Opinion
(August Term, 1848.)
1. Where a person resides in another State during the greater part of the year, but has a domicile in this State in which he also resides three or four months of the year, during which time he keeps slaves here, he is liable during the time he resides in this State to the requisition of the overseer of the road for the services of those hands, being of the description of hands bound by the general laws of this State to work on the road.
2. But persons merely passing through the State or visiting it for purposes of profit or pleasure, and remaining, for days, weeks or even months without having any fixed home, are not persons whom the overseer of the roads are authorized to summon as being within their districts.
APPEAL from the Superior Court of Law of HENDERSON, at Spring Term, 1848, Battle, J., presiding.
Baxter for plaintiff.
N.W. Woodfin for defendant.
This was an action of debt, commenced by the plaintiff (437) as overseer of a public road in the county of Henderson, by a warrant before a single justice, to recover from the defendant the sum of $12 for four days work of three hands. A judgment was given against the defendant by the justice, from which he appealed to the Superior Court, where, at the Spring Term, 1848, the following case agreed was submitted to the presiding judge:
The plaintiff was duly appointed an overseer of a public road in Henderson County, and the defendant owned three male slaves, over the age of sixteen and under the age of fifty years, who were assigned by the Court of Pleas and Quarter Sessions of said county to work said road under the orders of the plaintiff. The defendant was duly notified to send said slaves to work on said road for four days each, which he failed or neglected to do; and at the time when he was summoned to send said hands and for more than thirty days before, and at the time appointed to work on said road, the defendant, with said slaves, was temporarily living in Henderson County. The defendant alleged that he was a citizen of South Carolina, where he resides about eight months in each year, and where he has the principal part of his property and claims and exercise the right of suffrage. But he has a place of residence in Henderson County, which he annually visits, and occupies about four months in each year, embracing the months of June, July, August and September. The slaves who failed to work on said road are servants, whom he brings with him on his annual visits to his residence in Henderson County and takes back on his return to South Carolina. The defendant, both before and after he had been summoned to send his said slaves to work on the road as aforesaid, in passing a gate on the Buncombe Turnpike Road, refused to pay his toll, alleging that he was a citizen of Henderson County and exempted by the charter of the Buncombe Turnpike Company from paying toll. The (438) parties agree that if the court be of opinion that the plaintiff is entitled to recover upon the foregoing facts, a judgment shall be entered against the defendant for $12, otherwise, a judgment of nonsuit shall be entered. The presiding judge was of opinion that the plaintiff was entitled to recover, and gave judgment accordingly, whereupon the defendant appealed.
The question presented in the case agreed is whether the defendant, whose citizenship and principal residence is in the State of South Carolina, but who has a dwelling-house in this State, where he resides with his family four months in each year, is liable to be called on to send his slaves to work the public roads of this State during the time of his residence in it. We are of opinion that he is, and we think so because he comes within the letter of our "act concerning the public roads," 1 Rev. St., ch. 104, and we can perceive nothing in its spirit to exempt him. The act provides, in section 8, that the several county courts shall appoint overseer of the public roads in each county, and section 10 makes it the duty of the overseers thus appointed to summon all white males between the ages of eighteen and forty-five, and free males of color and slaves between the ages of sixteen and fifty years, within their respective districts, to meet at such times and places and with such working tools as the overseers shall prescribe, for the working and repairing such roads as may be necessary. Each and every person so summoned is then required to attend, under pain of forfeiting $1 for each day's neglect, provided he shall have been notified three days before the time appointed for the meeting; and provided further, that for the neglect of any (439) slave, his master shall be liable to pay the penalty. Section 12 of the act then declares that no such person as is above specified shall be exempted from working on the public roads, except such as is or shall be exempted by the General Assembly or by the County Court on account of personal infirmity, and except, also, such as shall send three slaves or three sufficient hands. The provisions of the act are very broad, and will certainly embrace the slaves of the defendant, unless it can be shown that the act was not intended to apply to them. This the defendant's counsel has attempted to do, and his main if not his sole argument is that the defendant is not a citizen of this State; that he has only a temporary residence here; that the act was intended to operate only upon our citizens, and that it requires express words to extend it to the citizens of other States. In support of this argument it is urged that the construction insisted on for the plaintiff would make the act include mere transient passengers and visitors as well as persons having a temporary residence, like the defendant. We admit that our Legislature had in view principally our own citizens, because they compose a vast majority of the persons upon whom the act could operate, and we admit, further, that persons merely passing through our State, or visiting it for purposes of profit or pleasure, and remaining for days, weeks and even months, without having any fixed home here, are not persons whom the overseer of the public roads are authorized to summon as being within their districts. Such persons are not fairly within the words of the act, and are certainly not within its meaning. Having no fixed place of abode within any particular district, and staying for no certain time, they could not have been contemplated as persons to receive the three days' notice required in the act; and having no working tools they could not reasonably be required to attend with them. They are evidently, then, not the persons intended by the Legislature. But the case of the defendant is very different. For four (440) months in each year — one-third of his whole time — he has a fixed place of residence in this State. The time during which he is to reside among us with his family and his slaves is ascertained and well known. The overseer of the road in whose district he lives can have no difficulty in learning when and where to summon his slaves so as to secure their attendance; and they are presumed to have tools with which they can work. He is surely, then, within the very words of the act, and why should he be exempted from its operation? The duty is only required to be performed during his residence in the State, and for that period he is or may be in the constant use of our roads and under the protection of our laws. We think, therefore, that he cannot be regarded as a mere transient passenger or temporary visitor. He certainly did not so regard himself when he claimed an exemption from paying tolls to the Buncombe Turnpike Company as being a citizen of Henderson County which he could have justly claimed only by being such. But it is proper to say that we do not rely upon that fact, and we refer to it only to show the light in which such residents are generally regarded, the light in which they regard themselves, not as citizens for political purposes, but as citizens while they reside among us, for many if not for all other purposes.
We have been unable to find any direct authority upon this question, but we think that the case of Kinzey v. King, 28 N.C. 76, has some analogy to it. It was there held that a witness who is summoned in this State, while casually here, but whose residence is in another State, cannot be amerced for nonattendance, if he has returned home and is not in the State when he is called out on his subpoena. But the Court say expressly that if the witness be in the State when he is called, "he is subject (441) to the same rules as the citizens of the State; in such as case he receive the protection of our laws, and it will be his duty to obey the mandates of our process." Now, the act declaring the manner in which witnesses shall be summoned, and enforcing their attendance, etc., shows clearly in all its provisions that it was intended to operate mainly upon our own citizens. 1 Rev. St. ch. 31, secs. 64 to 75, inclusive, Yet we see that it has been construed to extend to the citizens of other States, during the time of even a temporary visit to this State. It is manifest that the case before us in much stronger, so far as residence is concerned. We are, therefore, of opinion, upon a consideration of the whole case, that nothing has been shown on the part of the defendant to exonerate him from the penalty incurred by failing to send his slaves to work on the public road, under the circumstances stated in the case agreed.
PER CURIAM. Judgment affirmed.
Dist: S. v. Johnston, 118 N.C. 1189.