
    
      William M. Murray ads. The Lower Board of Commissioners of Roads, for St. Bartholomew’s Parish. The same Plaintiffs vs. William M. Murray.
    
    The Commissioners of the Roads may maintain an action ; Sed quaere? Should they sue by their title as commissioners, or in their individual names, styling themselves commissioners?
    Where such commissioners sue by their official title, an objection, that they should have sued in their individual names, can be made only by plea in abatement.
    The provision of the Act of 1825, requiring three months notice to be given by the commissioners before opening a new road, cannot be dispensed with, -by obtaining the consent of the owners of the land through which the road is to pass.
    That such notice was given before a new road-was opened, like any other fact, may be proved by any .evidence, express or presumptive, which satisfies the jury. It is not required to be proved by a record of the order, or a copy of the notice.
    Where commissioners have opened a new road, the presumption is, that all the pre-requisites were complied with ; though this presumption may be rebutted.
    A single commissioner has no power to make a new road, or alter an old one.
    The board of commissioners have the power to make alterations in a road without giving notice.
    Under the 9th section of the Act of 1825, if any part of a road on which a person was required to work his hands, passed within ten miles of the plantation on which such slaves were employed, it was sufficient, although other parts of the road may have been at a greater distance.
    The several boards of commissioners for the cuts and inland navi-gationjare whollydistinct organizations from the commissioners ofthe roads ; and it is no exémption from road duty, that a man works on a cut, unless he be exempted by law from working on one, because he works on the other.
    Defendant was warned to send his hands to work on the road, and at the same time was notified, in case of default, to appear before the board at a certain time and place, to make his excuse. Held that the summons to appear before the board was sufficient.
    When the penalty for a default exceeds twenty dollars, is it necessary that there should be any action of the board, before suit brought for the penalty?
    Where a single commissioner made an alteration in a road, without the authority of the board, and summoned the defendant to send his hands to work on the road, designating the place of meeting to be on the altered part. Held that the defendant was not bound to send his hands.
    
      Before Wardlaw, J. at Charlestonh Spring Term, 1844.
    These were actions of debt, founded upon statute. The plea in each case was nil debet.
    
    The action first above stated, was to recover $192, for defendant’s default in not working with his hands, in November, 1841, on a certain road, called the “ Jacksonbo-¡rough neck road continued.” The first question made was, whether the road was a public road, upon which the defendant’s hands were liable to work.
    The following map will give some general idea of the country, and the situation of the road.
    
      
    
    The line from A. on the Jacksonborongh roád, to B. at the junction of Musquito creek and Pon Pon river, represents the “ Jacksonborongh neck road continued,’’ as laid out by Commissioner Tyler, and adopted by the resolution of the 6th December, 1840, hereinafter mentioned.
    The following are the facts of the case, as reported by the presiding judge to the Court of Appeals.
    “ The defendant’s plantation, upon which the slaves reside, is on the middle portion of Fenwick’s Island, in St. Bartholomew’s Parish. Fenwick’s Island is between Pon Pon and Ashepoo rivers, and separated from the main by Mosquito creek. Bennett’s point is at the junction of Mosquito creek with Ashepoo ; and there is Meggett’s plantation. The mouth of Mosquito creek is where the creek joins the Pon Pon ; and this point, and the surrounding lands, belong to the plantation of J. R. Mathews, which is called Bear Island, from its being surrounded by marshes, although it is on the main. The White House, now, or formerly, belonging to Elliott, lies, proceeding up the creek between the rivers, next to Mathews’. Between the White House and the Jacksonborough road, are five or six plantations, belonging to Morris, and Ashe, and others ; and an old way along the rice banks, called the travelling bank, or the causeway, has long been used between these points. The Jacksonborough road, from Jacksonborough down the south side of the Edisto 'towards the Ashepoo, terminates about a mile below the commencement of the new road, hereafter mentioned, in a private way which leads to Cat-tell’s Island.
    Extracts from the Minutes of the Board of Commissioners were produced, of which the following is a summary statemen t.
    1825, May 4. Upon the petition of W. E. Morris and others, certain hands were assigned to the “ travelling bank” and “ the causeway from Springfield to the White House, in all, the distance of six and a half miles, subject to the order of the Commissioners on the Jacksonborough neck road.”
    1834, May 7. It was resolved that a Committee should “ be appointed, to ascertain whether the ‘ travelling bank’ mentioned in the petition of W. E. Morris and others, dated 4th May, 1825, be a public road or wayand that “in the meantime, no resolution of the board establishing it as a public way, be considered effective.”
    1834, December 3. The Committee reported that “it is not a public road,” but that there was a right of way over it, claimed by the persons residing below, and sanctioned by use; and by a preamble and resolutions it was declared that “ the travelling bank, commencing at Mr. W. E. Morris’s plantation, near the Jacksonborough road, leading through the plantations of Mr. Morris, Mr. Ashe, and others, to Elliott’s white house, on Bear Island,” would, if established, be of great public use: and that there are for it hands enough that do no road duty. And it was resolved, that the chairman obtain the consent of the land owners, and if they will not consent, that “ the proper officer of this board proceed, in the manner prescribed by law, to accomplish the same,” and that the necessary funds be appropriated.
    1835, May 6. The chairman having reported that he had received no reply from any of the land owners, except Mr. Mathews, it was resolved that the clerk “do proceed forthwith, to give the notice required by law, that an application will be made to the Legislature, at its next session, for permission to lay out and make said road.”
    It did not appear whether any, and what, action had been had before the Legislature, nor what notice had been given ; although, amongst the papers of the board, a witness had seen some draft of an advertisement about this road.
    1836, May 4. with the consent of Col’s. Moms and Ashe, and of Yanderhost, executor of the estate of W. E. Morris, it was resolved, “that the travelling bank now in use, commencing at the estate of Mr. Morris’s potatoe patch plantation, and leading to Elliott’s white house, be declared a public road, and that the same be continued to the mouth of Mosquito creek, on Pon Pon river, running by the most convenient and practicable route through Mr. J. R. Mathews’ plantation.” Col. Morris appointed commissioner ; and hands assigned, including those on Fenwick’s Island ; “ the said road being a part of the road petitioned for by this board to the Legislature, at its last session.”
    It appeared that Col. Morris, and Mr. Tyler, commis-missioner after him, in laying out the road under the last mentioned resolution, instead of beginning with the traveling bank at the potatoe patch plantation, and pursuing it to the white house, commenced half a mile or so lower down the Jacksonborongh road, at Ashe’s old avenue, pursued this old avenue to a morass, and thence cut a new road to a point on the old travelling bank, near to the white house, and thence, as directed, to the mouth of Mosquito creek. There was some difference of opinion, but the weight of testimony seemed to be that the road was shorter and better.
    1839, December 6. A committee was appointed to examine the road, confer with the commissioners, and report.
    1840, December 6. The committee reported that “ the new road does not begin at, nor follow, the route designated by the Board, in the resolution directing the laying out and making said road, except at the lower end but that one-third of the distance, and much labor, is saved. That part of the new road is a highland, and requires no bridges ; whereas, the travelling bank would have required causewaying the whole way, and crosses several canals that would have required bridges; that the length of the road is not thought to exceed six miles, and that “ they infinitely prefer the present location of the road, to the one designated by the board.”
    It was resolved, “that the report of the committee on the new road to Bear Island be concurred in, and that the resolution adopted by this board in May, 1836, locating the same, be repealed.”
    “Resolved, that the road, as laid out by the commissioner, W. Tyler, commencing at the Jacksonborough Neck road, passing through the lands of Col. Ashe, Mrs. Morris, and J. R. Mathews, and terminating on Pon Pon river, near the mouth of Mosquito creek, be declared, with the consent of the owners of the said lands, a public road, and be called the Jacksonborough Neck road continued.”
    It further appeared, that the names of the Commissioners are not set out in the declaration ; that the defendant was warned by the Board to meet at a certain time and place, and made default, as alleged ; that in May, 1842, the board resolved that he should be fined $192, no other summons to answer for his default having been served on him than a conditional one, which attended his warning to work, and required him, in case of default, to render his excuse at the time and place when and where he was afterwards fined ; that the mouth of Musquito creek is within four miles of defendant’s plantation, in a direct line, and the place appointed. for the meeting of the hands, “ to work on the Jackson-borough road continued,” is within nine miles of defendant’s plantation, in a direct line, but that by the river, the mouth of the creek is nine miles, and the place of meeting more than ten miles from the plantation ; that there is no practicable route from the defendant’s plantation to the point of Fenwick’s Island, opposite to where the road terminates, near the mouth of Musquito creek, but by water ; that the road terminates near to a bluff, within sight of the steamboat route through the creek; that the hands of defendant work upon Watt’s Cut, in St. John’s Colleton ; that the defendant uses a private way from his residence on Ed-isto Island, to a point whence he reaches his plantation by boat, and works on the Edisto Island roads in another parish ; that the road in question is never used by the defendant, and is used by no white persons but Mr. Mathews, Col. Ashe, and the overseers of plantations near to it, and is the only way they have ; tnat various persons never saw nor heard of any advertisement or notice concerning the road; that part of the road is in bad order, but by a day’s work of the hands within ten miles of it, it might be made good, and that there are not avenues from'some of the plantations through which it passes to the road.”
    His Honor held, that the Board, as a quasi corporation, might sue without setting out' the names of the several Commissioners ; that the warning was sufficient, given in the name of the Board, and not of a single Commissioner ; that the action was for the original default, to which the defendant might answer by any sufficient excuse, if he had one, and therefore, any irregularity in the supererogatory action of the Board, in fining the defendant, was immaterial ; that so far as the defendant’s liability depended upon distance, it was sufficient if his plantation was within ten miles, measured in a direct line, of any part of the road which he was warned to work; that neither working on Watt’s Cut, nor upon the Edisto Island roads, would exempt defendant; that the utility of the road to the public, or to the defendant, was not to be considered ; that even if the road, by a certain route, was established by the resolution of May, 1836, the deviation made, and confirmed in December, 1840, was not an establishment of a new road beyond the power of the Board, if made in good faith, of which the jury should judge ; that notice, as required by the Act of 1825, was necessary to the validity of the Board’s establishment of a new road, but that the presumption, om-nia esse rite acta, was applicable, although it might be rebutted ; and therefore, the question for the jury, on this point, was whether the evidence had induced their belief, that in fact the notice was not given.
    The jury found for the plaintiffs $192,
    
      The defendant appealed, and now moved in arrest of judgment, on the ground,
    That the names of the Commissioners are not set out in the declaration.
    And that motion failing, then for a new trial, on the grounds:
    1. Because there was no legal proof of default, and no sufficient legal steps taken by the parties, to fix the liability and the amount, pursuant to the Act of the Legislature.
    
      2. Because the place where the defendant was summoned to work, was more than ten miles from the residence of the defendant’s hands, by any highway.
    3. Because the same hands, summoned to work on the road in question, do public work on Watt’s Cut; and therefore are not liable to the duty required.
    4. Because the defendant actually does road duty on Edisto Island.
    5. Because the road in question is not a public road, but a private neighborhood road, used by only two or three persons, and never was by law constituted a public road, and is not one by usage.
    6. Because his Honor erred, it is submitted, in ruling that in this action the defendant was put on his trial for the default, whereas, he was sued in debt for a specific fine, already imposed by the Board, as defendant alleges, contrary to law.
    7. Also, in charging that the new route fixed for the road, made it the old road, running a different course : whereas, it is contended that the present road was not laid out by law on legal notice, but is an unauthorized road; and this was a question of law tobe resolved by the court, and not a question for the jury.
    8. Because no notice was proved, that the road was to be applied for, and the evidence was clear, that no legal notice was given, and the presumption will not stand for proof, especially in a recent transaction, where a record is kept, and no proof exists that any notice was given.
    In the second case above stated, the action was to recover $216, for defendant’s refusal to send his hands to work on the same road, in August and November, 1840.
    The facts of the case in relation to the character of the road, were the same as in the first case.
    The defendant was warned to send his slaves to the canal, between Mrs. Morris’s and Col. Ashe’s, a point on the new road, between the white house and the Jacksonborough road, for the purpose of working the new road.
    His Honor held, that before the resolution of the 6th December, 1840, the new road had not the sanction of the Board; that it it was not a mere alteration of an established way, which a single commissioner might make without the authority of the board — and that before it was established by the board, the defendant was not answerable for his refusal to work upon it.
    The jury found for the defendant, and the plaintiffs appealed, and now moved for a new trial, on the ground,
    That His Honor erred, in instructing the jury that the defendant was not liable, because at the time of this default, a considerable alteration had been made in the location of a part of the road, as defined in a resolution of the board, declaring it a public road, which alteration was make by the Commissioner of the Road Division, and had not at that time been formally sanctioned by the vote of the Board ; whereas, it is submitted, that however valid an objection this may have been for refusing to work on the part of the road which had been so altered, it does not constitute any excuse for refusing to work on that part of the road which had not been altered; and the defendant had refused to attend for the purpose of working on any part of it.
    Bailey, Attorney General, for the Commissioners.
    The first question is as to the character of the road. Was it a public road? That the Commissioners have the power to lay out a new road is clear, (9 Stat. 559,) and the only ■question is, have they done so in this particular case? The resolution of 1836 establishes the road as a public one. But it is said that the law requires three months notice to be given, before a new road can be laid out, and that this pre-requisite was not complied with. To this objection, it is sufficient to reply the presumption of law, omnia 
      
      fresumunter rite esse acta. 3 Stark. 1250, 1252; 1 M‘M. 222. There was not proof that notice was not given, but on the other hand, circumstances were proved which induced the inference that notice was in fact given. But there was proof that the owners of the land through which the road passes, consented that it should be laid out. This consent superseded the necessity of notice. Again it is said, that if notice was given, previous to the order directing the road to be laid out, that the road was not laid out in con-, fortuity with that order, but that alterations were made which were illegal.- On this point he cited 2 Bail. 314; 4 M‘C. 5 ; 9 Stat. 560 ; and referred to the resolution of December, 1840, which sanctions the alteration made by commissioner Tyler.
    The Board of Commissioners are a quasi corporation, and have a right to sue without setting out their individual names. Ang. & A. 17; 1 Bail. 73; 13 Mass. R. 193; 2 Kent, 278 ; 1 Kyd. 29, 30. But the objection comes too late. It should have been made by plea in abatement. 1 Sp. 216, As to their right to bring debt for the penalty, he cited 4 B. & C. 967, 1 Saund. PI. and Ev. 404.
    As to the objection that defendant’s hands work on Watt’s Cut, he cited 9 Stat. 448, 162; Cheves, 109; 2 Sp. 402.
    
      Hunt and iSeahrook, contra.
    The Commissioners have the power to lay out new roads, after giving three months notice. Are they not bound to show that the notice was given? Lapse of time might raise the presumption that notice was given, but not the maxim omnia rite esse acta, tfec. Green. Ev. 23; 1 Phil. Ev. 158. The fact that the consent of the owners was obtained, did not supersede the necessity of notice. Other persons were interested, and had the right to have their objections heard, besides the owners of the land. But the road was not laid out in conformity with the order, and if the alteration is to be regarded as such as the board could make, yet it is clear that one commissioner had no power to make it.. What is called an alteration by Mr. Tyler, is not an alteration, it is a new road, and it is clear that that road was never advertised.
    Have the Commissioners a right to sue 1 Since the Act of 1841 has vested that right in them, doubtless they have, but previous to that Act they had no such right. The suit here is for a penalty. To whom does that penalty belong ? Clearly to the State. Should not the action then be brought in the name of the State ? Will it be pretended that the Commissioners of Public Buildings have a right to sue for fines which the law appropriates to their use? But it is said that this objection should be made by plea in abatement. It is not so. If is not a mere question of misnomer, but one which goes to the very existence of the plaintiffs. The objection is, that the action should not have been brought at all. 1 Ch. PI. 435 — 6. In other words, that the Board of Commissioners are not a corporation, and if they are to be regarded as a quasi corporation, that previous to the Act of 1841 they had no right to sue.
    As to the objection that the slaves did not live within ten miles of the road, they submitted that it was practically true, as there was no way of getting to the road but by the river, and by that way it was more than ten miles off.
    They further submitted, that the summons to work in August and November, 1840, was illegal; because, at that time, the alteration had not received the sanction of the board, and the commissioner had no right to summon the defendant to work on a road which was not a public one.
   Curia, per

Evans, J.

In the case first stated. After the great number of decisions which have been made in our own courts, and in other States, it cannot now be well questioned whether the Commissioners of the Roads may not maintain an action ; ( Commissioners of Poor vs. Pooling, 1 Bailey, 73; 1 Nott and M'Cord, 554; Angel and Ames on Corp. 17; 13 Mass Rep. 192.) Whether they should bring it by their official title as commissioners, or whether the action should not be in their individual names, styling themselves Commissioners, it is not necessary to the decision of this case to determine; such an objection as was decided in the case of The Commissioners of the Roads for St. Peter's Parish vs. Guerard, (1 Speers, 216) could only be taken advantage of by a plea in abatement, which has not been done in this case.

By the 5th sec. of the Act of 1825, (9 Stat. 559) which purports to be an Act to reduce all Acts relating to the power and duty of Commissioners of Roads into one Act, and which repeals all prior inconsistent Acts, the Commissioners of the Roads “ are authorized and required to lay out, make and keep in repair, all such roads, bridges and causeways, as have been, or shall hereafter be, established by law, or as they shall judge necessary, in their several parishes and districts ; provided, however, that no Board of Commissioners of Roads shall hereafter have power to open any new road, until they shall have given three months previous notice, by advertisement, in the settlement through which the intended road is to be opened ; nor shall any new road be opened through the lands of any person who shall signify to the said board any opposition, unless by permission of the Legislature.” It has been contended in the argument by the counsel for the appellees, that the object of the notice was to give the land-owners alone notice, and if their consent was obtained, as seems to have been done in this case, no further notice was necessary ; but such does not seem to me to be the true construction of the Act. Other persons besides the owners of the land, have an interest in a road. The opening and keeping it in repair devolves on others, and their objections should be heard by the board before they act on the subject. The Act requires that three months, previous notice shall be given by advertisement in the settlement, as a preliminary to the opening of any new road; and unless this was done, the commissioners had no authority under the Act to open the road, and to fine the defendant for not working on it. It was, therefore, an important inquiry in this case, whether such notice had been given. It does not appear, from any direct evidence, that any notice by advertisement was given ; but the law does not require that any order to that effect should be entered in the records of the board, or that copies of the.advertisement should be preserved, nor does it point out any mode in which the fact is to be proved. It is, therefore, like any other fact not required to be established in any particular mode, and might be proved by any evidence, either express or presumptive, which satisfies the jury the fact existed. The Commissioners of the roads are a body of great respectability, in whom very great, and almost unlimited., powers are vested. They are public agents, and it is. fair to presume, when they do an act, that they have complied with all the' pre-requisites to the exercise of their power. The requisitions of the Act, I suppose, would be complied with by putting up anotice at some public place in the neighborhood, and if strict proof of it were required, after a lapse of ten or twenty years, it could scarcely ever be made, and more especially in such a country as this road passes through, where only three or four planters reside a part of the year, and perhaps as many overseers. The road along the travelling bank was ordered to be laid out in 1836, nearly eight years before the trial. When the length of time and the sparseness of the population is considered, I should regard it as an extraordinary circumstance, if any direct evidence of the fact had been furnished. I think, therefore, the jury were authorized to presume, from the facts proved, and the length of time, that the commissioners had given the notice required by law, and their verdict ought not to be disturbed on that ground.

By the 11th sec. of the Act of 1825, 9 Stat. 560, the commissioners are directed to subdivide the roads under their direction, and assign each commissioner one division, over which he shall have the superintendence, and be responsible for the roads in his division ; but there is nothing in this provision which authorizes him to make new roads, or to alter any road already established. But although a single commissioner may not have the power to make such an alteration or deviation as was made by Mr. Tyler in this road, yet the power of the board to make alterations in a road, cannot well be doubted. It is not making a new road, it is only the making of such alterations and deviations in a road already existing, as in their judgment the public interest may require ; and as such alteration is not a new road, I do not suppose that that part of the Act of 1825 which requires a public notice to be given, has any application. But, as was said by the circuit judge in his charge to the jury, this must be done in good faith, and not, under the pretence of alteration, to make a new road, and thus elude the giving of notice as required by law. The jury by their verdict have established the bona fides of the commissioners in this case. I think, therefore, the road which the appellant was required to work on, was a public road legally established. The remaining questions relate to the liability of the defendant to work on it, and his liability to be fined for not doing it.

By the 9th sec. of the Act of 1825, 9 Stat. 560, the commissioners “ have power to prescribe .and direct how far, and on what roads, the persons and slaves within their respective districts shall be compelled to work,” but none “ shall be compelled to work on any road, unless some part of the said road shall be or pass within ten miles of his or her or their place of residence, or within ten miles of the plantation whereon such slaves are employed the greater part of the year.” In the year 1827, 9 Stat. 576, it was enacted that “ no person or persons, or his or her or their slaves, shall be compelled to work ore any part of anyroad ata greater distance than ten milesf &c. This was repealed the next year, 9 Stat. 582, and again in substance reenacted in 1841. Acts 1841,p. 159. But at the time this default was made, the Act of 1825 was of force. It appears from the report, that the terminus of the road was four miles from the defendant’s plantation, in a direct line, and nine miles by the river, which was the only practicable route to the road ; so that whether the distance be computed by either of these modes, the defendant’s plantation, the slaves on which were required by order of the commissioners to work on this road, was within ten miles of some “part of the road.” The obvious reasoning of this Act is that if any part of the road be within ten miles, it is sufficient, although other parts of the road may be at a greater distance ; and such seems to have been the Legislative interpretation, as appears from the repeals and re-enactments before mentioned. In this view of the case, it is immaterial by which mode the distance is computed. The several Boards of Commissioners for the cuts and inland navigation, are wholly distinct organizations from the Commissioners of the Roads, and it is no exemption from road duty that a man works on a cut, unless he be exempted by law from working on one because he works on the other, which is not the case in relation to Watt’s Cut. Fenwick Island, where the defendant’s plantation is, is in St. Bartholomew’s Parish, and his slaves are within the jurisdiction of the Commissioners of Roads for that parish — and it is no excuse that they work on Edisto Island, where the defendant lives, which is within another jurisdiction.

It appears from the report of the presiding judge, that when the defendant was warned to work on the road, he was notified, in case of default, to appear before the Board at the time and place of their meeting, to make his excuse. The Act requires he sbould'be summoned by two days notice, and if he has the requisite notice, it is-a sufficient summons ;— it cannot be material at what time it was given. The defendant knew he had made default, and the time and place of making his defence, if he had any; and this, so far as I am informed, is the usual, if not the universal mode of summoning defaulters to appear before the board. The presiding judge was of opinion, that as the commissioners had no jurisdiction where the default exceeded twenty dollars, there was no necessity to summon the defaulter before the board, but an action would lie against him for the original default, without any action of the board. There are many reasons why there should be some action of the board, prior to any suit for the default, but as we think the notice was sufficient, it is not necessary to decide whether the action will lie without it. If prior action of the board be necessary, then the defendant has been lawfully summoned, and the fine lawfully imposed. If the action can be maintained without it, then the summons was an act of supererogation merely, so that in either view the action can be maintained. This disposes of all the grounds of defence made for the appellant, and the motion is dismissed.

Richardson, O’Neall, Butler and Wardlaw, JJ. concurred.

Frost, J.

dissenting. I dissent from the judgment of the court in this case, on the ground, that the change in the road made by the commissioner Mr. Tyler, was so great and material, as to amount to the laying out of a new road, And secondly, that the Board of Commissioners were not by law empowered to lay out a new road, without first giving public notice, which the resolution of December, 1840, conclusively shows was not given with respect to the road as altered. Nor does the verdict of the jury warrant the conclusion, that the change in the road was not so material, in their opinion, as to constitute a new road, nor that they found that the-notice was given, because they were not instructed of the law on these points, so decisively as to warrant such conclusion from their verdict.

Curia, per

Evans, J.

In the second case. In the case between the same parties, in which the opinion of the court has just been .read, I have had occasion to discuss the question which decides this case. The default for which this action was brought, occurred before the 6th December, 1840, when the alteration in the road, along the travelling bank, which had been made by the Commissioner Tyler, was adopted by the board ; until so adopted by the Board of Commissioners, it was not a public road, and the defendant was not bound to work it. It is true the default was in his declining to work on any part of the road; but the summons was to work on the road, and the place designated to meet was on the altered part, and it was manifest that the object in calling out the hands, was, in part at least, to require of them a duty which they were not bound to perform. We think the instructions of the presiding Judge were right, and the motion is dismissed.

Richardson, O’Neall, Butler, and Wardlaw, JJ. concurred.  