Commonwealth v. Bredin

Opinion by Mr. Chief Justice Sterrett, In the indictment before us the Burgess and Town Council of the Borough of Leechburg are charged in due Jorm with maintaining a common nuisance, the nature and character of which are fully set forth in that instrument. As described in [228] the indictment, and by the first witness examined on the trial, the purposes fox’, and the manxxer in which, the sewer in question was used, and the filthy condition in which the defendants permitted it to remain, made it exceedingly offensive to everybody in the neighborhood axid rendered it a veritable disease and death-breeding nuisance. It is a mistake to suppose that the persons named in the indictment, as then being the burgess aixd councilmen of said borough, were indicted as individuals and not in their corporate capacity. In 1850, the town of Leechburg was erected into a borough, by the name, style and title of the “ Burgess and Town Couxxcil of the Borough of Leechburg: ” Act March 22,1850, P. L. 305. In 1888, the borough accepted the provisions of the general borough act of 1851, the 13th section of which invests borough officers with the power “ to prohibit arxd remove .... any nuisance or offensive matter, whether in the highways or in public or private grounds; ” and section 17 of same act gives them power “ to make such other regulations as may be necessary foi; the health and cleanlixless of the borough.” It does not appear that any such regulations were ever made. The power to abate the nuisance complained of was therefore exclusively in the defendants; and oxx them, as burgess and councilmen of the borough, rested the public duty of abating it. Their neglect to do so was a misdemeanor, punishable by indictment, etc. It would be a bad state of affairs if the law were otherwise. The principle is thus stated in Dillon on Municipal Corporations, sec. 932: “ Corporations are generally regarded as indictable for misfeasance, as well as non-feasance, respecting duties of a public nature plainly enjoined by the legislature for the benefit of the public. The modern view is to assimilate corporations, as to their duties and responsibilities, so far as possible, to individuals. It is admitted that they cannot be indicted for felonies, but it is clear that they may be indicted for acts done to the injury and annoyance of the public, and which amount to a nuisance.” Where duties of a public nature are imposed upon municipal corporations, they are liable to indictment for neglecting to properly discharge such duties : 15 Am. & Eng. Enc. of Law, 1196,1197, Wartman v. Philadelphia, 33 Pa. 202, 210. [229] The indictment was based upon the return made by the borough constable to the court of quarter sessions. It was his duty to make the return, and while it was informal, as many of such returns are, it was deemed sufficient by the court, and we are not prepared to say it was insufficient. It was made under oath and, in answer to the question: “ Any other violation of law?” the constable’s reply was: “Yes; see notice hereto attached.” The notice being thus, in effect, made part of his return, the latter was sufficient to support the indictment. There is no merit in the last specification of error. For aught that appears, the defendants were all in office when they were found guilty of maintaining the nuisance. If, as to some of them, their terms of office subsequently expired, it may be a sufficient reason why that part of the sentence,—requiring abatement of the nuisance,—cannot be enforced against them, but it is no good reason why they should not be compelled to comply with so much of the sentence as relates to payment of costs. The court below will see that no injustice is done either of them in that regard. Neither of the assignments of error is sustained. They are all sufficiently technical, but lacking in merit. Judgment affirmed with costs to be paid by appellants; and it is ordered that the record be remitted to the court below, to the end that the sentence (as far as practicable) may be enforced.