#### THE STATE *vs.*THOMAS H. WILLIAMS *&*AL.

Where a public law imposes a public duty, the omission to perform the duty is indictable ; but, if it is not an absolute duty, but a conditional one, dependent upon the honest .exercise of the judgment of the person or persons, to whom it is submitted, whether it is to be performed or not, the omission to perform it, *perse,*is not an indictable offence.

Thus, where an indictment charged that the Wardens of the Poor had omitted to make by laws, rules and regulations for the comfort of the poor, under the act, Rev.Stat. eh. 89, see. 13, *Held*that the indictment would not lie, because the duty, Imposed upon the wardens by that act, was a discretionary one, to be exercised as they might deem expedient.

" Appeal from the Superior Court of Law of New Hanover County, at the Spring Term 1851,his Honor Judge Manly presiding.

*173The defendants are indicted for an omission oí duty, as wardens of the poor of New Hanover County ; and the case comes here upon a motion in arrest of judgment. The indictment is as follows :

“ *Slate of North Carolina, ?*Court of Pleas and Quarter New Hanover County, ( Sessions. Dec’r. Term, 1S50.

■ “The jurors for the State upon their oath, present, that there were on the first day of March, in 'the year of our Lord, One Thousand Eight Hundred and Fifty, and yet are, in the County of New Hanover, a certain poor house and other out buildings, erected for the maintenance and support of the poor of said county: in which said poor house {here were on the first day of March, and yet arc, divers poor persons and siclrand disabled persons residing, inhabiting and being : and that Thomas II. Williams, Daniel McAllister, Albert G. Hall, Wm. Henry, líobt. H. Howard, Bernard Baxter, and Michael Register, all late of the said county of New Hanover, were, on the said first day of March, in the year aforesaid, duly elected Wardens of the Poor for the county oí New Hanover: and they, the said Thomas H. Williams, Daniel McAllister, Albert G. Hall, Wm. Henry, Robt. J. Howard, Bemaid Baxter, and Michael Register, did, on the said first day of March, in the year aforesaid, take upon themselves the said office of Wardens of the Poor for the county of New Hanover, and, as such, were bound by law annually to let out to the lowest bidder the said Poor House, and the said poor persons in the county of New Hanover, or to employ some fit and suitable person as overseer to superintend said Poor House, and provide for the comfort of the poor persons in the said Poor House, residing, inhabiting and being : and the said Thomas H. Williams, Daniel McAllister, Albert G. Hall, Wm. Henry, llobt. J. Howard, Bernard Baxter, and Michael Register, did, on the said first day of March, in the year of Our Lord One-Thousand Eight Hundred and Fifty, unlawfullly omit and neglect, and yet do unlawfully omit and neglect to appoint some fit and suitable person as overseei, to superintend said Poor House and provide for the comfort of the poor persons in said Poor House, inhabiting, residing and being, as they were bound by law to do, to the great damage and nuisance of all the good citizens of tire isiute, con*174trary to the form of the Statute in such cases made and provided, and against the. peace, and dignity of the State

“And the jurors aforesaid, upon their oatli aforesaid, do further present, that there were on the said first day of March, in the year aforesaid, and yet are, in the county of New Hanover aforesaid, a certaiti Poor House and other out buildings erected for the maintenance and support of the poor of said county, in which said Poor House there were on the first day of March, and yet are, divers poor persons and sick and disabled persons residing, inhabiting and being: and that the-said Thomas H. Williams, Daniel McAllister, Albert G. Hall, Wm. Henry, Robt. J. Howard, Bernard Baxter, and Michael Register, late of the county of New Hanover aforesaid, were, on the first day of March, in the year aforesaid, duly elected Wardens of the Poor for the county of New Hanover: and they, the said Thomas H. Williams, Daniel McAllister, Albert G. Hall, William Henry, Robert J. Howard, Bernard Baxter, and Michael Register, did, on the said first day of March, in the year aforesaid, take upon themselves the office of Wardens of the Poor for the county oí New Hanover, and, as such, were bound by law to ordain bye-laws, rules and regulations for the government of the said Poor House, and of the poor persons in the said Poor House, inhabiting, residing and being: and the said Thomas. H. Williams, Daniel McAllis-ter, Albert G. Hall, AVilliam Henry, Robert J. Howard, Bernard Baxter, and Michael Register, did, on the said first day of March, in the year aforesaid, unlawfully omit and neglect to ordain bye-laws, rules and regulations for the government of the said Poor House, and of the poor persons in the said Poor House, inhabiting, residing, and being, as they were required by law to do, to the great damage and common nuisance of all the good citizens of the State, contrary to the form of the Statute in such case made and provided, and agaainst the peace and dignity of the State.

“And the jurors aforesaid, upon their oath aforesaid, do further present, that there were on the said first; day of March, in the year aforesaid, and yet are, in the county of New Hanover, aforesaid, a certain Poor House and other out buildings erected for the maintenance and support of the poor of said county ; in which said Poor Hquse, there were on said first day of March, and yet are, divers poor persons, and sick and disabled persons residing,.inhabiting,, *175and being: and that the said Thomas H. Williams, Daniel McAllister, Albert G. Hall. William Henry, Robert J. Howard, Bernard Baxter, and Michael Register, late of the county aforesaid, were, on the said first day of March, in the year aforesaid, duly elected Wardens of the Poor for the county aforesaid : and they, the said Thomas H. Williams, Daniel McAllister, Albert G. Hall, William Henry, Robert J. Howard, Bernard Baxter, and Michael Register, did, on the said first day of March, in the year aforesaid, take upon themselves the office of Wardens of the Poor for the county aforesaid, and as such, were bound by law to do all such matters and things as were expedient for the promotion of the comfort of the said poor persons in the said poor house residing, inhabiting, and being : and the said Thomas H. Williams, Daniel McAllister, Albert G. Hill, William Henry, Robert J. Howard, Bernard, Baxter, and Michael Register, did, on the said first day of March, in the year aforesaid, unlawfully omit and neglect to do all such matters and things as are expedient, for the promotion of the comfort of the poor .persons then and there in the said poor house, inhabiting, residing, and being, who were, on the said first day of March, in the year aforesaid, and yet are, utterly neglected and unattended to, to the great damage and common nu sanee of all the good citizens of the State, contrary to the form of the Statute, in such case made and provided, and against the peace and dignity of the State.”

This indictment was found in the County Court, and upon the trial, the jury acquitted the defendants upon the first and third counts, and convicted them upon the second. Upon argument the judgment was arrested and the State appealed to the Superior Court, where the judgment of the County Court was affirmed ; and the State again appealed to the Supreme Court.

*Attorney*General, for the State.

Iredell, for the defendants.

Nash, J.

The only question is, as to the legal sufficiency ©f the second count. That count sets forth,” that there were *176on'tho first day of March 1850, and yet are, in the County of New Hanover a certain Poor House and other outbuildings &c., and that the said (setting forth the names of the defendants) on the said first day of March aforesaid were duly elected Wardens of the Poor &c.and that the said &c., i! did take upon themselves the office &c. and as such were bound by law to ordain by-laws, rules and regulations for the government of the Poor House and of the poor persons in said Poor House inhabiting &c.” *The omission is set*forth as follows : “and the said (setting forth the names of defendants) did unlawfully omit and neglect, and *yet do*unlawfully omit and neglect to ordain by-laws, rules and regulations for the government of the said Poor House&c.” In looking into the act, under which this indictment is framed, Rev. Staf. ch.* 87, sec. 13, we find, that the Wardens of the Poor are directed “ annually to let out to the lowest bidder the said Poor Houses and the poor of their respective Counties, or shall employ some person or overseer to superintend the business as to them may seem bestThe section concludes, “ and the wardens shall haveTull power and authority.to ordain by-laws, rules and regulations and do all such matters and things as they may deem expedient for the comfort of the poor.” The indictment sets forth that, before the appointment of these defendants or overseers of the Poor House, it had existed ; and we must suppose, that Wardens of the Poor had been in office. If so, it was their duty to have passed such by-laws, as the interest of the poor inhabiting or to inhabit the’Poor blouse might require. If such was the case, no obligations rested on these defendants to enact other laws, any farther than they may have found' those already in existence to be defective and nnsufficient. Here, the charge is that they passed *no laws,*neglected to discharge a duty imposed on them by their-office. This duty was imposed *sub modo*— subject to their judgment and discretion. The count then is defective, in not averring, that no by-laws, rules and regulations for the government *177of the poor house existed at the time these defendants were elected, *non*constat, that such by-laws &c. were not in existence, made by some 'preceding board. Throughout the section of the act of 1836, we are considering, the duties enumerated are submitted to the discretion of the wardens— they are to hire out the poor house and the poor, or to retain them in their hands and employ an overseer, *“*as to them may seem best,” and only in the latter case does the duty arise to adopt by-laws &e., and such by-laws &e. only are to be made by them “as they may deem expedient.”-A second reason, why the second count cannot be sustained, is, that the indictment does not aver, that the defendants did keep the poor house and the poor under their own management and control. It may be, that they did not let them out as the act permits. A third is, that by law the duty set forth in the second count is a discretionary one, that is, to be performed according as, in the judgment of the wardens, it might be necessary. When a public law imposes a public duty upon a single person or a number of persons, the omission to perform the duty is indictable, but if it is not an absolute duty, but a conditional one, dependent upon the honest exercise of the judgment of the body, to whom it is intrusted whether it is to be performed or not, .the omission to perform it, *per se,*is not an indictable offence.

Per Curiam. Ordered to be certified accordingly.