State v. Hathcock

• Decision Date: 29 February 1884
• Parties: STATE v. HATHCOCK.
• Court: South Carolina Supreme Court

20 S.C. 419

STATE

v.HATHCOCK.

Supreme Court of South Carolina.

Feb. 29th, 1884.

Laborers employed in working upon the road-bed of a railroad company, which was engaged in carrying freight, passengers and mail, were summoned to work upon the public highways, but failed to appear. Upon being prosecuted for such failure, they interposed their daily and constant employment at that time as a justifiable excuse, which defense was overruled by trial justice and Circuit judge. Held, that there being no definition of what was a justifiable excuse in such cases, this court could not declare the ruling below to be error of law.

Before FRASER, J., Fairfield, September, 1883.

These were prosecutions against Oliver Hathcock, Walter Kelly, George McConnell, James McConnell and Rhett Jordan-five cases heard together, the same point being involved in all. In dismissing the appeal to the Circuit Court, the presiding judge said:

The defendants were convicted and sentenced to pay each a fine of $5 or be imprisoned ten days in the county jail. The defendants appeal on the grounds- 1. That their employment, as above stated, in the service of the railroad company is a “justifiable excuse.” 2. That being so employed, they are not liable to road duty.

These defendants are not the employes of the government, either State or Federal. They have no claim on the government, and are in no way responsible to it. They are employed, and, I take it, paid, and can be dismissed by the railroad company at its pleasure. Except that they are paid for the time they work and not by the job, there is no difference between them and those who get out cross-ties, bridge and trestle timber, and fire-wood. I see nothing in the nature of their connection with the railroad company which exempts them from road duty. They are not exempt by statute as a class.

What is a justifiable excuse is not defined in the acts. I think, however, that it must be something in the nature of an emergency, which cannot, with reasonable care, be provided against, as sickness or death in one's family, or even of a near neighbor or friend, where the common interests of humanity demand that business shall be laid aside for the care of the sick and dying. Some heavy loss from fire or flood might be sufficient to excuse the sufferer during the temporary pressure on him. I take it that any sudden and unexpected demand on the railroad company to repair damages from a freshet or some accident on the railroad, might excuse the railroad hands. There is nothing of the sort in this case-nothing which could not have been provided for. The railroad company only employed hands enough to do their work, while it would have been easy to have employed sufficient force to do its work, making proper allowance for that which the State demands. I do not think that any class of persons not named as exempt in the act can plead their employment or occupation as ipso facto a valid or justifiable excuse for failure to do road duty.

The judgment of the trial justice in these cases is therefore confirmed.

The defendants' exception to this judgment was as follows:

For that his Honor did not hold that while a track-hand was working upon the track of a railroad, then in operation, at a time when his so working was necessary for the safe transportation of merchandise, passengers and the United States mail, his being so employed constituted a “justifiable excuse” for not working upon the dirt highways of the State at that time.

Mr. J. H. Rion, for appellant.

This is a criminal action; hence, a different construction as to what will be a justifiable excuse must obtain from what would be construed such excuse in a civil action for a penalty. Railroads are public highways. Gen. Stat., § 1550; Cheves 96; 16 Wall. 663, 685. The defendants work on these public highways every week-day in the year, and were so working on the day they failed to appear, doing work required by the charter. Railroads in operation in the United States are post-roads. U. S. Rev. Stat., § 3964. Carrying the mails is a great public duty; and a right granted by charter. 11 Stat. 536, § 10. Taking these hands away would be impeding the operation of a constitutional power. 4 Wheat. 317;2 Black 631. But these defendants cannot be convicted if they have a justifiable excuse. Gen. Stat., § 1085. They were keeping this great public highway and the bridges, &c., in safe condition, and employed in a public duty as to State and United States. Governors, judges, sheriffs, &c., are not exempt under the letter of the statute, but if then engaged in public duties, they would have a justifiable excuse. Other hands employed instead of these would be likewise summoned. See 1 Bailey 170. In the case from Cheves 95, the railroad was not completed, nor in operation; they were not railroad hands, nor then engaged in work at the time necessary for safe transportation. Exemption is not claimed for these defendants; but that their employment on the same day was a justifiable excuse sufficient to prevent a conviction in a criminal case. Under act of 1825, white persons could not be imprisoned. The case in Cheves 210, would hardly be so ruled now. See, also, 2 McCord 401;1 Bailey 168, 169, 170.

Mr. Solicitor Gaston, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

The defendants were employed by the Charlotte, Columbia and Augusta Railroad Company to work on the road-bed of said railroad, and it is said “that they were engaged on said work every day in the year, Sundays excepted, constantly...