Wragg v. Penn Township

Mr. Justice Dickey delivered the opinion of the Court: This action was originally brought before a justice of the peace, by the Town of Penn, in Stark county, against Samuel Wragg and Edwin Holmes, to recover a penalty for the obstruction of a public highway, and was taken by appeal to the circuit court of that county. i Judgment was rendered by the court against the defendants, to reverse which an appeal was taken to this court. The penalty is sought to be recovered under section 58, chapter 121, Revised Statutes of 1874, which is as follows: “ If any person shall injure or obstruct a public road by felling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, or by encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon, or by turning a current of water so as to saturate or wash the same, or shall leave the cuttings of any hedge thereon for more than five days, shall forfeit for every such offence a sum not less than $3 nor more than $10; and in case of placing any obstruction on the highway, an additional sum of not exceeding $3 per day for every day he shall suffer such obstruction to remain after he has been ordered to remove the same by any of the commissioners of highways, complaint to be made by any person feeling himself aggrieved : Provided, this section 'shall not apply to any person who shall lawfully fell any tree for use and will immediately remove the same out of the road, nor to any person through whose land a public road may pass who shall desire to drain his land and shall give due notice to the commissioners of such intention: And, provided further, that any commissioners or overseers of highways, after having given reasonable notice (to the owners) of the obstruction, or person so obstructing or plowing or digging ditches upon such road, may remove any such fence or other obstruction, fill up any such ditch or excavation, and recover the necessary cost of such removal from such owner or other person obstructing such road aforesaid, to be collected by said commissioners before any justice of the peace having jurisdiction.” Section 60 of the same chapter provides that the suit shall be in the name of the town in which the offence is committed, and section 61 of the same chapter provides that all fines recovered shall be paid to the commissioners of highways of the town, to be expended upon the roads and bridges in the town. It appears from the record that the road or public highway in question was established by the commissioners of highways of the town of Penn on June 4th, 1866; that the road as thus established covered certain parts of the lands of each of the appellants; that near the land of the appellant Wragg a pond or slough was situated in the road, which was impassable, except when the pond was frozen in winter or dried up in a dry season; and that at other times persons going along on the road were compelled to leave the line of the road and make a circuit of about twenty rods on the land of another party in order to get around the pond and back again on the road. It further appears that the appellant Holmes, at the time the road was established, had a fence across the line of the road at the south line of his land, which was supplied with bars, through which persons traveling along the road passed. This fence was not removed immediately after the establishment of the highway, but, according to the testimony of the majority of the witnesses testifying to that point, was removed before 1869, but not by the commissioners of highways. No fence was erected in its place until about the 20th of September, 1876, when a four-board fence was erected by the appellants at that point across the entire width of the road, with the avowed purpose on their part of obstructing the road and preventing the use thereof. It further appears, that in 1869 the appellant Wragg built two fences on his land down to and upon and across the road, which remained there until May 29, 1871, when they were removed by the commissioners of highways after having given him more than sixty days’ notice to remove the same. While these fences were standing travel was impeded but not wholly prevented on the road, for persons wishing to pass went around the fences on the land of another party and regained the road beyond. When the fences were removed there was no obstruction to travel for the entire length of the road as established by the commissioners of highways, except the inconvenience of getting around the pond near Wragg’s land ; and the road had been used for travel before his fences were erected in 1869. It further appears that the appellants, after the road was established in 1866, set back their hedges along the road so as to conform to the line of the road as established. On October 23, 1876, notices in writing were served on appellants by the commissioners of highways to remove the obstruction which they had erected in the highway at the south line of Holmes’ land, which they refused to do. The evidence shows that the fence is still standing. Summons was issued on Nov. 3, 1876. The appellants contend that section 58 of chapter 121, under which the suit is brought, has been repealed by section 221 of the Criminal Code (chapter 38, Rev. Stat. of 1874), which was subsequently enacted, and which provides that it is a public nuisance to obstruct or encroach upon public highways, private ways, streets, alleys, commons, landing places and ways to burying places. Section 222 of the same chapter provides, that “ whoever causes, erects or continues any such nuisance shall, for the first offence, be fined not exceeding $100, and for a subsequent offence shall be fined in a like amount and confined in the county jail not exceeding three months. Every such nuisance, when a conviction therefor is had in a court of record, may, by order of the court before which the conviction is had, be abated by the sheriff or other proper officer, at the expense of the defendant; and it shall be no defence to any proceeding under this section that the nuisance is erected or continued by virtue or permission of any law of this State.” The act of obstructing a highway is declared by the Criminal Code to be a nuisance punishable by indictment, and the same act, under section 58 of chapter 121, is made punishable by suit in the name of the town to recover a penalty. The two statutes apply to the same act, and affix different penalties, and provide different modes of procedure for the punishment of their violation. The appellants contend that inasmuch as the act prohibited in each statute is the same, the offence is single, and only one penalty or punishment can be attached to one offence. And that the act declaring the obstructing of a highway a nuisance punishable by indictment having been enacted after the one which made the obstructing of a highway punishable by suit to recover a penalty, the former law has been repealed by implication as being repugnant to and inconsistent with the last expression of the law-making power. ¡Repeals by implication are not favored by the courts, and unless the two statutes can not be reconciled they must be allowed to stand. The question presented for decision is not free from difficulty. The theory of appellants’ counsel is, that a criminal act is necessarily but one offence and may be punished in one way only, and that the party can not twice be put in jeopardy for the same act. But this is clearly not the law. In the case of Fox v. State of Ohio, 5 How. 432, the Supreme Court of the United States held, that passing a counterfeit coin which was punishable under Federal law, might also be punished by the State as a crime; that the same act was an offense against the Federal government and against the State government, and that the State law prescribing a punishment for the crime was not repugnant to the constitution, and that although the party might be convicted for violating both statutes, still he would not be twice put in jeopardy for the same offence. „ •