Bouton v. Neilson , 3 Johns. 474 ( 1808 )

Thompson, J.

delivered the opinion of the court. The proceedings in the court below were under the 11th section of the act regulating highways, to recover the penalty ■therein given for neglecting to work on the highway, pursuant to notice. It has been decided by this court (3 Caines, 260.) that proceedings under this, section of the , act, are to be in a summary way ; but the question here presented is, whether notice is required to be given to the party against whom the complaint is entered, before the magistrate issues his warrant to collect the fine. It is a ■ just and reasonable rule that no person should be punished without having had an opportunity of being heard in his defence. Had the magistrate any thing to try, or any discretion to exercise, with respect to issuing the warrant, I should think it indispensably requisite that the party should be summoned to appear. But I cannot discover, from the provisions in this section of the act, that the magistrate has any judicial powers whatever vested in him. If so, notice to the party would be superfluous. The overseer of the highways is made the judge with respect to the imposition of the fine. He acts under the oath of his office, and it is expressly made his duty in every case, in which he shall deem the excuse for neglect or refusal to work insufficient, to make complaint thereof in writing to a magistrate, and the magistrate is directed forthwith to issue his warrant to collect the fine. No authority is given to the magistrate to enter into an examination, with respect to the sufficiency of the excuse for neglecting to work. The overseer is made the sole judge of this. If he makes complaint to the magistrate, without having duly notified the party to work, he would subject himself to the penalty given in the 14th section of the act. Whether this power has been discreetly vested in the overseers of highways is not for the court to say. In most cases of summary convictions some judicial powers are given to the magistrates, and a summons or notice to the party complained of, is requisite ; but where the magistrate acts merely ministerially, and has no discretion on the subject, no notice is re>* quired, because it would be useless. (7 Term Rep. 270. 3 Wils. 133.) The case before us falls under the latter distinction. The issuing of the warrant is matter of course, upon the complaint of the overseer, without any further investigation. The conviction must, accordingly, be affirmed.

Conviction affirmed..