
    
      The State ex rel. John L. Jervais vs. The Commissioners of New Town Cut, and the Sheriff of Charleston District.
    
    1. Under the construction of the Act of 1721, (9 Stat. 53,) and Acts subsequent thereto, the commissioners of what is called New Town Cut, constitute a separate and independent body, having the power to impose fines and issue process to collect the same.
    2. From the legislation in reference to those water- passages commonly called cuts, forming a part of the inland navigation of the maratime districts of the State, it is to he inferred that they were intended to be placed under the jurisdiction of special commissioners, unconnected with the general board of commissioners of roads for the parish within which they lie.
    3. Where the Commissioners of New Town Cut had imposed a fine for a default in not working on said cut, and issued a warrant for its collection, under the hands, but not the seals, of a legal number of the said commissioners, it was held regular, under the Act of 1788, (9 Stat. 309.)
    4. A seal is not necessary where the law dispenses with it, or, what is the same thing, directs the warrant to be under the hands of the commissioners, without requiring a seal. Vide State vs. Vaughan, Harper Rep. 313.
    5. The Act of 1825, (9 Stat. 556,) in all its provisions, applies exclusively to those bodies which, in the old Acts, are called commissioners of roads, private paths, bridges, creeks, &c., and in the later Acts simply commissioners of roads, and has no application to those special boards to whom is committed some special charge within the territorial limits of the general board.
    6. The relator having had notice to appear before the board of commissioners within six months from the default, it was not material whether the fine was. imposed, or the execution issued, within that time. The notice suspended the statute. Yide State vs. May, 1 Brev. Rep. 160.
    
      Before Evans, J. Charleston, March Term, 1843.
    
      Suggestion in Prohibition.
    
    “Be it remembered, that on this twenty-third day of March, An-no Domini, 1843, comes here into the said court at Charleston, for the district of Charleston, and State aforesaid, John L. Gervais, by James.Simons, his attorney, and gives the said court here to understand and be informed, that whereas, heretofore, to wit, on the first day of June, A. D. 1841, Solomon Legare, Kinsey Burden, jr., and William Horace Rivers, then being Commissioners of the New Town Cut, did issue to the sheriff of the said district, their warrant or order, reciting that whereas the able-bodied male slaves belonging to the relator, were liable to work on the said Cut, and the said slaves having been duly summoned to work thereon, on the 10th and 11th days of August, 1840, and that the said relator had been duly summoned to shew cause why he should not be fined, and had failed so to do, and that he had thereby become liable to pay a fine of twelve dollars, to be recovered by warrant of distress, and requiring all and singular the sheriffs of the said State to levy the said fine, together with the costs, of the goods and chattels of the relator; the said relator declares that the said execution or warrant of distress is unlawful and void, for the causes and. reasons following, that is to say: because the said Board of Commissioners of New Town Cut have no legal right to issue an execution or warrant of distress, for fines imposed by them ; that the said Board is subordinate to the general Board of Commissioners, composed of the Commissioners of Roads of Edisto, of Haulover Cut, on John’s Island, of the Roads on John’s Island, and Wadmalaw, and of the said New Town Cut; and that all such powers are vested by law in the said general Board. That even if the said Commissioners of New Town Cut have authority to issue an execution or warrant of distress, the same is void, being under the hands, but not the seals, of the said Commissioners. And furthermore, because the same was not issued until after the expiration of six months from the time of the alleged default and fine, nor was the same delivered to the sheriff of Charleston district aforesaid, until the 11th April, 1842; that on the- — day of-, 1840, at which time the relator was summoned to shew cause why he should not be fined for his default, the said relator alleges that there was no meeting of the Board of Commissioners of said New Town Cut, so that, if the relator had attended at the time and place specified in the said summons, there would then and there have been no person or persons present, lawfully authorized to receive his excuse, if he had had one to offer. That the said relator admits, that although he was summoned, he did not send his slaves, and committed default, but that he was then, and has always been, and still is, ready and willing to pay the fine to any person or persons authorized to receive the same. That with this view he actually tendered the amount of his fine, not long after the same was incurred, to the said Solomon Legare, one of the Commissioners aforesaid, but that the said Solomon Legare refused to receive the same, stating that it must be paid to the treasurer of the board. That this relator refused to pay his fine to the treasurer of the board, because the Board was not authorized by law to have a treasurer; and even if the said board was authorized by law to have a treasurer, their treasurer whom they claimed to have at that time, had not given bond and security for the faithful discharge of the duties of his office, and a faithful account of the public monies, and therefore was no treasurer at all. That furthermore, at the time when the relator was a defaulter, Paul T. Geryais, relator’s father, committed the same default; that the said Paul T. Gervais tendered his fine to the said Solomon Legare, who received the same. That the relator, in the year 1840, addressed each member of the said Board, by letter, enquiring whether any individual of their Board was authorized to act as treasurer, but he received no reply ; and the relator contends, for the reasons above set forth, that the said execution or warrant of distress is void and of no effect; wherefore the relator, imploring the aid of this court, prays that a writ of prohibition may be issued to the said Solomon Legare, Kinsey Burden, jr., and William H. Rivers, or their successors, who compose the said Board of Commissioners of New Town Cut, and to the sheriff of Charleston District, restraining them from any further action touching or concerning the premises.”
    
      The grounds on which the relator applied for a prohibition, and all the facts, appear by the annexed copy of the suggestion. The court refused the motion, because it was not considered that any of the grounds entitled the relator to the prohibition prayed for.
    The relator appealed, oh the following ground :
    That the grounds stated in the foregoing suggestion are sufficient to warrant the ordering of the said writ.
    
      James Simons, for appellant. H. Bailey, Attorney General, contra.
   Curia, per

Evans, J.

The first question made in this case is, whether the Commissioners of New Town Cut are a separate and independent body, having the power to impose fines, and issue process to collect them. By the Act of 1721, sec. li, (9 Stat. 53,) certain persons are appointed Commissioners for that part of what was then St. Paul’s parish which lies on John’s Island; another set of Commissioners was appointed for Wadmalaw, a third for Edisto, and a fourth for that part of the parish extending from Wilton to the north branch of Stono. By the same Act, certain other persons are appointed for cleansing and enlarging the passage commonly called New Town Cut. By another clause of the Act, commissioners are appointed for James Island. Subsequently to the Act of 1721, the parish of St. Johns Colleton was taken off from St. Paul’s, and by an Act passed in 1741, (9 Stat. 126,) the commissioners of high roads, private paths, bridges, causeways, creeks, passages and water-courses, for the parish of St. John, in the county of Colleton, are declared to be one board. By the Act of 1721, and the subsequent Acts in relation to New Town Cut, a portion of the inhabitants residing without what is now St. John’s parish, are required to work on the New Town Cut, and from hence it is argued that the board of commissioners for this Cut is merged in the general board of the parish of St. John’s, by whom the default of the relator should have been tried, and process issued for the collection of the fine. I do not perceive in the Acts referred to, any foundation for such an inference. The commissioners referred to in the Act of 1741, are those whose territorial jurisdiction lies within the parish of St. John’s, and cannotinclude New Town Cut, which is on James’ Island, and within the parish of St. Andrews. On looking through all the legislation on the subject of these water-passages, commonly called cuts, it is very obvious they are intended to be placed under the jurisdiction of the special commissioners, unconnected with the general board for the parish within which they lie. We are therefore of opinion the relator’s case was within the jurisdiction of the Commissioners for New Town Cut, and that they have been guilty of no usurpation of power in deciding it. The second ground for a prohibition is, that the warrant issued for the collection of the fine, was not issued in conformity to the Act of 1825, (9 Stat. 556.) Whether this, even if true, be any thing more than a mere irregularty, for which the proper remedy is trespass, and not prohibition, it is not necessary to decide. The Act of 1825, in all its provisions, applies exclusively to those bodies which, in the old Acts, are called commissioners of roads, private paths, bridges, creeks, &c., and in the later Acts are called simply commissioners of roads, and has no application to those special boards to whom is committed some special charge within the territorial .limits of the general board : such as the commissioners appointed for Lynch’s Causeway, and the various cuts which form a part of the inland navigation of the maratime districts of the State. For the law which regulates these special jurisdictions, we must refer to the Act of 1788, (9 Stat. 309,) which is a general law, applicable to all the boards of commissioners, whether general or special; and by that Act the warrant of distress for the collection of fines is directed to be issued under the hands of any three of the commissioners ; which was done in this case. A seal is not necessary where the law dispenses with it, or what is the same thing, directs the warrant to be under the hand of the commissioners, without requiring a seal. State vs. Vaughan, Harper, 313.

The only remaining ground which has been argued in this court is, that the fine was barred by the Act of 1748, (3 Stat, 701,) which limits prosecutions for the recovery of fines and penalties to six months. This is no ground for prohibition. It was a matter of defence, which should have been made before the commissioners. But even if it were a ground of prohibition, it could not avail the relator. The default occurred on the 10th and 11th days of August, 1840, and it is stated in the suggestion that he was notified to appear before the board on the -day-of 1840, so that the notice, which was the first step-in the proceedings for the collection of the fine, was within six months from the default. And this notice, like the issuing of the warrant in the case of the State vs. May, suspended the statute. It can make no difference that the commissioners did not form a board and decide the relator’s case. On that day lie did not attend to make his excuse, nor does he allege that he had' any. The case was continued until the next meeting. It is wholly immaterial whether the fine was imposed or the execution issued within six months or not,‘provided the proceeding for enforcing the penalty was commenced within that time ; and this we think was done by the notice which was given. The motion to reverse the decision of the circuit court is dismissed on all- the grounds.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred. .  