Opinion
June Term, 1821.
By an act of the Legislature passed in 1810, three commissioners were appointed, whose duty it was made to examine a certain turnpike road and make report of its state and condition at each county court, and if from their report it appeared that the road was not kept in good order, a prosecution was to be instituted against the proprietors. By an act of 1819, the power of appointing the commissioners was vested in the county court, their number reduced to two, and it was made part of their duty to give information to the grand jury of the Superior Court when the road was out of repair. On an indictment against the proprietors, the commissioners under the act of 1819, who reported the road to the grand jury as being out of repair, may be permitted to prove the state of the road, notwithstanding the act of 1810 declares that the proprietors shall not be indicted except upon the view and report of the commissioners appointed by the act of 1810, for by the appointment of those under the act of 1819 those under the former act ceased to exist, and yet the proprietors must be liable as the convenience of the public and their interest in a highway cannot be surrendered by implication.
THE defendant was indicted as one of the proprietors of the turnpike road, leading from the Tennessee line, by the Warm Springs, to Asheville, in the county of BUNCOMBE. (347) William Brittain and Henry Dryman were appointed commissioners, under and by virtue of an act of Assembly, passed in 1819, and, as commissioners aforesaid, reported to the grand jury said road to be out of repair at the time set forth in the indictment, and on the trial below they were sworn and offered as witnesses to prove the charge. It was objected by the defendant that the evidence was inadmissible, because that he could be indicted as overseer and proprietor of said road no otherwise than upon the view and report of commissioners appointed by an act passed in 1810. The objection was overruled, and the defendant convicted. A new trial having been refused, and sentence pronounced, the defendant appealed.
The case was submitted without argument, and
The question presented by the record (for the case has been submitted without argument) is whether the defendant has been properly convicted of not keeping the road in repair, upon the evidence of the commissioners appointed under the act of 1819, ch. 110. The objection to the conviction turns upon this: that by the act of 1810, ch. 35, three commissioners were appointed, whose duty it was made to examine the road and make report of its state and condition at each County Court; and if it appeared from their report that the road was not kept in good order, then a prosecution was to be instituted against the proprietors. By the act of 1819, above referred to, the power of appointing the commissioners is vested in the County Court of Buncombe, the number reduced to two, and their duty prescribed — amongst other things, of making information to the grand jury of the Superior Courts, when the road is out of repair. Upon this verdict it must (348) be taken for granted that all the allegations in the indictment necessary to show the defendant liable under the two acts were supported at the trial, and that Brittain and Dryman were duly appointed commissioners. If the defendant's objection were to prevail, this unjust consequence would follow: that he might avail himself of the extension of the charter granted by the act of 1819, and yet be irresponsible for the neglect of keeping the road in order; for there would be no persons empowered to make the view and give information of the condition of the road, since the commissioners appointed by the act of 1810 must have ceased to exist, as such, when others were appointed according to the act of 1819. What is to become of the public interest in the meantime? Was it the meaning of the charter to sacrifice that altogether to the emolument of the proprietors, or to combine both objects together? That the road should be kept in order was a duty of paramount obligation, which the public had a right to enforce; and if the regulations made by the first act should appear ineffectual for that end, the Legislature might change them from time to time. If no commissioners ever had been appointed, the proprietor of the road was nevertheless liable; for the convenience of the public, and their interest in a highway, cannot be surrendered by implication. The evidence was admissible in every view, and the conviction is right.
(349)