#### The State *against*The Morris Turnpike Company.

ON INDICTMENT.

THE *Morris Turnpike Company,*was indicted at the Sessions in *Morris*county; for not repairing a bridge, the line of the road in the township of *Morris,*called the log bridge, which had fallen into great decay, so as impede the travelling. The indictment was removed by certiorari, and a state of facts in the following words was agreed upon, and presented to the court.

Indictment for not repairing bridge. (a)

Company not liable.

“ The *Company*was incorporated by statute, passed the 9th day of March 1801, entitled “ An act for facilitating the communication from *Elizabeth-Town,*in the county of *Essex,*through *Morris-Town,*in the county of *Morris,*and from thence into the county of *Sussexpro ut*the same-

“ On the 26th of *February*1802, the *Company,*under *188their common seal, laid out a road across the state. It at *Elizabeth-Town-Point,*and extended through the counties of *Essex, Morris*and *Sussex,*to the river *Delaware,*opposite the town of *Milford*in *Pennsylvania.*The whole distance was 62 miles, 71 chains and 57 links.

*“ The efforts of the *Company*failed in trying to procure subscriptions to a policy for the whole distance at once. They therefore opened and got a policy filled, for only one district, embracing part thereof. When, after years, this was completed, they got a policy filled for a second district; and this being done, they opened another subscription, under which they formed their third and last district, over the *Blue Mowntain*in *Sussex.*

*“*These districts, taking their aggregate distances, amounted to only forty-eight miles, 77 chains and 71 links. Commissioners appointed- by the Governor, inspected and certified them to be completed, according to law. Whereupon the Governor, by license under the great seal, bearing date the 3d day of *January*1810, permitted and granted to the *Company,*a license “ to erect across the said road, the whole distance whereof, is 48 miles, 77 chains and 71 links,” eight gates, and to take toll for said distance. The *Company*have never taken, nor pretended a right to take toll for any greater distance. There still remained 13 miles, 73 chains and 86 links of the route undone, the power of the *Company*to do which, had expired at the date of their said license, by a limitation in the 14tli section of the statute. To do this remaining part, would require a capital of between twenty and thirty thousand dollars, which the *Company*has no right to raise by subscription, and their funds otherwise are totally inadequate, their dividends having never amounted to two per cent, on the capital expended.

“ When the *Company*foresaw their inability to complete, the whole distance, and that part of it must necessarily be left undone, they formed their turnpiking districts so as to include those parts generally, which were the most expensive, rough and mountainous ; which heavy loaded carriages, had ever found impassable, and so as to leave unexecuted generally, only such parts, as, being public highways, under the care of township officers, were natu*189rally level, firm and good, or in such a state as not to impede loaded carriages greatly at any time.

“Hence, the fourteen unfinished miles were not continuous, a distance of from ten to twelve miles of turnpike road, parting them from each other. Thus, a part of the free public highway, 36 chains and 75 links in length, extending from the *Presbyterian Church*on *Morris-Town*green, across said green or common, and so along *Bridge street*and the plain ground beyond it *was omitted, being naturally a dry, level and good piece of road at all seasons, passing over a small stream of water, under very high banks, over which (at the time the *Company*formed their districts) there was a good county bridge. Within about one year this bridge having fallen down (which is the bridge mentioned in the indictment) the *Company*is indicted for not repairing it. No part of this 36 chains (including the said bridge) was ever turnpiked or repaired by the *Company.*They never took toll, nor were licensed by the Governor to demand toll for any part of it. It has always been a free public highway, repaired by the township officers, as such, during the whole existence of the Company, almost seventeen years last past, until the falling down of the bridge, about a year ago.

“ If the court should be of opinion that the *Company*are bound by law to build the said bridge, it is agreed that the attorney for the *Company*shall retract their plea, and plead guilty ; but if the court shall be of the contrary opinion, it is agreed that a *nolle prosequi*shall be entered on the indictment.”

*A ttorney General*for the state. *G. II. Ford*for defendant.

(a)

 See *State vs. Morris & Essex, R. R., 3 Zab. 360. State vs. Morris & Essex, R. R., 1 Dutch. 437. State vs. Morris Canal, 2 Zab. 537. Ward vs. Newark, &c. Turnpike Co. Spen. 323.*County is not liable. *State vs. Inhabitants of Hudson, 1 Vr. 137. Freeholders &c. vs. Red Bank, 3 C. E. Gr. 91. Freeholders vs. Strader, 3 Har. 108. Cooley vs. Freeholders, 3 Dutch. 415. Livermore vs. Freeholders, 2 Vr. 507. Pray vs. Jersey City, 3 Vr. 394.*

Kirkpatrick C. J.

There was a *certiorari*directed to the Court of Quarter Sessions of the peace, of the county of *Moms,*to remove the above indictment into this court, and the justices have sent up the indictment itself, probably taken from their files (though it is not marked filed) together with the original recognizance upon the allowance of the writ, and a copy of their order, directing the said writ to be returned; all which are certified by the clerk, under the seal of the court; and which, in the said *190certificate, are said to be all things touching the said in-in the said court remaining.

There is no record returned, nor materials of which this court can make a record; there is no caption; it qoes no^ appear when the indictments were found, nor by whom they were found, nor by what authority, nor to whom presented.

The mere endorsement of the time of finding, on the back of the indictment, or the placing of it at the head or at the foot of the same, by the *Attorney General*or by the clerk, is not sufficient. It makes no part of the record. It must always appear, and it can lawfully appear only in what is called the caption, that *is, that part of the record which recites all the circumstances introductory of the indictment itself.

The legitimate office of the *certiorari,*in these cases, is to bring up the record, and not the papers, from the files; unless such papers be specially called for; and this record, when brought up, must contain distinctly, in itself all the matters above specified ; for otherwise it contains no lawful charge upon which the citizen can be put to plead, or brought to trial.

But inasmuch as the *Attorney General*and the turnpike company, for the sake of saving trouble and expense, have submitted the question, as to the liability of the said company to keep up and maintain the said bridge, in the said first indictment mentioned, upon a case by them stated; and inasmuch as the court are willing to meet their wishes in this respect, and to put an end to the controversy, especially as it affects the public travel-ling, and general convenience of the country, therefore they have thought proper to look into it.

Having the liability of the company only in view, it is not necessary to examine the form of the indictment, to which objection might be raised. It is sufficient to say, that it charges, in substance, that a certain bridge, commonly called the log bridge, in the county of *Morris,*which the said *Company*were bound to keep up and maintain, was from the 1st of *October*1815, until the finding of the said indictment, suffered to be in great decay, broken, ruinous, &c. And

*191The case raised upon this indictment, and sxibmitted to the consideration of the court, is in these words, wit. (See case.)

Upon looking into this act, we find it enacted among other things in sec. 10. “ That as soon as the said *Company*shall have completed twelve miles of the said road, they may apply to the Governor, who shall appoint commissioners to view the same, and if they shall report that the same is finished according to the true intent and meaning of the said act, he shall by license under his hand, permit them to erect two gates or turnpikes thereon, and to receive and take toll, &c. and in like manner, for every six miles thereafter so made, approved, &c. to erect one gate, take toll,” &c.

We find it further enacted in sec. 14, “ That if the said *Company*shall not commence their operations within two years after the passing of the said act, or shall not within seven years after*wards complete the said road, then all their powers shall cease, be void, and of no effect, *so far as may relate to the parts unfinished.”*

In the making of the road, the act prescribes no particular place of beginning, no particular portion which shall constitute the said first twelve miles; nor does it direct that the reaches of six miles, afterwards to be made and licensed, shall be contiguous to, or in continuation of the said first twelve miles or of one another.

All this was left to the discretion of the *Company;*and it was so left, no doubt, because it was obvious that the private interest of the *Company*was so blended with the public convenience, that the one could not be promoted without promoting the other also. The *Company,*in the exercise of this discretion, have thought proper to leave certain intermediate spaces unmade, and so far as relates to these, their power, by the provisions of' the act, has long since ceased. Instead, therefore, of being obliged to go on and finish these intermediate spaces, of which the space on which this bridge stands is one, they are expressly prohibited from so doing. The law cannot impose a penalty for not doing that which it prohibits to be done.

*192According to the agreement of the *Attorney General,*therefore, let a *nolle prosequi*be entered.

Southard J.

The case submitted, leaves but little for ^g c01irt to resolve.

' The *Company*is indicted for not repairing a bridge on the line of the road. The defence is, that it is not a part of the road, and that they have now neither power over it, or authority to build or repair it. And this defence seems to be admitted by the facts stated. It is probable that the legislature did not anticipate such a case as has occurred. It no doubt intended, that the parts of the road which were made, should lie adjoining each other, and not that a short space should be permitted to intervene, throwing upon the public so expensive a burthen, as this bridge.

But we must construe the grant to the *Company,*according to the manifest meaning of the words, and these seem to justify the following remarks. 1. The parts made must be on the line of the road, and contain six miles, but need not adjoin each other. 2. The power to compel the *Company*to make the road ^'continuous, if it existed at all, ought to have been exercised before the Governor granted a license; 3. After seven years from the passing of the law, the power of the *Company*ceased, over all parts of the line of the road, which was not then completed. Nothing short of a legislative act, could revive their power. If these remarks be correct, all doubt is at an end. The state of the case affirms, that the road as it is now used, was regularly licensed; that the distance of thirty-six chains, including this bridge, never was turnpiked or licensed; and that the seven years have long since passed away. It necessarily follows, that the *Company*cannot make this bridge, and therefore, cannot be convicted under this indictment.'

*Nolle prosequi*entered.