The President and Directors of the Susquehannah and Bath Turnpike Road Company vs. The People, 15 Wend. 267

By the Court, Bronson, J. Two grounds of error are aL jegecj. Birst, that the company was not liable to be proceeded against by indictment; and Second, that the court below exceeded its jurisdiction in the amount of the fine imposed, J ml , , • . , . That those who are bound to repair a road may, in general, indicted at the common law for suffering it to fall into decay, is not denied on the part of this corporation ; but they insist that their charter has provided another remedy for the evil, and consequently that they are not subject to indictment. The company was incorporated in 1804,3 Laws of N.Y., 547 Webst. ed. By the 17th

section of the act, the road, for the purpose of being inspected, is to be divided by the company into three districts •; to each of which districts the governor is to appoint a commissioner. Whenever the commissioner finds the road out of repair, he js to give notice, and the company is thereupon to repair under a penalty of ten dollars,’for every neglect of forty-eight hodrs,to be sued for by the commissioner for the benefit of the overseers of the poor. He may also order the gates to be opened under a like penalty.

From every decision of the commissioner the corporation may appeal to the commissioners of the other inspection districts. The statute contains no negative words, nor any thing from which it can1 be inferred that the legislature intended to take away the common law remedy; and it is too well settled to require discussion, that where a statute gives a new remedy by affirmative words, without a negative expressed or implied, the mode of redress which the common law has provided is not taken away. Crittenden v. Wilson, 5 Cowen 165. Almy v. Harris, 5 Johns. R. 175. Farmers’ Turnpike v. Coventry 10 id. 389.

If an individual whose horse had fallen through a decayed bridge on the road had brought an action on the case to recover damages against the corporation, no one would probably have thought of objecting that his common law action was taken away by the statute penalty for permitting the road to be out of repair. And yet his right to sue might be . denied with as much propriety, as it can be questioned that the public may have redress in this form. There is no room for doubt that the company was liable to be proceeded against by indictment.

To show that the court below exceeded its authority in the amount of the fine imposed, the plaintiffs in error rely on 1 R. (S'. 587, $ 47, which provides for a fine not exceeding two hundred dollars. But the

section does not apply to the case before the court. By this statute it is made the duty of an inspector of turnpikes, on discovering that the road is out of repair, or that any gate thereon is placed in a situation contrary to law, to give notice of such defect or default to one or more of the directors of the company, and to require the repair of the road or removal of the gate within a time to be fixed in the notice; and he may also in his discretion order the gates in the mean time to be thrown open. <§> 45, 46. Then comes the

section in question, which provides that if the requisitions of the notice be not obeyed, the inspector shall make complaint to the attorney general or district attorney, whose duty it shall be to prosecute the delinquent company in the name of the people; and such corporation, if convicted of having suffered their road to be out of repair, or having placed one or more of the gates thereon in a situation contrary to law, shall be fined in a sum not exceeding two hundred dollars, [f an indictment be the proper mode of prosecuting for this fine, it will prove nothing in relation to the question before the court, for this was not a proceeding under1 that statute.

It does not appear that there was any notice by an inspector requiring the corporation to repair, nor a complaint to the district attorney ; and this particular fine is limited to the case specially provided for by the statute. It may be doubted whether this statute can, under any circumstances, apply to the plaintiffs in error. See <§. 40, and charter, <§> 17. But it is unnecessary to consider that question. It is enough that the indictment was neither framed upon, nor is the offence charged to have been committed against the form of this or any other statute.

This being a conviction at the common law, the court might impose such fine as it deemed reasonable, unless the amount has been limited by some other statute than the one already mentioned. Such a limitation will be found in 2 R.

S. 697, 40, which provides that “ every person who shall be convicted of any misdemeanor, the punishment of which is not prescribed in this or some other statute, shall be punished by imprisonment in a county jail not exceeding one year, or by hne not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.” The court below did not ex-1 ceed its authority in imposing a fine of two hundred and fifty dollars. Judgment affirmed.