#### STATE vs. WILLIAM D. HAYWOOD, et al, COMMISSIONERS, &c.

Wherever a duty is imposed by law, the performance of which concerns the public, the omission to perform that duty is an indictable offence.

Where, by one clause of an act of assembly, the commissioners of a town are empowered and required to lot out the repairing of the streets-of such town to the lowest undertaker, and by another clause of the same, they are authorized to lay a tax for repairing- the streets, and the inhabitants of the town are, by the same act, exempted from working on the streets, it is not discretional with such commissioners whether they will let out the streets and lay the tax, but they are indictable for failing so to do.

An indictment against commissioners of a town for failing to do their duty as such, during' a certain space of time therein set out, must aver the tenure and duration of their office. Therefore, an indictment which charges that they were commissioners on one particular day of the time alleged, during which they were delinquent, is defective; no judgment can be pronounced thereon.

Where commissioners are authorised to raise money, by taxation, for repairing streets, and to expend it in a particular way to effect such repairs, that is, by letting out the work to the lowest undertaker, it is not sufficient to charge generally that they refused, and neglected to apply and expend the . money in repairing.

This was an indictment against the defendants, as’ commissioners of the City of Ealeigh, tried before his Honor, Judge Person, at the last Spring Term of Wake Superior Court.

The bill charges, that on the 1st day of January, 1855, there *400were certain streets in the City of Raleigli (describing them by name) usecl, &c., and that on that day, the same were ruinous and out of repair; also, that by an act entitled “an Act for •he government of the City of Raleigh,” &c., the commissioners are empowered and required to let to the lowest undertaker, on giving ten days’ notice of the same by advertisement, the necessary repairing of the streets; and that “ it then, and there became, and was their duty, to let out the said streets, as is in the said act directed and prescribed;” and that the said commissioners, from the 3rd Monday in January, 1854, to the 3rd Monday in January, 1855, did then and there unlawfully and wilfully neglect and refuse so to let to the lowest undertaker, the necessary repairing of the said street's, by which, the said streets became ruinous and out of repair, against the form of the statute, &c.

The second count of the indictment charges, that on the 1st day of January, 1855, there were, &c., setting forth the streets as above described; that on that clay they were out of repair, &c.; that on that day the defendants wore commissioners, and that by an act of the Assembly, entitled as above stated, it was enacted, that “ in order to raise a sufficient fund for repairing the streets of the City, and for effecting other useful and necessary purposes, the said commissioners are hereby authorised to lay, levy and collect annually, a tax not exceeding ten shillings on every hundred pounds’ value of taxable property in the said City, and a tax not exceeding ten shillings on all free male polls residing within the limits, and a tax not exceeding ten shillings on every male slave (of a certain age) working within the limits of the said City; and that, hereafter, no inhabitant of the said City shall be compelled to work on the streets thereof.” That the said commissioners, as by law bound to do, did lay the taxes and collect the same for the purposes mentioned ; and, that it then and there became, and was their duty, to lay out and expend the money thus collected, in repairing the said streets; and, that from the 3rd of January, 1854, to the 3rd of January, 1855, they wilfully neglected and refused so to do; by reason of *401which, neglect, the said streets became ruinous, &c.; concluding also against the statute.

On the trial of the case below, it was not denied by the defendants that the streets described were out of repair, nor, that being commissioners for the year 1854, and having collected the taxes for that year, they applied no part thereof to the reparation of the streets mentioned in the indictment. It was proved that these streets liad not been let out to any undertaker in the year 1854. It was also proved that these were public streets of the City of Raleigh. The defendants objected that, under the charter of the City of Raleigh, they were not l>owid, and it was not their duty to apply and expend the monies so collected, as aforesaid, in repairing the streets as charged ; neither were they reqpwred to let out the-repairing of the said streets to the lowest undertaker, as is charged; on the contrary they insisted that these powers were discretionary, and, therefore, that they were not indictable for the omission.

His Honor was of a contrary opinion, and so charged the jury. Defendants excepted. Yerdict for the State. Judgment and appeal. In the Supreme Court, the defendants’ counsel moved ore tenus in arrest of judgment, for the causes mentioned in the opinion of the Court.

Attorney General, for the State.

Moore and Ganirwell, for the defendants.

Pearson, J.

Whenever a duty is imposed by law, the performance of which concerns the public, the omission to perform it is an indictable offence. By the general law, the County Courts of the several Counties in the State, are required to see that the public highways are kept in repair, and to this end it is made their duty to appoint overseers and allot hands to the several roads, so that no public highway, whether it passes through a swamp or crosses over a mountain, can be out of repair, unless some one is liable to indictment for neglect of duty. The charter of the city of Raleigh *402relieves the County Court of Wake from the duty of seeing that the streets of the city are kept in repair, by imposing that duty upon the Commissioners. So that the suggestion that the Commissioners may, or may not, at their discretion, see that the streets of the city, which are public highways, are kept in proper repair, cannot for a moment be entertained.

There is no question the^fore, that the Commissioners are liable to indictment, but the question is does the indictment now under consideration make the necessary averments, so as to show on its face that the defendants are guilty of an omission of duty according to the terms and provisions of their charter %

The averments in thefi'rst count, are: on the 1st day of January, 1855, there were certain streets, known as Harrington street, &c., which streets were, on that day, and from thence hitherto, out of repair. On the said 1st day of January, 1855, the defendants were commissioners of the City of Raleigh. By an act of the Legislature, the commissioners are required to let to the lowest undertaker, on giving ten days’ notice of the same by advertisement, the necessary repairing of the streets, whereby it became the duty of the defendants so to let out the repairing of the steets; yet the defendants, from the 3rd Monday of January, 1854, to the 3rd Monday of January, 1855, did neglect and refuse to let out the repairing of the streets. This count is fatally defective in this: there is no averment of the tenure of office, or of the time for, and during which, the defendants wore appointed and bound to act as commissioners. There is an averment that they were commissioners on the first day of January, 1855 ; whether that was the first or the last day of their term of service, or whether the term was a week, or a month, or a yeai', is not averred; still the duty, for the neglect of which they are indicted, requires at least ten days for its performance. State v. Commissioners of Halifax, 4 Dev. R. 345.

The averments in the second, count, are: on the first day of January, 1855, there were certain steets, known as Harring*403ton street, &c., which streets were, on that day and from thence hitherto, out of repair. On the said 1st day of January, 1855, the defendants were commissioners of the City of Ealeigh. By an act of the Legislature the commissioners are required, in order to raise a sufficient fund for repairing the streets, to levy a tax. In pursuance of this authority, the defendants did levy a tax on the citv property, “ yet the defendants, during a long space of time, to wit, from the 3rd Monday in January, 1854, to the third Monday in January, 1855, did unlawfully and wilfully neglect and refuse to apply and expend the money raised by the taxes in repairing the streets.”

Here, we meet with the same difficulty. There is an averment that the defendants were commissioners on tho. first day of January, 1855 ; but it does not appear whether that was the first or the last day of their term of service.

A more grave objection to this count presents itself. The commissioners are not required by their charter, to apply and expend the money raised by taxes, towards repairing the streets in a general way, but they are required to do it in a particular way, that is, by letting out to the loioest bidder, after ten days notice, the repairing the streets, in the way and manner set out in the specifications, as set forth in the first count. State v. Justices of Lenoir, 4 Hawks 194. So this sweeping charge that the defendants did unlawfully and wilfully neglect and refuse to apply and expend the money raised by the taxes, in repairing the streets, is altogether too vague, uncertain and general for a judicial proceeding.

"We concur with his Honor, that the defendants are subject to indictment; it is not at their discretion to do or not to do a thing which concerns the public; but we are satisfied that the indictment is defective in not making the necessary averments. Therefore we allow the motion in arrest of judgment.

Per Curiam.

Judgment arrested.