The opinion of the court was delivered by

The trial below resulted in a conviction of the board of chosen freeholders of the county of Bergen for not repairing a county bridge.

The court instructed the jury that if the defendants, knowing it to be their duty to make the repairs, wrongfully refused to perform it, they were guilty of wilful neglect, for which they should be convicted. The only question made in the case is whether an indictment will lie against the board of freeholders for wilful neglect to repair a county bridge.

It is insisted that by virtue of Sections 1 and 2 of the act respecting bridges, the freeholders are not under a legal obligation to build and repair fridges where they are necessary,but that they have in all cases a discretion whether to build and repair or not. The effect of such an interpretation of the law would be, that if they chose to act arbitrarily and render the highways impassable, the public would be remediless. There is nothing in the language of the statute to make that ■construction necessary, and it is too obviously against public policy to be adopted in the absence of some clear expression requiring it. The subject of building and keeping bridges in repair is committed to the board of freeholders; they alone have the power to raise money adequate for the purpose, and the duty rests upon them of so exercising their functions that the public shall not-be deprived of the use of their highways by reason of their refusal to act. Whenever the building or reparation of a bridge becomes necessary for the use of the road, the duty falls on them to execute the work.

In this case the necessity for repairing has been found to exist, and the neglect was wilful.

*272The effect of the decision of the board was, not that the repairs of the bridge were not needed, but that the road was not. necessary.

The limit of their discretion is to determine whether a bridge is necessary, assuming the use of the road to be necessary. The right of the public to the convenience of travel is paramount, and the freeholders must exercise their discretion in such manner as to make the highway passable and safe. If a bridge is required to afford such use, the freeholders cannot, without dereliction of duty, refuse to provide the bridge.

If the power of the board was enlarged to the magnitude claimed, it would virtually give them a veto power over the laying of roads. The question whether a public road is necessary, and whether it shall be laid out, has been committed by the law to another tribunal, and it was never intended that the easement should be rendered incapable of use by the inaction of the freeholders in withholding a bridge. To maintain the right to use an unlimited and arbitrary discretion, it must be held that they could refuse to build a bridge in the most populous district, where the stream presented at all times an impassable barrier to travel without it. This right would extend not only to roads newly laid out, but it would embrace the highways which had been safely traversed for years, and put it within the power of the board of freeholders to say whether public travel should be suspended by their refusal to furnish the necessary bridges. It may be said that it will not be presumed that the board will fail to exercise its discretion wisely, but in this case it has been found that they have wilfully refused to discharge their duty.

There is nothing in the case of State v. Freeholders of Essex, 3 Zab. 214, in conflict with this conclusion. There the freeholders erected a new bridge very nearly on the site of the old one, its northern abutment immediately joining the northern abutment of the old bridge, and its southern abutment being only twenty-two feet from the southern abutment of the old one. The court properly refused a mandamus to compel the rebuilding of a bridge on the exact site of the old *273bridge, saying that the situation of the structure under the circumstances was to be settled by the judgment of the freeholders. But the court distinctly said “ that where there is a clear and undeniable abuse of discretion, as where the freeholders should refuse to build a bridge which was absolutely and essentially necessary to the enjoyment of an ancient highway by the public, this court may exercise its power by enforcing that duty. "Where the inferior jurisdiction has not been guilty of a clear and manifest abuse in the exercise of its discretion, a mandamus ought not to be granted.”

The ground upon which this conviction must rest is here clearly stated. At common law the duty of repairing bridges was cast upon the inhabitants of the county, and they were indictable for neglect to repair.

By the laws of New Jersey the freeholders in this respect occupy the same relation to the public that the inhabitants of the county did under the English law. The bridge act imposes a duty on the freeholders to make the highways passable and safe; it does not leave it to their mere option whether they will provide a way for the public. A wilful failure to make the necessary provision is an abuse of their office. There is a right on the part of the public to the use of the easement, and a corresponding obligation on the freeholders to make the requisite appropriation to that end. Any other interpretation of the act would leave these officers wholly irresponsible save to their own consciences for the manner in which they discharged a duty so important in its consequences. If the public have a right to the use of their highways and to the bridges, without which they cannot be enjoyed, a duty rests upon the freeholders, and the public are not dependent upon their mere will or caprice. No precise rule can be formulated by which it shall be adjudged in every case, whether the refusal of the .freeholders to grant a bridge is within the proper limit of their discretion; each case as it arises must be dealt with according to its peculiar circumstances. It can be safely declared that where the public would be deprived of the beneficial use of the highway without the bridge, a refusal to provide it would *274constitute a breach of official duty; and on the other hand, where a road not much used crosses a stream of water which can be safely forded, the freeholders may in their discretion decline to interfere, without subjecting themselves to restraint from any other tribunal.

The conclusion that the statute imposed on the board of freeholders the duty to repair the bridge in this case, and the fact that they wilfully neglected that duty, makes the conviction lawful. It is a principle of the common law which has been adopted in this state, that where either the common or statute law imposes upon public ministerial officers a duty, they are indictable for its neglect.

In Freeholders v. Strader, 3 Harr. 108, the Supreme Court, in holding that no action would lie by an individual for injuries sustained by him for neglect of duty by the board, assumed that an indictment would lie. The fact that the fine, if imposed, would go to the county, is not a controlling circumstance.

The judgment on the indictment will settle the right, and lay the foundation for an application for mandamus.

So much of the judgment of the court below as requires the sheriff of the county to put the bridge in repair at the expense of the defendants ought not to stand. Where a defendant is convicted for maintaining a nuisance which is continuous, the usual course is to order it to be abated, and if the defendant neglect or refuse to obey, to direct an abatement by the sheriff. 2 Whart. Crim. Law, § 2377; Barclay v. Commonwealth, 1 Casey 503.

But where the nuisance consists of a neglect to build or repair a bridge on a highway a different rule must apply. Such a work would involve the expenditure of a large sum of money, and the exercise of a 'discretion as to the manner in which it should be done.

The exercise of such discretion has been committed by the statute not to the sheriff, but to the freeholders alone, and they should be compelled to discharge that duty.

No mode being provided by law in which the sheriff may *275"be supplied with the funds necessary for this purpose, the risk •of obtaining repayment ought not to be borne by him.

This clause of the judgment is separable from the rest, and may be pronounced void, without reversing the entire judgment, by force of Section 89 of the criminal procedure act. Rev., p. 284.