Opinion
(December Term, 1833.)
1. Under the provisions of the private acts for regulating the town of Halifax, the Commissioners of that town have authority to call out the hands and command the personal labor of those residing within its corporate limits, for the purpose of repairing the streets.
2. The Commissioners of a town are not of common right bound to repair the streets, and therefore an indictment against them for not repairing must set forth on its face how that obligation has been imposed upon them.
This was an indictment against the defendants for not keeping the streets of the town of Halifax in repair. There were three counts in the indictment.
The Attorney-General for the State.
Badger for the defendants.
It was admitted on the trial that the defendants had (346) expended in repairing the streets, and for other lawful and needful purposes, all the monies which they were authorized to raise by taxation or otherwise, and that there were no funds at their command at the time laid in the indictment, and it was insisted that the defendants were not bound by the provisions of the private acts relating to the town of Halifax, to repair, etc., but that it was only their duty to make ordinances, rules, etc., and use the pecuniary resources of the town for the purpose of repairing the streets.
His Honor, Judge Martin, before whom the cause was tried, charged the jury, that the commissioners had authority under the private acts, to call out the hands and command the personal labor of the inhabitants residing within the corporate limits of the town, for the purpose of repairing the streets, and that they were not excusable for the omission to repair, if there were hands enough in the town, though all the monies which had been, or ought to have been raised by virtue of their powers, had been properly expended at the time the streets were charged to have been out of repair.
On the two first counts in the indictment the defendants were acquitted. On the third the jury returned a verdict of guilty.
This count was in the following words:
"And the jurors, etc., upon their oaths, etc., do further present that on, etc., there was, etc., a public street and common highway in the town of Halifax, etc., commonly called the main street, etc., for all the citizens, etc., and that the aforesaid public street, etc., on, etc., was out of repair, etc., so as, etc., and that M. R. J. S. S. J. C. A. W., etc., all late, etc., on, etc., and from thence, etc., were commissioners of the said town of Halifax, duly chosen, elected and sworn as such, and that they in their corporate capacity of commissioners of said town of Halifax, were and are bound and obliged by the act of the General Assembly of this State, to keep and maintain the public street and common highway aforesaid, in safe convenient and complete repair. Yet the commissioners aforesaid, during, etc., at, etc., in, etc., have and did neglect and refuse (347) to keep the said public street and common highway in such repair, to the great injury, etc., and against the peace and dignity of the State."
A rule for a new trial being discharged and judgment rendered for the State — the defendants appealed.
It has been insisted for the defendants that the Judge erred in that part of his instructions to the jury, wherein he declared that the commissioners had authority to call out the hands, and command the personal labor of the inhabitants residing within the corporate limits of the town for the purpose of repairing the streets. This Court has examined the various acts referred to in the case, more particularly Laws 1786, c. 35, entitled "an act for the better regulation of the town of Halifax, and extending the liberties thereof," and is of opinion that there is no error in this part of the Judge's charge. Section 5 of this act empowers the commissioners "to make such rules, orders, regulations and ordinances, as to them shall seem meet for repairing the streets," with a proviso that such rules and regulations shall not be inconsistent with the Constitution and laws of the land. It was impossible by any words which the Legislature could select, to delegate a more ample authority over the subject, and we must give to these words their obvious and general meaning unless we can find clear evidence that they were used in a more restricted sense. The keeping of the highways of the country in a proper state of reparation, by the compulsory service of the inhabitants of the district within which they are situate, had been part of the law of North Carolina for a vast number of years, and probably from its earliest settlement. In 1784, 1785 and 1786, immediately before and at the time of passing this act, the attention of the Legislature had been much engaged in revising the laws with respect to the laying out and reparation of roads, and in this revisal they expressly made enactments for commanding these personal services, and rely (348) almost exclusively upon them, for this important object of police. When, therefore, in providing for the proper government of the town of Halifax, they clothe the commissioners with authority to make such ordinances as they might deem meet for repairing the streets, there is not the least reason to suppose that they did not contemplate the probability of the commissioners adopting a plan with respect to the reparation of highways within their jurisdiction, analogous to that which prevailed universally without it. We see nothing in any other part of this section, or in any other section of the act which induces us to believe this construction inaccurate. In a subsequent part of this section they have also authority to make ordinances for appointing a town constable or constables, town watches or patrols, and "to make proper allowances by fees or otherwise, for such services," but this furnishes no indication as to the mode in which the power of compelling reparation shall be exercised. The eighth section of this act directs the commissioners to lay an annual tax not exceeding eight shillings on every hundred pounds of taxable property within the town, and a proportionable poll tax on those who do not possess one hundred pounds of town property, and declares that "the monies therefrom arising shall be applied and laid out in clearing, cleaning, and repairing the streets and public passages, paying the officers of the town, and in such other public work and business as the commissioners shall direct." It is argued that this section, taken in connection with the fifth, shows that it was the purpose of the Legislature to give the commissioners a power to raise a revenue adequate for the exigencies of the town, and that the power to make rules and ordinances was intended to embrace such rules and ordinances only as related to the application of the pecuniary resources of the town to the purposes expressed in the act. We see very distinctly a power given to make such ordinances as they may deem meet to accomplish certain purposes, and also a power to raise a revenue to a limited extent to be applied for the same purposes, but so far from discovering that the latter was intended to modify and control the former power, it (349) appears to us, have been conferred as additional and auxiliary to it. Whether the power of taxation could be regarded as passing by a grant of authority to make ordinances meet and proper for accomplishing certain purposes, might have been doubted. It had been a much mooted question whether the right to tax was incident to that of making laws. During the revolutionary struggle it was zealously contended by the elder Pitt and his distinguished political associates, that the British Parliament possessed the power of legislation over the colonies, but could not rightfully levy a penny of tax. At all events it is exceedingly probable that the power of taxation was not intended to be passed thereby, and was regarded as one of sufficient importance to be the subject of distinct grant, and of special limitation. Be this as it may, if it were not embraced within the fifth section it was thought necessary to bestow it, and if embraced, it was deemed expedient to restrain the extent of the grant by the limitations in the eighth.
24 State Records, 832.
It will be seen that the Court does not concur with the Judge in the remaining part of the instructions which were given to the jury, and it would proceed to direct a new trial, but that it believes the indictment to be so radically defective as not to admit of a judgment being rendered against the defendants, if the instructions and verdict had been perfectly correct.
The count of this indictment on which the defendants are convicted is defective in not setting forth how the obligation to repair the streets has been thrown upon the defendants. Of common right it is the duty of the inhabitants of a parish to keep the highways through that parish in reparation, and it may very well be, as has been argued by the attorney-general, that the obligation to repair the streets of Halifax, unless some special provision has been made for the purpose, has devolved by the incorporation of the town upon the inhabitants thereof, and that we are bound judicially to know that Halifax is one of the incorporated towns of the State, to which the constitution has given the right of electing a member of the State Legislature. But this is not an indictment against the (350) town, or the inhabitants of the town of Halifax. It is against the defendants individually, for neglect of the duty of reparation which it alleges that the law has imposed upon them. We know of no public law which obliges the persons who may be commissioners of any incorporated town to keep the streets in order, and whenever an indictment is preferred against those who are not bound by the common law and of common right to repair, such indictment must set forth the matters by reason whereof the obligation has been devolved on the persons charged. ( Rex v. Inhabitants of Great Broughton, 5 Bur., 2700.)
The count is further defective that it sets forth no breach of any specific duty which the acts regulating the town of Halifax impose on the commissioners. The corpus delicti is that the streets were permitted to be out of repair, and the indictment assumes that the defendants as commissioners were bound to prevent this public inconvenience. Now all the obligations imposed on the commissioners have been imposed by one or the other of these acts. These are for instance, to levy annually a certain tax not exceeding a given rate — to make the proper arrangement for collecting it, to apply the proceeds when received, towards the repair of the streets, the payment of public officers, and to such other public purposes as the commissioners shall think proper — and to make all such rules, ordinances and regulations as they may deem expedient for reparation of the streets. None of these acts declare, as does our public act of 1786 with respect to overseers of the roads, that for a neglect in keeping the streets in order the commissioners shall be liable to indictment. Certain means are put into the power of the commissioners for the accomplishment of certain ends. If there be a culpable neglect to use these means when there is a necessity for their use, those guilty of such neglect may be liable to indictment. But then the indictment must set forth the criminal omission, so that the defendants may know, and the Court see, what duty has been neglected. It must not allege neglect generally, still less state merely the consequence of the neglect of duty — but (351) specify the offense producing such consequence. These principles are so distinctly asserted and explained in S. v. Justices, 11 N.C. 194, that we deem it unnecessary to enlarge upon them. It is true that in a case which came before the former Supreme Court, S. v. Commissioners, 4 N.C. 419, this objection might have been taken to the indictment, but was overlooked or waived. But the subsequent case of S. v. Justices, supra, is an express adjudication upon the point. We feel ourselves bound by it as authority, and the more strongly, as the principles which it upholds tend greatly to the certainty of criminal prosecutions, and are therefore important safeguards of civil liberty.
The Court is of opinion that the judgment rendered in the Superior Court should be reversed, and that the judgment should be arrested.
PER CURIAM. Judgment arrested.
Cited: S. v. R. R., 44 N.C. 236; S. v. Commissioners, 48 N.C. 402; S. v. Fishblate, 83 N.C. 656; S. v. McDowell, 84 N.C. 802; S. v. Smith, 103 N.C. 407; Russell v. Monroe, 116 N.C. 726; S. v. Britt, 118 N.C. 1257; S. v. Leeper, 146 N.C. 665.