
    
      The State, ex relatione Jos. J. Porter and others, vs. The Town Council of Beaufort and Paul H. Barnes, marshal.
    
    The Town Council of Beaufort have the power, under their charter, to try and impose fines on defaulters in the performance of patrol duty within the town of Beaufort, and to issue writs of ca. sa. to compel the payment thereof.
    Such writs of ca. sa. may be directed to the town marshal, requiring him to convey the bodies of the defaulters to the jail of Beaufort district, &c.
    
      Before Frost, J. at Beaufort, Spring Term, 1845.
    This was an application for a writ of prohibition. The suggestion and answer shewed that in June, 1840, the Town Council of Beaufort passed an ordinance, wherein, among other things, it was ordained, “ that from and after the passing of said ordinance, it shall be lawful for any person or persons, hereby declared liable to perform patrol duty in the town of Beaufort, to send any able bodied white person, other than a person liable to perform duty at the time, between the ages of eighteen and sixty, to perform patrol duty for him or them ; and if any patrol man shall neglect or refuse to perform the duty required of him by the Town Council, or to procure a substitute to perform the same, without a legal excuse, he shall forfeit and pay a fine of two dollars for each and every such default, and ten per cent, on Iris general tax for the year preceding paid by him on the property owned by him in the district or parish.” That in pursuance of the said ordinance the town council, in November, 1844, imposed on the relators fines of four dollars each for neglect of patrol duty, and issued, for the collection thereof, writs of fl. fa. That the said writs of fi.fa. were returned nulla bona, and thereupon writs of ca. sa. were issued, directed to Paul H. Barnes, marshal of the town of Beaufort, and to the keeper of the jail of Beaufort district, authorizing and commanding the said marshal to take the bodies of the relators and to convey them to the said jail of Beaufort district, which is distant more than thirty miles from the corporate limits of the said town of Beaufort, and requiring the keeper of the jail of Beaufort district to receive the bodies of the relators and them safely keep, until the said fines, besides the costs, be paid, or they be discharged by due course of law.
    The suggestion prayed that a writ of prohibition be¡ granted to restrain the town council and marshal of the town of Beaufort from collecting the said fines and enforcing the said writs of capias ad satisfaciendum, on the following grounds :
    
      First. — That the said “ Town Council of Beaufort” had no right to try and impose fines upon the relators for non-performance of patrol duty, as under the Act of Assembly they should have been reported to and fined by the regimental court martial.
    
      Second. — That if the said Town Council' had a right to impose the said fines, yet they had no authority to imprison the relators in default of the payment thereof, as by their Act of incorporation they are only authorized to imprison persons for penalties or forfeitures inflicted by any of the by-laws of the said corporation; and this is clearly an offence against the 'State law, and not a by-law of the corporation, which is provided for by the Act of Assembly of 1839.
    
      Third. — That if the said Town Council had a right to fine and imprison the relators, yet the said writs of ca. sa. are clearly bad, as they are directed to a local and not a State officer, and authorize and command him to take the bodies of the relators to a place more than thirty miles beyond the corporate limits of the said town of Beaufort.
    
      Per Curiam. “ The power and jurisdiction against the exercise of which a prohibition is prayed, are claimed by the Town Council of Beaufort, under the Acts incorporating that town, (8 Stat. 221,) and an Act of Assembly, passed in 1825, (6 Stat. 264,) by which the “power and duty of regulating and superintending the patrol within the limits of the town of Beaufort, is transferred and devolved on the Intendant and Wardens of the said town, who are vested with full powers to make all such ordinances, relative to the time and manner of performing patrol duty within the limits of the said town, as may be necessary to preserve the peace, order and safety of the in-, habitants thereof.”
    “Under the authority supposed to be conferred by these Acts, the Town Council, in 1840, passed an ordinance, declaring what persons should be liable to the performance of patrol duty, and imposing a fine for default. For an alleged violation of this ordinance, in neglect to perform patrol duty, the Town Council proceeding, as under the charter of the town they are empowered to do for a violation of any ordinance, have required the relators to answer for the default before them, and have given judgment against them for the amount of certain fines incurred, and having issued executions against their goods, which were returned nulla bona, they issued executions against their persons, directed to the marshal of the town, Paul H. Barnes, commanding him to arrest the bodies of the relators and commit them to the jail of Beaufort district, there to he detained by the sheriff of Beaufort district, until discharged by due course of law.
    “ The relators have been arrested under these execro-tions, and they pray a prohibition against the proceedings of the Town Council of Beaufort, on the ground that under the power of “regulating and superintending the patrol in the town of. Beaufort,” and “ of making all such ordinances relative to the time and manner of performing said duty, as may be necessary to preserve the peace, order and safety of the inhabitants thereof,” the Town Council have no authority to try and impose fines on them for non-performance of patrol duty ; but that under the 17th section of the Act of 1839, (p. 61,) to reduce all Acts relating to the performance of patrol duty into one Act, they should have been tried and the fines imposed by a court martial.
    “ The first and obvious consideration in determining the question presented, is, that the Town Council can claim no power or authority which is not expressly granted to them ; that the terms of the grant must be strictly construed against them ; and that every presumption is in favor of the general jurisdiction of the State, and against the assertion of any right, by a municipal corporation or inferior jurisdiction, to withdraw the citizen from the protection and privileges of the general law, and subject him to the limited and special control and authority.
    “ ‘The patrol’ is a part of the general State police, organized, regulated and enforced as a part of the military organization of the State. It is provided by law who shall be liable to this duty ; and the captain of the beat company is .required to establish the'patrol districts; make a roll of those liable in each district to the performance of duty ; designate from time to time those who may be called out; and appoint leaders, who are particularly charged with the time and manner of performing the duty, and on whom the performance is principally devolved. All defaults or misconduct are to be reported to the captain of the Beat; and the fines imposed by the Act are directed to be recovered and enforced by a court marshal.
    “ This recapitulation presents three general divisions of the patrol system. First, its organization, by declaring who shall be liable to the duty, the establishment of districts, the designation of those who shall, from time to time, perform the duty, and the appoinment of leaders. Second, the time and manner of performing the duty, which, with the exception that, the leaders shall call out their men at least once a fortnight, the law; intrusts very much to their discretion. And third, the penalties for default or misconduct, and the mode of enforcing and collecting them.
    “ The power to regulate the time and manner of performing the duty does not necessarily, nor seems ev.en properly to include the power to declare who shall be liable, nor the fines for default or misconduct, nor the mode of enforcing them, which the ordinance of 1840 does undertake to prescribe, , The town Council, then, has no power to legislate in these particulars; and the executions against the relators, as for penalties imposed by a valid by-law of the corporation, are unwarranted.
    
      “ This construction of the Act of 1825, which restricts the power of the town Council to regulation and superintendence, still places at their disposal an organized police force, by giving them the control over the time'and manner of performing patrol duty, which may be sufficient for the purpose designed by the Act, of preserving the peace, order and safety of the inhabitants, and is not .liable to the objection that the Act so restricted is ineffectual. The police might be more efficient if the town Council possessed the power of enforcing the payment of fines for default. But this only presents a reason for applying to the Legislature for the grant of that power, and cannot avail to prove that such power,exists.
    “ That the power to regulate the time and manner of performing patrol duty is distinct from that bf enforcing the performance, may be inferred from the fact, that in many of the Acts incorporating villages both powers are conferred, while in some others only the former is granted.
    “ By the Act of 1823, (8 Stat. 330,) the “power and duty of organizing, detailing and enforcing the performance of patrol duty in the Beat company or other companies in the town of Beaufort,” were transferred to the town Council. Having thus devolved on them the duties of the captains of Beat companies, the Act further provided, “ that the town Council should be subject to the same penalties for the neglect of patrol duty, that the captains of Beat companies were by law subject to.” This Act conferred on the town Council full power over the subject. It may be presumed to have been found onerous or inconvenient; for in 1825 the Act was passed which is the subject of construction, limiting the town Council to the regulation of the time and manner of performing patrol duty. All the additional powers conferred by the Act of 1823, which the town Council now claim to assume, were relinquished by the Act of 1825, and were re-transferred to the respective depositories under the law of the State.
    “No power over the patrol seems to have been given by the Act of incorporation in 1803. It is unnecessary to refer to the particular provisions of that Act to support this conclusion, since the corporators and town Council, by strong, if not necessary, implication, admitted it when the Acts of 1823 and 1825 were passed, which were merely nugatory, if the powers by them conferred already existed in the town Council.
    
      “ Having decided to grant the prohibition on the first ground made by the suggestion, it is unnecessary to consider the other objections which affect the legality of the execution.
    “ It is, therefore, ordered, that the town Council of Beaufort, and Paul H. Barnes, be prohibited from further proceeding to enforce the payment of the fines alleged to have been incurred by the relators for default of patrol duty, and that they be discharged from arrest under the executions issued against them, according to the prayer of the suggestion.”
    The respondents appealed, and now moved this court to reverse the order of the presiding Judge, on the following grounds:
    1. That his Honor erred in construing the Act of incorporation of the town of Beaufort, as conferring no power to enforce, by ordinance, the performance of patrol duty within the limits of the town.
    
      2. That his Honor erred in so construing the Act of 1825 as to restrain the power of enforcing the performance of patrol duty, conferred by the Act of 1823, to regulating the time and manner of performing patrol duty.
    3. That his Honor’s decision was, in other respects, contrary to law and the true construction of the Acts of Assembly in the premises.
    
      E. Rhett, for the motion.
    
      W. B. Fielding, contra.
   Curia,) per RichaRdson, J.

The question for decision is this ; to which jurisdiction does it belong to try defaulters in the performance of patrol duty in the town of Beaufort ? — the defaulters to be tried under certain ordinances of the town Council, which are supposed on their part to be within their limited legislative power; that is, is the trial to be by the town Council, under their own ordinances, or must it be by the military court, under the 17th sec. p. 61, of the Act of 1839, to reduce all the patrol Acts into one Act? — such trial of course to be under the State law. This court was constituted in every militia Regiment, to try defaulters in militia duty, and the trial of defaulters in patrol duty was added to their jurisdiction by the Act of 1839.

But before we proceed, let us understand what is the judicial character and legal position of this tribunal. The .military court, like the town Council of Beaufort, is a particular tribunal of specified powers, and, like the town Council, is the creature of legislative Acts, strictly limiting their assigned jurisdiction.

These two tribunals stand in equal favor, or rather disfavor, of the general laws of the land ; that is, both are to be kept strictly within their prescribed and limited jurisdiction.

Thus stand the town Council, claiming to try the rela-tors, and the court martial, to which the relators prefer to ascribe their trial. But all legislative Acts are to be expounded with rational confidence, and be made to enure to their proper objects.

We have therefore to inquire which of the two can shew the proper legislative warrant for the trial of the relators in this particular instance. In order to test the jurisdiction of the town Council, we turn, first, to the charter of 1803, 8 Stat. 221. By the 8th section, the town Council are vested “with full power and authority, from time to time, to commit to close prison, (after conviction,) in the jail of Beaufort district, or the jail in Beaufort, all such person and persons who shall inmr any penalties or forfeitures, intended to be inflicted by any of the by-laws of the said corporation, passed conformably to the powers vested in them by this Act; subject, nevertheless, to all the benefits of the insolvent debtors Act.”

This enactment, in its very terms, answers, at least in part, the second and third objections to the jurisdiction of the town Council; that is, they have authority to imprison in the jail ol the district for penalties under their proper ordinances. And it is plain that they must so imprison by means of their own authorized agent responsible to them ; else the very power to imprison would be paralized. This of course presupposes that the ordinances are within the power of the town Council. Their whole argument, in fact, depends upon that assumption. The rest of these two objections comes under the consideration of the first, which presents the proper question ; what is the jurisdiction of the town Council in the case 1 — and I proceed accordingly to the Act of 1823, 8 Stat. 330. It enacts as follows, that “ from and after the passing of this Act, the power and duty of organizing, detailing and enforcing the performance of patrol duty in the Beat company or other companies in the town of Beaufort, be, and the same is hereby, transferred to the town Council of said town.” Here we find the organization and enforcement of patrol duty in the town, plainly given to the town Council in extenso ; and why they may not pass ordinances upon the patrol duty so explicitly transferred, inflict penalties and enforce them, under the general power given by their charier, to imprison,” I cannot perceive. But in fact the town Council did exercise all such powers, after passing the necessary ordinances, as they set forth in their answer to the suggestion of the relators. But objection is made to such a delegation of the power over patrols, in virtue of the subsequent Act of 1825, entitled “ an Act to amend the charter of the town of Camden ; and for other purposes therein mentioned,” “ that from and after the first day of January, 1826, the power and duty of regulating and superintending the patrol within the limits of the town of Beaufort, he, and the same is hereby, transferred to and devolved on the Intendant and Wardens of the said town, who are hereby vested with full powers to make all such ordinances relative to the time and manner of performing patrol duty within the limits of the said town aforesaid, as may be necessary to preserve the peace, order and safety of the inhabitants thereof.” 6 Stat. 264.

But does this Act lessen or restrict the powers given by the Act of 18231 By the Act of 1825, the power to regulate patrol duty is a second time transferred to the town Council, and more expressly the power to pass ordinances “relative to the time and manner of performing patrol duty” is given. But I can perceive, neither in its letter or spirit, any intention to take away the general delegation of the patrol to the town Council.

Are not the Acts of 1803, ’23 and ’25, to constitute but one law ? The two latter add to the powers under the charter of 1803 : 1st. by giving the whole police of the patrol duty to the town Council. 2dly. By giving them power to pass such ordinances “ relative to the time and manner of performing patrol duty, as may be necessary to preserve the peace, order and safety,” &c.

The Act of 1825 may have been passed to explain or relieve doubts; but it is not necessarily so repugnant to the Act of 1823 as to repeal it by mere implication. On the contrary, are they not Acts in pari materia, and therefore to be united 1 The patrol constitutes the usual means of enforcing a very important part of our police, and has often been put into the hands of incorporate town Councils.

The Act of 1825 not only affords no plain restriction upon that of 1823, but may have been intended to give more express power in passing ordinances upon the subject of patrols. But in any view the words “ relative to the time and manner” are not in opposition, but to be understood in connection with the preceding re-enactment to transfer the patrol power to the town Council. For a proper and just construction, we must take the whole section of the Act together. It could not have been intended that the ordinance ought not to enact a penalty — that would render it a dead letter. But, if its penal enactments be right, then its enforcement against the delinquents is plainly referred back to the charter of 1803, first quoted, “ to commit to close prison” such infractors of an ordinance of the town Council.

The exact point of the case is surely this, that if the ordinances .are within the powers conferred, the town Council are right throughout. Against such constructions of the Acts of 1803, ’23 and ’25, as constituting one systematic law for the. town Council of Beaufort, the Act of 1839, for digesting the patrol laws into one Act, is also urged. The 17th section of this Act, (11 Stat. 61,) declares that “ the captain or commanding officer of a company, the leader of a patrol, and any person declared liable by this Act to perform patrol duty, who shall neglect or refuse to perform the duty required by this Act, shall be summoned to and tried by the same courts martial ordered for the trial of officers, non-commissioned officers and privates of the militia ; and execution shall be issued, and collection made, in the same manner as for military fines.” But this Act, in so many words, restrains the military jurisdiction to delinquents under that Act; to those who “neglect to perform the duty required by this Act” are the terms used ; and bear in mind, that this too is a particular jurisdiction, the creature of its charter, to be watched as closely and jealously as the town Council. Neither can be favored beyond the letter or unavoidable construction of their respective charters. But which jurisdiction shall take cognizance of the Beaufort ordinance, is still the question ; the town Council or the court martial 1

Not the court martial assuredly. Let me illustrate this by putting the following case. Suppose a motion made for a writ of mandamus to require the court martial to try these relators for their neglect to perform patrol duty in the town of Beaufort, would not the following answer on the part of the colonel and his officers of the regiment be conclusive'/ “ Our jurisdiction is limited, by the Act of 1829, expressly to the neglect of the patrol duty required by that Act; and we cannot take cognizance of and enforce a penalty to be inflicted in virtue of the ordinance of the town Council.” Is it not, then, apparent that the error in the motion for a prohibition consists in assuming that the town Council are bound to proceed under the patrol laws of the State, whereas, the Acts of 1823 and 1825 expressly transfer to them, in so many words, the “power of organizing, detailing and enforcing patrol duty in the town of Beaufort,” and it follows of course they are to proceed under their own organizing, detailing and enforcing ordinances.

What other meaning, then, to justify such ordinances, can be attached to the terms, to transfer the power and duty of patrol used in these Acts 1

I should conclude that the general patrol Acts are as much lifted from the patrol duty in the town of Beaufort, and the town ordinances substituted, as the road laws of the State are from King-street, in order to put the city laws of Charleston, regulating the streets, in lieu and place of such road laws. The motion to reverse the circuit deci-¡ sion is granted.

O’Neall, Evans, Butler and Waurlaw, JJ. con? purred,  