The only question presented by the record in this case is whether the defendant, being a regularly appointed pilot, was exempted from working on the public road in the township in which he resided.
There is no doubt but that pilots should be relieved from, this and every other public duty, which would divert them from the constant vigilance which their calling demands; and if we had the power we would unhesitatingly grant them an exemption, but to do so would be encroaching upon the province of the legislative branch of the government.
An act was passed by the legislature of 1879, entitled <! an act to provide for keeping ill repair the public roads of the state,” the fourth section of which reads: “ All able bodied male persons between the ages of eighteen years and forty-five years shall be required under the provisions of this act to work on the public roads, except the members of the board of supervisors of public roads, not less than three days in each and every year.” Laws 1879, ch. 82, § 4.
The act is very broad in its terms, and exempts no male person who is physically able to perform the requisite work on a road, except the members of the board of supervisors of public roads, who are incorporated by that act, and consist of the justices of the peace in each township. These are the only able bodied male persons of any class or condition that are exempted. If any person is disqualified by disease, infirmity, or any other physical disability, he is not required to perform this duty, and while the act is silent as to the mode of obtaining an exemption, we take it that the certificate would have to be obtained from the board of supervisors of public roads, who in this regard succeed to the powers of the township board of trustees.
While pilots are not exempted, we are of the opinion that if on the day they are summoned to work on the roads, any emergency should arise, or there should be any call to duty in any matter connected with the pilotage which should *591require their presence elsewhere, it would be a good defence to a criminal action for refusing or failing to work on the road. There might be two public duties to perforin, as in this case, of so different natures that they could not be discharged on the same day. In such a case the performance of the one duty should excuse the non-performance of the other; as in the case of a witness subpoenaed to attend two courts on the same day, he may elect which he will attend, and as the law does not require impossibilities at the hands of any one, his obedience to the one subpcena is a good excuse for failing to comply with the commands of the other. There is error. The judgment below is reversed. Let this be certified to the criminal court of New Hanover county that further proceedings may be had in accordance with this opinion and the laws of the state.
Error. Reversed.