State v. Clayton, 146 N.C. 599 (1908)

Feb. 19, 1908 · Supreme Court of North Carolina

146 N.C. 599

STATE v. WADE CLAYTON.

(Filed 19 February, 1908).

1. Public Roads — Failure to Work — Justice’s Court — Jurisdiction.

Under Revisa!, 3779, the punishment for failure to work the roads is cognizable only in courts of justices of the peace, and the Superior Court can only acquire jurisdiction by appeal.

2. Same — Appeal—Proceedings Quashed.

Where the justice of the peace has exclusive jurisdiction of the offense and binds the defendant over to the Superior Court, the latter court having jurisdiction upon appeal only, the proceedings must be quashed.

3. Public Roads — Summons to Work — Adjournment.

The overseer of public roads must comply with the statutory provisions in having the roads worked, causing those summoned to work either two days or one, as the occasion requires, allowing an interval of at least fifteen days, and adjourn only on account of rain, sickness or other unavoidable cause, and not merely for his own convenience.

4. Same — Overseer—Reasonable Discretion — Burden of Proof.

Under an indictment for failure to work the public roads, where there is a controversy as to an adjournment by the overseer, the burden is on the State to show the overseer therein exercised a sound and reasonable discretion.

ObimiNal action for refusing to work tbe public roads, tried before 0. Ii. Allen, J., and a jury, at October Term, 1907, of tbe Superior Court of Beaufort County.

Erom a verdict of guilty and tbe judgment rendered tbe defendant appealed.

Assistant Attorney-General for tbe State.

Nicholson & Daniel for defendant.

Brown, J.

This proceeding must be quashed, as tbe Superior Court acquired no jurisdiction. Tbe only jurisdiction it could exercise is appellate, and tbe record shows that no judgment was rendered by tbe justice of the peace, or sentence imposed, but that be acted only as a committing magistrate and bound tbe defendant over to tbe Superior Court. In that court no indictment was sent, and very properly so, as that court bad only appellate and not original jurisdiction. Under section 3779, Revisal 1905, a failure to work tbe road is made -a misdemeanor, punishable by fine of not less than two dollars nor more than five, or by imprisonment not exceeding five days. This gives tbe justices of tbe peace final jurisdiction, with tbe right of appeal by defendants. As tbe point presented upon this appeal may arise again, we will decide it. Tbe defendant was summoned to work tbe public roads on a Saturday, and worked until noon, when be was discharged. Tbe overseer summoned him again to work tbe following Eriday and Saturday. This was illegal. Section 2721 of tbe Revisal is explicit: “Tbe overseer of tbe road shall, as often as tbe road shall require it, not more than six days in any one year, summon tbe bands of bis section to work on tbe road, but the said bands shall not be required to work continuously for a longer time at any one time than two days, and at least fifteen days shall intervene between workings, except in case of special damage to the road resulting from storm.” The same section further provides “that no hands shall be required to work for a less time than seven hours or a longer time than ten hours in any one day.”

We cannot concur in the contention that the maxim that the law does not recognize parts of a day applies to the working of the public roads. AA^hen the overseer “calls out the road hands” it is his duty to work them a full day, from seven to ten hours each day, for two days if necessary. If not necessary to work two days, then for one day. After that working, then fifteen days must intervene before another, and the total days must not exceed six in any one year. The overseer may, on account of rain, sickness or other unavoidable cause, adjourn a vrorking from one day to the next, or to some other day, and then finish the requisite number of hours to complete one day’s work, but his discretion is not an arbitrary one and must be exercised upon reasonable cause. In the event of a controversy, the burden would be on the State to show that the overseer exercised a sound and reasonable discretion. The statute does not contemplate that the overseer may call out the road force and work the roads a few hours, and then, without reason or necessity, but for his own convenience, adjourn to the next or some subsequent day, and then complete the seven to ten hours which constitute one day’s work.

Let the costs of this Court be paid by the county of Beaufort.

Proceeding Dismissed.