
    The State, at the relation of Captain Martindale of the Charleston Neck Rangers, vs. J. H. Stevens and William Evans, Collectors of Militia Fines, &c.
    All Militia fines when collected, are tobe paid over into the hands of the paymaster of the Regiment to which the delinquent may belong.
    Cases of a military nature, are very properly of Military cognizance, and ought to be submitted to, and determined by the Military tribunals only; and the Court of Common Pleas ought not to sustain any cognizance of them, unless where the Court Martials exceed their juris*1 diction, „
    
      MOTION for a prohibition to restrain the defendants from paying over to the paymaster of the 16th regiment, the amount of militia fines in their hands.
    In support of this motion it was contended, that all fines imposed by a company court martial, ought to be paid over and be subject to the disposal of the captain of each company, to be by him appropriated to the purposes of said company in the purchase o farms, drums, colours and other •articles necessary for military purposes. And that all fines imposed by a regimental court martial, should be paid over to the commander of the corps, or regimental paymaster for the use of the regiment generally and its contingent expenses. That all offences committed by non commissioned officers and privates, were to be tried, and fines inflicted by the majority of the commissioned officers of the company to which they belonged, or in which they were enrolled ; (48 section of militia act of 1794.) That all officers from the major-generals down to ensigns, were to be tried by officers of different grades, agreeably to their rank, and the fines imposed by the different courts martial on such officers, it was admitted, ought to be paid over to the commanding officers of the different corps, or paymasters appointed to receive the same for the use of the different militia regiments. (Sections 49-50, 2 Brevard, 54.)
    These were the principal grounds relied on in the course of the argument for the prohibition. And the relator in his suggestion, states, in addition to the legal grounds urged by his counsel, that fines to a considerable amount have been inflicted upon the members of the said company of Charleston Neck Rangers, for default of duty, as well at regimental as at company parades ; and that the said fines have been collected by the present and former collector of the 16th regiment, commanded by Col. Cross, and are ready to be paid over to his order and agreeably to his directions, in derogation of, and contrary to his right as captain of said company, to whom the same ought by law to be paid for the use of his said company, unless restrained by the writ of prohibition directed to the said collectors,. The relator also stated in his suggestion, that the practice hitherto had prevailed for some yéars past, to pay over-such fines to the colonel or commanding officer of the said 16th regiment, but avers that the practice is contrary to law j. therefore prays for the writ of prohibition.
    In opposition, it was stated that courts martial were held m ordinary occasions for defaults on the non-commissioned officers and privates of a company, for not attending on. parade duty at the usual and customary musters of the different companies of the regiment, and upon extraordinary occasions for not attending on battalion or regimental parades, pursuant to order from a superior officer for that purpose. That the colonels or commanders of regiments had not, and did not claim the fines inflicted by company courts martial for defaults of the non-commissioned officers and men at ordinary musters ; but permitted the captains to receive themffor the use of their respective companies. It was contended that all fines for neglects or omissions of duty inflicted on the non-commissioned officers and privates of the different comjjanies in the regiment by company courts martial for breaches of duty at brigade, or regimental parades in pursuance of orders from the commanders of regiments or other superior officer, should and ought to be paid over to the colonels of said regiments, or to the pay-masters appointed by them for that purpose, for the use of the regiment generally, and not to be appropriated to any one company in exclusion of all the others, and that this had been the practice ever since the militia act of 1794 passed, and since the 16th regiment was organized, a period ofmorc than 27 years, and that this was the first time that the right or practice was ever called in question. It was further stated in opposition to the motion, that the expenses of a regiment for contingencies were ve~ ry considerable for arms, accoutrements, colours, drums, music and other indispensable articles ; and that the general good of the whole ought to be considered and first attended to, rather than particular companies. That all the expenses of the regiment were paid by the regimental paymaster out of the regimental fund arising from these fines, and had been so ever since the first establishment of the regiment, and that the 16th regiment was now considerably in debt for contingencies, which must be paid by the officers, out of their pockets, if the fines in question were diverted to other purposes, than towards payment of the regimental debts. These were the principal grounds on which the motion was opposed.
   Mr. Jutice Bay

delivered the opinion ofthe court.

I have, since the argument, given the subject the best consideration I could, and have looked into the different militia acts, in order to find out the true intent and meaning of the Legislature in regard to the appropriation of the different fines imposed by those acts ; and after the most attentive and diligent research, I am sorry to say, that there is a great deal of obscurity and some contradiction in the different clauses respecting such appropriation. The first clause relied upon in favour of the motion, was the 45th clause of the act of 1794, which declares that “all fines which shall be imposed in any regiment, corps, company or troop, shall be paid into the hands of the pay-master or person acting as such, of such regiment, corps, company or troop, and be paid and appropriated by warrant under the hands of a major part of the field officers, or commanding officer of the corps, or captain, or commanding officer of the company, as the case may be, for the purpose of providing colours, drums, bugles, fifes and trumpets for their respective battalions, corps, companies and troops, i&c. &c.” Now according to this clause, there are three classes of pay-masters to whom these fines are to be paid,

1st. Into the hands of pay-masters of regiments.

2nd. To pay-masters of companies.

3rd. To pay-masters of troops:

It is impossible that all the fines can be paid to all three of those pay-masters; for if they arc paid into the hands pf the pay-masters of regiments, they cannot be paid to the other two classes of pay-masters of companies and troops ; and so in like manner, if they are paid into the hands of either of the other two pay-masters, nothing can be paid to the regimental pay-master, the companies will get the whole. Hence, the evident obscurity and apparent contradiction in the clause itself, in making the same thing payable to three distinct classes of men for the same purposes. And this appears to me to have given rise to the ingenious construction given by the counsel in the argument in favor of this motion, in order to give some kind of consistency to the clause in question, viz: That all fines inflicted by company courts martial for all defaults or neglects committed by the non-commissioned officers and privates of every description, should be paid over to the pay-masters of. the companies or troops in which they were committed; and all fines inflicted on commissioned officers of every grade, should be paid into the hands of the regimental pay-masters for the use of the regiments ; thus making an evident distinction between the fines arising from the default and neglect of the commissioned officers of the regiment, and those arising from the defaults and neglects of the non-commissioned officers and privates, which, no doubt, would make a prodigious difference in the aggregate amount in the course of a year. The clause, however, in the act, is perfectly silent as to this separation and division of fines inflicted by regimental and company-courts martial. It does not say that there shall be any distinction between the fines inflicted by regimental and company courts martial, that one class of fines shall be paid over to a regimental pay-master, and another class paid over to the pay-masters of companies or troops (which includes those of every kind or degree) in any regiment?» company, corps or troop, shall, in the first place, be paid over to the pay-master of the regiment, and then to the pay-masters of the companies and troops, as the case may be, &e.'&c. There is no separation or division in the act'; the whole or none must be paid to one or other of the paymasters mentioned in the clause. Now, the great question in this case is, to which of them are these fines to be paid ? And I candidly confess, that I find great difficulty in giving a direct and positive answer to the question. If I were a Legislator, and was asked the question, to which of them ought these funds to be paid over, I should not hesitate a moment in saying, that the good and prosperity of the whole corps or regiment ought to be prefered to the aggrandizement of any one company before or over another, but that the whole ought to be put upon the same footing to make one efficient complete corps or regiment$ .and that all the funds in the regiment ought to be appropriated to that general purpose. My judicial functions, however, preclude me from giving any such answer to a question of a legislative nature in the present instance, and I find myself greatly relieved from the embarrassment under which I laboured in answering the above question, by resorting, in the present instance, to military usage as the best solution and exposition I can give to the point now before me ; for it came out in the argument against the motion, that it had been the usage and practice ever since the year 1794, when the act passed and the ICth regiment was organized, to pay over these fines into the hands of the regimental pay-master only, for the use of the said regiment, and this was admitted to be a fact by the counsel for this motion. Here then is a military usage for 27 years, a period more than long enough to establish a prescriptive right, and give to a custom, the force of law, for 2Q years will establish a prescriptive right: and this construction was given by military officers, who ought to be the best judges of military law, soon after the act passed, and came into operation ; and it has uniformly been acquiesced in throughout the state of South-Carolina to the present day; and this is the first time it ever was called in question. In looking further into the militia laws of the state, I find that this construction, given by the officers of the regiment soon after its organization, was sanctioned by Legislative authority in the year" 1813, nineteen years after the act-of 1794 had gone into operation. For it is. expressly declared in the 11th clause of the act of 1813, amending the militia laws of the state, “that all fines collected as above, shall be paid into the hands of the paymaster of the regiment to which the delinquents shall respectively belong.” There is no doubt or obscurity in. this clause, which was an amendment of all former militia acts then in force, and it is the last law upon the subject. This act, therefore, in my opinion, ought to have -a governing influence over all the regiments in the state, as it removes all the doubts and obscurities respecting fines, in all the previous acts, and is in exact conformity to the military usage above mentioned. I am therefore of opinion, after a full consideration of this case, that the motion for the prohibition should be rejected, and that the collector ¡of the fines should pay the amount into the hands of the pay-master of the 16'th regiment, for the use of the same. The Judges, after the report of the foregoing case, were unanimously of opinion there were no grounds for the prohibition, and that the motion was very properly discharged. They were further of opinion that these kinds of cases of a military nature were very properly of military cognizance, and ought like all others of the like nature to be submitted to, and determined by, the military tribunals only, and that the Court of Common Pleas ought not to sustain any cognizance of them, unless in cases where the courts martial step out of their jurisdiction and take cognizance of cases which are not within the meaning and pui’view of our militia acts.

He Saicssure, for the motion.

Retigru, contra.

Justices Colcock, Noll, Huger, Gantt, Richardson- and Johnson, concurred.

King, for the motion.

Grimke:, contra.  