
    The State ex relatione William Luten v. The Commissioners of Roads for St. George’s Parish.
    "Where slaves, hired by the month, had been employed the greater part of the year by the same person, in working on the railroad, the hirer was properly held accountable by the commissioners for their road service in the parish in which they were so employed.
    Hands working on the railroad, (though by law a public highway,) are not exempt from ordinary road duty.
    The road duty of hired slaves is due at the place where they have resided and worked the greater part of the year.
    In what instances the hirer of slaves, or the owner, should be made liable for their road service, cannot be indicated by any precise rule, but must depend on circumstances to be judged of by the commissioners.
    Before Butler, J., at Walterboro’, Fall Term, 1839. ■
    Declaration in prohibition; upon which the following verdict was had:
    “We find that the plaintiff, having a plantation and,house in the lower part of St. George’s parish, had hired by the month, and had under his control, eighteen male hands, between the ages of sixteen and fifty, which belonged to, and were hired from, different persons residing in St. James’s "parish. That for the greater part of the year 1837, the plaintiff, as a contractor on the railroad, had the said hands employed in making embankments on a portion of said railroad, which runs through' the upper part of St. George’s parish. That there are two Boards of Commissioners for said parish; and that the said hands were at work on the railroad, within the limits of the upper Board. That the Commissioners for the upper Board required the plaintiff to send said hands to work on the highway in their, division. That the plaintiff objected to the liability of said hands working on roads in their jurisdiction. Nevertheless, he appeared before the Board, and made a return, according to an .entry in the books of the Board, of eighteen hands; but verbally reserving to himself all his legal rights; and we find that he ought not to be deprived of any of his legal rights by said return.
    “If, according to the above facts, the plaintiff ought to recover, we find for him: if not, we find for defendants.”
    On this finding the relator moved for a writ of prohibition, which was refused.
    The following extract from his Honor’s opinion below, is given here because its reasoning is adopted by the Court.
    “ The main ground relied on, in argument, was, that the relator being a contractor on the railroad, and having his hands employed on the same, as one of the public highways of the State, was exempt from liability to work on the common highway. This ground cannot be sustained. The railroad has been declared to be a public highway, upon which all the citizens of the country have a right to travel, and transport their goods. But, by a charter from the State, it is exclusively under the control of a private company; that company deriving all the income arising from it, is exclusively under an obligation to keep it in repair. They cannot compel any citizen to work on it; but must employ their own means of working on, and keeping it in a proper state, for the safe transportation of passengers and goods. Any one who becomes a contractor on it, does so voluntarily, and for his own advantage. He has chosen to transfer his labor from his own plantation, or other private employment, to employ it for others. He is compensated for his labor by contract with a particular set of individuals, and cannot be thereby exempt from the obligations of other citizens, to work on the highway of the State, for which they receive no stipulated compensation. If the relator had been the owner of the negroes, he certainly would have been liable for their default, in not working on the roads within the jurisdiction of the defendants. For the hands had been employed for the greater part of the year on that portion of the railroad that is within the jurisdiction of the Commissioners of St. George’s. The serious difficulty in the case arises from the fact, that the relator is not the owner of the hands, but had hired them by the month from their ■ owners, residing in St. James.”
    The relator appealed, and renewed his motion for the writ.
   Curia, per Butler, J.

The circuit decision in this case must be affirmed. The first ground for the motion, as noticed in the opinion below, cannot be sustained, for the obvious .reasons, therein stated. The other requires, perhaps, some comment. It was this, that, although the hands of the relator had been employed for the greater part of the year within the jurisdiction of the defendants, they did not belong to him but for a limited time, and were not liable to be returned by him, so as to subject him to liability for their not working on the road.

By the A. A. 1825, sec. 9, (p. 31,) all the male inhabitants of this State from sixteen to fifty years of age, are declared liable to work on the public roads, &c., and the Commissioners are empowered to direct on what roads they shall be employed, provided that such roads be within ten miles -of the residence of the person, or of the place where the slaves are employed the greater part of the year. Section 11 authorizes each Board of Commissioners to declare what inhabitants are liable to work on any road or part of a road in their respective parishes or districts, or divisions, subject to the restrictions of time and place previously mentioned; and each Commissioner, in his respective division, is required to call on all the inhabitants within the same, to make a return, (on oath, if required,) of all the male slaves belonging to them, or under their management and direction, from sixteen to fifty, and who reside in such parish or district for the most of the year. The Commissioners, by the return made to them, must decide on the liability of the hands to perform service on the roads, according to their time of residence. As soon as it is ascertained that slaves have resided and worked at any particular place for the greater part of the year, the Commissioners have a right to command their labor. They cannot command the slaves themselves, but they may proceed against those who have an interest in, and a control over them. Against whom they are to proceed, must be, in the first instance, a question addressed to their judgment and discretion, for they have a right to say what inhabitants and slaves shall work on any particular road. They might say some of one man’s hands should work on one road and some on another, and their owner on a third.'

In what instances the hirer of hands, having a limited interest in them, or the owner, should be made liable for their service, cannot be indicated by any precise rule, but must depend on circumstances, to be judged of by the Commissioners in the exercise of a sound discretion. One who has hired a hand for a day, or a week, might fairly claim exemption, while a hirer for three years, or one year, would not be entitled to it. In the case before the Court, it appears that the hands in the possession of the relator had been employed by him for his benefit, for the greater part of the. year, within the limits of defendant’s jurisdiction. For this time he was their master and owner, and was properly amenable to the Commissioners for their road duty. The Commissioners clearly had jurisdiction of the relator and his hands, and we do not perceive that they have shown such a disposition to abuse it as to require the interference of this Court to restrain the exercise of their authority.

See 1 Ricli. 348. An.

Edwards, for the motion.

Rhett, contra.

Upon both grounds, therefore, the relator’s motion is refused. The whole Court concurred. 
      
       9 Stat. 559. An.
      
     