Commonwealth v. President of the Swift Run Gap Turnpike Co. , 2 Va. 361 ( 1823 )

HOLMES, J.,

delivered the opinion of the Court:

This is an Information, (founded on a Presentment of the Grand Jury in Orange Superior Court,) against the Defendants, by the name of the President, Directors and Company *of the Swift Run Gap Turnpike Company, for not keeping their artificial road in repair for the space of sixty days, and claiming the penalty of twenty dollars for every ten days failure, amounting to $120, and concluding against the form of the Act of Assembly, &c. To this Information, there is a general demurrer. The Act incorporating this Company ^(a) contains a provision, that when the road is out of repair for the space of ten days, and information thereof shall be given to a Justice of the Peace, he shall issue a Warrant, commanding a Constable to summon three freeholders to view the defective part of the road, of which notice shall be given to the person entrusted with the repair thereof; and if, on such enquiry, the road be found to be out of repair, the tolls shall cease at the nearest gate until it be repaired ; and moreover, the person entrusted with the repair shall be subject to a fine-of $20, to be recovered by Warrant before a Justice of the Peace.

The remedy given here, is not against the corporate body, but against the individual whom they employ to keep the road in repair; and, where a Statute creates an offence, and gives a specific remedy for its prosecution, such specific remedy must be followed. Therefore, the Court is of opinion, that no Information will lie against the Defendants on the Statute of incorporation, as set forth in the Information filed against them ; which is to be certified to the Circuit Court of Orange county.

(a) Acts of 1809. ch. 50, § 11, p. 48-49.