Opinion
(December Term, 1843.)
1. The Buncombe Turnpike Company are bound by their charter to keep their road in good repair, and are indictable if the road is suffered to become ruinous.
2. The president and directors of the company are bound to exert all their powers and apply all their means, as such officers, to the keeping of the road in order, and for a default in the performance of this public duty are liable to indictment.
3. Where a particular class of persons, other than the public overseers of roads, are indicted for not keeping a road in order, the indictment should contain an averment "that it was their duty, and of right they ought to have kept the said road in repair," otherwise judgment will be arrested.
APPEAL by the defendants from Dick, J., at Fall Term, 1843, (17) of HENDERSON.
The Attorney-General for the State.
Alexander and John H. Bryan for defendant.
The defendants were tried upon the following indictment, to wit:
"NORTH CAROLINA — Henderson County. Superior Court of Law, Fall Term, 1843.
"The jurors for the State, upon their oath, present: That Mont. Patton, president, and James W. Patton and William W. Davie, directors of the Buncombe Turnpike Road, lately of the county of Henderson, on the first day of March, in the year of our Lord one thousand eight hundred and forty-two, and for a long time both before and since that day, to wit, for six months, being president and directors of that part of the public Buncombe Turnpike Road, leading from the Tennessee line by Asheville and Hendersonville to the South Carolina line, which lies between Big Mud Creek and the South Carolina line, in the county aforesaid, negligently did permit the said public road of which they were president and directors as aforesaid, in the county aforesaid, to become ruinous, miry, broken, and in great decay for want of due reparation thereof, and the same so to be and remain during all the time aforesaid negligently did permit, and still do permit, to the great damage and common nuisance of all the citizens of the State and others the same road passing, against the form of the statute in such case made and provided, and against the peace and dignity of the State."
The defendants pleaded not guilty. On the trial the State proved the road to be out of proper order, and it remained so for a considerable time. The defendants' counsel contended that the president and directors were not liable to indictment for suffering their road to be out of repair; that they were only amenable to the Legislature for any omission of the duties imposed on them by their charter, and prayed the court so to instruct the jury. The court declined to give the instruction prayed for, but charged the jury that the defendants were subject to indictment; and if they believed the evidence, the defendants were guilty as charged. The jury found the defendants guilty, and a new (18) trial having been moved for and refused, they appealed.
The defendants are charged in the indictment that they, being the president and directors of that part of the public Buncombe Turnpike Road, leading from the Tennessee line to the South Carolina line, which lies between Big Mud Creek and the South Carolina line, in the county of Henderson, did negligently permit the said public road of which they were president and directors, in the county aforesaid, to become ruinous, etc., against the form of the statute, etc.
There is a statute (2 Rev. Stat., p. 418) incorporating a company under the name and style of the "Buncombe Turnpike Company," for the purpose of making a turnpike road from the Saluda Gap to the Tennessee line. Section 9 of the act declares that the road shall be a public highway. Section 13 directs that all hands liable to work on the roads residing within two miles on either side of the said turnpike road shall be liable to do six days work in each and every year on the said turnpike road, under the direction of the president and directors of the said company; and the hands as aforesaid, when warned to work on the said road, shall be liable to the same fines and penalties (19) for neglect as persons failing to work on public roads in this State.
We think it was the duty of the Buncombe Turnpike Company to keep up the road, and that, therefore, the corporation is liable to an indictment if the road be suffered to become ruinous. Any default in those bound to repair public highways may be redressed by criminal prosecution. 3 Chit. Crim. Law, 566; Hawkins P. C. B. 1, ch. 76, sec. 1. We also think that the individuals who have been indicted were bound, by virtue of their offices, faithfully to exert all their powers and apply all their means, as such officers, to the keeping of the road in order, and that for a default in this public duty they were liable to indictment. But as they were not absolutely bound to keep up the road, they cannot be charged merely because the road has become ruinous. Besides, if they were so liable, the indictment ought to have shown how that liability was thrown upon them. In England, we see that where a public statute changes the common-law duty of the parish to a particular class of persons to keep in repair a public highway, where that particular class of persons are indicted for neglect of duty, the indictment contains an averment that it was "their duty and of right they ought to have kept the said road in repair," etc. 3 Chit. Crim. Law, 584, Note C. There is no such averment in the present indictment.
PER CURIAM. Judgment arrested.
Cited: S. v. R. R., 44 N.C. 236; S. v. Fishplate, 83 N.C. 656; S. v. McDowell, 84 N.C. 801.