
    Commonwealth versus Francis Heare.
    A statute establishing a turnpike road, authorizes a gate to be erected at such place near A, as the justices of C. C. P. shall determine; and the justices determine it shall be erected at B, near A, or at any place between B and C, at the election of the proprietors: this is not an execution of the power granted to the justices by the statute.
    This case came before the Court, on a motion for a new trial, upon an exception to the direction of the judge in the trial of an indictment against the defendant for a nuisance in erecting and continuing a gate and fence across a certain public highway in Egremont, known as the Twelfth Massachusetts Turnpike. The defendant justified the erection of the gate, by virtue of [ * 108 ] * certain proceedings of the Court of Common Pleas of this county, had pursuant to the statute establishing that turnpike; and, having given the record of those proceedings in evidence to the jury,
    Sedgwick, J., before whom the trial was had, directed the jury that the record was not sufficient in law to justify the defendant in erecting the gate, and he was convicted. To this direction the defendant excepted.
    The statute authorizes the corporation, after the turnpike should be finished, and approved by the justices of the Court of Common Pleas at any term thereof, to erect one gate on the same in such convenient place, near the house of George Messinger, as those justices should determine.
    The justices, upon the application of the corporation, had ap pointed a committee to examine and report whether the road ought to be approved pursuant to the statute. The committee reported in favor of the approbation, and further recommended to the court that the corporation be authorized to erect one of their gates (which is the gate complained of) at a place called Molasses Hill, near George Messinger’s, or, at their election, at any place, on said road, between Molasses Hill and the dwelling-house of Roger N. Miller, in said Egremont. The court passed an order “ that this report be accepted.”
    The counsel for the prosecution made two exceptions- to these proceedings: — 1st. That the acceptance of the report, without any further order, gives no authority to the corporation to erect any gate; and, 2dly. If the acceptance of the report did vest the corporation with the authority recommended by the committee, the proceedings of the court are void, not being an execution of the power given to the justices by the statute.
    The counsel for the defendant contended that the proceedings of the Court of Common Pleas substantially pursued the provision of the statute. There was no necessity for the appointment * of a committee, or for an application to the court for [ * 104 ] their approbation of the road, or for permission to erect a gate. If by any means the justices obtained the necessary information, it was enough. It appears, by their acceptance of the whole report of their committee, that they were satisfied as to the due completion of the road, and that they concurred in the opinion of the committee respecting the place for erecting a gate, which was in effect “ determining ” the place.
    The limits reported by the committee and adopted by the Court are not necessarily larger or more indefinite than the limits assigned in the statute. The statute says the gate may be erected at such place near G. M.’s dwelling-house as the justices shall determine. The justices, in executing the statute, say it shall be erected at a place called Molasses Hill, near G. M.’s dwelling-house, or between that and another place, which is fairly to be presumed also to be near G. M.’s dwelling-house. They name certain extremes, beyond which the corporation must not go, because, beyond these, they could not be considered as near the house of Messinger.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

It is not necessary for the Court to form any opinion as to the first exception taken to the proceedings of the Court of Common Pleas by the counsel for the government; because we are satisfied that the second exception is fatal. The location of the gate, as described in the record, cannot, upon any just construction we are able to give the words, be considered as an execution of the power granted to the justices of the Common Pleas by the statute establishing this turnpike. And a new trial is not granted.

The Attorney-General (Sullivan) and Ives for the commonwealth.

Hulbert for the defendant.  