State v. . Sharp

Nov 7, 1899
Versions:125 N.C. 628
34 S.E. 264
1899 N.C. LEXIS 275
OlaeK, ,T.

The defendant is indicted for a failure to work the public roads of Durham County, as required by sees. 4 and 24, chap. 581, Laws 1899.

The first exception was, that the Court permitted the road overseer to testify that he left a written notice at the defendant’s residence, specifying time -and place for working the roads, without producing the same. This was not error,, because the statute requires the notice (not a copy of it) to be left with the defendant. As the overseer could not produce it, he could, therefore, state what it was. It is not the return of process to a court. Besides, the issue is not as to the contents of the notice, which is in the defendant’s possession, and the contents could be proved for that reason, but the collateral fact'that it was served. State v. Wilkerson, 98 N. C., 696; Carden v. McConnell, 116 N. C., 875; Archer v. Hooper, 119 N. C., 581.

The next exception is, that the act requires all the citizens of Durham County to work the public roads, except citizens of the town of Durham, and the defendant is also an inhabitant of an incorporated town, to-wit, North Durham. But that is a matter left to legislative authority, and if it worked any hardship, liable to be changed by any subsequent Legislature. This act authorizes some counties to work the roads in the mode therein prescribed, i. e., partly by taxation, and partly by labor, leaving the other counties, generally, to work their roads in the old method, by labor alone. And there are still others in. which the roads are worked entirely by taxation. Among the counties authorized to work by the mixed *632 system, partly labor and partly by taxation, tbe general rule, laid down in sec. 4, is to exempt citizens of incorporated towns from labor on tbe roads, but in sec. 24, as to Dnrbam County, only tbe inhabitants of the town of Durham are thus exempt. By see. 22, this mixed system is made imperative as to certain counties or townships named. By sec. 23, its operation in other counties and townships, therein specified, is made conditional upon the adoption of the provisions of the act by the County Commissioners; and still other sections contain modifications of the act as to specified counties and townships, and sec. 27 specifies counties exempt from the provisions of the act. This legislation was to meet the varying phases of public sentiment in regard to the important matter of working the public roads. A method which would be satisfactory in some counties might, for local reasons, or by reason of a difference in public sentiment, be altogether unadvisable and unacceptable in others. Being altogether a local matter, the Legislature has endeavored to meet the views of each locality. If it has made any mistake as to the wishes of any locality, or should there he a change of sentiment in any, any subsequent General Assembly can amend the act.

Local legislation of this nature has been very common in North Carolina, and has always been held to be within the powers of the Legislature: as to local liquor prohibition acts, State v. Muse, 20 N. C., 319; State v. Joyner, 81 N. C., 534; State v. Barringer, 110 N. C., 418; fence laws, Cain v. Commissioners, 86 N. C., 8; State v. Snow, 117 N. C., 774; restricting sale of seed cotton in certain counties, State v. Moore, 104 N. C., 714; local prohibitions as to cattle running at large, Broadfoot v. Fayetteville, 121 N. C., 418; local differences in the methods of electing Town and City Commissioners, Harris v. Wright, 121 N. C., 172; in the method of electing County Commissioners, Lyon v. Commissioners, 120 *633 N. C., 237; local provisions as to public schools, McCormac v. Commissioners, 90 N. C., 441; local dispensaries for sale of liquor, Guy v. Commissioners, 122 N. C., 471; and, indeed, in this very matter of the method of working public roads, Tate v. Commissioners, 122 N. C., 812; Brown v. Commissioners, 100 N. C., 92; Herring v. Dixon, 122 N. C., 420; and in many other matters, Intendent v. Sorrell, 46 N. C., 49, and other cases.

The provision as to Durham County simply divides the county into two road districts, one consisting of Durham town, and the other of the rest of the1 county, an arrangement which is held valid in Broadfoot v. Fayetteville, supra.

The defendant’s counsel strenuously insists that the method of working the public roads by conscription of labor is unjust, in that it falls to the same extent upon the poor man, who has not a wheeled conveyance1, and upon him who has many, and that, indeed, if the latter happens to be above the road age, he may use the road by an unlimited number of vehicles, without contributing in the slightest degree to keeping that road in order. It is a matter of common knowledge that the system of working the public roads by conscription of labor is expensive, wasteful and inefficient. It, perhaps, was suited to a former age, when roads were little used, when labor could be furnished without inconvenience, by any able-bodied man, to do the little work required, and money was a scarce commodity. Because of its inefficiency, and possibly from a growing conviction of the essential injustice of the system, and the increasing inequality under present conditions of the burdens laid by working the roads under that system, there has been a steady growth of legislation (beginning with Mecklenburg County, in which so many progressive measures have started) away from the old system, and in the direction of having them worked by taxation. The present stage of public sentiment, *634 varying in different counties, and even townships, is doubtless fairly represented by the variant provisions of the act now before us. It is in the power of future Legislatures to extend its provisions at their will, till the roads shall be worked entirely by taxation throughout the State, but that is a matter which rests with the legislative department of the Government.

We can not agree with counsel that requiring the defendant to work the roads is a tax, and, therefore,unconstitutional, because not levied ad valorem in proportion to property. It is not a tax at all, within the meaning of the constitutional provision, which requires the prescribed equation between poll and property tax to' be observed. It is not a tax, but a duty, like service upon a jury, grand jury, special venire, military service, or as witness, (Town of Pleasant v. Host, 29 Ill., 490; Fox v. Rockford, 38 Ill., 451), which duties formerly were, and, to some extent, are still, required to be rendered to the State without compensation. With the increased wealth and consequently increased use of roads and need for better roads, this duty will become more onerous and unequal, and there will probably be an acceleration in the movement to substitute a taxation upon property in lieu of it. But a duty so long recognized as such, which was universally exacted at the time of the adoption of the present Constitution, and which has been recognized ever since> can not now be deemed and held a tax, and, therefore, unconstitutional. Till 1868 the method of working the roads was left entirely to the Legislature to prescribe, and if there had been any intention to restrict the power of the Legislature in that regal'd, or to change the common-law duty of the citizen (1 Bl. Com., 358) to work them into a tax, there would have been some express provision to that effect inserted in the new Constitution.

There have been numerous decisions of this Court since *635 1868 sustaining indictments for-failure to: work tbe public roads, and necessarily 'sustaining tbe constitutionality olf sucb statutes, tho-ugh tbe point was not expressly raised, tbe latest case being State v. Joyce, 121 N. C., 610. Tbe defendant moves in arrest of judgment, because tbe warrant does not describe the offense charged. Tbe affidavit sets out the charge in full, and at tbe foot tbe Justice of tbe Peace has added his warrant in proper form, but inserting “to answer tbe above complaint,” without reiterating tbe particulars of the charge. This incorporates the charge in the affidavit' into, and makes it a part of, the warrant. This was expressly decided in an exactly similar case for this same offense (State v. Sykes, 104 N. C., 694), which has been cited and reiterated as to all offenses, in State v. Davis, 111 N. C., 729; State v. Wilson, 106 N. C., at p. 721, and in other cases. The defendant contends that the prior case of State v. Bryson, 84 N. C., 780, is in conflict with these. If it were, the later repeated decisions would govern, but in fact State v. Bryson merely holds that “the affidavit being not an essential part of the warrant, if the warrant itself charges a criminal offense, it will be sustained.” The later cases above cited hold “the affidavit and warrant in contemplation of law are one, if one is referred to in the other,” and if, together, they constitute a charge of a criminal offense, it will be sufficient.

Affirmed.