7 Pa. 275 | Pa. | 1847
The first error assigned is that an indictment does not lie against supervisors of highways who refuse or neglect to open, amend, and repair public roads. But the court are very clear in their judgment that there is nothing in any act of Assembly which displaces this remedy. Not opening a highway, or refusing and neglecting to keep it in repair, is an injury to the public, and is indictable as a public or common nuisance; 3 Penna. ’ Rep. 502. The supervisor is enjoined by statute to open and repair roads; and it is essential to the convenience of the public that the remedy to enforce compliance on the part of the officers should be emphatic, and at the instance of the public authorities of the state. The ninety-second section of the act of 1834, it is true, provides that supervisors shall be liable to a penalty of not less than four dollars, nor more than fifty, to be recovered in a sum
It is quite sufficiently alleged in the indictment that the defendants were legally elected supervisors of East Cain township. The averment is, “ that they were duly elected by the qualified voters' of East Cain township, and took upon themselves the office of supervisors,” &c. We must take some things to be true from their resulting by irresistible necessity and conclusion from others; and when it is averred that officers were duly elected by the persons qualified to elect them, we cannot resist the conclusion that they were legally elected; the more especially as it is further averred that they took upon themselves the duties of the office. After verdict, the exception is without reason or substance. •„
• By the provisions of the act of 1838, which was confined to Delaware county, but extended the next year to the county of Chester, the supervisors were directed to let out upon contract to some taxable inhabitant the repair of the roads for one year; and upon complaint made to the supervisors, by any person, that a road was not in good repair, they are required, if they believe the complaint is well founded, to give notice to the contractor complained of, and request him to put the road in good repair in six days thereafter; and if they shall still neglect, then it shall be the duty of two of the auditors of the township, upon notice given them by the supervisor, to examine the road; and if they shall be of opinion that the road is not in good repair, they shall direct the supervisors to have the road put in repair at the cost of the contractors ; and all laws inconsistent with these provisions are re
The third error assigned, that there is no averment that the contractor refused or neglected to repair, &c., is therefore invalid.
The fourth error assigned is, that neglecting to open, mend, and repair, cannot be joined in the same count, because it is the duty of the contractor to mend and repair. But it is by the act of 1841, as I have said already, the duty of the supervisors to repair whenever the road requires repair, that is, when the contractor has neglected to keep them in good repair. The offences of not opening and not repairing, are precisely of the same character and description, if indeed they are distinct. A road may be badly and insufficiently opened; obstructions often exist by trees being overthrown in a tempest; and in either case it is in bad condition, and requires to be opened and repaired. The language of the act of 1836 is, that roads shall “ be effectually opened and kept in repair.” And
The judgment is affirmed.