Opinion
August Term, 1849.
The act of Assembly incorporating the town of Hendersonville and exempting the citizens of that town from working "on roads without the limits of that town," does not exempt them from working on the Buncombe Turnpike Road, as provided by the charter of the Buncombe Turnpike Company. The roads referred to in the act of the incorporation are the ordinary public roads of the county.
APPEAL, from the Superior Court of Law of HENDERSON, at Spring Term, 1848, Battle, J., presiding.
By the act of 1824, incorporating the Buncombe Turnpike Company, all hands liable to work on roads in Buncombe, residing within two miles on either side of the turnpike road, are made liable to do six days' work on it annually, and those who do not, when warned, are made liable to the penalties which could then be collected from persons failing to work on public roads in the State. Afterwards, Henderson County was established out of a part of the territory of Buncombe through which the turnpike ran, and the defendant lived in Hendersonville, within two miles of the road, and became liable to work on it. The present action was commenced by warrant for $4 for failing to work on the road four days in February and March, 1848, and it was admitted on the trial that there should be judgment for the plaintiff unless, in point of law, the defendant was exonerated from working on the turnpike by an act, passed in 1846, to incorporate the town of Hendersonville. By that act it is enacted, amongst other things, that the commissioners of the town shall appoint an overseer of the streets of the (223) town, and that all persons residing in the town, liable by law to work on roads, shall be required to work on the streets as often as shall be necessary; and, also, "that all persons living within the limits of said town, liable to work on public roads, be and they are hereby exempted from working on roads within the limits of said corporation." The turnpike road passes through the town of Hendersonville for three-quarters of a mile and forms its principal street. The defendant is a citizen of Hendersonville and resides in it, and worked under the overseer of the streets. But for the four days for which the present suit is brought the defendant was summoned to work on the turnpike road without the town of Hendersonville, and refused to do so. The case was submitted to the court on these facts as admitted, and his Honor gave judgment for the defendant, and there was an appeal to this Court.
N.W. Woodfin for plaintiff.
Henry for defendant.
The judgment is considered erroneous by this Court. It is true, the act, in terms, exempts the citizens of this town from working on roads without the corporation, and therefore it is broad enough to embrace this case, if that expression is not controlled by the context, or the nature of the subject and the statute. It is said, indeed, on the part of the plaintiff, that such an exemption as that claimed by the defendant is beyond the legislative power to grant, because it is inconsistent with the previous charter to the plaintiff, whereby the work of the defendant was assured by the State to the company. We do not deem it necessary, nor proper, unnecessarily to express an opinion upon the question of constitutional power. It is, nevertheless, material to observe that there is such a stipulation (224) in the charter of the turnpike company, in compensation for the privilege thereby reserved to all the citizens of Buncombe County to pass the plaintiff's road, toll free. It is material to advert to that stipulation as a help to the just construction of the subsequent town charter; for, certainly, no intention to violate the public faith and contracts is to be imputed to the Legislature, if it can be avoided, admitting even the power to do so. Hence, if the statute we are considering were a public one, the construction ought to be such as is consistent with the public engagements in previous statutes, if the language will admit of it; and resort is properly had to the context, in order to give to general terms a more enlarged or restricted sense, so as to effectuate the intention of the Legislature, in accordance with the rights before granted to some of her citizens and with the character of the State. In other words, an intention to do willful injustice by invading private right is not to be attributed to the Legislature when, by any fair intendment, a different and a just meaning can be put on the language. Now, the case is that this defendant was liable, by a provision in the charter of the plaintiff, to work six days every year on the turnpike road, and made so liable for a valuable consideration, moving from the company to his fellow-citizens of his county; and that, by the general law, the defendant was also liable to work on the other roads — the common highways of the county — as he might be appointed by his county court from time to time. In that state of things a law was passed that he, as a citizen of an incorporated village, should work on its streets, and for that should be exempted from working "on roads" without the town. To the question, what roads were meant, one would naturally say at once that the Legislature did not mean to violate its prior-engagement nor deal unjustly, and therefore could have intended only to relieve the inhabitants of the town, who alone work on its (225) streets, from the burden of being appointed by the court to work on the ordinary county roads, in respect to which the Legislature has an absolute and rightful discretion. The construction is thoroughly fortified by the previous part of the sentence, in which it is said that the citizens of the town who are "liable to work on public roads" are to be exempted from working on roads; from which the inference is a fair one, that the roads, from working on which they are exempted, are those, and those only, on which they were immediately before liable to work, namely, the public roads, or such as belong to the public only, and in which there was no private right. Such would be the proper interpretation, we think, were the statute under consideration a public one; and much more is it when it is remembered that it is a private act, incorporating a small village, and that the rule for construing such a statute is that they do not bind strangers not mentioned in them, or, at all events, in derogation of private right, beyond a construction rendered absolutely necessary by its words. 2 Bl. Com., 345; 1 Thomas' Coke, 26; Drake v. Drake, 15 N.C. 110. For these reasons the Court is of opinion that judgment be given for the plaintiff for $4 and the costs, according to the case agreed.
PER CURIAM. Judgment reversed, and judgment for the plaintiff.
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