The opinion
Douglas, J.,
dissenting. This was a criminal action tried on appeal by the defendant from the judgment of a justice of the peace. The following is the “complaint” on which the warrant was issued: “B. B. McLurd, being duly sworn, complains and says that he has been duly appointed overseer by the Board of Commissioners of Catawba County to open out a public road in said County, Jacob’s Fork Township, leading from Plateau over the lands of Charles Bronce and others to a. point on the King’s Mountain road near the Lincoln County line; that Charles Yoder has been duly assigned, is and was liable to work on said road, he being a citizen of the said County of Catawba; that affiant at and in the said County of Catawba on the 13th day of December, 1902, as overseer, duly summoned said Charles Yoder to' appear on the 18th, 19th and 20th days of December, 1902, at a time and place named in said summons, to work on said road, and that the defendant wilfully and unlawfully failed to appear and refused to work in accordance with said summons, and failed and refused to furnish an able-bodied man as a substitute, with the implement directed, and failed and. refused to pay the one dollar as prescribed by the statute, contrary to the form of the statute in such case made and provided and against the peace and dignity of tire State. B. B. McLurd.”
*1117 The defendant was found guilty both before the justice of the peace and on appeal in the Superior Court.
The defendant moved to quasb the warrant and in arrest of judgment. Both motions were refused by the court below and are now before us on exceptions.
I think the motion in arrest of judgment should bave been granted, as the so-called complaint does not charge any criminal offense. The warrant simply directs the arrest of the defendant “to answer the above complaint.”
Section 2017 of The Code provides that, “all able-bodied male persons between the ages of 18 and 45 years shall be required under the provisions of this chapter to work on the public roads” .... The warrant, including the complaint as a part thereof, does not allege a single one of the requisites specified in The Code. It states merely the legal conclusion that be was “duly assigned” and was “liable to work on said roads, be being a citizen of the said County of Catawba.” The word “citizen” might be construed as meaning inferentially that be was a male person, but that is only one of its legal meanings, and it never can be construed to include the idea of being able-bodied and between the ages of 18 and 45. No motion was made to amend the warrant, although full notice was given by the motion to quash. It will be seen that the statute designates the class to which it shall apply, in express terms, which are words of limitation and not of exception. Now, if the statute provided that all persons should be required to work the roads, with certain exceptions, the case would be different, as the existence of the facts creating the exception would generally be matter of defense. It is well settled that if the words are essentially those of qualification and not of exception, even if stated under the form of an exception or proviso, they must be alleged by the State. In State v. Norman, 13 N. C., 222 , the distinction is thus clearly drawn: “We find in the Acts of our Legislature *1118 two kinds of provisos — the one in the nature of an exception, which withdraws the case provided for from the operation of the Act; the other, adding a qualification whereby a case is brought within that operation. Where a proviso is of the first kind, it is not necessary in an indictment, or other charge founded upon the Act, to negative the proviso; but if the case is within the proviso, it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description, the indictment must bring the case within the proviso; for in reality that which is provided for, in what is called a proviso to the Act, is part of the enactment itself.” This case has been repeatedly cited with approval and seems never to have been questioned. State v. Tomlinson, 77 N. C., 528 ; State v. Narrows Island Club, 100 N. C., 477 ; 6 Am. St. Rep., 618 ; State v. Pool, 106 N. C., at p. 700; State v. Davis, 109 N. C., at p. 784; State v. Downs, 116 N. C., 1064 .
It is true the penalty is prescribed in Section 2020 of The Code, but that section does not describe the offense, nor specify the class to which the penalty shall apply except by reference to other sections, including, of course, Section 2017. The expression “liable to work on the roads” is merely a legal conclusion from facts elsewhere stated.
While I can find no case exactly like that before us, there are many involving the same principle inasmuch as they hold the warrant or indictment invalid where it did not fully describe the offense. In State v. Smith, 98 N. C., 747 , it was held (quoting the syllabus), that “A warrant against a person for failing to work the roads, which fails to allege that the defendant has been duly assigned, and was liable to work on that particular road, and that he had been properly summoned, is fatally defective.” In State v. Baker, 106 N. C., 758 , it was held (quoting the syllabus) that “A warrant charging simply that the defendant ‘did refuse to work the *1119 public road after being'legally warned by P., supervisor, against the peace and dignity of the State,’ is insufficient.” In State v. Pool, 106 N. C., 698 , in which the warrant was held to be fatally defective, various defects are pointed out, among others, the failure to negative the payment of one dollar in lieu of personal service. In State v. Neal, 109 N. C., 859 , it was directly held that a warrant against one for refusing to work on the public road was fatally defective, if it failed to negative the payment of one dollar by the defendant in discharge of his liability. The Acts of 1887 (Ch. 73) and of 1889 (Ch. 338) do not affect the case at bar.
The principle above stated would be sufficient to determine this appeal. But there is one other question clearly presented in the record, as well as in the briefs of counsel, that I think it better also to discuss. The defendant requested the court substantially to charge that he could not be required to do double road duty by being assigned to two different roads at the same time. This point has been directly decided in State v. Hinton, 131 N. C., 770 , where the court says: “We do not think that the law intends to impose upon any one the double burden of working the roads in different districts at the same time.” The State contends that this exemption from double duty applies only to roads already laid out, and that “the law imposes this obligation upon him (working on a new road) in common with other residents of the county, in addition to his liability to render service in keeping in repair roads already established.” We do not see the distinction. Compulsory working on the roads is in the nature of taxation and should be uniform as far as local conditions will permit. I think that the defendant should have been permitted to show where and when he had worked on the public roads during the current year, in order to get full credit for the time already given to public duty.
Connor, J., concurs in the dissenting opinion.