State v. Smith

• Decision Date: 23 April 1888
• Citation: 6 S.E. 251,100 N.C. 550
• Court: North Carolina Supreme Court
• Parties: State v. Smith.

6 S.E. 251

(100 N.C. 550)

State

v.Smith.

Supreme Court of North Carolina.

April 23, 1888.

1. Highways—Statutory Establishment—Collateral Attack.

In an indictment for obstructing a highway established by commissioners having jurisdiction, the proceedings of the commissioners cannot be questioned, though in some respects, not essential to the jurisdiction, they were irregular.¹

2. Same—Obstruction—Indictment.

In an indictment for obstructing a highway, the road was described substantially the same as in the order of the commissioners and the report of the jury in establishing it, so that the court could see that a particular offense was charged, and the defendant could see what offense was charged. Held sufficient.

3. Same—Instructions.

On the trial of an indictment for obstructing a highway, where the defense set up is that the road is not a highway, it is not error to refuse to instruct that, to " constitute a public highway, it must be a public charge, and must have an overseer and hands to work it;" such facts being mere incidents to a highway, and not pertinent to the issue.

Appeal from superior court, Burke county; MacRae, Judge.

Indictment for obstructing a highway. Defendant convicted, and appeals.

The Attorney General, for the State.

Merrimon, J. The statute (Code, § 2014) confers upon the board of county commissioners "full power and authority, within their respective counties, * * * to order the laying out of public roads when necessary;" and it further prescribes (Id. §§ 2038-2040) in what case and when and how such roads shall be laid out and established. Although the proceedings of the county commissioners in respect to the road in question were not in all respects regular, we are nevertheless of opinion that they were sufficient to establish a public highway that the defendant and all other persons were bound to recognize and treat as such until such proceedings should be reversed, modified, or set aside in a proper proceeding for the purpose. A petition in writing signed by several persons interested in the proposed road, designating the terminal points, was laid before the commissioners of the county of Burke, and likewise a counter-petition. Upon consideration, the commissioners made an order that the road, as prayed for, be laid out, and that the sheriff summon a jury for that purpose. The order designated with particularity the terminal points of the road to be laid out. The sheriff summoned a jury, who, in obedience to the order and summons, assembled and were sworn; and they laid out, between the terminal points designated, with much particular-ity, the road in question, and made report of their action to the county commissioners, who confirmed the same, and then made an order directing the sheriff to open the road strictly as laid out by the jury; and thereafter the sheriff did so, and made return of his action. Thus a tribunal having jurisdiction over the subject of public roads, and having an application before it to establish such a road, took action in that respect, and purported, in pursuance of the leading essential provisions of the statute applicable in such case, to establish the road in question. The proceedings of that tribunal may have been erroneous; they were, as we can see, in some respects, not essential to the jurisdiction of the commissioners, irregular; but they were not necessarily void. On the contrary, they were valid until reversed. The actions and decisions of the tribunals having jurisdiction to accomplish a purpose contemplated and allowed by law are not to be treated lightly, ignored, and disregarded by whoever may see fit to do so. "When it appears that the jurisdiction attaches, the presumption is in favor of...