9 Conn. 40 | Conn. | 1831
Much of the argument in support of the proceedings seems to have proceeded upon the assumption that this was a complaint against the town in nature of an information for a nuisance. If it were so, there could have been no necessity to resort to the English authorities, or those of Massachusetts, to prove, that the attorney may prosecute; because our own statute authorizes the attorney to file informations for all criminal offences committed in their respective counties. Stat. 261.
Upon looking at this complaint, I do not understand, that it ¡s an information for not repairing a bridge or a road, for which the town is to be punished; but that the object was, to procure an order of court, that the town should build a bridge, where one, which had long been discontinued, formerly stood. So it was understood by all parties. The select-men, as well as the town, were notified. No plea was filed, no issue joined to the jury. But the court enquired into the facts, and directed a bridge to be built. It was evidently founded upon the 7th section of the statute regarding highways and bridges. Were it otherwise, and could the complainant establish the proposition, that it is in nature of a criminal information for not erecting a bridge, or for ¾ nuisance, I see not why the proceedings would not be erroneous, because the court, and not the jury, enquired into and decided the facts in dispute. I therefore lay out of the case an argument, which has been urged with much force, that the common law furnishes a remedy whenever it imposes a duty. Here no duty is imposed until the steps prescribed by
The 19th section of the act relating to highways and bridges, directs, that when any town shall neglect to keep in repair any public road, which it is their duty to repair, the county court may order repairs ; and it shall be the duty of the state’s attorneys to make complaint. Stat. 274. It is claimed, that as it is the duty of the town to keep in repair bridges as well as roads ; and as bridges are parts of roads, the statute may he fairly construed to include bridges as well as roads. But when it is recollected, that until the late revision of the statutes, there were two distinct statutes respecting bridges and highways, and that the clause referred to was only in the statute concerning highways, it would seem as if the legislature could not have intended to give the same power to the state's attorneys in one case as in the other. And although the two statutes are now incorporated into one, yet as the subjects still remain and are treated as distinct, it cannot be supposed, that the legislature intended all the provisions applicable to one, should be to the other, when some of the sections speak of roads and bridges, some of roads only, and some of bridges only. The acts were consolidated, by uniting in one section those provisions which had been before common to both : but with respect to the other parts, it left them as before ; and the act remains in substance what it was before the revision. If so, the attorney cannot derive his right from the 19th section, which relates only to public roads.
It was also claimed, that this power was given by the 7th section, that when a town shall refuse to repair or rebuild a bridge, the county court may, on complaint of any person or persons, enquire, &c.; and it is asked, is not the state’s attorney a person 1 Such general terms, it is said, must include all officers, as well as all individuals; and that a corporation has been held to be a person within the meaning of this very law : that the individual attorney and the state, are, each of them, persons. It cannot be seriously contended, that the state’s at-
The next question is, whether the state is a person within the meaning of the 7th section of the statute relating to Highways and bridges. That a corporation is an artificial person, known in law, is certainly true. The application of this doctrine to the supreme power of the state, however, is novel, if not unprecedented. That a power to any person to prosecute, should be construed to give the power to a public officer in behalf of the state, is so contrary to the ordinary understanding of such a power, that it needs some authority to support such a construction. It has generally been supposed to apply to individuals in contradistinction from public officers ; and it is believed, that uniform practice has corresponded with this idea. But it appears to me, that the case of the town of Canaan v. The Greenwoods Turnpike Company, 1 Conn. Rep. 1., so far from supporting the doctrine for which it was cited, is an authority to shew, that corporations are not, generally speaking^ persons within the meaning of this statute. That was a complaint, by the turnpike company, against the town, for not repairing a bridge on their road. It was contended, on the one hand, that corporations were persons, and therefore, might prosecute under this section; and on the other, that they were not the persons intended by the statute, who could be common informers. The court there held, that as the corporation had a direct interest in the support of these bridges on their road, they might prosecute; but that they could not prosecute for the insufficiency of any other bridges than those on their own road. 1 Conn. Rep. 6.
The construction contended for cannot, therefore, be supported ; and as the plaintiffs have shewn no authority for the complaint by the state’s attorney, the judgment of the superior court must be affirmed.
Judgment affirmed.
