State v. Hageman

13 N.J.L. 314

• Court: Supreme Court of New Jersey
• Decided: February 15, 1833
• Status: Published

Opinion

The opinion of the court was delivered at this term.

Hornblower, C. J.

The defendant moves to quash this indictment on several grounds. 1st. Because it is repugnant and inconsistent. The indictment charges that there was and yet is a common public highway leading from the Franklin and Georgetown turnpike road, to Benjamin A. Hageman’s orchard, and that a certain part of the said road,- called the New Road or Division No. 15, extending from the Franklin and Georgetown turnpike road to Benjamin A. Hageman’s orchard, containing eight hundred yards in length and ten yards in breadth, on the 18th January 1881, and until the 1st of March 1831, was in a ruinous condition, &c. To say the least of it, this part of the indictment is ambiguous: there is a road leading from A to B and a certain part of it, called the new road, extending from A to B, is out of repair; thus describing a part as co-extensive with the whole.

But there is a second and in my opinion a more decisive and fatal objection to this indictment. It alleges that the “ defendant was appointed according to the statute in such case made and provided, to open, clear out, make, amend, repair and keep in good order the said highway.” - But when, where, by whom, to what office, and for how long he was appointed, does not appear.

Where an offence consists in an omission to do some act, the indictment must show how the defendant’s obligation to perform, that act arises, unless it is a duty annexed by law to the office which the defendant sustains. Stark. Or. pi. 180; Rex v. Holland, 5 T. R. 623.

So in an indictment against a township for not repairing a. ■road, or against a county for not repairing a bridge, it is sufficient to allege, that the road is out of repair, or the bridge in a state of decay; because the township in one case and the county in the other, are bound to repair. Stark. Cr. pi. 177. And so it would be in the case of an overseer of the road, if the law annexed to his office the duty of repairing all the roads in the township, or the particular road or part of a road, in question :. and in such case it would be sufficient to say, the defendant was. debito modo electus, and proof that he acted as such officer, would sustain the indictment in that respect. Stark. Cr. pl. 180; Berryman v. Wise, 4 T. R. 366; Gordon’s case, Leach 581.

If the indictment was (as it may be in some cases in England) for not accepting, or not taking the oath of office; then the indictment ought to set out, how, when, by whom appointed, because if not legally elected he would not be guilty of any of-fence, in refusing to accept. Cowp. 633; 5 Mod. 96; Rex v. Burden, 4 T. R. 778.

But this is an- indictment for not repairing a certain part off a certain highway in the township of Franklin.. The law does not annex to the office of overseer of the township of Franklin,, the duty of keeping in repair all the roads,'or this certain part of a road in the said township. The charge of keeping all the-roads in repair, is devolved by law upon the township ; the duty of an overseer to repair a particular part arises upon the designation of the township committee. By the 12th section of the act incorporating townships, Rev. Laws 342, the inhabitants of the several townships', at their annual town meetings are, among other officers, to elect, as “ many overseers of the highways as they shall deem necessary or convenient.” If the officers so elected, refuse to accept, or a vacancy happens by death or otherwise, (by the 13th section) a new election may be had at a special town meeting: and if this is neglected to be done for a certain number of days, the township committee may appoint some person or persons to supply the vacancy. Here then are three modes in which an overseer of the highway may be elected. But this election when made in either manner, imposes upon the overseer only a general obligation to perform the duties of his office, within a certain limit or division of the highways, to be “ assigned and appointed ” to him, in writing, by the township committee, (section 14 of the act concerning roads, Rev. Law» 621.) It is true the act provides that if the committee shall neglect or refuse to make such division, the overseers shall conform themselves to such assignments or divisions of the highways, as may at any time before have been made; but this does not render the election by the town meeting, of the overseer, a direct, and special appointment to any particular district or division,, it only adopts the previous assignment, if any, in the place of a, new one, but yet the township committee or some other authority must designate to the newly elected overseers their respective districts: otherwise how are they to know where their services are to be rendered ? Town meetings have no power to make such special and limited appointments. I know it is sometimes, done, and overseers are elected for particular districts; but it is ex gratia, the overseer thus elected, if an overseer at all, is. an overseer for the whole township, and bound to repair such part or parts of the highways, as the township committee shall assign to them in writing.

If, however, the township committee did assign to the defendant, this particular district, then the indictment ought to have alleged, that he being at the time an overseer of the highways, of the township of Franklin, the township committee did assign to him the said district. If on the other hand, the township committee neglected to make such division, the indictment should have so stated, and shewn that there had been a previous assignment to which the defendant was bound to conform; and how, or in the manner in which it came to be the duty of the defendant to repair this particular part of the road. Stark. Cr. pl. 177, 178. Rex v. Inhabitants of Penderryn, 2 T. R. 513; Rex v. Inhabitants of Great Broughton, 5 Bur. 2700; Archb. pl. 106, 107, 159. These cases if not strictly applicable, yet seem to shew the rule of pleading in this respect, whenever an individual is sought to be criminally prosecuted for acts of omission.

The indictment says, “ the defendant was appointed to repair this road, according to the statute in such case made and provided.” Does this mean, that he-was elected at an annual or special town meeting ? or that he was elected by the township committee, in default of an election by town meeting ? Or that being previously elected an overseer, he was appointed by the township committee to take charge of this district ? If it means that he was appointed an overseer, by the town meeting, or by the township committee, then there is no averment that he was appointed to this particular district, or that this particular district was assigned to him. If it means that the township committee assigned to him or appointed him to repair this district, then there is no averment that he was ever elected an overseer ; and if so, they had no right to assign to him any duty as such. In order to fix the duty upon the defendant, two distinct things were necessary to be done. 1st. To make him an overseer under the acts incorporating townships, Rev. Laws, 342 ; and 2dly, to assign to him a division of the road, under the act concerning roads, Rev. Laws 621. To say that he was duly appointed according to law, may be very well in common parlance; but in an indictment, if a reference to a statute is necessary, it must be correctly made, and here the reference is to one “ statute,” and the court cannot determine which of the two statutes above mentioned, is intended.

I think the indictment is defective in another particular. Whether the defendant was bound to keep any part of the road in repair, and whether such obligation rested on him from the 18th January until the 1st March 1831, as stated in the indictment, are questions of law to be settled by the court upon the facts stated on the record. But as I have before remarked, it no where appears when he was elected, when his office commenced, or when it terminated. Nor is it averred that he was in office during the period complained of. The indictment it is true, says that he ought during all that time to have repaired, &c. but this is coming to a conclusion of law, without any facts being stated, upon which such a conclusion could arise. It is matter of discretion whether an indictment shall be quashed in any case; it is not, exdebito yustitice. I11 an important and doubtful case I would not do it. But since the case of The State v. Nichols, 2 South. R. 539, and The State v. Rickey, 4 Halst. 293, I have no hesitation in quashing an indictment, which is clearly defective. And see also The State v. Webster, 5 Halst. 293 and several other cases referred to in Halst. Dig. tit. Indict.

Foiíd, J. The defendant is indicted as overseer of the road, for not repairing a highway in the county of Somerset, and moves to quash the indictment for uncertainty and inconsistency in the description of the place. The indictment says that there is a highway leading from the Franklin and Georgetown turnpike road, to Benjamin P. Hageman’s orchard, a part of which is out of repair, and this part it says is called the new road, or division No 15, extending from the said turnpike road to the said orchard. Thus the whole road is not out of repair but only a part of it, and yet this part is the whole extent from the turnpike road to the orchard. The defendant cannot find out by this description whether he is indicted for the whole road or for only a part of it, nor consequently how to shape his defence. For this reason it is evidently insufficient and ought to be quashed.

Drake, J. This is an indictment against the defendant, founded on the eighteenth section of the act, entitled an act concerning roads, which makes any overseer of the highways liable to be presented or informed against, and fined on conviction, for the badness, or want of repair, of any highway within his limits, or division. The indictment, after alleging that a certain public highway was out of repair, proceeds to state that the defendant was appointed, according to the statute in such case made and provided, to open, clear out, make, work, amend, repair, and keep in good order, the said highway; and that he took upon himself the burden and duty of so doing. Among other objections made to this indictment, it is insisted that this allegation is entirely too vague ; that it does not present to the court the grounds of the defendant’s liability with sufficient certainty. And I consider this objection to be well taken. In order to make the defendant liable, he must, in the first place, have been duly appointed an overseer of the highways. It should appear, at least by an allegation to that effect, that he was appointed to that office. Bnt this appointment alone would not impose upon him the duty to repair this particular highway. It must be within his limits, or division. This could only be, by an assignment of the town committee, either to the particular individual, or made at some previous time. And this matter shpuldbe distinctly alleged. The township is prima facie bound to repair all highways lying within it. And as to that, a general allegation of duty is sufficient. But when it is sought to charge an individual, the obligation to repair, not being of common right, should be stated, not by the words he ought, &c. or he took upon himself &c. but the nature of the obligation should be set out. The language of the books is uniform to this effect. In the case of The King v. The Inhabitants of Penderryn, 2 Term-Reports 515, the court say, “ This indictment |s clearly bad; for being an attempt to charge part of a parish only with the repairs of the road, which is against common right, it must be-shewn expressly how they were liable. This is an objection to the substance, and not merely to the form.” And in 2d Saund. 158, note 9, it is laid down, that “ the inhabitants of a particular-division of a parish are not bound to repair by common law; and therefore the indictment ought to shew the., custom, prescription, or reason of their obligation.” And see to the same-effect, 5 Term Rep. 398 ; 2d do. 111; 5 Burr. 2700; 3 Bacon's Abr. 498. I am therefore of opinion that this indictment should be-quashed.

Judgment quashed.

Cited in Green v. Kleinghaus, 2 Gr. 476; State v. N. Y. Turnpike, Co. 1 Harr. 225; State v. Dayton, 3 Zab. 53.