
    
      Commissoners of New Town Cut v. Wm. Seabrook.
    
    Commissioners of Water Passages or Cuts, are included under the general description of Commissioners of Roads; and it is a part of the official duty of the sheriff to execute the -warrants of the former, as well as those of the latter.
    ’9 Statutes at Large, 309, 310.
    
      Before Wardlaw, J. at Charleston, May Term, 1848.
    Two rules had been taken out against the sheriff, to shew cause why he should not be attached, for not having made the money on two executions, or warrants of distress, against the defendant, lodged by the plaintiffs in the sheriff’s office, for the collection of certain fines, incurred by default in the performance of public duty, in relation to New Town Cut. One of the executions was for the sum of $>231 42, for defendant’s default in not making return of his slaves liable to work on the said cut, when lawfully required so to do; and the other for the sum of $54, for not sending his said slaves to work, when duly summoned. These warrants of distress had been issued, in conformity to the provisions of the 6th and 7th sections of the Act of 1788.
    At this term, cause was shown for the sheriff, by the defendant’s counsel, as follows:
    SHERIFF’S RETURN.
    
      The Commissioners of New Town Cut ) v. v William Seabrook. )
    Two Distress Warrants for fines.
    Return to Rules on sheriff Irving for not enforcing the same.
    
      sSpear58.'
    9 Stat' 307‘
    John B. Irving, late sheriff of Charleston District, (by leave of the Court first had) for further cause why he did not levy t the aforesaid warrants, shews and says, that the said Com-N missioners had no right, or authority of law, and could not require the sheriff of Charleston District to execute their warrants, and this respondent, either as sheriff or otherwise, was not bound to obey or regard said warrants, because it is no part of the official duty of the sheriff, and this respondent is not a resident within, or subject to, the jurisdiction of said Commissioners. He is fully aware, that it is the duty of the sheriff to serve and levy warrants of “ Commissioners of Roads,” but he is informed, and believes it has been adjudged and decided, that the Commissioners of New Town Cut have a special jurisdiction, not controlled by the same enactments which regulate the power and duty of Commissioners of Roads. And this respondent further shews, that the Commissioners of Nexo Town Cut are authorised to appoint proper persons (within their jurisdiction) to summon the inhabitants when they are to work, and to levy executions upon all defaulters; and they have authority to inflict a special penalty upon such persons, for not acting, when appointed. But said Commissioners have never appointed this respondent, and if they had, he was not bound to accept the same, or be subject to the penalty, because he has never, at any time, been a resident within, or in any manner subject to, their jurisdiction. And this respondent further says, that if he were bound to obey the mandate of the said Commissioners, still the said warrants are irregular and defective, because there is no proof brought to his notice, that the defendant William Seabrook had been duly and properly summoned, according to law, before the assessment of such fines, and for all other causes the same are irregular and defective.
    Jas. B. Campbell,
    
      Attorney for Respondent.
    
    The opinion which was delivered in this case, when in January, 1848, it was before the Court of Appeals, recognizes as an authoritative decision, the opinion expressed in the case of the State, cj-’c. ex relatione Gervais v. the Commissioners of New Town Cut, that the Act of 1825, does not apply to the Commissioners of New Town Cut, and other Boards of Commissioners, having some special charge within the territorial limits of a general Board of Commissioners of the Roads, but that these special boards are regulated by the Act of 1788, where that has not been modified by subsequent legislation.
    His Honor said he was inclined, however, to think that some of the provisions of the Act of 1788, would be found, upon careful examination, to be inapplicable to a special board, which has jurisdiction over the inhabitants of certain portions of various parishes: that perhaps such a board was actually in the contemplation of the Legislature, neither in nor ™ 1825, but that from defect of other provisions, the Act of 1788, and subsequent Acts, concerning Commissioners of the Roads, which preceded 1825, were, in those particulars, where no repugnancy prevented, accommodated to t[1Q Speciai boards, as in practice was the Act of 1825, before the decision of the above mentioned case in 2 Spear — that the words “ roads, bridges, causeways and water-courses,” found in the Act of 1825, might be held to embrace the various cuts, which are committed to the special boards, with nearly as much propriety as the words “ high-roads, private paths, bridges, causeways, creeks and water courses,” found in the Act of 1788: that the opinion in 2 Spear was not necessary to the decision of the points there decided, and was opposed to inveterate practice, and calculated to introduce confusion and embarrassment into a subject which ought to be uniform and-simple. That according to this inclination, he would then dismiss .the rules, beeause the warrants were for an amount which the Commissioners had not a right, under the Act of 1825, to collect without the aid of a Court.
    9 Stat. 426.
    But, that if the Act of 1825, was not applicable to this board of Commissioners, then the Act of 1788 gave no authority to ■ the board to require a sheriff who does not reside within its jurisdiction, to execute its warrant. That apart from the Act of 1825, such authority can- be derived only from the Act of 1807, which authorizes “ each and every of the boards of Commissioners of roads” to direct the warrants for fines, to all and singular, the sheriffs of the State. And that under the inclination which he had intimated, he would hold that the Act of 1807 did embrace every board that was embraced by the Act of 1788; but if the words “ boards of Commissioners of the roads,” used in 1825, did not include the special boards, he could not see, that the same words used in 1807, did include them.
    Whether then, he adhered to the opinion expressed in 2 Spear or no, he concluded that the sheriff was not so bound tó execute these warrants, that he may be attached, for a refusal.
    He therefore ordered the rules to be discharged:
    The relators appealed from the order of his Honor, on the following ground:
    Because the sheriff is bound, as a part of his general off!- , cial duty, to levy and enforce the executions of New Town . Cut, and the Rules upon him, in this case, should have been made sbsolute.
    
      J. W. Hayne, Attorney General, for the motion.
    
      Campbell, contra.
   Frost, J.

delivered the opinion of the Court.

In the caseof the State, ex rel, Gervais v. the Commissioners of New Town Cut, it was held, that the Act of 1825 did not extend to the boards, having charge of cuts and inland passages ; not on the ground, that these boards could not be included under the description of Commissioners of Roads, but expressly on the ground, that the provisions of the Act relate exclusively to the powers and duties of the Commissioners of Roads, strictly so called, and have not, nor were intended to have, any application to the Commissioners of cuts and inland passages. These boards were, by the decision, left subject to the Act of 1788, and other Acts relating to the same subject. The question, whether it is the duty of the sheriff of Charleston District to enforce the execution for the fines, imposed on the defendant, must be decided as if the Act of 1825 had not been passed.

By the Act of 1807, it is declared lawful for each and every of the Boards of Commissioners of Roads in this State, to direct their summonses, warrants or other process, (which they were heretofore directed, by law, to direct to constables, for the purpose of collecting fines or other money, due to the said boards) to all and singular, the sheriffs of the State.”

It will be seen, by reference to the Acts of 1721, 1748 and 1788 that the Commissioners of New Town Cut, and of the other cuts and inland passages in the maritime parts of the State, are united with the Commissioners of highways, in all the provisions which relate to their jurisdiction, powers and duties. These Acts include Commissioners of cuts, and Commissioners of highways, indiscriminately, under the general description of Commissioners of “ highways, private paths, bridges, causeways, passages, and water courses.” They aré constituted in the same way, subject to the same term of service, liable to the same penalties for refusal to serve; are organized alike, and required to lay out, make and keep in repair all such highways, private paths, bridges, causeways, water courses, and passages, as may be established by law; and for this purpose they are invested with the same power to summon the persons, liable to work on the roads and water passages, who are subject to the same penalties for default of either duty, to be imposed by the respective boards, and collected by warrant of distress, under the hands of any three of the Commissioners, directed to any lawful constable.

The Commissioners of cuts, being thus identified with Commissioners of highways, in jurisdiction, powers and duties, it will be found that in Acts, relating to both, the cuts are included in the term highways. Thus in 1712, under the title of “ an additional Act to the several Acts for making, and repairing highways,” and in 1785, milder the title of “an Act for keeping in repair the several highways and bridges in the State,” the Commissioners of water passages are included, (with the Commissioners of highways, in the provisions of the ’ Acts.

The Act of 1807 was designed to remedy the delays and hindrances in the collection of fines which occurred when constables were employed. The mischief affects Commissioners of cuts, equally with Commissioners of Roads. The public has an equal interest in the performance of the duties, which they are respectively required to enforce. From the earliest history of the State, the boards for the cuts and highways have been treated as parts of one general system for maintaining the highways. The only exception is found in the Act of 1825. By legislative use, “ highways” may include water passages or cuts. The term “ highways” has been disused in modern legislation and “ roads” substituted for it, and at the same time, the ancient description of “Commissioners of highways, private paths, bridges, causeways, water courses and passages,” has been abridged into Commissioners of Roads.

It is then, no forced construction, to give effect to the Act of 1807, as including Commissioners of water passages or cuts, under the general description of Commissioners of Roads. It appears from this case, and that of Gervais, that the plaintiffs have acted on this construction of the Act. The Commissioners of the other cuts have probably also directed their warrants to the sheriff. The importance of uniformity and efficiency in the law, regulating the powers and duties of boards, charged with maintaining the highways of the State, recommends the sanction of that practice.

The motion to reverse the Circuit dicision, is granted, and it is ordered, that the rules be made absolute against the sheriff.

Richardson, J. — O’Neall, J. — Evans, J. — and Withers, J. — concurred.

Order reversed and rules made absolute.  