DOUGLAS, J., and CONNOR, J., dissenting. The defendant was warranted before a justice of the peace on the following complaint: "B. B. McLurd being duly sworn, complains and says that he was duly appointed overseer by the Board of Commissioners of Catawba County, State of North Carolina, to open a public (1112) road in said county, Jacobs Fork Township, leading from Plateau over the lands of Charles Bronce and others to a point on the Kings Mountain road near the Lincoln County line; that Charles Yoder has been duly assigned, is and was liable to work on said road, he being a citizen of the said county of Catawba; that affiant at and in the said county of Catawba, State aforesaid, on 13 December, 1902, as overseer, duly summoned said Yoder to appear on the 18, 19 and 20 December, 1902, at a time and place named in said summons, to work on said road, and that the defendant wilfully and unlawfully failed to appear, and refused to work in accordance with said summons *Page 786 and failed and refused to furnish an able-bodied hand as a substitute, with the implement directed, and failed and refused to pay the one dollar as prescribed by the statute, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."
The justice issued his warrant against the defendant "to answer the above complaint." He was found guilty and fined two dollars and costs, from which he appealed to the Superior Court. In that court he was found guilty by the jury, fined two dollars and costs, and appealed. 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 the 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 he had been duly summoned, giving time and (1113) place; that he wilfully and unlawfully failed to appear and refused to work, and also negatives the payment of $1. Technical and critical fullness 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 the following cases: S. v. Smith, 98 N.C. 747; S. v. Pool,106 N.C. 698; S. v. Neal, 109 N.C. 859; S. 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). S. v. Davis,111 N.C. 729; S. v. Sykes, 104 N.C. 694; S. 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 *Page 787 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 his neighbors did, and failing to do so, he has no good ground to object to paying $2 (1114) to make his 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 benefited 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 cannot be collaterally impeached. S. v. Witherspoon,75 N.C. 222; S. v. Smith, 100 N.C. 550; S. 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 (1115) regularity of the proceedings of the boards 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 *Page 788 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 had been previously assigned as a road hand to another road he could not be assigned to this. Every man liable to road duty in the county had 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 hands to construct and work them. The assignment to the new road canceled 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 hand 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 (S. v. Hinton, 131 N.C. 770); but he is not indicted for failure to work on the first road after being assigned to the new road. The assignment to the latter canceled 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 (1116) order was irregular and erroneous as to the landowners, 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 work the road thus laid out was a nullity, and disobey the order. S. 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 validity of such order by appealing. Not having done so, he should have obeyed it.
No error.