The Middle Bridge Propr's vs. Warren Brooks, 13 Me. 391

The action was continued for advisement, and the opinion of the Court afterwards drawn up by Weston C. J. The assignment of errors in this case has been extended to a great number of specifications, most of which have been satisfactorily answered. By the third

section of the act, under which the plaintiffs were incorporated, it is provided that they shall, at the place where the tolls are collected, cause the rates of toll to be fairly and legibly painted in largo or capital letters, and kept constantly exposed to the view of passengers. It is true, that many provisions in a charier, or in the by-laws authorised under it, may be regarded as directory merely.

Others are such, as are to be inquired of only between the government and the corporation ; or such as relate to the internal management of their affairs with their officers, or with the individual corporators, which are not to be called in question by a stranger. Whether a duty imposed upon a corporation by law is directory, or essential to the enjoyment of some of their rights, must be determined by its nature and object, by the public convenience, and by what may be understood to have been the intention of the legislature. Bank of the United States v. Dandridge, 12 Wheat. 64.

The duty referred to is one which, from its nature and object, ought by no means to be remitted. It answered a double purpose; as an admonition to passengers, of what was required from them, and to protect them from the imposition of being called upon to pay a higher rate of toll, than was authorised by law. And that the intention of the legislature might not be misunderstood, they have directed, that what they required to be done, should be constantly exhibited to public view.

It is a regulation, in the fulfilment of which, a party charged with having incurred a penalty, for passing without the payment of toll, when thereto required, is interested. And we are of opinion, that the corporation is not authorised to enforce the penalty,while there is a failure, from whatever cause, to exhibit the rates of toll in the manner required by law.

It does not appear to us, that they have a claim to exact a penalty from a passenger, who passes without payment of toll, although demanded of him, which was all that was proved against the original defendant, while they omitted to exhibit to his eye, one of the evidences of their right, which it'is their duty constantly to expose to view. The defendant used no other force, than what is merely constructive. It may have been enough to bring his case within the operation of the statute, provided the plaintiffs had done their duty in regard to the subject matter, but we think not otherwise.

Nor does it in our judgment make any difference, that their toll-board may have been wantonly and mischievously destroyed. For an injury of this sort, they have a remedy by action ; and their property is protected by penalties. If their board is destroyed, or the letters become obliterated by time, accident or design, they should cause it forthwith, as-soon as may be, to be restored and the letters renewed. It cannot otherwise be constantly exposed to the view of passengers. Nichols v. Bertram et al. 3 Pick. 342, was an action for forcibly passing a turnpike gate, without paying toll.

After the corporation was established, in whose behalf the plaintiff, their treasurer, sued, it was provided by a general law, that turnpike corporations should not be entitled to demand or receive toll, unless they erected a sign-board, with the rates of toll written or printed in a certain manner. In the act by which they were created, the duty w'as imposed in somewhat different language; and it was not in terms made a condition, upon which their right to receive toll depended.

The Court held, that their rights and duties were to be determined by their act'of incorporation, and not by the subsequent general law. They further held, that the corporation had complied with the act. And the implication evidently is, that had it been otherwise, the penalty sought could not have been recovered. In this case the evidence is, that the toll-board of the corporation was destroyed, at least as early as the ninth of May. On the fifteenth, when the alleged trespass was committed by the defendant, it had not been restored. There was at that time no such board exhibited to the view of passengers.

And in our opinion the Judge below should have charged the jury, as requested, that this omission was fatal to the action. Judgment reversed.