Commonwealth v. Reiter

Mr. Justice Mercur delivered the opinion of the court, May 10th 1875. Several special matters were alleged in the demurrer. As the [165] court filed no opinion, we are not informed on which the demurrer was sustained. That supervisors are liable to indictment for neglecting to open a public highway duly laid out in their respective townships, is well settled: Grafins et al. v. Commonwealth, 3 Penna. R. 502; Edge v. Same, 7 Barr 275; Phillips v. Same, 8 Wright 197. 1. The indictment recites at length the Acts of Assembly of 17th April 1869, and of 24th March 1873, which give the power and direct the manner of laying out this public road. It avers a due execution of that power, according to the requirements of the statute; and that the road was duly viewed and laid out in the township of Cascade, of which the defendants are supervisors. Thereupon, the Act of 17th April declares “ it shall, to all intents and purposes, be a public highway.” It, therefore, follows that the defendants were liable to an indictment for a neglect of their duty in regard to the road. 2. This assumes that the indictment was drawn under the fifth section of the Act of 17th April. This assumption is unwarranted. It is not justified by the record. The fourth and fifth sections severally prescribe under what circumstances the supervisors shall be required to open the road. Section four declares that “ upon notice by any person interested, the same shall be opened and repaired as other public roads are opened and repaired in said township.” Wherever there are supervisors, this power is lodged exclusively in them. No other person or official was authorized to open this road. An obligation was then imposed on those supervisors to expend the general funds of the township in opening it. Section five of the act assumes that some person or persons owning lands along the route of the road may have a special interest in the construction of certain portions of it sooner than the existing funds of the township will pay for its opening. In such a case, if the person so desiring it will advance the money necessary for that purpose, it is made the duty of the supervisors to let such portion to the lowest and best bidder. This indictment does not aver any of those special facts. It does not charge a violation of any duty imposed by that section. It is true that section is recited with the rest of the act; but the specific charge of ' dereliction of duty is under the fourth section. It is, that after notice by a person interested, the defendants have neglected and refused to employ laborers to open and clear the road, and have neglected and refused to open and clear the same. 3 and 4. It was clearly within the legislative power to so modify and change the law as to dispense with some of its former requirements. The supplement might impose a duty under certain facts which created none before. If the defendants were indicted for their neglect and refusal before the passage of the Act of 24th March 1873, to open the [166] road, then this point would have force; but inasmuch as it is for their neglect of duty thereafter, the principle invoked does not apply. 5. The indictment avers notice. The statute does not require it to be in writing. The reasonableness of the time intervening between the notice and the commencement of the prosecution was not a question of law to be declared by the court; but one of fact to be passed upon by the jury, having due regard to the season of the year, and the sufficiency of township funds. The learned judge, therefore, erred in allowing and sustaining the demurrer, and the judgment must be reversed. Judgment reversed, and judgment entered in favor of the Commonwealth, and the record is remanded for the court below to impose sentence.