
    Jos. J. Pope and others vs. Commissioners of Roads for St. Luke’s Parish.
    
      Commissioners of Roads — Bluffton—Streets— Villages— 'Private Paths.
    
    In 1840, the village of Bluffton was laid out into streets and lots, as a place for summer residences. In 1852, it was incorporated, and the Council were invested with all the powers of Commissioners of Roads. In 1856, the charter expired : — Held, that the streets of Bluffton, not being parts of any highways, were not, after the charter had expired, subject to the jurisdiction of the Commissioners of Roads.
    The streets of villages, where not continuations of highways, are not, it seems, entitled to rank higher than private paths or neighborhood roads, and as such must be kept in repair, not by the public at large, but by those who use them.
    BEFORE MUNRO, J., AT BEAUFORT, FALL TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ From the facts set forth by the relators in their suggestion, and which are conceded by the respondents to be true, it is manifest, that if the latter really possessed the power -winch they claim to exercise over the streets &c., of the village of Bluffton, the power in question must be derived from one of two sources : That is, it must be derived either from the Act of 1852, incorporating said village, or it must be derived from the general powers vested in them by law, as Commissioners of Boads.
    “ Prom the year 1840, when the streets of the then village of Bluffton were first laid out by the original proprietors of the lands and the lot owners, up to its incorporation as a town in 1852, a period of twelve years, no attempt whatever, was made by the respondents to extend their jurisdiction over these quasi highways. On the contrary, during the whole of this time, they were permitted to occupy a position in that anomalous class of public ways, peculiar to our early legislation, and denominated therein private paths, or as they are sometimes called, neighborhood roads — that is, public ways, not subject to the control of Commissioners of Boads— but kept in repair’ by the voluntary labor of those for whose immediate use and accommodation they are kept open.
    “By an Act of the Legislature, passed in 1852, the village of Bluffton was incorporated by the name of the town of Bluffton, to be governed by an intendant and four wardens, and all the powers vested in Commissioners of Roads were thereby granted to the said intendant and wardens, within the limits of said town. The said Act of incorporation to remain of force for the term of four years next after the first day of March, ensuing. By this Act of incorporation, the streets of Bluffton became subject to the jurisdiction of the intendant and wardens, subject in all respects to the powers vested in them by the charter, and which they continued to exercise until its expiration, on the first day of March, 1856; so then the point to be determined, is, did the authority, which was vested in the intendant and wardens by the Act of incorporation, upon its expiration in 1856, devolve upon the respond-, ents, as Commissioners of Roads ?
    “It is a well settled principle of law, that whenever delegated authority is conferred, whether upon an individual or upon a corporation, or a quasi corporate body, the party assuming its exercise must at all times be prepared to trace it clearly and distinctly to the grant from whence it is derived. The rule on this subject will be found in 3 Kent, 360, and is as follows: “ As corporations are the mere creatures of law, established for special purposes, and derive aR their powers from the Act creating them, it is perfectly just and proper that they should be obliged strictly to show their authority for the business they assume, and conform in their operation to the mode, and manner, and subject matter prescribed.”
    “ In submitting the authority claimed by the respondents to the test of the foregoing rule, and at the same time looking into the grant of power, the Act of incorporation, all that we find in it, is this : that the intendant and wardens are invested with the powers of Commissioners of Roads, to be exercised in keeping in repair the streets of said town, within its corporate limits, and during its corporate existence.
    “ This, then, is the whole extent of the power conferred by the grant, and so long as the charter existed, the authority of the intendant and wardens over the streets in question, was undoubted; but the moment the charter expired, there at once was an end to the authority of the intendant and wardens, as also to the corporate existence of Bluffton. But it was argued, that when the charter expired, the powers vested by it in the intendant and wardens immediately reverted to the respondents as Commissioners of Roads. If authority over the streets in question had ever resided in the respondents as commissioners, and such authority had been merely transferred to the Town Council for a temporary purpose, and for a limited time, the argument in analogy to the doctrine of reverter, would have been unanswerable. But there is not the slightest pretence for saying, that such authority ever resided in the respondents prior to the Act of incorporation. If so, why was it not exercised during the twelve years of the non-corporate existence of the town? and where, it may again be asked, would have existed the necessity for a charter at all ?
    “ The effect, then, of the position contended for, appears to amount to nothing more nor less than this — -not the resumption by the respondents of powers originally vested in them by law, but the extension o’f these original powers over subjects not hitherto within the scope or design of their jurisdiction. k
    
    
      “ If the Legislature had intended that the powers vested in the Town Council by the charter, over the streets of the town, should, upon its expiration, be perpetuated in the respondents, so important a provision would not have been omitted. It suffices to say, that no such stipulation is to be found in the grant.
    
      “ The remaining point, and the one which I consider the more difficult of the two, is, do the respondents derive their authority from the general powers vested in them by law, as Commissioners of Roads ?
    “ The general powers vested in Commissioners of Roads will be found embodied in the 5th sec. of the Act of 1825, (see Evans’s Road Law, p. 5,) it is in these words, “ Commissioners of Roads are authorized and required to lay out, make, and keep in repair, all such roads, bridges, causeways, and water-courses, as have been, or shall hereafter be established by law, or as they shall judge necessary in their several parishes and districts.” Here follows the proviso, which requires that before opening any new road, they shall give three months previous notice, by advertising 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 any opposition, except by the permission of the Legislature.
    “ The first point to be considered is, which class of public ways is it, that the commissioners “are authorized and required to lay out, make, and keep in repair,” by the foregoing section of the Act of 1825 ?
    
      “ The late Judge Evans, in his excellent digest of the Road Law, at page 5, remarks: “ I think it would appear that highways mean the larger roads, which, in general, are directed to be laid off a particular width, and lead to market towns; and that broad paths are such other roads as were laid out and kept in repair at the equal charge of all the inhabitants residing within certain limits.”
    “ In the case of The State vs. Pettis, 7 Rich. 890, it is said: “ There appears to have existed in this State for more than a century, two distinct classes of public ways — the first of which consists of such highways or thoroughfares as lead to market towns, or other places of public resort, are laid out by the public authority, and kept in repair by the public labor, and are in all respects subject to tbe jurisdiction of tbe Commissioners of Koads.” “ Those embraced within the second class, are distinguished by the name of neighborhood roads, or, as they are styled in the early Acts of the Legislature, private paths. This latter name would seem to import that tbe ways in question are technically private. They are, nevertheless, public alike in their origin, as in their use; for while some of them have been originally laid out by public authority, &c., the right to the use of others, &c., and although they are exempt from the jurisdiction of the Commissioners of Eoads, and are kept in repair by the voluntary labor of those for whose immediate use and accommodation they are kept open, the public' at large have, nevertheless, a right to their use,” &c. Thus, we perceive, that in 'this State we have two distinct classes of public roads — the first of which consists of those great public thoroughfares which lead to market towns and other places of public resort, are required to be laid out twenty feet wide (2d and 4th sections of Act of 1825,) and to be kept in repair by the labor of all the male inhabitants from sixteen to fifty years of age, who may reside within ten miles of any part where the road may run, (see 14th sec. of same Act.)
    “ It is this class of public ways, then, to which the term highway is at all applicable; and it is this class alone which the commissioners “ were authorized and required to lay out, make, and keep in repair,” by the 5th sec. of the Act of 1825, and to which their jurisdiction is exclusively confined.
    “ The second class consists of those public ways called private paths, or neighborhood roads ; and in speaking of this class of ways, Judge Evans, at page 6, says: “According to my understanding, they are not the great roads or paths leading to market towns or public places, but neighborhood roads, connecting one highway with another, or leading to churches, mills, or villages;” and by the 5th section of the Act of 1741, see page 6, of the same work, it is declared that this class of ways “ shall be made and kept in repair by the proportionable labor and expense of such person or persons as shall apply for and use the same in common with that neighborhood, and by no other persons whatsoever, which working upon such private paths shall not exempt or excuse the persons working thereon, from working on the highways," &c.
    
      “ From the foregoing authorities, then, I think it too clear for doubt, that from the year 1840, when the streets of the village were first laid out, up to the year 1852, when it was incorporated, its streets merely ranked as private paths. Luring the brief existence of the charter they were placed under the control of the Town Council; but I think it equally clear, that the moment the charter expired, they resumed the same rank which they occupied prior to the Act of incorporation. The argument that was urged in support of the authority of the respondents rested mainly upon two assumptions, that every street is a highway; and being such the moment the local authority over them either is withdrawn or extinguished, the Commissioners of Eoads are bound to extend their jurisdiction over them. But, unfortunately for the argument, it proves too much; for if every street and every public way be a highway then it applied to the streets of Bluffton, before the Act of incorporation, as well as it does now. Nay, more, it applied with equal force to the streets of every unincorporate village, and to every private path in the State; for if the streets of every village are intended to rank in the category of highways, there would appear, to be no good reason for excluding private paths.
    “ But it is obvious that such a position cannot be sustained; for, if we look to the whole scheme of the Eoad Law, and the authorities giving construction to it, it will be found that the term highway is exclusively applicable to those great public ways or thoroughfares that are used by the public at large; and that it is to those classes of public ways alone, that the jurisdiction of the commissioners extend. Were it otherwise, municipal corporations, and private paths, would soon cease to have any legal existence in the State.
    “ Take, for instance, the case of an incorporated village, remote from any public highway, and only accessible by means of private paths; will it be pretended, that upon the expiration, or forfeiture of its charter, the Commissioners of Roads would be bound to take charge of every street, lane, and alley; open them out to the same width with the other public highways under their charge, and employ upon them the same amount of public labor in keeping them in repair. If the position contended for be correct, all this the commissioners would be bound to do, whether the village be a defunct corporation, or one that has never aspired to that dignity.
    “But, again, when the commissioners extend their jurisdiction over the streets of a .village, they are bound to treat them as they do all other highways under their charge, that is, open them to the same width and keep them in repair by the application of the same amount of labor. To do all this must undoubtedly subject the inhabitants of the village to no little inconvenience, by making the streets and other thoroughfares of the village conform to the prescribed legal standard, to say nothing of the large amount of the public labor that must necessarily be abstracted from the public highways of the country, in order to keep them in repair.
    “It was further contended that unless the respondents took charge of these streets, they would not be kept in repair at all. But the answer to it is not less obvious, than it is conclusive. If the streets in question be nothing more than private paths, they must be kept in repair by the voluntary labor of those for whose use and accommodation they are kept open, in other words those who kept them in repair prior to the Act of incorporation, must continue to do so still. And if they are so inattentive to their own comfort and convenience as to let them fall into a state of decay, they must take the consequences of their own neglect.
    “I am, therefore, of the opinion that upon the expiration of the charter of the town of Bluffton, the respondents had no authority to extend their jurisdiction over the streets. Consequently, had no authority to impose upon the relators the fines set forth in the suggestion; so that their motion must "be granted. It is, therefore, ordered that a writ of prohibition do issue, to be directed to the respondents in conformity with the prayer of the suggestion.”
    The respondents appealed upon the grounds:
    1. Because, it is respectfully submitted, that his Honor erred in deciding that the commissioners had no jurisdiction over the streets in question.
    2. Because the streets in question were public roads.
    3. Because the Commissioners of Roads have jurisdiction of private paths or neighborhood roads.
    4. Because the jurisdiction of the Commissioners existed before the incorporation of the town of Bluffton, and was not destroyed, but only suspended, during the existence of the charter.
    
      Bell, Melding, for appellants.
    The streets in question were dedicated to the public before the incorporation of the town of Bluffton, and the Commissioners of Roads had jurisdiction over them, from the time of the dedication, until the Act of incorporation. 3 Saund. 175, Ford vs. Ford; 2 Saund. 159, Bex vs. Stoughton; 2 Str. 1004, Lade vs. Shepperd; 1 Camp. 260, Bex vs. Lloyd; 2 Bay, 287, Commissioners vs. Taylor..
    
    
      Tbe streets of tbe town of Bluffton are public roads; and tbe commissioners have jurisdiction over them : that private paths are public highways, 4 McO. 68, Joseph Glover vs. Wm. Simmons, et al., Commissioners of Boads; 5 Stro. 218, The State vs. Wm. Carver; 2 N. & McO. 526, John Singleton vs. Commissioners of the Boads; 9 Stat. 128, sec. 6; id. 458, sec. 19 ; id. 293, sec. 4.
    Where the public have the right to use a road, it is a public road. State vs. Mobly, 1 McM. 44; The State vs. Pettis, 7 Bich. 390; Jacob’s Law Diet. Highway; 6 Mod. 255; 1ley-ward vs. Chisholm, 11 Bich. 263; Tomlins’ Law Diet. 778, (Ways.) 1 McM. 195 ; 10 Bich. 369 ; 11 Bich. 263 ; 9 Stat. 491, 505, '559, 595.
    
      Pope, contra,
    cited 9 Stat. 505 ; Commissioners vs. McKenna, Harp. 381.
    
      
       The following is a copy of the sugestión :
      The State of South Carolina, Ex Relatione,
      
      Joseph J. Pope, the elder, Ephraim M.
      Seabrook and Ephraim Baynard.
      In the Common Pleas, Beaufort District.
      Be it remembered that on the first day of November, in the year of our Lord, 1858, at the Fall Term of the said Court, come the said Joseph Pope, Ephraim M. Seabrook and Ephraim Baynard, by De Treville ana Pope their attorneys, and in the name of the said State, give the Court here to understand, and be informed, that whereas, the Lower Board of Commissioners of Roads for the Parish of St. Luke, consisting of the following members, to wit: George Allen, Paul Prichard, Joseph J. Stoney, Edmund Ellis, Henry Verdier, W. Gaston Allen, John W. Kirk, James Guerard, Horace R. Box, Clarence Kirk, Peter Brunson, Thomas Currell and William J. Graham, did, lately, in their official capacity, impose a fine in the sum of six dollars, three dollars, and six dollars, upon each of the relators respectively, for refusing to send their hands upon the streets of the town of Bluffton, to work under them as Commissioners of Roads ; they, the said relators, submit the following facts: That the land upon which the said town of Bluffton now stands, formerly belonged to Messrs. George Pope, James Pope and James Kirk, the elder, who owned the same in severalty.
      That some time about the year 1840, these several proprietors, each upon his own land, divided off certain lots and sold the same to divers persons, who built summer residences upon them — the streets being laid off in some instances by the proprietors, and in other instances, by the lot owners, and opened and srrbsequently worked upon and kept in repair by the voluntary contribution of labor by all such inhabitants of the village, at such time, and in such manner as necessity or convenience seemed to require. '
      That this continued while the village remained unincorporated, biit in the year 1852, it was incorporated by the name of the town of Bluffton “to be governed by an Intendant and four Wardens,” and by the said Act of incorporation “all the powers vested in Commissioners of Roads were thereby granted to the said Intendant and Wardens within the limits of the said town,” and the streets of the said town were subsequently worked under their direction as long as the town remained incorporated.
      That the said Act of incorporation was limited “to remain in force for the term of three years next after the first day of March next ensuing,” by which means the said charter expired on the first day of March, 1856, and an application was accordingly made to the Legislature for a renewal of the same at the session of 1855, which application for re-charter failed from causes unnecessary now to relate.
      . That the town being no longer incorporated, the streets of the same were worked, if worked at all, by the voluntary contribution of labor by the inhabitants as heretofore, and the bridges and other public works kept up in the same manner, until recently, when the said Board of Commissioners of Roads undertook, by virtue of their supposed powers, to summon out the inhabitants of Bluffton to work upon the streets of Bluffton, and repair the same, to dig ditches, build bridges, or repair them within the limits of the town, and to act in every respect as if they, the Commissioners of Roads in the Parish, were, in fact, the town council of Bluffton, or regularly appointed Commissioners of Streets within the town.
      That the relators objected to this proceeding as wholly unauthorized, but nevertheless the said Commissioners of Roads of the Parish of St. Luke, not ignorant of the premises; but contriving unduly to aggrieve and oppress the said relators against the laws of this State, have imposed upon them the fines aforesaid; all which said premises the said relators are ready to verify and prove as this Honorable Court here shall direct.
      
        Wherefore, the said relators, imploring the aid and assistance of this Honorable Court here pray relief and a Writ of Prohibition to be directed to the said members of the said Board of Commissioners of Roads to prohibit them, and every of them, and all officers acting under their authority, from collecting, by execution or otherwise, the fines aforesaid; and that they should utterly desist in every matter touching the premises aforesaid; and it is granted to them accordingly.
      Db TREVILLE & POPE, for Relators.
      
      The facts stated in the within suggestion are admitted to be true, and the law upon same alone is questioned and submited to the Court.
      BELL & WILLIAMS, for Commissioners.
      
      The facts set forth in the foregoing suggestion are true so far as they are within deponent’s knowledge, and so far as he has heard them from others he believes them to be true.
      Sworn to this 30th day of September, 1858
      (Signed; JOS. J. POPE, Sr. .
      (Signed; Jos. Dan’i. Pope, Notary Public.
      
    
   The opinion of the Court was delivered by

O’Neall, C. J.

The question in this case is, whether the streets of the village of Bluffton are under the jurisdiction of the Commissioners of Boads ?

I am of opinion they are not. This seaboard village was laid out by the relators, and the streets were opened by them as a convenience to themselves and the persons who bought lots from them. This was no dedication of them to the public use, for it must be remembered that Bluffton was then and perhaps still is a mere summer residence.' It was not like one of our towns or villages where justice is administered, or where any public business is carried on, requiring ingress and regress. In such, of course, a street opened and accepted by public authority becomes a public way. Over even such I am not, however, aware that the Commissioners of Boads have any jurisdiction, except when they may be connected with public roads; and, then, only when the town or ville has no corporate existence. An illustration may be found in the 22d and 23d sections of the Act of 1820, 9 Stat. 505. It seems, from the recital in the 22d section, that the streets laid out in the original plan of the village of Lancaster had been obstructed, the Legislature, therefore, authorized the Commissioners of Roads for Lancaster District to cause them to be opened and put them in good order. The 23d section declared the future obstruction of them by any one to be unlawful, and subjected the offender to a fine of one hundred dollars, to be recovered in ány court, by action of debt or otherwise, and also declared the same subject to a prosecution for a nuisance.

If the streets in that village were highways, then there was no necessity for any such Act as that of 1820. This legislation shows, and, as I think, correctly, that streets which were' not parcel of established highways, were in no sense entitled to that character, even in such a village as Lancaster, the seat of justice for that district.. They were mere private conveniences, and, in such a village as Biuffton, they could not rank higher than private ways appertaining to the respective lots sold and laid out by the proprietors.

The Act of incorporation, which vested the power of the Commissioners of Roads in the intendant and wardens of Biuffton, did not necessarily make the streets public ways. The Act of incorporation gave to the intendant and wardens the power, and, I suppose, authorized them to call on the inhabitants to work the streets. But that charter expired in 1856, and has not been renewed. The powers and rights of the incorporation ceased when the Act expired. No one has succeeded to their rights and powers.

The Commissioners of Roads for St. Luke’s Parish have no power beyond that conferred by the 5th section of the Act of 1825, 9 Stat. 559. It is'the power “to lay out, make and keep in repair all such roads, bridges, causeways and water courses, as have been or shall hereafter be established by law, or as they shall judge necessary.”

Under this general power, I suppose, they might delare streets connected with public roads to be in such connection public highways; but beyond this, I apprehend, they cannot go. They have no more to do with the streets of an unincorporated village, not laid out on any public highway, than they would with private ways.

In this case, I do not see anything which can even give these streets the character of private paths. Eor they have not been laid out by any public authority, nor have they been used in any such way.

It may be that on a suitable application they may be established as private paths, to be worked and kept in repair by those using them, as was done in the State vs. Mobley, 1 McM. 36. In such a case, this obstruction would be indictable as a nuisance, and the Commissioners may, after they are established as private paths, direct who shall work on them; but until they be established, the Commissioners had no right to call out the inhabitants to work on them.

The motion to reverse the Circuit decision is dismissed.

Johnston and Wardlaw, JJ., concurred.

Motion dismissed.  