
    State vs. Town of Whitingham.
    Windham,
    February, 1835.
    A town is liabía to an indictment for not erecting a bridgo, ordered by the road commissioners/
    ífc is not nedessa?y, in such indictment, to set forth that the selectmen h'adf previous to such order, neglected to build such bridge.
    Where an appeal was taken from the decision of the road commissioners, and a committee appointed by the county court, such committee were not reqai-red to make any new order, but only to reverse or affirm the order of tho-commissioners.
    Indictment for not building a bridge ordered by the road com--míssioners. The indictmet read as follows :•
    “ That on the 29th day of April,. A. D. 1829, upon the petition' of Zachariah Wheeler, and more than twenty others, inhabitants and freeholders of Whitingham and vicinity, in said county of Wind-ham, to the road commissioners for said county, who were duly appointed and sworn into office, it was by the said road commissioners (after due notice given to the selectmen of said town of Whiting-ham) ordered and adjudged that a bridge be erected and established across Deerfield river, within said town of Whitingham, beginning in the centre of Mill-Brook- Road,-so called, on the easterly bank of said river, one rod from the beech-tree standing on the bank of said river, marked on a course, south thirty-four degrees west from said beech-tree, running from thence west forty-six and a half degrees north, till it intersects the road on the west side of the river,- leading to Readsboro’; and that the said town of Whitingham should within one year from the first day of November then next, erect and build across Deerfield River, at the place before mentioned, a good and substantial bridge, at least- sixteen feet wide ; — and after the making said order and adjudication, the same was duly recorded in the office of the town- clerk of the town of Whitingham aforesaid ; — and the jurors aforesaid, on their oath aforesaid, further present, that within twenty days from the' time of making said order and adjudication, the selectmen of said Whitingham demanded of the clerk of said road commissioners an appeal from said order and adjudication ; and such proceedings were thereupon had, that Martin Field, William H. Williams, and Edward Houghton, a committee appointed by the county court, begun and holden at Newfane, within and for Windham county, on the third Tuesday of September, A. D. 1829, agreeable to the statute, on the 27th day of September, A. D. 1829, in all things affirmed said order and adjudication of the road commissioners aforesaid, and thereof made report-to the town clerk of Whitingham aforesaid,- and caused the sa'id report to be recorded in his office, and m'ade a like\[feport to the clerk of said road commissioners, and the same was by said clerk duly recorded. And the jurors aforesaid, on theirfoaths aforesaid; further present, that although the time designated in said order of the road commissioners, so offered as aforesaid, 'hath long- since closed, to wit, on the first day of November, A. D. 1830,- yet the town of Whitingham aforesaid,- not regarding said order, hathjnot built and erected, nor caused to be built and erected, any bridge across Deerfield River at the place designated in said order, nor have the'selectmen of sad Whitingham, built and opened [a bridge according to the direction of said order. But on the contrary, the said town of Whitingham, from the date of said order, and continually afterwards, until the day of taking this inquisition, haverneg-lected to erect a bridge across Deerfield River,-within said town of Whitingham.
    
      Plea — General Demurrer,:
    
    
      Mr. Keyes for defendant.
    —1. The demurrant contends, that the indictment does not set forth sufficient matter on which to ground a conviction.
    In counting upon the doings' of inferior tribunal's, all those facts must be averred which are necessary to exist to give such tribunals jurisdiction. — 4 Mass. Rep. 361. — 7 Mass. R. 79.-9 Mass. R. 543. — 11 Mass. R. 507.
    It appears from the indictment, that the road commissioners undertook to locate a bridge, which was exclusively within the jurisdiction of the selectmen, and the proceedings were coram, non ju¿ dice. — Stat. 1827, p. 13. — Stat. 1806; p. 437.
    The indictment shows no existing order upon the town for the making said bridge. The appeal vacates the order of the road' commissioners, and no order was afterwards made. — Statute 1828,-P* 9-
    2. The neglect of the town to build the bridge, is riot an offence* for which they are liable to indictment.
    Roads and bridges-' are creatures of the statute, and the statute? authorizing them is intended to be a complete system, and varies' the common Isw. — Doyalton vs. Fox, 5 Vt. R. 458.-
    But the statute in existence at the time the bridge wás laid/applied the remedy, which was new and unknown to the common1 law. — Stat. 1827, <§> 6.
    When a statute makes a new offence, not prohibited by the gout-'-mon jaw and appoints a particular proceeding against the offender, , . . . Í. , , , . .. , without mentioning an indictment, the remedy by indictment does not lie, because the mentioning the other remedies impliedly ex-eludes the indictment. — Hawk. P. C. chap. 2-5, §4, p. 211. — 2 Keb. 34 & 2T3. — Cro. Jac. 643.-2 Roll. Rep. 247. Rex vs. Robinson, 2 Burr. Rep. 805, & 803. — Rex vs. Royal, 2 Burr. Rep. 834.
    Indictments for such offences are not consistent with the genius of republican governments ; and even the courts in England frown, upon indictments where there is another remedy. — Rex vs. Robin-ton, 2 Burr. Rep. 804. — Rex vs. Royal, 2 Burr. Rep. 834.
    In the present case, there is ample provision in the statute of 1832. — Stat. 1832, p. 7, § 2.
    If it be said that where the statute appointing a particular reme-» dy is in a different section from the section imposing the duty, either the particular remedy or the indictment may be resorted to, we answer, in the present case, no duty is imposed on the town except what the section giving the remedy creates. — King vs. Harris, 4 T. R. 202. — 2 Hale P. C. 171.
    If it be said the repeal of the road law, in 1831, revived indictments, we say, the repeal could not revive what never before existed, neither can indictments arise by implication.
    Again, at the time this offence was committed by the town of Whilingham, the road commission law was in force. By the 9th section of that law, it is provided that hereafter no presentment or indictment be had against any town for not making or repairing any highway or bridge laid or ordered to be made by said commissioners. — Stat. 1827, $ 9, p. 15.
    Therefore the statute of 1831 (or any law that the legislature could pass) if construed to permit indictments for such offences, would be ex post facto and void. — Constitution U. S. art. 1, >§>10.
    The ca'se in fifth Ver. Rep. in principle settles this case, — Roy-aitón vs. Fox, 5 Vt. R. 458.
    
      Mr. Field and Mr. Bradley for the State.
    
    — 1. The first objection at the court below was, that the indictment (which was for not obeying an order of road commissioners) did not show that application had been made to the selectmen before the petition was made to the road commissioners. To this it is- answered, 1, That that fact need not be averred in the indictment, but will be presumed to have existed. 2. That by not pleading it before the commissioners, or at the county court, on the appeal, all advantage from the-want of such previous application, has been waived; and, 3, That at any rate, the order cannot be impeached for such cause in this proceeding, but must be avoided, if at all, by certiorari. — See Rowland vs. Veale, Cowp. 18. Belle vs. Broadbent, 3 T. R. 185. 1 Saunders, in note, 92.
    2. The second objection was, that the statute of 1806 prescribes a different remedy, which must be pursued; and that an indictment will not lie. — Stat. 437.
    To this it is answered, that the indictment is good at common law, and is not affected by that statute. — See Rex vs. Belme, Cowper’s Rep. 648. 2 Burr. 799. 4 T. R. 205. 8 East. 41. Also 2 Chit. Crim. Law, 139, note.
    The 5th section of the act of 1806, expressly saves the remedy by indictment. It is also contended, that the liability under the order was cast not on the selectmen, but upon the town, and that no penalty is incurred by the selectmen in not complying with it;— consequently, if this remedy by indictment does not exist, there is none whatever, and the repealing act of 1831, which expressly saves the liability, has left the public without any remedy to enforce it.
   The opinion of the court was delivered by

Williams, Ch. J.

The indictment sets forth, that on the 29th day of October, 1829, an order was made by the road commissioners for the county of Windham, that a bridge should be located and established in the town of Whitingham, across Deerfield River;— that the town should make it in one year; — that an appeal was ta,ken from this order by the town — a committee appointed by the county court, in pursuance of the statute, who affirmed the order of the commissioners, and that the town have neglected to make the bridge, agreeably to th.e order.

To this indictment there is a demurrer. It is objected to the indictment, that if the town is liable to a proceeding of this kind, yet that the indictment does not set forth sufficient matter — as it is not alleged that the selectmen had refused or neglected to build a bridge, and further, that no existing order upon the town is se't forth, inasmuch as it is contended, that the order made by the commissioners was vacated by the appeal, and no order was afterwards made.

Upon the first of these exceptions, it is sufficient to remark, that the commissioners had, by the statute then in force, general jurisdiction over the subject of roads and bridges. If they' proceeded irregularly, or in a case where there had been no neglect or refusal by the selectmen, their proceedings were subject to be quashed on eertiorari. That in an indictment against a town for not complying with an order made by the commissioners, it is not necessary to aver the neglect or refusal of the selectmen; but from the commissioners’ having this general jurisdiction, it is to be presumed, that the selectmen had so far neglected, as to render their action necessary.

Ota the second objection, it is to be observed, that an appeal does not so far vacate an order of the commissioners, as to render a new order, by the committe, appointed by the county court, necessary. The .original order of the commissioners must contain all the directions necessary to effect the object; and this order is to be affirmed or reversed in toto by the committee. The committee could make no new order, nor add to, or alter the one made by the commissioners. On the most material question, whether an indictment can be maintained in such a case, it is to be remembered, that the general principle applicable to this subject, which we find, is this: that dispbedienc.e to an order of sessions, (who in England regulates the subjects of highways as well as others) is an offence indictable at common law. Where the court of sessions, or any other tribunal, are empowered to impose a duty on any corporation or individual, which affects or interests the public, a neglect to perform that duty, subjects those neglecting, to an indictment.

In Rex vs. Davis, mentioned in 2 Bur. 803, it was said, where two justieps yrerp .erppowpred to remove a pauper to the place of his last settlement, but no provision was made by the act to punish the officer who should refuse to receive the pauper, the only remedy was at common law, to indict him.

In Rex vs. Robinson, 2 Bur. 799, where an order was made up-qn a man for keeping and maintaining his ’grand-children, and he refused to obey the order, it was held that an indictment lay, notwithstanding there was a particular penalty, and a summary way to enforce it

In Rex vs. Royall, 2 Bur. 832, an indictment was sustained against the defpndapt, for not sending a cart and men to labor on the highway, in pursuance of an order of the surveyor of the highways- All these were indictments at common law, and sufficiently show that this is the proper and appropriate remedy tp enforce obedience to an order of sessions, in relation to a public duty or bur-ijiem The question then will arise, whether the order set forth in (this indictment is of that character, that a town neglecting to obey it, is liable to indictment at common law. That the order is by a competent tribunal, and that the burthen or duty affects the public interest, is unquestionable; but whether the towns are not exempted from indictment, or whether an indictment would ever lay against a town for not building a bridge, is to be learnt from the various statutes on this subject, comparing their provisions with those of the common law.

In the first statute in relation to highways, passed in 1797, no provision was made for building bridges. Bridges were considered as part of the highways, and if out of repair, the towns werte liable to be fined, if any special damages accrued to individuals, from the insufficiency or want of repair of the public bridges or highways.

•In November, 1806, an act was passed in relation to bridges.. — ^ Wherever a bridge was wanted, application was to be made to the selectmen by twenty freeholders, by the first of May in each year: If the selectmen refused to build the bridge in six months, application might be made to the county court, who, on the report of a committee, might make an order on the selectmen to build the bridge within such time as they should appoint. The selectmen were authorized to build such bridge, and raise money for that purpose by tax, without vote of the town, and to insure their compliance with the order, they were liable to a fine of five dollars a month for every month’s neglect to build the bridge. As the selectmen had ample and sufficient power for the purpose, this penalty was sufficient to induce them to do their duty, and was sufficient for the purpose. So far the towns were pot liable to an indictment, as the burthen was cast upon their officers, and the subject was out .of their control.

In the statute of 1827, under which the order set forth in this indictment was made, the law on the subject of roads and bridges was wholly altered. The road commissioners were empowered to make the order which had been previously made by the county court, and could assess and collect money sufficient to carry the same into effect. This act expressly declares,'that the towns shall not be liable to indictment. It is to be observed, that under this statute, the orders, decrees, &c. of the commissioners were to be made on the towns, and not on the selectmen ; and the remedy provided was by collecting the fine or assessment to build the bridge, directly from the town. Under this statute, the proceedings had by the road commissioners, against the town of Whitingham, so fa}’ as respects locating and establishing the bridge, and directing how and when it should be made, were complete, but the remedy was not enforced.

In 1831, the act of 1827 was repealed; but in the repealing act, there was a provision that it should not affect any liabilities already incurred. All remedies provided by the act of 1827, were, however, abolished by the repealing act of 1831. The proceedings had in relation to this town on the subject of this bridge, were then in this situation; — there was an order upon the town, made by a competent tribunal, to wit, the road commissioners, valid and subsisting, to comply with which, they were under a legal obligation; but the remedy provided by the statute, and the power of the commissioners in relation thereto, were abolished and taken away by the repealing act. By force of the same statute, their exemption from an indictment, was also abolished and taken away. They were then liable to any proceedings at common law or by stature, to enforce a compliance with the order, or punish their neglect, if they disobeyed the same. But inasmuch as no remedy was provided by the statute, and as a duty was imposed upon the town by an order from a known and competent tribunal, which they were under obligation to perform, a duty of a public nature, for the benefit of the public, a neglect to comply with which was necessarily highly injurious to the public, they are clearly liable to be indicted at common law, if they neglect their duty in this particular by disobeying the order. This was intimated in the case of Royalton vs. Fox, 5 Vt. Rep. 458, though not decided, as it was not a point directly before the court, in that case.

The statute of 1833 makes no provision for cases similar to this, and the statute of 1834, though it makes ample provision for future cases, yet can have no effect on this indictment, which was then pending; and further, it may be questioned whether the common law remedy is in any way affected by that statute, which only provides another remedy.

The opinion of the court is, that the indictment is sufficient, and judgment must be rendered, thereon.  