#### '^Commonwealth v. Piper.

June, 1839.

Criminal Law — Surveyor of Road — When Liable to Prosecution. — 'Though the assignment of tithables to work on a public road has been made, not by the county court itself, but by one of the justices, designated for that purpose by the court, and has not been returned to the court or ratified by it, yet if the tithables so assigned do not refuse to work on the road, the surveyor is indictable for failing to keep the same in repair.

Adjourned case from the circuit superiour court of law and chancery for Washington county.

The defendant, Samuel Piper, surveyor of the precinct of the public road in said county, leading from &c. was indicted for failing to keep the said precinct in legal repair, contrary to the act of assembly. It appeared in evidence on the trial, that the county court, at the time of appointing the defendant surveyor as aforesaid, ordered that William Davis, a justice of the peace of the county, should assign him a list of tithables, by whose labour he was required to keep the road in legal order, and that Davis did accordingly assign a sufficient number of tithables to keep the said road in order, though such assignment was not returned to the court, or sanctioned by it: that, at the time specified in the indictment, the road was in such bad order as to be dangerous to passengers having occasion to use it: that the tithables so assigned to the defendant as surveyor did not refuse to work on the road, on account of the irregularity of the assignment, or for any other reason: and that shortly after the finding of the indictment, the defendant, by the labour of the tithables so assigned, did put his said road in proper order. The defendant moved the court to instruct the jury, that on such assignment as aforesaid, he had no power by law to coerce the said tithables to work on the road, and was therefore without legal means to perform his duty as surveyor of the same. The court instructed the jury, that, by the proper ^interpretation of the statute, it was made the duty of the county court to assign to the surveyor a list of tithables, and that on the assignment by William Davis, the surveyor possessed no authority to coerce the tithables to work on the road, in case they had refused ; but the court left it to the jury to determine from the evidence, whether the defendant was prevented by the irregularity of the assignment, or otherwise, from performing his duty as surveyor; giving it as the opinion of the court, that if the | tithables were willing to work on the road under the assignment by Davis, the surveyor was just as much bound to keep the road in legal repair by their labour, as if they had been regularly assigned. The jury found the defendant guilty, and assessed upon him a fine of ten dollars. Whereupon he moved for a new trial, “on the grounds aforesaid and the court, with the consent of the defendant, adjourned to this court, for novelty and difficulty, the following questions : 1. Is the order of the county court directing William Davis to assign to the defendant, surveyor as aforesaid, a list of tithables, legal ? 2. If not, was the direction of the court to the jury, that’the surveyor was not to be excused from performing his duty unless he was obstructed therein by the irregularity of the assignment of hands, proper ? 3. What disposition ought the court to make of said motion for a new trial ?

The opinion of the general court was delivered by

MASON, J.

By the 4th section of the act to reduce into one the several acts concerning public roads and for establishing public landings, passed February 2, 18X9, (2 Rev. Code, ch. 236, p. 234,) the several county courts are directed to divide the roads into precincts, “and appoint a surveyor over every precinct, whose duty it shall be to superintend the road in his precinct, and see that the same be cleared, and kept in good repair.”

*To enable him to perform this public duty, a portion of the tithables are to labour under his superintendence. If such tithables fail to work, they are liable to a fine, to be ascertained by any justice of the peace. To enable the surveyor to enforce this penalty of the law, the same act requires of the county court to make an appointment of all male labouring persons over sixteen years of age, except such as are masters of two or moremalelabouringslaves of that age, to work on some public road. The failure of the county court to make such appointment, or to ratify and approve the assignment which may be made by their order, may protect the tithables from the penalty of a refusal to work; but their refusal cannot be ascertained until the surveyor attempts to perform his duty. But this contingent defence of the tithables is no excuse for the surveyor, for a failure to perform his duty. In this case it appears that they did not refuse to work before the finding of the indictment, and that, without a new assignment, they did work and put the road in repair, shortly after that occurrence.

Upon the whole case, a majority of the court are of opinion, in answer to the 3d question, that the defendant’s motion for a new trial ought to be overruled, and judgment entered on the verdict; and they deem it unnecessary to decide the other questions.

CHRISTIAN, J.

I dissent from the opinion of the court pronounced in this case. The court below, it seems, instructed the jury that there was no legal assignment of hands to work on the road over which the defendant was the surveyor; and also that it was the duty of the county court to make such *232assignment. From the evidence it appears that, in point of fact, no such assignment was made by the county court. This being so, to give a judgment against the defendant upon the finding of the jury, would be to impose a fine «upon him for not keeping his road in repair, when he had no means legally to enable him to do so. No hands having been assigned to work on the road, there were of course none which he could compel (in the way designated by the statute) to work on it; and if he could not compel them, he ought not to be liable for failing to do what he was only required to do by reason of the law which gave him authority to compel the hands to work. I hold it to be sound in principle, that if the law impose a public duty upon any one, and require the court to furnish him certain prescribed means of performing that duty, he is not liable to be punished for not performing it, if the court has not furnished the means prescribed, although it may appear that he might have performed the duty notwithstanding. The decision in this case, in my opinion goes the length of requiring a man to whom a particular duty is by law assigned, and the means of performing it designated, to execute that duty although the means have not been furnished, if it shall appear that he might otherwise have performed it. I think therefore, that the verdict should be set aside, and a new trial awarded the defendant.