State v. Yoder. ( 1903 )

Clark, C. J.

The motion to quash was properly denied. The affidavit contains every allegation necessary in a proceeding to enforce a penalty for failure to work the roads. It describes the road, names the county wherein it lies, alleges that the person summoning tire defendant was overseer of that particular road, that .the defendant was a citizen of that county, liable to work on said road and duly assigned thereto, and that be had been duly summoned, giving time and place, that he wilfully and unlawfully failed to appear and refused to work, and also negatives the payment of one dollar. Technical and critical fulness are not expected in proceedings of this nature, but this affidavit contains all that could be desired to give the defendant the fullest information of the charge against him, which is the only object of the complaint. Its terms were adopted by the warrant issued thereon, and come up fully to all the requirements as set out in tire following cases: State v. Smith, 98 N. C., 747; State v. Pool, 106 N. C., 698; State v. Neal, 109 N. C., 859; State v. Covington, 125 N. C., 641. “The affidavit and warrant in contemplation of law are one, if one is referred to by the other” (as was here the case). State v. Davis, 111 N. C., 729; State v. Sykes, 104 N. C., 694; State v. Sharpe, 125 N. C., at p. 635.

The defendant places much stress upon the fact that he was summoned to work three days consecutively, whereas The Code, Sec. 2019, provides that the “hands shall not be required to work continuously for a longer time, at any one time, than two days.” This would be a good defense if the alleged default was for failure to work the third day, but the notice was good for two consecutive days, and the defendant .admittedly paid no attention to it and did not do any work at all, leaving the other citizens assigned to that road to do his part. They had a right to see that under the notice he worked two days or paid his $1 per day. The overseer was simply their representative in enforcing his pro rata part of the work. It appears from the evidence that the road was worked only two days by any one at that time, that the defendant made no objection that the notice specified three days, or it might have been then amended. He did not go to the road at all. He was fined $2 for failure to work two days only, and has in no respect been prejudiced by the notice being for three days. As a law-abiding citizen he should have attended and worked two days as bis neighbors did, and. failing to do' so he has no good ground to object to paying two-dollars to make bis share of this public duty equal to theirs.

The second objection was"to the introduction of the judgment of the County Commissioners which ordered this road laid out, appointed an overseer and assigned hands, etc., and is without merit. This objection is stated in the brief to be on the ground that Chapter 336, Laws 1889, required the assignment of hands “from the body of the county.” That means simply that they shall be from the road hands of the county, and the order assigning for the construction of the new road, “all the hands liable -to road duty and residing in two and a half miles of the nearest portion of said road” is in accordance with what has always been the uniform understanding of the duty of County Commissioners in this regard. It has never been understood that all the hands in the county were to be ordered out-. There is no provision for drawing out a part of them, like a special venire. The mode of assigning hands is left to the County Commissioners, and in selecting these hands near the road, and men who would be most likely to be benefitted by an use of the road, there was no oppression. Besides it has been expressly held that the judgment of the County Commissioners, ordering the laying out of the road, is final unless reversed on appeal, and any person affected could appeal. The order can not be collaterally impeached. State v. Witherspoon, 75 N. C., 222; State v. Smith, 100 N. C., 550; State v. Joyce, 121 N. C., 610. In this last case at page 611 the court says: “When the Board of Commissioners ordered the road to be laid out and constructed as a public county road, appointed an overseer and assigned hands to him to construct the road, and ordered him to have the work done, in the eye of the law it became at once a public road, and the hands so assigned were as much bound to attend and work as any other road hands in the county, and they could not question the regularity of the proceedings of the board in the matter, and if they refused to work they are liable under the general law to indictment.”

The other exceptions are for refusal of special instructions: the first prayer was a general demurrer to the evidence. There being evidence tending to prove the charge, its sufficiency was for the jury. Clark’s Code (3 Ed.), pp. 525, 526; Walser’s Digest, 373.

The second prayer was in effect that if the defendant bad been previously assigned as a road band to another road be could not be assigned to this. Every man liable to road duty in the county bad been already assigned to some road, and if the defendant’s assignment to the new road was illegal, it would be impossible to execute the law, a most necessary one, authorizing the County Commissioners to lay out new roads and assign bands to construct and work them. The assignment to the new road cancelled the assignment to the former road. Whether the number of days work already done on the first road must be deducted from the-total number of days (eight) which a band may be required to work in a year, thus restricting the number of days the defendant can be required to work on the new road to the difference, is a matter not before us, though it seems a reasonable construction. The defendant could not be required to work on two roads at the same time (State v. Hinton, 131 N. C., 770), but be is not indicted for failure to work on the first road after being assigned to the new road. The assignment to the latter can-celled the first assignment, as a matter of course.

The only remaining exception is to the refusal of the prayer to instruct the jury that as the order of the County Commissioners laying out the new road did not “provide for the assessment of damages, the same was irregular and erroneous and void and of no effect.” The order was irregular and erroneous as to' the land owners, if thus defective, but it was not “void and of no effect” so as to authorize the defendant to impeach it collaterally. He could not be judge and jury in his own favor, and decide that the order to words the road thus laid out was a nullity, and disobey the order. State v. Joyce, 121 N. C., 610. If aggrieved by the order laying out the road and assigning him as one of the hands, he should have tested the validitv of such order by appealing. Not having done so, he should have obeyed it.

No Error.