Majority
p. 598The People vs. The President, &c. of the Goshen and Minisink Turnpike Road.
Headnote
The mode of enforcing against turnpike companies the penalty given by statute for permitting their roads to be out of repair, after notice from a turnpike inspector, is by indictment, and not by a civil suit.Demurrer to declaration. By the statutes of this state, inspectors of turnpike roads are required to be appointed in each county in which there is a turnpike road; and it is made the duty of each inspector, upon complaint being made to him that a turnpike road is out of repair, to view and examine the road and if he finds the complaint just, to give notice of the defect to the toll gatherer nearest to the place out of the repair, and also to one of the directors of the company, and to require it to be repaired within a limited time. If the requisitions of such notice be not obeyed, the inspector must make immediate complaint to the attorney general, or the district attorney for the county, whose duty it is, by the statutes, to prosecute the delinquent company in the name of the people of the state. The statutes then proceed in these words ; “ Such corporation, if convicted of having suffered their road to be out of repair, &c., shall be fined in a sum not exceeding two hundred *d ollar s.” 1 R. S. 585, et seq. A suit was commenced in this court by the district attorney of Orange county, against the defendants, and in the declaration it was alleged that a complaint had been made to an inspector, that the road of the defendants was out of repair; that the inspector had viewed the road, and given the notices prescribed by the statutes, requiring the road to be repaired by a certain day; alleging a default, and concluding thus : “Whereby an action hath accrued to the said people to have and demand from the said president, directors, & Co. $200, by the statutes imposed as a fine upon the said president, &c. for their delinquency, and therefore the people bring suit, Sec. To this declaration the defendant put in a general demurrer, and assigned various special causes of demurrer.
S. Jackson, for the defendants.
J. R. Van Duzer, (district attorney of Orange), for the people.
By the Court,
The question is whether the prosecution spoken of in the statutes means a civil suit or an indictment. There are considerations operating both ways, but I am inclined to the opinion that an indictment was intended. The corporation is to be convicted; that must be done by á jury; and if convicted, the statutes say, the corporation shall be
p. 600
fined in a sum not exceeding $200, which fine must be imposed by the court. The finding thq facts of a case by a jury, and the fixing the amount to be paid by the defendants by the court, is contrary to all rules of proceeding in civil suits, but is in perfect accordance with proceedings upon indictments. The defendants are entitled to judgment.