
    Thomas U. White v. The State of Ohio.
    Section 5 of the act for the protection of the Ohio canals, was intended to prevent persons from traveling on the "banks of the canal, without regard to its safety, except in the excepted cases, and in cases of urgent necessity.
    That, to prevent vexatious prosecutions, and to insure prompt action in cases requiring it, a discretion is vested in the officers having charge of the-canal, and exclusively authorized to institute the prosecution.
    In cases of error to the Supreme Court, no writ of error is required "by the-statute; if allowed in bank, the official signatures of the judges to the allocatur, or a copy of the journal entry; if by two judges in vacation, their official signatures to the allocatur, furnished to the clerk of the county, is the proper way of officially informing him of the allowance of the writ.
    This is a writ of error to the Supreme Court for the county of Fairfield.
    On April 11, 1842, Samuel G-. Foster, as superintendent of the Hocking canal, made complaint before a justice *of the peace against plaintiff for having, on that day, driven a horse and buggy on the towing-path of the canal. Plaintiff was arrested upon the complaint, tried, eonvict-ed, and fined five dollars and the costs. From this judgment he appealed to the court of common pleas, in which a declaration in debt upon the statute was-filed against him. To this he interposed a plea of nil debet, with a notice, in substance, as follows:
    That he would give in evidence, on the trial, that at the place on said towing-path where he entered upon the same with his-said horse and buggy, a common public highway, laid out by act of the general assembly, over which all persons were accustomed) to pass with carriages, etc., crossed the said canal. That, at the-time when, etc., the bridge across the said canal, over which said highway passed, was founderous, and then unsafe, and impassable, to be passed over. That he, being then, etc., passing along said highway, and desirous of crossing said canal, was, by reason of the founderous state of said bridge, unable to cross said canal at that point; wherefore, he drove bis said horse and baggy on and along said towing-path to the nearest practical point for crossing-said canal, to get upon said highway on the opposite side of said canal, doing no unnecessary damage. And that the only passage or way from, the point where said highway so crossed the canal, to the point.where plaintiff did so cross said canal, was along said towing-path so passed over by him. On motion, this notice was stricken from the files, as constituting no bar to the action.
    The cause was submitted to the court upon the issue joined, and upon the evidence, judgment was rendered against the plaintiff for five dollars and costs.
    A bill of exceptions was taken during the progress of the trial, showing that plaintiff offered to prove the facts set forth in the notice, with only this variation, “that the route taken along the towing path was the nearost route to regain the highway, and that there was no other way of regaining it on the opposite side of the canal, except by .going back, and taking a circuitous route,” and that ■ the court overruled the evidence.
    *A writ of error was prosecuted in the Supreme Court, and the following errors were assigned :
    1. That the court of common pleas erred in striking out the special notice.
    2. In overruling the testimony.
    3. In giving judgment for the state.
    At the November term, 1843, the cause was heard, and the judgment affirmed. An allocatur, signed by all the judges, appears upon the transcript; but no writ ever issued.
    The error assigned, that the Supreme Court affirmed the judgment of the court of common pleas.
    Stanbnry & Van Trump, for plaintiff.
    Hunter & Garaghtz, for defendant.
   Birchard, J.

Section 5 of the statute for the protection of the Ohio canals (Swan’s Stat. 174) is in these words : “ Hvery person who shall lead, drive, or ride any horse, ox, or ass, mule, or other animal, upon the towing-path, or the bank opposite the towing-path of any canal, authorized by the laws of this state, except for the purpose of towing boats, or other floating things, upon the waters thereof, and except for the purpose of conveying articles to and from said canals, in order to their transportation on the waters of the same, or their delivery at their place of destination, shall forfeit, for every such offense, the sum of five dollars, and pay all damages consequent upon such offense, over and above said forfeiture.”

Section 37 of the act confers the power to prosecute in the cases provided for by section 5 exclusively upon certain officers in charge of the canals, as members of .the board of public works, resident engineers, superintendents, etc.

^Section 135 gives a right of action to the party injured against any such officer who shall institute a suit without probable cause.

In coming to a conclusion upon the merits of this case, it is important to bear in mind the mischief provided for, as well as the remedy. The state had learned, by the experience of some fifteen years, that people, especially in seasons of heavy traveling and bad roads, were in the practice of avoiding the deep mud of the roads, by traveling upon the banks of the canal, and not unfrequently, without regard to consequences, selfishly looking to their own convenience, to the exclusion of all care for the safety of the canal, or for the injury done to the state. By intrusting to the officers in charge of the public works, the exclusive right to prosecute for violations of the law, the legislature intended that the law itself should not become an instrument of mischief in the hands of every evil-disposed or litigious person, enabling them to prosecute for every casual or harmless act of riding or driving upon the banks of the canal. But that the power to prosecute should be used at the discretion of the officers named, to prevent the mischief to be remedied, whenever, in their judgment, the public interest required. The subject is of such a nature that a law, less general, would, in many instances, fail in securing the necessary protection. Hence, we may suppose, were employed the absolute terms which are to be found in section 5. To avoid the evil of frequent vexatious prosecutions, and to secure prompt action when meritorious causes exist, the discretion to prosecute or omit it, is confided to sworn and competent officers, who act under the responsibilities imposed by section 135. Can the court interfere with this discretion, in a case coming within the letter of the law? This is a question of some importance, yet we are not prepared to say that the record makes it incumbent upon us to pass upon it. Admitting, for argument, that a court might interfere, by refusing to render judgment in a case strictly within the letter, but not within the spirit, of the act, it does not follow that the judgment of *the Supreme Court, affirming the judgment of the common pleas, was erroneous. The notice which was stricken out, and the bill of exceptions, do not show a case of absolute necessity for traveling upon the towing-path. They only show that it was the nearest route. By implication, the notice, and in terms the proof offered, show that a practical route, a little more circuitous, could have been taken. They therefore only show that the plaintiff’s convenience, not his necessities, induced him to do the act which the superintendent of the canal regarded as a violal’on both of the letter and spirit •of the law. In our opinion, the object of the act was to prevent men from making a mere matter of personal convenience paramount to any consideration of safety to the public interest. The design was to punish those who, to avoid a little inconvenience, or •to save a few moments’ time, would do acts tending to endanger a great and important public work.

No writ of error, having issued from the court in bank, to the Supreme Court of the county, a question arises, whether this court has jurisdiction of the case. In cases where writs of error go from the Supreme Court to the courts of common pleas, the cause is not considered before the former until after the service of a writ, with a citation to the opposite party, or an appearance entered, with a waiver of notice.

The writ from this court to the court upon the circuit is, however, a creature of the statute. Swan, 690. Section 2 authorizes the court in bank, or any two judges in vacation, to allow such writs, requiring them to be prosecuted within one year after the rendition of the judgment complained of.

Section 3 makes it the duty of the clerk of the Supreme Court of the county where the judgment sought to be reversed was entered, on being officially advised of the allowance of such writ, to make out an authenticated transcript of the record, on which the plaintiff in error shall enter an assignment of errors, with a prayer for a reversal, and forthwith transmit it to the clerk of the court in bank, to be by him entered on the docket of said court.

The clerk of the county is further ^required to issue a citation, which must be served twenty days before the sitting of the court in bank. This seems tobe all that is required by statute to give the court in bank jurisdiction. The clerk of the county must be officially informed of the allowance to entitle him to act. In what manner he shall be so informed, seems to be indicated by the statute. If the allocatur is by the court in bank, the official signatures of all the judges, or a majority of them, to ■the allocatur, or a certified copy of the journal entry, is the proper way of officially advising him. If allowed by two judges in vacation, their official signature to the allocatur is all that is required.

Judgment affirmed.  