State v. . Johnston , 118 N.C. 1188 ( 1896 )

From the special verdict these facts appear: That the defendant, who has never married, was a citizen of Virginia, where he still votes and pays taxes, until January, 1895, when he came to Halifax County, N.C. and engaged to work as an employee and laborer of the Enfield Lumber Company, at $1 per day, in loading cars and log trains, and so continued to work until 3 July, 1895, when he was duly summoned to work on the road in the township in which he was at work; that defendant is still at work, as aforesaid, and intends to return to Virginia when he gets through with his job with said company, but he does not know when this will be; that (1189) he has never listed for nor paid poll or any other tax or registered or voted in North Carolina, but has performed all those acts in Virginia, and that he is twenty-nine years of age.

The verdict and authorities cited by defendant's counsel show that he is not domiciled in nor a citizen of North Carolina; so these questions need not be considered.

Does The Code, sec. 2017, embrace the defendant as a resident? It provides that "all able-bodied male persons between the ages of eighteen years and forty-five years" shall be required to work on public roads, except those exempted by sections 2017 and 2018 of The Code. The defendant's liability, then, depends upon the true intent and meaning of section 2017. He is an "able-bodied male person" and has resided in Halifax Township, in said county, since January, 1895, working for pay, and says he expects to continue doing so until he finishes his job, at some future time, he does not know when, and then return to Virginia. This may mean one or many years. We think a reasonable construction of section 2017 includes the defendant as one liable to road duty. We think his case is distinguishable from those of sojourners or visitors for health or pleasure, who are not engaged in business for profit and are without any fixed home. The case of Cantrell v. Pinkney,30 N.C. 436, is not on all fours with the present case, because there the defendant had a dwelling house in this State, where he and his family habitually lived for four months in the year, and claimed exemption from toll at the gate, as all citizens of that county were entitled to by law. Of course, he was liable.

In S. v. Cauble, 70 N.C. 62, the defendant was a section hand and in the constant employ of the railroad company, and his services (1190) were constantly needed by the railroad company, and it was held that the defendant could not escape a public duty by engaging in another urgent private business, and that he was liable to road duty. In our case the defendant selects and pursues his vocation for its income, as any citizen of the State. We hold that he is liable, not as a citizen, but as a resident, according to the facts found by the special verdict and the intent of the Legislature.

Affirmed.

Cited: Chitty v. Chitty, ante, 649; S. v. Covington, 125 N.C. 643.