Elmore v. State

delivered the opinion of the court.

The indictment alleges that the defendants, being under contract to keep public road No. 11 in good repair, did unlawfully neglect said duty, and suffered it to remain in bad repair. Section 10, ch. 119, acts 1900, makes a contractor liable as for a misdemeanor for neglecting his duty; but the contractor must be a person who has become such under that act. And by that act it is necessary that the board of supervisors elected to work the public roads by contract, divide them into convenient links, let the contract for their working for not less than two nor more than four years, by sealed bids or by public outcry, to the lowest bidder who will give bond in double his bid for the perform*425anee of his contract. Now, none of these matters is alleged in the indictment, as it is necessary under the rules of pleading they should be, and it must be obvious that it is utterly defective, on that account. . It must be manifest also that the indictment is defective in not stating the conditions under which the defendants would be liable to punishment. Finch v. State, 64 Miss., 461 (1 South., 630), for under the present indictment they might be convicted of suffering the link of road to be out of repair on the very day they made their contract, which would be manifestly absurd; and the legislature will not be .presumed to do an absurd thing. It would be unjust to punish them for the nonrepair of their road before they could be guilty of any negligence, and a presumption will not be indulged that the legislature intended to do so. The misdemeanor intended to be created by sec. 10, ch. 119, acts 1900, was probably, that specifically described by § 1143, code 1892, as to overseers suffering their road to be out of repair for more than ten days, unless hindered by extreme bad weather or other unavoidable cause. However that may be, it is manifest that the indictment here is too indefinite to constitute á criminal charge, and the acts and facts necessary to constitute these defendants road contractors under ch. 119, acts 1900, are not alleged, though vital to the proceeding.

Reversed and remanded.