
    The State v. Aaron Broyles. Same v. James C. Griffen.
    Columbia,
    Dec 1828.
    The Court of Appeals will not render judgment on a special verdict. Its jurisdiction is appellate only; and if a verdict is brought up without tile judgment of the Circuit Court, it will he remanded for judgment.
    A commissioner of the roads is not liable to be separately indicted for not repairing bis division of an established public road, which had been ordered by the board of commissioners to be discontinued. The board have no authority to order the discontinuance of such a road; but all the members of the board must be indicted jointly.
    Before Mr. Justice Richardson, at Pendleton, Fall Term, 1828.
    These were several indictments against the defendants, as commissioners of roads, for not repairing a road, which was under their charge. At fall term, 1827, Mr. Justice Gantt presiding, the jury found, by special verdict, that the defendants were commissioners of the roads; that the road in question was an ancient, established, public highway ; and that different parts-of it lay within the road-divisions assigned severally to the defendants as overseers, conformably to the act of assembly : that the said road was ruinous, dilapidated, and obstructed,.for want of repair; but that previously to its becoming so, the board of commissioners, to which the defendants were attached, had, after a view of the road, determined that it was no longer useful; and had entered an order on their minute's, directing that it should be discontinued, and no more kept in repair. The verdicts were similar on both indictments, except that in Griffen’s case, the verdict stated, that the order for discontinuing the road had been made before he became a member of the board.
    The presiding Judge not having rendered any judgment on the special verdicts, the solicitor moved for judgment m the Court of Appeals, at its sittings in May 1828 : but that Court remanded the cases for judgment by the Circuit Judge, on the ground, that its jurisdiction is appellate only.
    At this term, Earle, Solicitor, moved for judgment against the defendants. Mr. Justice Richardson, who presided, held that the defendants were not liable to be indicted severally. The order for discontinuing the road was certainly illegal; the board having no authority to make it: but the defendants, as overseers, were bound to obey it; and the proper course was to indict the whole board in each case. Judgment for defendants.
    The Solicitor, on behalf of the State, now moved to reverse the judgment, on the ground ; that each commissioner is charged, solely, with the superintendence of the roads in his own division, and is liable to be separately indicted for not repairing them : and that if the board had not the power to order the road to'be discontinued, their order could furnish no excuse to the superintending commissioner, for neglecting to repair it.
    Earle, Solicitor, for the motion,
    cited, and referred to the 11th section of the act of 1825, which he contended expressly sustained the ground taken for the motion. Acts of 1825, p. 32.
    J. N. Whitner, contra.
    
    Johnson, J. and Colcock, J. We concur in opinion with the presiding Judge.
   Nott, J.

I should have given the act a different construction myself: but as a majority of the Court, concurring with the presiding Judge, have given it a construction consistent with the rule that penal statutes are to be construed strictly, I am not dissatisfied with being in a minority.

Motion granted.  