffs, a motion in arrest on the ground that the names of the commissioners were not set out in the process was dismissed. St. Peter's Parish Road Comrs. v. Guerard, 28 S. C. L. 215. 89. Armstrong v. Landers, 17 Del. 449, 42 A 617; Hitchman v. Baxter, 5 NYCivProc 226; Miller v. Ford, 38 S. C. L. 376, 55 Am D 687. 90. Campbell v. Powers, 155 App. Div. 862. 140 NYS 675. See Trespass [38 Cyc 1090]. 4. Jackson v. Bohlin, 16 Ala. A. 105, 75 S 697. 5. Jackson v. Bohlin, 16 Ala, A. 105, 75 S 697. Trial [38 Cyc 1511]. 7. Webb v. Story, 184 Ala. 583, 64 S 153. 8. See cases infra this note. complaint setting out such under- Defendant's good faith. Webb V. taking does not fail to state a Story, 184 Ala. 583, 64 S 153. (2) cause of action on the theory that Officer's negligence. Short V. no specific cbligee is named, for by Orange, 175 App. Div. 260, 161 NYS Town Law § 50, only electors and 466. (3) Value of timber cut. Cowresidents of a town are eligible to gill v. Hurley, 27 Del. 151, 86 A town offices. Hadley v. Garner, 116 731. (4) Whether there was a tenApp. Div. 68, 101 NYS 777. (3) And der of the damages awarded. while it is inartificial to set out the Nedow v. Porter, 122 Mich. 456, 81 breach of an undertaking by nega- NW 256. (5) Whether work was tiving the language of its conditions, done by one employed under authoryet it is sufficient as an allegation ity. McCormick v. Boston, 120 Mass. of breach upon demurrer. Hadley 499. v. Garner, supra. (4) In any event the remedy for the defect is by motion to make the complaint more definite and certain. Hadley v. Garner, supra. 96. Jost v. King, 166 Cal. 394, 137 P 4. 24. 9. 10. 11. 106 See Trial [38 Cyc 1594]. Labo v. Asam, 143 Mich. 24, NW 281; Danielson v. Kyllonen, 111 Minn. 47. 126 NW 404; Dominick v. Hill. 6 NYSt 329. 12. Dominick v. Hill, 6 NYS 13. 106 329. Labo v. Asam. 143 Mich. 24, NW 281; Danielson v. Kyllonen, Minn. 47, 126 NW 404. 14. See Evidence § 89 et seq. 15. Ala.-Webb v. Story, 184 Ala. 583, 64 S 153. [a] Illustration. -A complaint, Ill-Jewett v. Sweet, 178 Ill. 96, 98. Jost v. King, 166 Cal. 394, 137245. 97 NW 909. 91. Hoit v. Babcock, 17 N. H. 260. P 4. 92. White River Tp. v. Cottom, 11 Ind. 216. And see Fines, Forfeitures and Penalties § 97. 93. Hadley v. Garner, 116 App. Div. 68, 101 NYS 777. [a] Complaint held insufficient. B. 268. Allegation that plaintiff was "in pos- [a] Evidence held admissible.session of and entitled to sell and dispose of" the property. Jost King, 166 Cal. 394, 137 P 4. 99. Jost v. King, 166 Cal. 394, 137 P 4. The alleged commission of defendv.ant as overseer of the road delivered to him by the apportioner. Webb v. Story, 184 Ala. 583, 64 S 153. 94. Hadley V. Garner, 116 App. Div. 68. 101 NYS 777. 95. See Pleading [31 Cyc 92] and [a] Complaint held insufficient. cases infra this note. Not showing a definite offer to buy [a] Petition held insufficient at a profit contingent upon the con(1) To state cause of action. Wil-struction of the road. Jost v. King, son v. Spencer, 91 Nebr. 169, 135 NW 166 Cal. 394, 137 P 4. 546. (2) To charge collusion be- 1. Com. V. Osborne, 7 Ky. Op. [b] Evidence held inadmissible.To show that the locus in quo was outside of the highway. Schroeder v. Klipn, 120 Wis. 245, 97 NW 909. 16. Krueger v. Le Blanc, 62 Mich. 70, 28 NW 757. [a] Evidence held admissible. |