The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1880-05-21
oPTNloN OF THE COURT

OPINION OF THE COURT.
Neglect to keep in repair the public roads in
any municipal district is violation of a public
duty, and is punishable by indictment a, COM
mon law. Phillips VS., Commonwealth Al St.
Rep 100. The liability to indictment follows
from the breach of public duty Edge VS..
Commonwealth Barr 276. Commonwealth Va,
Recter rs st. Rep, 165.
In the borough of Uniontown VS.. the Com.
monwealth 10 Casey 297, it was held that by
common righta borough is bound TO keep its
streets in repair Where the only question is
as to the liability mandamus is a proper remedy
but where the question is whelhe, the duty
has been properly performed that remedy can.
not be invoked id. Commonwealth vs. Reading
Jones POI.
Certainly in some form, the courts have pow
er TO compel the performance of this duty or to
punish for its non performance. In many OF
the States it is held that an indictment will lie
| against the municipal corporation itself for ne.
gectng the duty to keep its streets in repair
Dillon Municipal Corporations Sec, 747 and
note. And that the officers may be personally
| indicted for neglect of duty. In tn lis State the
practice has uniformly been to proceed against
the officers.
The 9Th section of the Act organizing the
Town of Bloomsburg confers upon it all the
powers of boroughs given by the several sec.
tons of the Acts of 1884, 1851 and 1856 there
in mentioned. The Act of 1884 makes it the
duty ofa burgess of borough to cause to b,
opened all the streets, lanes or alleys, aud foi
neglect or efnsal so to do makes him liable tc
like penalties as incurred by supervisors Of
highways for similar offences.
The Act of 1851 gives power to regulate the
roads, streets, &C., and the heights, grades
widths slopes and forms thereof and all needft
jurisdiction over the same. 1t is also by tb,
9th section made the duty of the burgess to en-
force the ordinances and regulations to remove
nuisances and exact faithful performance o
the duties of the officers appointed
Needful jurisdiction over the streets and al
leys includes both the power and the duty t
keep them in reasonable repair and safe to b,
travelled. When the law grants anything TO an,
one, that also is granted without which tn
thing itself cannot be. Bishop on Statutor,
Grimes Sec 1877.
The Town Council have control of the fund
| of the corporation. The street commissioner
but a subordinate officer subject also to the con
troll of the council. The council are therefor
responsible 10 the public if the streets are per
mitted to be out of repair to the extent charge
in this indictment
They are not indictable for errors of iudgmen
in matters committed to their discretion. Bu
this immunity does not extend to neglect or re
iusal to do what the law en joins upon them.
Ii is contended that no general law impose
upon council the duty of seeing to it that tn
streets are in repair / hold however that tn
territory incorporated by the Act of 4 Marc
1870 as "The Town of Bloomsbury" becam
and is subject to the general laws so far as re
CARDS the powers and organization Of a towr
ship, and also to the general laws in regard
boroughs with few exceptions.
hold also that independent of legislation
regard te Jurisdiction over the streets that IL
common law imposed upon the municipal au
thorities the duty of keeping the streets with
their borders in repair.
! The indictment, as amended, alleges wit
reasonable certainty that the defendants we
town council and acted as such-and it also a
ege' that they neglected their duty. Accort
ing to the precedents this is sufficient ave
ment, that the matter neglected was duty.
The motion TO quash the indictment is owe
ruled and the defendants are directed to plea
thereto.
By THE COURT.