[326] 4. Hearing. The hearing upon the petition must be in accordance with the statute,11 and must be held after the prescribed notice.12 Formal errors in the proceedings do not affect their regularity.13 Nor does delay in acting on the petition,14 without entering a formal continuance,15 render the proceedings void.

17

[327] 5. Record. The record need not show that the improvement was necessary,16 unless the statute so requires, and the adoption of the order may be a sufficient statement of necessity.1 The evidence of notice need not be spread on the record.19

18

ferred upon them.22 However, the statutes usually
expressly give to any person aggrieved by any de-
cision of the board of commissioners a right of ap-
peal therefrom to some court.23 This right is not
confined to parties to the procedure,2
24 but anyone
not a party may show his interest by affidavit and
have the appeal.25 But no such affidavit is required
of parties.26 On such an appeal a case is usually
tried de novo,27 and only such questions can be de-
termined as were presented to the board of com-
missioners, 28 or as may, by leave of court, be put in
issue by amended pleadings.29

[§ 329] 7. Certiorari. In some jurisdictions provision is made for reviewing the proceedings by certiorari,30 and such remedy has been held to be full, adequate, and complete.31 Where the action of the commissioners is legislative and not judicial, certiorari will not lie.32

[§ 330] 8. Collateral Attack. The proceedings of boards of commissioners or viewers are presumed to be regular, in the absence of a contrary showing,3 and cannot be collaterally attacked,34 as by injunc

33

[§ 328] 6. Appeal and Error. The necessity and propriety of the improvements, their kind, character, and extent, and the matter of their execution or construction are confided to such boards, officers, or agencies as the legislature has provided for that purpose, ,20 and, in the absence of any provision for the review of their action upon appeal or otherwise, their findings and decision are final, and not subject to review,21 so long, at least, as they act in good faith and within the scope of the authority conMetsker v. Whitsell, 181 Ind. 126, 103 | for appeals generally from decisions | 114 NE 753; Metsker v. Whitsell, 181 of the commissioners, confers juris- Ind. 126, 103 NE 1078; Strebin v. 11. Fleener v. Claman, 126 Ind. diction on the circuit court to enter- Lavengood, 163 Ind. 478, 71 NE 494. 166, 25 NE 900; Anderson v. Claman, tain an appeal from gravel road pro123 Ind. 471, 24 NE 175; Stipp v. Cla-ceedings before the commissioners, man, 123 Ind. 532, 24 NE 131; Loes- although the sections relating to nitz v. Seelinger, 127 Ind. 422, 25 such proceedings do not provide for NE 1037, 26 NE 887; White v. Flem- an appeal). ing, 114 Ind. 560, 16 NE 487; Osborn v. Sutton, 108 Ind. 443, 9 NE 410; Stoddard V. Johnson, 75 Ind. 20; Brown v. Mosher, 83 Me. 111, 21 A 835; Gibbs v. Cuyahoga County, 17 Oh. Cir. Ct. N. S. 320; In re Delaware River Road, 5 Pa. Dist. 694, 18 Pa. Co. 165.

NE 1078.

22. Pillings V. Pottawattamie County, 188 Iowa 567, 176 NW 314. 23. Stingley v. Owen, 186 Ind. 133, 115 NE 88; Chanley v. Zimmer, 179 Ind. 350, 101 NE 81; Coles v. Woods, 174 Ind. 457, 92 NE 163; Strebin v. Lavengood, 163 Ind. 478, 71 NE 494; Monroe County v. Conner, 155 Ind. [a] Two petitions cannot be 484, 58 NE 828; Pruden v. Jackson treated as one when they are in fact County, 156 Ind. 325, 58 NE 437; Cadistinct and for different improve- son v. Harrison, 135 Ind. 330, 35 NE ments. Gibbs v. Cuyahoga County, 268; Fleener v. Claman, 126 Ind. 166, 17 Oh. Cir. Ct. N. S. 320. 25 NE 900; Stipp v. Claman, 123 Ind. 12. Conrad v. Hansen, 171 Ind. 43,532, 24 NE 131; Hight v. Claman, 121 85 NE 710; Bigelow v. Worcester, 169 Mass. 390, 48 NE 1; Barry v. Deloughrey, 47 Nebr. 354, 66 NW 410. Switzerland County v. Reeves, 148 Ind. 467, 46 NE 995; Stoddard v. Johnson, 75 Ind. 20; Woodman v. Somerset County, 25 Me. 300.

13.

14. Hobbs v. Tipton County, 103 Ind. 575, 3 NE 263; Stoddard v. Johnson. 75 Ind. 20.

15. Osborn v. Sutton, 108 Ind. 443, 9 NE 410; Stoddard v. Johnson, 75 Ind. 20. 16. Raleigh v. Peace, 110 N. C. 32, 14 SE 521, 17 LRA 330. 17. Hoyt V. East Saginaw, 19 Mich. 39, 2 AmR 76: In re Delaware River Road, 5 Pa. Dist. 694, 18 Pa. Co. 165.

18. Com. v. Abbott. 160 Mass. 282, 35 NE 782; State v. Engelmann, 106 Mo. 628, 17 SW 759: Connor v. Paris, 87 Tex. 32, 27 SW 88.

19. Pulaski County Road Impr. Dist. No. 2 v. Winkler, 102 Ark. 553, 145 SW 209.

20. See supra § 312.

21. Moody v. Irwin, 181 Ind. 197. 104 NE 10; Stockton v. Halstead, 179 Ind. 701, 100 NE 82; Stockton V. Yeoman, 179 Ind. 61. 100 NE 2; Pillings v. Pottawattamie County, 188 Iowa 567, 176 NW 314; Montgomery County v. Henderson, 122 Md. 533. 89 A 858; Southard v. Stephens, 27 Oh. St. 649.

Ind. 447, 23 NE 279; Black v. Camp-
bell, 112 Ind. 122, 13 NE 409; Osborn
v. Sutton, 108 Ind. 443, 9 NE 410;
Million v. Carroll County, 89 Ind. 5;
Cass v. Logansport, etc., Gravel Road
Co., 88 Ind. 199; Donaldson v. State,
46 Ind. A. 273, 90 NE 132, 91 NE 748;
In re Middletown Road, 15 Pa. Super.
167; Robson v. Byler, 14 Tex. Civ. A.
374, 37 SW 872.

[a] Final order necessary.-Ni-
sius v. Chapman, 178 Ind. 494, 99 NE
785; Kirsch v. Braun, 153 Ind. 247,
53 NE 1082.

[b] Time for appeal.-An appeal from an order establishing a gravel road less than three miles long is governed by Acts (1915) c 176 § 3, authorizing appeal within ten days, and not by Burns St. Annot. (1914) § 6021, or § 7793. Stingley v. Owen, 186 Ind. 133, 115 NE 88.

[c] An order overruling a remonstrance against increasing rate of interest on road bonds is appealable. Chanley v. Zimmer, 179 Ind. 350, 101 NE 81.

27. Souder v. Tyner, (Ind.) 127 NE 273; Thompson v. Ferguson, 180 Ind. 312, 102 NE 965.

28. Souder v. Tyner, (Ind.) 127 NE 273; Whitesell v. Metsker, 188 Ind. 1, 119 NE 865, 114 NE 753; Stingley v. Owen, 186 Ind. 133, 115 NE 88; Strebin v. Lavengood, 163 Ind. 478, 71 NE 494.

[a] No objection to the issuance of bonds for highway improvement having been made to the commissioners, no such objection could be urged on appeal to the circuit court. Fisher v. Blumhardt, 182 Ind. 603, 107 NE 466.

29. Wilkinson v. Lemasters, 122 Ind. 82, 23 NE 688.

30. See statutory provisions. [a] Nature of proceeding.-Proceedings to review by certiorari the action of the board of boulevard commissioners are not personal actions in which the prosecutor may insist upon a personal right, but he is rather to be regarded as amicus curiæ, and the court should determine the public rights he represents upon grounds that substantially affect them, and not upon sharp questions and verbal criticisms. McCarty v. Hudson County Boulevard Commn., 92 N. J. L. 519, 106 A 891 [aff 91 N. J. L. 137, 106 A 219].

31. Cummings v. Garner, (Mich.) 182 NW 9.

32. Peo. v. Queens County, 131. N. Y. 468, 30 NE 488.

[[a] Illustration.-The action of the county board of supervisors in borrowing money, and issuing county bonds therefor, for the purpose of improving highways in a town (L. [1869] c 855 § 1), is legislative and not judicial, and cannot be reviewed on certiorari. Peo. v. Queens County, 131 N. Y. 468, 30 NE 488.

[d] An order of the joint board of county commissioners dismissing 33. Floyd v. State, 15 Ala. A. 654, a petition to improve a county line 74 S 752; Pulaski County Road Impr. highway and sustaining a remon- Dist. No. 2 v. Winkler, 102 Ark. 553, strance under Burns St. Annot. 145 SW 209; Todd v. Crail. 167 Ind. (1914) § 7745 is appealable. Myers v. White, 182 Ind. 108, 105 NE 775. 24. Strebin v. Lavengood, 163 Ind. 478, 71 NE 494.

25.

[a] The general right of appeal Strebin v. Lavengood, 163 Ind. from final judgments does not apply 478, 71 NE 494; Fleming v. Hight, 95 to special proceedings for the im- Ind. 78. provement of streets and highways [a] "Any person interested as a and the assessment of the costs taxpayer or otherwise may appear thereof against the property bene- before the board of commissioners fited, and no appeal lies therein, un- and contest the result of a less such right is expressly granted. gravel road election and, if agStockton v. Halstead, 179 Ind. 701, grieved by the decision, take an ap100 NE 82: Stockton v. Yeoman, 179 peal to the circuit court." Strebin v. Ind. 61, 100 NE 2. But see Kirsch v. Lavengood, 163 Ind. 478, 482, 71 NE Braun, 153 Ind. 247, 53 NE 1082 (holding that a statute, providing 26. Whitesell v. Metsker, (Ind.)

494.

48, 77 NE 402; Monroe County v. Harrell, 147 Ind. 500. 46 NE 124; Stoddard v. Johnson, 75 Ind. 20; Evans v. Clermont, etc., Gravel Road Co., 51 Ind. 160.

34. Ala.-Hicks v. State, 16 Ala. A. 88, 75 S 636.

Ark.-Pulaski County Road Impr. Dist. No. 2 v. Winkler, 102 Ark. 553, 145 SW 209.

Ind.-Isanogle v. Russey, 174 Ind. 245, 91 NE 938; Smith v. Hamilton County, 173 Ind. 364, 90 NE 881: Kemp v. Goodnight, 168 Ind. 174, 80 NE 160; Todd v. Crail, 167 Ind. 48, 77 NE 402; Tucker v. O'Neal, 130 Ind. 597, 30 NE 533; Tucker v. Sellers,

37. Stevenson v. Shawnee County, 98 Kan. 671, 159 P 5.

38. Craw v. Dunn, 174 Ind. 615, 92 NE 655; Cummings v. Garner, (Mich.) 182 NW 9.

[a] Appeal.-In proceedings un- Iowa. Morgan v. Miller, 59 Iowa der Burns St. Annot. (1908) §§ 7711-481, 13 NW 643. 7734, to improve highways, petition- Kan.-Poirier v. Fetter, 20 Kan. ers whose request to withdraw was 47. denied by the board of commissioners are regarded as acquiescing in the ruling where the matter was not urged in the circuit court on appeal, and the ruling is not subject to collateral attack. Craw v. Dunn, 174 Ind. 615, 92 NE 655; Souder v. Tyner, (Ind.) 127 NE 273.

[b] Certiorari.-Under a statute authorizing review of road improvement proceedings by certiorari and providing that if no certiorari is brought the legality of the improvement shall not thereafter be questioned, where a township and individual landowners took no action by certiorari to review the proceedings, they could not attack the proceedings collaterally by a suit in equity to set aside a special assessment. Cummings v. Garner, (Mich.) 182 NW 9.

39. Loesnitz v. Seelinger, 127 Ind. 422. 25 NE 1037, 26 NE 887.

40. Pulaski County Road Impr. Dist. No. 2 v. Winkler, 102 Ark. 553, 145 SW 209.

[c] A railroad company, having built a platform on land already dedi41. See statutory provisions; and: cated to public use as a highway. Conn.-Goodspeed's App., 75 Conn. cannot prevent the opening of the 271, 53 A 728; Havens v. Wethers-highway on the ground that the platfield, 67 Conn. 533, 35 A 503. form is necessary for transaction of its business. New York, etc., R. Co. v. Drummond, 45 N. J. L. 511 [aff 46 N. J. L. 644].

Ind.-Brown v. Miller, 162 Ind. 684,
71 NE 122: Davern v. Decatur, 34 Ind.
A. 44, 72 NE 268.

Me.-Ex p. Baring, 8 Me. 137.
Nebr.-Fokenga V. Churchill,
Nebr. (Unoff.) 304, 96 NW 143.
Pa.-Com. v. Holland, 153 Pa. 233,
25 A 1123.

[a] Proceeding not collateral attack.-A finding of the board of county commissioners that notice Vt.-Mason v. St. Albans, 68 Vt. had been given and that the petition 66, 33 A 1068 [foll Landon v. Rutland, was regular in form is not collater-41 Vt. 681]; Taft v. Pittsford, 28 Vt. ally attacked by proceedings to enjoin the board from letting a contract to build a county road. Bailey v. Sullivan County, 57 Ind. A. 285, 107 NE 38.

42. See Mandamus [26 Cyc. 3691. See Mandamus [26 Cyc. 2961. 44. Groesbeck v. Bruce, (Mich.) 182 NW 155; Schmidt v. Berghaus, 205 Mo. A. 409, 223 SW 939.

45. Groesbeck V. Bruce, (Mich.) 182 NW 155, 159; Schmidt v. Berghaus, 205 Mo. A, 409, 223 SW 939. [f] Curing objection pending suit. "If the rule is otherwise, highway-Pending a suit by a landowner to authorities who are charged with enjoin the opening of a road through the duty of repairing a road must his lands, the public officers may determine at their peril when the take steps to acquire the right to necessity arises, and what repairs use the land for a road, although, by shall be made. If their determina- reason of ineffectual efforts on their tion in these respects is to be sub-part in that direction, there was ject to review by a court, a situation is presented at variance with the entire theory of the highway law." Groesbeck v. Bruce, supra.

46. Goodspeed's App., 75 Conn. 271. 53 A 728.

47. Anderson v. New Canaan, 70 Conn. 99, 38 A 944.

50. Erwin v. Fulk, 94 Ind. 235; 48. See Injunctions [22 Cyc 724]. Prospect Park, etc., R. Co. v. Wil49. Conn.-Wetherell V. Newing-liamson, 24 Hun 216 [rev on other ton, 54 Conn. 67, 5 A 858. grounds 91 N. Y. 552].

§§ 332-334]

51

53

HIGHWAYS

some decisions, although the injury is not irre-
parable, and defendant is not insolvent,52 if the
just enjoyment of the property in the future would
be impaired. But an injunction will not lie where
the injury would be slight,54 or where there is an
55 The usual defenses to
adequate remedy at law.5
an injunction are available.56 An injunction against
county commissioners who have failed to comply
with certain requirements of law, to restrain the
opening of a road, cannot be final and perpetual, but
only until they comply with such requirements.57
An injunction will be granted only to citizens or
taxpayers, and upon joining the proper parties.59
Time to sue. The action must be commenced with-
in the time limited after the making of the order
In the absence of any
directing the improvement.60

51. Harris v. Gomer Tp. Bd., 22
Mo. A. 462.
Harris v. Gomer Tp. Bd., 22
Mo. A. 462.

52.

53. Erwin v. Fulk, 94 Ind. 235, 239. "It is not necessary under the provisions of our code to aver or prove irreparable injury. It is sufficient, in the language of the statute, that the plaintiff is entitled to the relief demanded, and that the relief, or any part thereof consists in restraining or continuance the commission

of or con

some act, the commission
tinuance of which during the litiga-
tion would produce great injury to
the plaintiff. R. S. 1881, sec. 1148."
Erwin v. Fulk, supra.

54.

Brown V. Gardner,

(Mich.) 291.

Harr.

55. U. S.-Great Northern R. Co. v. Quigg. 213 Fed. 873.

Ga. Nichols v. Sutton, 22 Ga. 369. Ind. Erwin v. Fulk, 94 Ind. 235. Kan.-Rice v. Ard, 93 Kan. 165, 143 P 418.

Cal. 1, 23 P 1027.

evidence of an illegal act done or intended to be
done, the action is prematurely commenced.01

[333] I. Criminal Responsibility for Neglect 62 -1. In General. In some jurisdictions towns may be proceeded against criminally for failure to rehighways or town ways;65 and or to open pair where a highway is located upon the divisional line between two towns, one of the two towns may be indicted for failure to keep such highway in repair, 67 The same but they cannot be jointly indicted." remedy is available against a private person or corporation charged with the duty of repair.

68

66

[§ 334] 2. Highway Officers. A highway officer failing to work or repair a highway under his charge is frequently made subject to criminal liability,69

son may be made a defendant who | fers to the manner in which they are
character when established.
has or claims an interest adverse to originally established than to their
Myers v. Daubenbiss, 84 legal
The public at large have the same
plaintiff.
beneficial use of a town way as of a
It is equally the duty of
highway.
Com.
the town to keep them in repair; and
an indictment will lie for a failure in
66. Com. v. Stockbridge, 13 Mass.
2
the performance of this duty.
V. Taunton,
v. Boston, 16 Pick. (Mass.) 442.
294; Middleborough
67. State
Cush. (Mass.) 410.
v. Thomaston, 74
198.
68. Ga.-Patillo v. Cutliff, 56 Ga.
689.

[b] The county court should be
made a party defendant to a suit to
enjoin a road overseer from taking
land for a highway without compli-
ance with the statutory requirements,
where the taking was by order of
the county court. Carpenter v. Gris-
ham, 59 Mo. 247.
60.

Norton v. Montgomery Coun-
ty, (Kan.) 199 P 388.

61. Tinker v. O'Dell, 134 App. Div. 272, 118 NYS 876.

62.

Criminal liability of municipality generally see Municipal Corporations [28 Cyc 1775].

63. Ky. Com. v. Hopkinsville, 7 B. Mon. 38.

Me.

Ky.-Beaver v. Marion County, 11 Ky. Op. 577.

Mass.-Perley v. Chandler, 6 Mass. 454, 4 AmD 159.

Miss.-Gilmore v. State, 33 S 171. N. Y.-Peo. v. New York Cent., etc., R. Co., 74 N. Y. 302.

Pa.-Phillips v. Com., 44 Pa. 197; In re Hamiltonban Tp., 11 Pa. Co. 368.

213.

Me.-State v. Thomaston, 74 Me. Me. 210; 198; State v. Oxford, 65 State v. Madison, 59 Me. 538, 63 Me. 546; Bragg v. Bangor, 51 Me. 532: State v. Gorham, 37 Me. 451; State v. Milo, 32 Me. 55; State v. Strong, Eng.-Reg. v. Barker, 25 Q. B. D. [a] A mere naked trespass cannot 25 Me. 297; State v. Fryeburg, 15 Me. But 69. Ala.-McCullough v. State, 63 be enjoined, for the law affords an adequate remedy by an action for 405; State v. Kittery, 5 Me. 254. see State v. Bradbury, 40 Me. 154 Ala. 75; Alexander v. State, 16 Ala. damages. Nichols v. Sutton, 22 Ga. (holding that a surveyor has no auArk.-Dormar v. State, 31 Ark. 49; 369; Erwin v. Fulk, 94 Ind. 235. [b] A railroad company is not en-thority, by repairs or otherwise, to 661. titled to an injunction to restrain the accept a way dedicated to the public, a high- Hester, 21 Ark. 193; State v. Stroope, of a state highway and render the town liable to indict-State v. Moore, 23 Ark. 550; State v. construction ment for its nonrepair as 20 Ark. 202. Ga.-Blankenship v. State, 40 Ga. which for a distance was being built along the face of a cliff above com- way). plainant's tracks, necessitating blasting which threw rock and earth down upon such track, injuring the same and causing temporary delays in the movement of trains, where the consolvent and able to tractors were respond in damages, and by coöperation between them and complainant, danger of injury to trains or passengers could be practically obviated. Great Northern R. Co. v. Quigg, 213 Fed. 873.

Mass.-Hill v. Boston, 122 Mass.
344, 23 AmR 332; Com. v. Newbury-
port, 103 Mass. 129; Com. v. Spring-
field, 7 Mass. 9; Com. v. Taunton, 16
Gray 228; Com. v. Petersham, 4 Pick.
119; Com. v. North Brookfield, 8 Pick.
463.

Mich.-McKeller v. Monitor Tp., 78
Mich. 485, 44 NW 412; Rutkowski v.
Dearborn, 130 Mich. 513, 90 NW 1133.

N. H.-State v. Canterbury, 40 N.
H. 307; State v. Canterbury, 28 N. H.
195; State v. Raymond, 27 N. H. 388.
N. J.-Lodi Tp. v. State, 53 N. J. L.
259, 21 A 457.

N. C.-State v. Dickson, 124 N. C. 871, 32 SE 961; State v. Yarrell, 34

N. C. 130.

Pa.-Com. v. Lansford, 3 Pa. Dist.
365, 14 Pa. Co. 376.
V. State,
v. Murfreesboro',

5

Tenn.-Chattanooga
Sneed 578; State
11 Humphr. 217.
Vt.-State v. Fletcher, 13 Vt. 124.
Wis.-Byron v. State, 35 Wis. 313.
Eng.-Rex v. Stratford-upon-Avon,
14 East 349, 104 Reprint 636; Rex v.
Kent County, 13 East 220, 104 Reprint
354; Rex v. Nottingham County, 2
Lev. 112, 83 Reprint 474.

[a] Neglect of bridges.-Towns
are liable to indictment in case they
do not build and repair bridges,
which are parts of the highways, in
the towns where they are situated.
State v. Canterbury, 28 N. H. 195.

64. State v. Kittery, 5 Me. 254;
State v. Landaff, 22 N. H. 588.
[a] Unreasonable delay-Eighteen
is an unreasonable delay.
months
State v. Landaff, 22 N. H. 588.
16 Pick.
Com. V. Boston,
65.

V. Carroll County
Miss. Sutton
Bd. of Police, 41 Miss. 236; State v.
Adams County Public Road Comrs., 1
Miss. 368.

N. H.-Walpole v. State, 16 N. H. 157.

N. J.-State v. Bernard Tp., 39 N. J. L. 60; State v. Hageman, 13 N. J. L. 314.

N. C.-State v. Miller, 100 N. C. 543, 5 SE 925; State v. Long, 76 N. C. 254; Hathaway v. Hinton, 46 N. C. 243; State v. Halifax, 15 N. C. 345. 1255, 24 SE 216. Compare State v. Britt, 118 N. C.

Oh.-Grove v. Mikesell, 13 Oh, St.

158.

Pa.- -Com. v. Johnson, 134 Pa. 635, 19 A 803; Com. v. Reiter, 78 Pa. 161; Phillips v. Com., 44 Pa. 197; Edge v. Com., 7 Pa. 275; Graffins v. Com., 3 Penr. & W. 502.

S. C.-State v. Chappell, 20 S. C. L. 391. See also State v. Broyles, 17 S. C. L. 134.

Tenn.-Hill v. State, 4 Sneed 443 [dist State v. Barksdale, 5 Humphr. 154].

Tex.-Howell v. State, 29 Tex. A. 592, 16 SW 533.

Va.-Com. v. Howard, 1 Gratt. (42 Va.) 554; Com. v. Piper, 9 Leigh (36 Va.) 657.

or to a statutory penalty.70 While in some cases it is assumed apparently that there is such a criminal liability apart from special statute, on the ground that leaving a road in an improper condition constitutes a nuisance,7 71 it is generally imposed by express statute,72 and the liability of the officer is generally restricted to cases in which his neglect to repair is willful.73 Where the officer has a discretion in the matter,74 where the work was rendered impossible by facts not attributable to his fault,75 or where the legislature has prescribed no penalty and fixed no punishment for neglect on the part of a road officer,76 he is not liable to indictment. However long a road may have been out of repair before the indictment it is but one offense;77 but if, after conviction, it still continues out of repair, the officer may again be indicted.78

79

[335] 3. Defenses. The impossibility of making the road, or irregularities in the proceedings to lay it out,so or the opening of the road on a different location,81 is no defense to an indictment for not building the highway after it has been laid out. In a prosecution for failure to repair, the fact

[a] Overseers and road hands are punishable for not keeping highways in repair. Beaver v. Marion County, 11 Ky. Op. 577.

[b] Where a court directs a road wider than the law requires, a presentment may be sustained against the surveyor for not keeping it in repair to the legal width. Com. v. Caldwell, Litt. Sel. Cas. (Ky.) 168.

70. Hizer v. Rockford, 86 Ill. 325; State v. Bernard Tp., 39 N. J. L. 60. 71. State v. Adams County Public Road Comrs., 1 Miss. 368; Griffins v. Com., 3 Penr. & W. (Pa.) 502; State v. Chappell, 20 S. C. L. 391; Hill v. State, 4 Sneed (Tenn.) 443. 72.

See statutory provisions; and cases supra note 69. 73. Eyman v. Peo., 6 Ill. 4; Salt Creek V. Mason County Highway Comrs., 25 Ill. A. 187; State v. Levens, 22 Mo. 469; State v. Miller, 100 N. C. 543, 5 SE 925; Howell v. State, 29 Tex. A. 592, 16 SW 533; Parker v. State, 29 Tex. A. 372, 16 SW 186; Moore v. State, 27 Tex. A. 439, 11 SW 457.

74. Com. V. Thompson, 126 Pa. 614, 17 A 754; State v. Jones, 18 Tex. 874.

75. N. J. Mendham Tp. v. Losey, 2 N. J. L. 327.

N. C.-State v. Small, 33 N. C. 571. S. C.-State v. Broyles, 17 S. C. L. 134.

82 that the

that the original layout was defective,82
road is within the limits of a toll bridge corpora-
tion,83 that the highway is but little used,84 that
no injury or inconvenience has resulted to the pub-
lic,85 that the road is in a bad condition,86 that the
character of the soil is such as to prevent perma-
nent repairs,87 that the destruction of a bridge be-
yond the town limits has made the road of no im-
mediate practical use,ss that a new road has been
made and the old road discontinued,s 89 that the
town had no notice of the defect,90 or the omission
of the apportioner to furnish defendant with a list
of the hands apportioned to him,91 is not available
as a defense.

88

94

[§ 336] 4. Indictment and Information-a. In General. Offenses of this nature may usually be proceeded against either by indictment or information,92 or, under some statutes, by presentment.93 As in the case of other offenses, an indictment for a defective highway should be definite and certain in its averments,95 and must charge all the statutory elements of the offense.9 Duplicity is fatal.97 Where the offense is purely statutory, the indictMcElmore v. State, 81 Miss. 422, 33 S 225; Cain v. State, 81 Miss. 420; Gilmore v. State, 33 S 171.

State v. Gilmanton, 14 N. H. 467;
State v. Alburgh, 23 Vt. 262.
83. State v. Madison, 59 Me. 538.
84. Hill v. State, 4 Sneed (Tenn.)
443.

85.

McCullough v. State, 63 Ala. 75; State v. Canterbury, 40 N. H. 307. 86. Ward v. State, (Ala.) 39 S 923. 87. McCullough v. State, 63 Ala.

75.

89.

90. 91. 92.

[a]

88. Com. V. Deerfield, 6 Allen
(Mass.) 449.
State v. Fletcher, 13 Vt. 124.
Bragg v. Bangor, 51 Me, 532.
Ward v. State, (Ala.) 39 S 923.
State v. Concord, 20 N. H. 295.
By whom information should
be filed. An information against a
town for neglect of its duties in re-
gard to highways may be filed by
the attorney-general, or by any other
officer empowered by statute to file
informations for offenses of this na-
ture. State v. Concord, 20 N. H. 295,

93. Blankenship v. State, 40 Ga.
680; Com. v. Caldwell, Litt. Sel. Cas.
(Ky.) 168; Rex v. Fylingdales, 7 B.
& C. 438, 14 ECL 199, 108 Reprint
786.

96

N. H.-State v. Canterbury, 28 N.
H. 195; State v. Raymond, 27 N. H.
388; Walpole v. State, 16 N. H. 157;
State v. Gilmanton, 14 N. H. 467;
State v. Dover, 10 N. H. 394.
Pa.-Com. v. New Bethlehem, 15
Pa. Super. 158.

Vt.-State v. Fletcher, 13 Vt. 124;
State v. Newfane, 12 Vt. 422; State
v. Whitingham, 7 Vt. 390; State v.
Brookfield, 2 Vt. 548.

Wis.-Byron v. State, 35 Wis. 313. Eng.-Rex v. Crompton Urban Dist. Council, 20 Cox C. C. 243.

Com.

[a] Indictment held sufficient.In an indictment against a town, for neglecting to keep in repair a highway, a general allegation that a certain highway is out of repair, ruinous, and unsafe is sufficient. v. Pray, 13 Pick. (Mass.) 359. [b] Alternative allegations are insufficient. State v. Milo, 32 Me. 55. [c] General charge of failure to repair.-An indictment charging that defendant failed to keep the roads in his district in good repair, but not describing the particular roads or parts thereof suffered to be out of repair, is bad for uncertainty. State v. McMurrin, 1 Ind. 44.

[a] In Georgia.-"This is not a criminal proceeding. The commissioner when fined, is not a private individual punished for a crime, but a public agent, punished for the neglect of a public duty. If it is neces- [d] Failure to erect guideboards. sary that there be a technical pre-An indictment of a road supervisor Tex.-Howell v. State, 29 Tex. A. sentment of the grand jury in this for not putting up guideboards at 592, 16 SW 533; Parker v. State, 29 proceeding, such as is required to road rossings must state at what Tex. A. 372, 16 SW 186; Moore V. put a criminal on trial, it was equally crossings. Lequat v. Peo., 11 Ill. 330. State, 27 Tex. A. 439, 11 SW 457. necessary when the Inferior Court 96. Nowlin v. State, 49 Ala. 41: [a] Illustrations.—(1) Bad wea- acted upon the presentment of the Elmore v. State, 81 Miss. 422, 33 S ther. State v. Small, 33 N. C. 571. grand jury, that it have the same 225; In re Road Cases, 30 Tex. 503. (2) Where township had not fur- technical accuracy. In each case the nished money for repair. Mendham action is predicated upon the preTp. v. Losey, 2 N. J. L. 327. (3) sentment. But it will hardly be conWhere the road was abandoned or tended that the presentment upon discontinued. State v. Broyles. 17 which the Inferior Court could act, S. C. L. 134; Howell v. State, 29 Tex. must have set forth the offence with A. 592, 16 SW 533. (4) Where it all the legal averments and charges would have been impossible to make contained in a bill of indictment. In the road passable if the overseer had each case the Statute only requires a worked all his hands full time. presentment for neglect of duty genMoore v. State, 27 Tex. A. 439, 11 SW erally, or in any particular. No 457. (5) Where the inhabitants re-doubt the legislature had in view the fused to work or pay and the work attention usually called to the conwas too expensive. Parker v. State, dition of the roads by the grand 29 Tex. A. 372, 16 SW 186. juries in their general presentments, as in this case." Blankenship v. State, 40 Ga. 680, 683.

76. Zorger v. Peo., 25 Ill. 193.
77.
State v. Chappell, 20 S. C. L.

391.
78. State v. Chappell, 20 S. C. L.
391.

79. State v. Brookfield, 2 Vt. 548. But see supra § 334 text and note 75. 80. State v. Weare, 38 N. H. 314. 81. Com. v. Johnson, 134 Pa. 635, 19 A 803.

82. State v. Raymond, 27 N. H. 388; State v. Richmond, 26 N. H. 232;

94. See Indictments and Infórma-
tions [22 Cyc 295].

95. Ala.-Ward v. State. 39 S 923.
Ill-Lequat v. Peo., 11 Ill. 330.
Ind. State v. Collier, 171 Ind. 606,
86 NE 1015.

Me.-State v. Madison, 63 Me. 546;
State v. Bangor, 30 Me. 341.

Mass.-Com. v. Pray, 13 Pick. 359.
Miss.-Burkett v. State, 33 S 221;

pre

[a] Language of statute.-An indictment under Road L. § 23, which charges that defendant was overseer of a certain specified cinct of a certain named public road in the county, and that he neglected to keep the road of which he was overseer in good repair, and suffered it to remain out of repair for twenty days at one time, is sufficient, this being substantially the language used in the act referred to. In re Road Cases, 30 Tex. 503.

[b] In North Carolina an indictment under the Code § 3803, requiring town commissioners to provide for keeping the streets in repair, is sufficient which charges defendant commissioners with failing, refusing, and neglecting to have a certain street worked and kept in proper repair. State v. Dickson, 124 N. C. 871, 32 SE 961.

97. Edge V. Com., 7 Pa. 275; Greenlow v. State, 4 Humphr. (Tenn.) 25. See also Indictments and Informations [22 Cyc 376 et seql.

ment must conclude against the form of the statute.98 At common law it has been held that an indictment against supervisors of roads for not keeping them in repair must conclude "to the common nuisance of the citizens," etc.""

[§ 337] b. Particular Averments. Duty to repair. The indictment must charge that it was the duty of defendant to repair the highway complained of, and where such duty is imposed by a private statute facts must be alleged showing in what it consists, and how it is imposed;2 but this particularity is unnecessary where the liability arises by reason of a public statute.3

Election or appointment of officer. In some cases it has been held necessary to set forth the facts in regard to the election or appointment of defendant as a highway officer.1

[a] Illustration. · An indictment which charges in one and the same count that defendant permitted the road complained of to be out of repair, and that said road was not carefully measured and mile-marked, is bad for duplicity. Greenlow V. State, 4 Humphr. (Tenn.) 25.

[b] Failure to open and repair. Where by statute it is made the duty of the supervisors of roads both to open and repair highways, failure both to open and repair may be charged in a single count of the indictment. Edge v. Com., 7 Pa. 275. 98. Com, v. Springfield, 7 Mass. 9. [a] Indictment under two statutes. Where the duties of road overseers are prescribed by a certain statute, and the omission to perform such duties is made indictable by another statute, an indictment for neglect of duty should conclude against the form of the "statutes.' State v. Pool, 13 N. C. 202.

99. Griffins v. Com., 3 Penr. & W. (Pa.) 502.

1. State v. Brookfield, 2 Vt. 548; Biron v. State, 35 Wis. 313. And see cases infra notes 2-9.

[a] Contract.—(1) An indictment is bad where it does not show the execution of a valid contract on the part of defendants to keep the road in repair. Burkett v. State, (Miss.) 33 S 221; Elmore v. State, 81 Miss. 422, 33 S 225. (2) An indictment for failure to perform a contract to keep a road in repair must show that the law had been so put in operation in the county in which such road is situated. Gilmore v. State, (Miss.) 33 S 171; State v. Burkett, 83 Miss. 301, 35 S 689.

[b] Where the indictment is against a turnpike company for neglecting to keep its road in repair it must show how the company is bound to do so. State v. New Jersey Turnp. Co., 16 N. J. L. 222; State v. McDowell, 84 N. C. 798.

2. State v. Miller, 100 N. C. 543. 5 SE 925; State v. Patton, 26 N. C. 16; State v. King, 25 N. C. 411; State v. Halifax, 15 N. C. 345; Rex v. Great Broughton, 5 Burr. 2700, 98 Reprint

418.

Neglect of duty and necessity for repairs. Unless otherwise provided by statute, it is generally necessary, in addition to alleging in general terms a breach of duty by defendant, to set forth facts showing what specific duty imposed upon him has been neglected, and to show that defendant had time and opportunity to repair. The fact that the particular highway complained of is out of repair must, of course, be charged, and the defects therein should be described with reasonable certainty.s

Description of highway. The indictment should show by its averments that the highway complained of is within the town, county or district sought to be charged with its repair. It is not necessary to state the width of the road,10 or to set out the termini,11 or the courses and distances,12 provided a sufficient local description of the place out of repair were duly elected by the qualified | averment is necessary in an indictvoters" of a certain township, "and ment under the third clause of the took upon themselves the office of same article. Howell v. State, supra. supervisors," is a sufficient aver9. Alexander v. State, 16 Ala. 661; ment of their election, at least after State v. Milo, 32 Me. 55; Com. v. verdict. Edge v. Com., 7 Pa. 275. North Brookfield, 8 Pick. (Mass.) 463; Howell v. State, 29 Tex. A. 592, 16 SW 533; Rex v. Bondgate Tp., 1 A. & E. 744, 28 ECL 347, 110 Reprint 1392; Rex v. Upton-on-Severn, 6 C. & P. 133, 25 ECL 358; Rex v. Gamlingay, 3 T. R. 513, 100 Reprint 707.

[c] Averments held insufficient.
(1) An indictment against an over-
seer for failing to keep a road in re-
pair, describing him as "appointed
by the County Court of Lincoln coun-
ty aforesaid as overseer of roads," is
bad for want of reasonable certainty.
State v. McElroy, 3 Heisk. (Tenn.)
69, 70. (2) An indictment against an
overseer of a road for failing to do
his duty, etc., which states that he
was "appointed overseer of a public
road of the second class in precinct
No. - leading from," etc., is defec-
tive for want of sufficient certainty.
State v. Hail, 21 Tex. 587.

[d] Notice of appointment.
Where a statute requires that a high-
way officer shall be served with no-
tice of his appointment before he can
be held liable for failure to perform
his duties, an indictment for failure
to repair must allege that defendant
was served with such notice. State
v. Everit, 4 N. C. 436.

5. See statutory provisions.

[a] In Alabama an indictment
against an overseer of a public road
which alleges generally that he has
failed to discharge his duties as such
overseer, without averring any par-
ticular failure or neglect of duty, is
sufficient under the statute, although
it would be fatally defective at com-
mon law. McCullough v. State, 63
Ala. 75; Brown v. State, 63 Ala. 97.
6.
State v. Brown, 8 Blackf. (Ind.)
69; State v. Halifax, 15 N. C. 345.
7. Elmore v. State, 81 Miss. 422,
33 S 225; Cain v. State, 81 Miss. 420,
33 S 222; Burkett v. State, (Miss.)
33 S 221.

8. Com. v. McDowell, 3 Bibb (Ky.)
24; State v. Canterbury, 28 N. H. 195;
Howell v. State, 29 Tex. A. 592, 16
SW 533.

[a] An indictment for failing to make a new highway which does not allege that it needs making, or that the old one is not passable, is insufficient. State v. Canterbury, 28 N. H. 195.

[a] Averments held sufficient. (1) Averment that the road in question was "a public road of the second grade, beginning at and leading from the twenty-third mile post to the county line," sufficiently describes the road. Alexander v. State, 16 Ala. 661. (2) Averment that defendant, late of the county of F., on a certain day, "in the county and State aforesaid, was the duly appointed overseer of a public road then and there situate, to-wit: Section 2, road precinct No. 3," was sufficient to show that the road complained of was in F county. Howell v. State, 29 Tex. A. 592, 593, 16 SW 533.

[b] A direct averment (1) that the road is in the county is unnecessary. Howell v. State, 29 Tex. A. 592, 16 SW 533. (2) Where the indictment avers the happening of the several derelictions of duty with which defendant is charged in the county, it is sufficient. Howell v.

State, 29 Tex. A. 592, 16 SW 533.

[c] Alternative allegation. -An indictment against a town cannot be sustained on an alternative allegation that there is a highway extending into several towns, and that the same, "or" that part of it which lies within defendant town, is defective, as the defective part might be in other towns. State v. Milo, 32 Me. 55.

[d] In Massachusetts, since the county limits and the boundaries of towns are prescribed by public statutes the court will take judicial notice of the fact that a certain town is within the limits of a given county where such is the fact, and therefore an indictment against a certain town for failing to keep a road in repair, which alleges that two miles in length of such road, within the town in question, are out of repair, to wit, at the town aforesaid, and that the inhabitants of such town in the county aforesaid ought to repair the same, is sufficient. Com. v. Springfield, 7 Mass. 9.

10. State v. Madison, 63 Me. 546. 11. State V. Harsh. 6 Blackf. (Ind.) 346; Com. v. Newbury, 2 Pick. (Mass.) 51; Rex v. St. Weonard's, 5 C. & P. 579, 24 ECL 718, 6 C. & P. 582, 25 ECL 586.

[b] Time that road has been out of repair.-(1) In an early case it was held that a presentment against a road overseer for not keeping his road in repair must specify the time that it was not in repair, and that a charge of not keeping it in repair "within three months then last past" was insufficient. Com. v. McDowell, 3 Bibb (Ky.) 24. (2) But it was subsequently held that an averment that the road had been "out of repair for three months then last past," [a] Excluding terminus. - Statwas sufficient. Read v. Com., 3 Bibbing a road to be out of repair "from (Ky.) 484. (3) An indictment under and through" a certain place exthe second clause of article 409 of cludes the terminus. Rex v. Uptonthe Penal Code of Texas need not on-Severn, 6 C. & P. 133, 25 ECL 358. allege that the road complained of 12. State v. Newfane, 12 Vt. 422; remained out of repair and uncleared State v. Brookfield, 2 Vt. 548. of obstructions for twenty days at one time. Howell v. State, 29 Tex. A. 592, 16 SW 533. (4) But such an

[a] Where the highway is described by courses and distances (1) they must be properly set forth.