The opinion of the court was delivered by

The defendants were employed by the Charlotte, Columbia and Augusta Railroad Company to work on the road-bed of said railroad, and it is said “ that they were engaged on said work every day in the year, Sundays excepted, constantly employed in keeping said road-bed in condition, and that no more hands were employed than necessary for this purpose.” While thus employed, they were warned to work on a public highway near by. This notice they disregarded, and failed to appear. Being indicted before a trial justice, they interposed the defense of “justifiable excuse,” founded upon the facts above stated.

The act under which the defendants were indicted is found in general statutes, section 1085. It provides, “ that if any person of legal age shall neglect to appear, or shall refuse to work upon the highways or roads (having no justifiable excuse), according to the directions of the overseer, he shall be deemed guilty of a misdemeanor,” &c. The defense thus interposed was overruled by the trial justice, and also by the Circuit judge upon appeal to the Circuit Court. The appeal here raises the question again, Should the facts, as stated, have been held to constitute a justifiable excuse ?

The act, as it will be seen, simply provides that a justifiable excuse in such cas.es will prevent conviction, but it nowhere defines or declares what is meant by the term “justifiable excuse,” nor have we ever been able to find any case where a principle has been established by which the meaning of these terms can be determined as matter of law. Cheves 94, 210. The cases relied on by the respondent, found in Cheves’ reports, do not touch this question. The first case decides that railroad hands are not exempt from highway duty, and the second, that postmasters are not exempt. The question here, however, is not whether the defendants were exempt, but whether, being otherwise liable to do road duty, they could be excused in this instance on the ground that their employment as railroad hands constituted a justifiable excuse.

It is the province of this court, under the constitution, to cor*423rect errors of law in cases at law brought before it by appeal. The difficulty in this case is, that we find no law, either statutory or otherwise, declaring what facts will constitute a justifiable excuse in cases like these, and, consequently, we have no rule by which to test the facts relied on by the appellants, and to determine whether or not, as matter of law, they make out a justifiable excuse. In the absence of such rule, whatever might be our individual opinions as to the sufficiency of the excuse, as a matter of justice or expediency, yet we cannot say that the court erred as matter of law in disregarding it. The legislature, in failing to define, either generally or specifically, what facts in law would amount to a justifiable excuse, seems to have left this matter to the judgment and discretion of the tribunal before which the parties might be brought, and such being the fact, it does not appear that any question of law can be involved, except that the accused has the right to interpose such a defense. If the court below had held that the defendants had no right to rely upon a “justifiable' excuse”- as a defense, this would have been in direct conflict with the act, and would have been error of law, subject to correction by this court; but, holding that a certain state of facts did not constitute this excuse, we fail to see what principle of law he disregarded.

It is urged by the appellants’ counsel, that this is a criminal case, and hence, “ a different construction as to what will be a justifiable excuse must obtain from what would be construed such excuse in a civil action for a penalty.” This may be so, and yet the difficulty still remains. We are considering the question, whether the Circuit judge committed error of law in his ruling, and we cannot say that such error exists until we find some law defining the term “justifiable excuse,” and none has been referred to as applicable either to a civil or criminal case.

It is said that railroads are public highways; that they carry the mails, which is a great public duty, and that hands employed by them to keep the road-bed in repair, for the safe transportation of the mails and the goods and merchandise of the people, are employed in a great public work; that they stand like the governor, the judges and other State officers while in the dis*424charge of their official duties, and therefore should not be disturbed. We do not think that defendants occupy the position claimed for them. The railroads may in some sense be highways, but hands employed in keeping these roads in repair, by contract and under wages, are not giving their labor to the public under the road law, as other citizens are required to do. Neither are they public officials. On the contrary, they are ordinary employes engaged in work of an important character, it is true, but a work, so far as they are concerned, entirely of a private nature and for their own individual profit, not differing from any ordinary employment — on the farm or workshop. But, be that as it may, the question again recurs, Where is the law which holds that even a public officer could interpose his public duties as a justifiable excuse, under this act, if he is otherwise liable ? No doubt, in the case of a public officer discharging important public duties, such a defense would avail, but if it was disregarded, in reference to one not exempted by the road law when properly construed, could this court hold that it was legal error ? We think not, except by judicial legislation. See Harrington’s Case, 2 McCord 401; Martindale’s Case, 1 Bailey 168, 170.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.