The opinion of the court was delivered by
Williams, Ch. J.
In this case there has been a verdict of guilty rendered against the respondent. On the trial certain exceptions were taken to the charge of the court. There was, also, a motion in arrest of judgment for the insufficiency of the indictment, which was overruled by the county court, to which there are also exceptions.
The exceptions, taken at the trial, bring in question the powers of the inspectors of turnpikes, and the effect of the acceptance of the road by the judges of the county court, and, in considering them, we are to assume that the appointment of the inspectors was legal, and the act, under which they were appointed, unobjectionable.
By the act of incorporation, the company were to make the road as required, and were not at liberty to erect gates until this was done. The legislature provided a tribunal, which, in this charter, was the judges of the county court, to accept the road when made. The object of this was to enable the company to erect gates and take toll. This tribunal could not dispense with the obligations imposed on the company by their charter, absolve them from any of the duties or liabilities they were under, nor impose any new duties on them. When they were satisfied that the conditions of the grant were so far complied with that it was proper a gate should be erected on the road, their acceptance of the road authorized the company to erect such gate. The sufficiency of the road thereafter, or the state of repair in which it might be, must necessarily be affected by the changes in the business of the country, which might increase or diminish the amount of travel thereon. We think, therefore, that it was competent for the turnpike inspectors to order them to make such repairs, as were necessary- at the time of the order to render the road sufficient for the safety and convenience of travellers, without regard to the state of the road as first made ; but they could not require them to go beyond their charter, and make the road any wider than was requir[412]*412ed. The charge of the court was to this effect and is unobjectionable.
The motion in arrest sets forth three causes for which the indictment should be adjudged insufficient, and directly puts in issue the legality of the appointment of inspectors and the constitutionality of the act authorizing their appointment.
The first cause alleged presents a question on which I have entertained considerable doubt. It appears that the inspectors were appointed at a session of the court, begun and holden on the last Tuesday of November, 1838, whereas the law requires the court to make the appointment at their first session after the first day of December. It is high, ly. probable that this occurred in consequence of the court having, heretofore, appointed them when the term in this county was held on the first Tuesday of December, and the court continued to appoint them at the same term after its commencement was altered to the last Tuesday in November ; and it is probably true, as was suggested in the argument, that the term of the county court now usually continues beyond the first day of December. As the office was an annual one, and the inspectors were required annually, at the session of the court in which their year shall expire, to lay a correct account of their services before the court; it was not improper *npr illegal for the county court, if their session continued after the first day of December, to make the appointment, though the term commenced before that day.
The inspectors are public officers. The power of appointment is given to the county court. The time or term when this power is exercised, cannot be of any particular importance. The act was, undoubtedly, directory to the several courts, in the first instance, to make the appointments the first session after the judges entered upon the duties of their respective offices on the first day of December, in each year. Any vacancies were to be filled by the judges out of term time. It was the duty of the court to make the appointments in such a manner that the inspectors, by them appointed, should hold their offices for a year. We are, therefore, of the opinion that the appointment was regular if made by the court at their regular session ; that the appointment cannot be considered void, if made at any regular term of the court, if the court were in session after the first day of De[413]*413cember, so that the inspectors should hold their offices for one year. The legislature are required to make their several appointments of judges, justices, &c., at their first session after their election, and yet when they have held adjourned sessions, heretofore, they have made appointments to the office of justice of the peace, and other offices, where there was no vacancy, as well as to fill vacancies.
The second cause assigned is evidently unfounded, as the order is not liable to the impuation of inconsistency in the particular alleged. The order to clear out all the logs and stones in a section of the road, is not inconsistent with the general order, at the close, to remove or cover over all rocks, and stones, and logs, the whole length of the road, so that they should not annoy the traveller, as the latter clause meant only such as could not be removed. Or if both parts meant the same thing, the first clause would be embraced in the last and would not render the order void.
With respect to the third exception, it might be sufficient to say that the act was passed thirty-four years since, and had, and was designed to have, an operation on the existing grants. Indeed, most of the turnpike companies were incorporated before that time, and but a few since. It has been submitted to,and no attempt made to question its legality in the judicial tribunals but once, and then it was established. Questions arising under the constitution, settled by a long and uniform practice, and sanctioned by a judicial decision, should be considered as at rest. If not so, in my apprehension, our written constitution, instead of being a security for individual rights, would be a most dangerous instrument to be made use of for their destruction,and none are more interested to have this so considered than those artificial persons, called corporations,which are created by the legislature. Such questions are often of doubtful solution, on which men of the best intentions and of the most powerful intellects,may entertain different opinions. No questions arise more frequently, in this country,than those which involve the construction of the constitution, and the powers of the different branches of the government, and on many of these there is, no doubt, an honest difference of opinion. Where, then, is the security of individual or corporate rights if these questions are to be considered as always open ; if no acquiescence, even though saction-[414]*414ed by a judicial decree, is to be considered as settling them?
On the question arising in this case, the highest judicial tribunal in this state has once decided. It was susceptible o£ go that there was not, nor is it to be expected there should have been, a perfect unanimity. Suppose we, or, as the case might be, a bare legal majority of the court, should decide differently ? Those who succeed us may think our predecessors more correct than we and adopt their decision, and thus leave this corporation, and all the people of the state, who may be affected by the grant made to them, in a state of utter and hopeless uncertainty as to their rights, powers, and privileges.
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The opinion of the court was delivered by
Williams, Ch. J.
In this case there has been a verdict of guilty rendered against the respondent. On the trial certain exceptions were taken to the charge of the court. There was, also, a motion in arrest of judgment for the insufficiency of the indictment, which was overruled by the county court, to which there are also exceptions.
The exceptions, taken at the trial, bring in question the powers of the inspectors of turnpikes, and the effect of the acceptance of the road by the judges of the county court, and, in considering them, we are to assume that the appointment of the inspectors was legal, and the act, under which they were appointed, unobjectionable.
By the act of incorporation, the company were to make the road as required, and were not at liberty to erect gates until this was done. The legislature provided a tribunal, which, in this charter, was the judges of the county court, to accept the road when made. The object of this was to enable the company to erect gates and take toll. This tribunal could not dispense with the obligations imposed on the company by their charter, absolve them from any of the duties or liabilities they were under, nor impose any new duties on them. When they were satisfied that the conditions of the grant were so far complied with that it was proper a gate should be erected on the road, their acceptance of the road authorized the company to erect such gate. The sufficiency of the road thereafter, or the state of repair in which it might be, must necessarily be affected by the changes in the business of the country, which might increase or diminish the amount of travel thereon. We think, therefore, that it was competent for the turnpike inspectors to order them to make such repairs, as were necessary- at the time of the order to render the road sufficient for the safety and convenience of travellers, without regard to the state of the road as first made ; but they could not require them to go beyond their charter, and make the road any wider than was requir[412]*412ed. The charge of the court was to this effect and is unobjectionable.
The motion in arrest sets forth three causes for which the indictment should be adjudged insufficient, and directly puts in issue the legality of the appointment of inspectors and the constitutionality of the act authorizing their appointment.
The first cause alleged presents a question on which I have entertained considerable doubt. It appears that the inspectors were appointed at a session of the court, begun and holden on the last Tuesday of November, 1838, whereas the law requires the court to make the appointment at their first session after the first day of December. It is high, ly. probable that this occurred in consequence of the court having, heretofore, appointed them when the term in this county was held on the first Tuesday of December, and the court continued to appoint them at the same term after its commencement was altered to the last Tuesday in November ; and it is probably true, as was suggested in the argument, that the term of the county court now usually continues beyond the first day of December. As the office was an annual one, and the inspectors were required annually, at the session of the court in which their year shall expire, to lay a correct account of their services before the court; it was not improper *npr illegal for the county court, if their session continued after the first day of December, to make the appointment, though the term commenced before that day.
The inspectors are public officers. The power of appointment is given to the county court. The time or term when this power is exercised, cannot be of any particular importance. The act was, undoubtedly, directory to the several courts, in the first instance, to make the appointments the first session after the judges entered upon the duties of their respective offices on the first day of December, in each year. Any vacancies were to be filled by the judges out of term time. It was the duty of the court to make the appointments in such a manner that the inspectors, by them appointed, should hold their offices for a year. We are, therefore, of the opinion that the appointment was regular if made by the court at their regular session ; that the appointment cannot be considered void, if made at any regular term of the court, if the court were in session after the first day of De[413]*413cember, so that the inspectors should hold their offices for one year. The legislature are required to make their several appointments of judges, justices, &c., at their first session after their election, and yet when they have held adjourned sessions, heretofore, they have made appointments to the office of justice of the peace, and other offices, where there was no vacancy, as well as to fill vacancies.
The second cause assigned is evidently unfounded, as the order is not liable to the impuation of inconsistency in the particular alleged. The order to clear out all the logs and stones in a section of the road, is not inconsistent with the general order, at the close, to remove or cover over all rocks, and stones, and logs, the whole length of the road, so that they should not annoy the traveller, as the latter clause meant only such as could not be removed. Or if both parts meant the same thing, the first clause would be embraced in the last and would not render the order void.
With respect to the third exception, it might be sufficient to say that the act was passed thirty-four years since, and had, and was designed to have, an operation on the existing grants. Indeed, most of the turnpike companies were incorporated before that time, and but a few since. It has been submitted to,and no attempt made to question its legality in the judicial tribunals but once, and then it was established. Questions arising under the constitution, settled by a long and uniform practice, and sanctioned by a judicial decision, should be considered as at rest. If not so, in my apprehension, our written constitution, instead of being a security for individual rights, would be a most dangerous instrument to be made use of for their destruction,and none are more interested to have this so considered than those artificial persons, called corporations,which are created by the legislature. Such questions are often of doubtful solution, on which men of the best intentions and of the most powerful intellects,may entertain different opinions. No questions arise more frequently, in this country,than those which involve the construction of the constitution, and the powers of the different branches of the government, and on many of these there is, no doubt, an honest difference of opinion. Where, then, is the security of individual or corporate rights if these questions are to be considered as always open ; if no acquiescence, even though saction-[414]*414ed by a judicial decree, is to be considered as settling them?
On the question arising in this case, the highest judicial tribunal in this state has once decided. It was susceptible o£ go that there was not, nor is it to be expected there should have been, a perfect unanimity. Suppose we, or, as the case might be, a bare legal majority of the court, should decide differently ? Those who succeed us may think our predecessors more correct than we and adopt their decision, and thus leave this corporation, and all the people of the state, who may be affected by the grant made to them, in a state of utter and hopeless uncertainty as to their rights, powers, and privileges. If such questions are not to be considered as settled by a judicial decision, made by a divided court,what security have any corporation that the rights which they consider as settled by a judicial determination, may not be invaded by the legislature, and the powers of the legislature be considered as more extensive than they were in the first decision ? It is needless to say any more on this head, as it must be a very clear case, and one unsus-ceptible of doubt, which would lead us to disturb the question which was once settled by those who held these seats before us. And the fact that either a legal or constitutional question is one of great uncertainty, and a decision, either way, might be sustained, or be subject to animadversion, is a reason why one decision should be considered as settling it.
Perhaps something more in relation to the question itself ought to be said, and our determination should not be based entirely on the fact that there has been one adjudication of the subject; and we have no objection to saying, that we do not consider the act, providing for the appointment of turnpike inspectors, as such an invasion of the corporate rights of the several turnpike companies previously granted, or such a destruction of their chartered rights as to render it obnoxious to the objection that it is ex post facto, or impairs the obligation of contracts. The object of such grants is to provide good roads for the accommodation of the public, and, as an equivalent therefor, to enable the company to take, as toll, a compensation for making and keeping the road in repair. It is the duty of the company to comply with the requirements of the act, and it is also the duty of the legislature to [415]*415See that they do comply with it, and it is, at least, questionable whether they could part with all control over them without a dereliction of the duty they owe to the public. The company was, by their charter, made liable to individuals for private damages, the same as towns, and were also subject to an indictment. The object of the act, of 1806, was to compel a performance of the duty undertaken by the corporation, in a different manner from what it was before, and is nothing more than a change of the remedy. Can turnpike inspectors order repairs, and, if not made, set open then-gates and deprive them of their toll ? - They were before liable to a pecuniary penalty to an indefinite extent, and more onerous than any deprivation of their toll. Is it to be supposed that the inspectors will act wantonly and maliciously, and that the judges of the county court, from similar motives, will refuse relief? It may equally be supposed that the grand jury will indulge in caprice in preferring an indictment, and the same judges will impose fines so as to exhaust all the funds of the company. Neither supposition, however, is to be tolerated ; but we areyto believe that all officers, whether inspectors, prosecutors, or grand jurors, will not be unmindful of their oaths, to do equal right and justice to all men. It is too frequently the case, particularly has it been so when interests or rights of this company have been investigated, to complain of a disposition on one side to invade all private rights, and to indulge in a spirit of hostility to corporations, and, on the other, to complain that these corporations are nuisances, hostile to the interests of the public and at war with their feelings and convenience. On this, it is sufficient to remark that such complaints are inappropriate to this house, except when it is occupied for a different purpose than the one for which we are assembled. The possibility of an abuse of a right, or the actual abuse of power, is no argument against its existence. I have arrived at an advanced period of life, when it is usual to draw comparisons between the present and the past, to the disadvantage of the former. I have'heard repeated complaints of the abuse and danger from monopolies and incorporations, and, on the other hand, of the danger of all their rights being prostrated before popular excitement; and I have no hesitation in saying, as my belief, that the principles of civil liberty are more re[416]*416garded, and individual and chartered rights more firmly secured and protected now, than when I first commenced active life. I should have no fears, therefore, of the’ effect of ’ our decision, in this respect, whether it was for or against jhjg respondent.
The decision of the county court was correct, both in their charge to the jury, and in overruling the motion in arrest. Judgment must, therefore, be rendered on the verdict.