Buncombe Tpk. Co. v. McCarson

• Citation: 18 N.C. 306
• Parties: THE BUNCOMBE TURNPIKE COMPANY v. DAVID McCARSON.
• Decision Date: 31 December 1835
• Court: United States State Supreme Court of North Carolina

18 N.C. 306

THE BUNCOMBE TURNPIKE COMPANY

v.DAVID McCARSON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1835.

1. In warrants upon penal statutes before a single Justice, there must be some reference to the statutes which give the penalty; and the omission of such reference in the process is a substantial defect that will be fatal even after verdict.

2. That clause of the charter of the Buncombe Turnpike Company (Act of 1824, Taylor's Rev., ch. 1258, sec. 13), which compels all persons living within two miles of the road of said company, and who are by law liable to work on public roads, to perform six days' labor on the said road in each and every year, is not unconstitutional, inasmuch as they are by the same charter exempted from paying tolls for passing over the road.

3. Whether a person subject to pay toll could be constitutionally compelled to work on the road—Quere.

4. The books of a corporation, containing entries, in accordance with its charter, when identified, are admissible to prove the organization and existence of the corporation.

5. The board of directors of the Buncombe Turnpike Company may. under its charter, appoint a manager, or overseer of the repairs of the road, without a deed under the corporate seal: and this appointment may be shown by the production of their books containing an entry of a resolution to that effect.

ACTION of debt, for a penalty incurred by the defendant for refusing to work on the plaintiffs' road, commenced by warrant before a single justice, and carried by successive appeals to the Superior Court, where it was tried at BUNCOMBE on the Fall Circuit of 1833, before his Honor, Judge Norwood.

The warrant against the defendant was "to answer the complaint of the president and directors of the Buncombe Turnpike Company in a plea of debt of six dollars, due by failing to work on their road as he was warned to do, between the first day of January and the last day of February, 1830." On the trial in the Superior Court, the plaintiff's produced the books of the corporation, showing the original subscription of stock and the appointment of a president and directors of the company, and also the appointment of a clerk. This clerk had, under the order of the company, entered on their books a resolution of the company appointing one William Kimsey to keep in repair a part of the road of the company, and to oversee the two-mile hands liable to

work on said road. Kimsey proved that the defendant lived within one mile of that part of the road over which he was so appointed overseer; and that he, Kimsey,gave the defendant due notice to work two days on the said road with three of his hands liable to work on public roads; and that the defendant refused to do so. To the whole of this evidence the defendant objected, alleging: (1) That the organization of the corporation was not sufficiently proved; (2) that Kimsey's appointment by the resolution of the board ought to be evidenced by their corporate seal; and, (3) that that clause of the charter and Act of 1824 (Taylor's Rev., ch. 1258) which required the two-mile hands to work on said road was unconstitutional, inasmuch as it transferred the labor of the citizens to a private corporation. Each of these objections was overruled by his Honor, and the jury returned a verdict for the plaintiffs; whereupon the defendant appealed.

RUFFIN, C. J. There is a defect in the warrant, for which the Court is obliged to reverse the judgment of the Superior Court and arrest the judgment. The process has no reference to the statutes which give the penalties sued for; and the omission has been held to be fatal. Scroter v. Harrington, 8 N. C., 192. The objection was not taken in the Superior Court; nevertheless, under the Act of 1818 (Rev., ch. 962, sec. 4), this Court cannot overlook it, because our judgment must be such as, upon the whole record, that of the Superior Court ought to have been.

We suppose, however, that the purpose of bringing a suit for so small a sum to this Court was to obtain an opinion upon the matters of law involved in the defendant's exceptions; and, therefore, we have felt bound to consider them.

The principal objection is that which is directed against the constitutional power of the Legislature to require the defendant to work on the road; which is said to be transferring the labor of the citizen to a private corporation. We have a decided opinion that the Act of 1824 (Taylor's Rev., ch. 1258) is, in this respect,

constitutional; and it seems also to be just. The making of new roads, and the reparation of those already in existence, being for the benefit, ought to be effected by the means, of all the members of the body politic. It is in the discretion of the Legislature to raise those means by assessing taxes on persons and property, or by directly exacting the personal service of the citizens. From a very early period those works have in this State been carried on by the personal labor of the inhabitants of the several districts within which the particular roads are situate. The road in question is laid out in the county in which the defendant resides; and, by sec. 9 of the charter, it is declared to be a public highway. The objection is, that, although it be thus declared, passengers are required to pay tolls to the stockholders, which makes it, substantially, private property. When this objection shall be made by one from whom tolls can, under the act, be exacted, it will be our duty to consider whether such a person can be compelled to work on the road, for the passing on which he has also to pay. But that is not the defendant's case. Sec. 7 exempts the citizens of Buncombe County from the payment of tolls. The plaintiffs have, therefore, a fair retort on the defendant of his own argument; and might say that it is unconstitutional to allow him to use their property without making compensation. But the argument on either side is seen to be unsound, when the two provisions—against one of which the plaintiffs might object, and against the other the defendant does object—are brought together. By sec. 13 the charter provides that such persons as by law are liable to work on public roads in Buncombe, and reside within two miles of this road, shall do six days' work on it in the year, under the direction of the president and directors of the company. This, then, is the price which the defendant pays for the use of the road by himself and the other inhabitants of the county; and they have to make roads in their neighborhoods for his use. The provision is probably beneficial to the defendant; for lessthan six days' labor of those who live within two miles of the road might be inadequate to keeping the necessary roads in a condition to be passed, while the turnpike must be kept in repair at a great expense to the company. But of the reasonableness of the quantity of labor

compared...