STATE v. WILLIAM DAVIS and WILEY STATON.

(Filed 15 May, 1912.)

1. Roads and Highways — County Commissioners — Order Establishing Road — Appeal—Superior Court — Trial de Novo — Order Vacated.

Au appeal properly taken to the Superior Court from an order of the county commissioners directing the laying out of a highway, has the force and effect of vacating the order appealed from; and pending such appeal the case does not come within the provision of the law looking to the proper maintenance and working of the roads. Revisal, sec. 2690.

*4562. Same — Working Roads — Indictment.

Defendants are not guilty of a violation of the statute in refusing to work on a public road, after being summoned to do so by the overseer, after they have appealed to the Superior Court from an order of the county commissioners to lay out the road in question, and have given the bond and in all respects have complied with the statute; for under the express words of the statute “the whole matter is to be heard anew”; all issues of fact raised are to be- determined in the Superior Court, and the appeal vacates the order. Revisal, sec. 2690.

3. Same — Case Agreed — Special Verdict — Practice.

Defendants, being indicted for refusing to work the road, agreed with the solicitor as to the facts constituting the offense, ’and consented that these facts should be regarded by the court as a special verdict. Therein it appeared that the order establishing the road in question had been appealed from to the Superior Court and the appeal perfected as required by the statute. It is held that the appeal would" have vacated the order establishing the road if it had been in fact from a special verdict of an impaneled jury, -and when so found, the defendants should be acquitted. . ,

Appeal from Foushee, J., at March Term, 1912, of HeN-DERSON.

Indictment for failure to work road after notice, beard on appeal from a justice of peace and determined as on special verdict. The facts presented in form as a special verdict and agreed upon by solicitor and counsel for defendant, are as follows : “That a petition for a public road in Crab Creek Township was filed with the Board of Commissioners of Henderson County. That there was also a counter-petition filed. That an order was made by the board of commissioners that the road should be opened. That no further action was taken in the matter and the road was never opened. That four years ■.thereafter a petition was filed before the board of commissioners, asking that the road be opened according to the order previously made. To this a counter-petition was filed. The board of commissioners having ordered that the road be opened, the counter-petitioners prayed an appeal to the Superior Court and gave bond for the costs in accordance with the statute. Pending this appeal, the overseer of the road summoned the *457defendants to work on tbe road. Tbe defendants refused to do so, being advised by counsel that pending tbe appeal tbe overseer bad no right to work tbe road.” Upon these facts, tbe court being of opinion that defendants were guilty, it was so adjudged, and defendants excepted and appealed.

Attorney-General Bicleett and T. H. Calvert, Assistant Attorney-General, for the State.

Me. D. Bay and H. G. JBkuarb for defendants.

Hoke, J.

Tbe first order for tbe laying out of the road was not pursued, and tbe second application was recognized and dealt with as an original petition both by tbe parties and tbe board of commissioners, and, considering tbe proceedings in that aspect, tbe case, as correctly stated by tbe Attorney-General, presents tbe single question whether defendants can be convicted of tbe offense of failing to work a public road after being duly notified, while an appeal was pending in tbe Superior Court to review tbe action of tbe county commissioners establishing tbe road.

Tbe statute applicable to appeals and tbe effect of them in eases of this kind (Revisal, sec. 2690) is as follows: “Anjj-person may appeal to tbe Superior Court at term-time from tbe determination of tbe board of county commissioners, and if any person shall appeal from tbe board on a petition, be shall give bond to tbe opposing party as provided in other cases of appeal, and tbe Superior Court at term shall bear tbe whole matter anew; and .where any proceeding is instituted to lay out, establish, alter, or discontinue public roads or to appoint and settle ferries, and tbe said proceeding is carried to'tbe Superior Court in term-time by appeal or otherwise, tbe parties to said proceeding shall be entitled to have every issue of fact joined in said proceeding tried in tbe Superior Court in term-time by jury, and from tbe judgment of tbe Superior Court either party may appeal to tbe Supreme ■ Court as is provided by law for other appeals.”

From tbe broad import of tbe language and authoritative interpretations of this and similar statutes, as well as from-the “reason of tbe thing,” we conclude that an appeal properly *458taken from an order directing tbe laying out of a highway has the force and effect of vacating the judgment or order, and that pending such appeal the ease does not come within the provision of the law looking to the proper maintenance and working of the roads. Keaton v. Godfrey, 152 N. C., 17; McDowell v. Insane Asylum, 101 N. C., pp. 656-659; Finley v. Oldham, 68 Indiana, 114; Taft v. Pettsford, 28 Vt., 286; Pool v. Breese, 114 Ill., 594. Speaking to the question in McDowell v. Asylum, supra, Merrimon, J., delivering the opinion of the Court, said: “Moreover, the statutory provision allowing the appeal from the order of the county commissioners establishing or refusing to establish or discontinuing or refusing to discontinue a road or ferry already established, contemplates that an appeal shall lie at once from such order. The province of the Superior Court upon such appeal is not simply to correct errors of law of the county commissioners. In such case the whole matter of the application is heard de novo, and the parties will be entitled to have all the issues of fact raised by the petition, and the objections thereto, tried by a jury. Then, wherefore execute the principal order before an appeal would lie from it? What end could be subserved by delaying the appeal until it could be, executed? It is not probable that the dissatisfied party would be content after its execution, because his objection was to establishing the road at all, and his appeal would present questions in that respect that he would be entitled to have settled and decided ,by the Superior Court, not exercising jurisdiction and authority simply to correct errors of law, but to hear and determine the whole matter anew upon the merits as to the facts and the law applicable. It Would be idle and nugatory to execute such order before the appeal.” It is otherwise with us in regard to appeals in ordinary civil litigation, but this is so by express provision of the statute in such cases. Revisal, sec. 604, and other sections looking to a stay of execution in ordinary civil judgments, as in section 1490, referring to appeals from cases tried by justice of the peace. There is no such provision, however, on appeals of the kind we are considering, and where, as in this case, “the *459whole matter is to be beard anew,” and a party is entitled to have every issue of fact raised determined in the appellate court.

We are of opinion, as stated, that the appeal should be held to vacate the judgment. 2 Ency. Pl. and Pr., p. 323a Lucas v. Dennington, 86 Ill., 88; Paine v. Cowden, 34 Mass., 142.

It is true, we have said hi Blair v. Coakley, 136 N. C., 405, that in the absence of specific statutory provision, appeals from the board of county commissioners should be in accord with the rules obtaining in cases of appeals from a justice’s court, but this was said in reference to the more formal regulations concerning the prosecution of such appeals, and was not intended to change or alter the express provision of the statute, without restriction or limitation, that on appeals of this kind “the whole matter should be heard anew.”

We have considered the appeal as if the questions raised had been formally and properly presented by a special verdict; it was so dealt with in the court below; but we must not be understood as approving the submission of facts in these cases by agreement of counsel. They should be formally stated and embodied in a special verdict by an impaneled jury. S. v. Wells, 142 N. C., pp. 590-596.

There is error, and on the facts presented when properly established, defendants are entitled to an acquittal.

Error.