
    
      The State, ex. rel. Hugh Wilson, sen’r. and Joseph L. Stephens, vs. Commissioners of Haul-over Cut.
    
    1. By an Act passed in 1714, (7 Stat. 475,) certain persons on the S, E. side of Edisto, and all the inhabitants on Bohicket creek, on John’s Island, to the plantation of “a person named,” are required to work on Haul-over cut. In 1721, (9 Stat. 53,) the laws relating to roads and cuts were reduced into one Act, and again the Legislature designated the persons who were to work on this Cut, but described them as “all the inhabitants making use of the said Cut or Creek to come to Charleston, residing on and near Bohicket creek.” In 1751, an Act was passed for opening Watts’s Cut, on the western side of Edisto Island, by which a portion oí those living on Edisto Island, who, before, were liable to work on Haul-over, were required to work on Watts’s cut. In the Act of 1754, (7 Stat. 509,) the cutting, cleansing and keeping in repair the Cut or Creek called the Haul-over, is recited as a burthen on those of the inhabitants “obliged to do the same.” To remedy this grievance, the Act of 1754 was passed, by which the district on Edisto, whose inhabitants were in future to work on Haul-over Cut, was enlarged, but as to the inhabitants living on and near Bohicket creek, using precisely the same terms as in the Act of 1721.
    2. The relators both resided near the head of Bohicket creek, but neither used Haul-over Cut in coming to Charleston. Under the construction of these Acts, the Court were of opinion, that the relators were not liable to work on this Cut, and having been fined for neglecting to do so, by the Commissioners of the Cut, it was held that prohibition to restrain the warrant of distress, for the collection of the same, was properly ordered.
    
      Before Evans, J. at Charleston, Spring Term, 1843.
    This was a suggestion for a prohibition, to restrain the execution of a warrant of distress, for the collection of certain fines, which had been imposed upon the relators, by the respondents, as commissioners of Haul-over cut. His Honor granted the motion for a prohibition, conformably to the prayer of the suggestion, for the reasons stated in the following report:
    The relators had been fined by the commissioners, for not working on Haul-over cut, in St. John’s, Colleton. The principal question was, whether the relators were liable to work on the cut. By an Act, passed in 1754, entitled, “An Act to ascertain the district for cutting, cleansing, and keeping in repair, the creek, or cut, commonly ■ called the Haul-over,” it is enacted, “that all the inhabitants making use of the said cut, or creek, to come to Charleston, residing on, or near, Bohicket creek, and, also, • all the inhabitants residing on the east side of Edisto Isl- and, that frequently use to come through the said cut, to Charleston,” <fcc. “shall personally work in cutting, cleansing, and keeping in repair, the said creek.” Both the relators live on, or near, Bohicket creek, but neither of them use Haul-over cut to come to Charleston. Mr. Wilson has not used it for any purpose, in ten years ; and Dr. Stevens has only used it once or twice, to go to his summer residence.
    The presiding Judge was of opinion, that the relators, although they lived on, or near, Bohicket creek, were not liable to work on the cut, unless they used it to come to Charleston, and ordered a prohibition to issue.
    As to Wilson, there was another question. His fine exceeded twenty-five dollars; and it was made a question, whether so large a fine could be imposed by the commissioners. The court was of opinion, that the commissioners had the power, and on this ground, should have refused the motion.
    The respondent appealed from his Honor’s decision, on the following grounds:
    1. That by the true construction of the several Acts of Assembly, (of 1714, 7 Stat. at Large, 477; of 1721, 9 Stat. at Large, 53 ; and of 1754, 7 Statutes at Large, 509,) ascertaining the parties liable to be called upon to work ob Haul-over cut, which Acts, it is submitted, must be construed together, the obligation to work on the said cut is territorial, and not personal, and that it depends solely upon residence within the defined territory, and not at all upon user of the cut; and that his Honor erred in holding it necessary that user and residence must concur, to create the liability.
    2. That the other grounds for the prohibition, set forth in the suggestion, having been overruled by his Honor, the prohibition itself should have been refused”.
    
      Bailey and Brewster, for the motion.
    
      Memminger and Mazyck, contra.
   Curia, per

Evans, J.

For the correct understanding of this case, it is necessary I should state that Bohicket creek runs from the interior of the Island, a S. W. course, into the north branch of Edisto river, which separates John’s Island from Edisto Island. The Haul-over cut connects the creek with one of the inland passages to Charleston, thus giving to the inhabitants on the S. E. side of Edisto, and those of John’s Island, who live near the cut, or low down the creek, the most direct communication with Charleston. The relators reside near the head of the creek and have a much more direct and shorter passage, through New cut, and, therefore, do not, and have not, for many years, used the Haul-over cut. Under these circumstances they contend they are not liable to work on it. The earliest legislation in relation to this cut is the Act for opening it, passed in 1714, (7 Stat. 475,) by which certain persons on the S. E. side of Edisto, “and all the inhabitants on Bohickett creek, on John’s Island, to the plantation of the widow of Bourdieu, are required to work on this cut.” Some years afterwards, in 1721, (9 Stat. 53,) when all the laws in relation to roads and cuts were reduced into one Act, the Legislature again designated who were to work on it, but instead of using the same words as in the Act of 1714, viz: “all the inhabitants on Bohickett creek,” describes the persons who are to work, as “all the inhabitants, making use of the said cut or creek to come to Charleston, residing on and near Bohickett creek.” In 1751, another Act was passed for opening Watt’s, cut, on the western side of Edisto Island, by which a portion of those living on Edisto Island, who before were liable to wTork on Haul-over, were required to work on Watt’s cut; by reason whereof, as is recited in the Act of 1754, “the cutting, clearing and keeping in repair the said cut or creek, called the Haul-over, is become a great burthen on the inhabitants who are at present obliged to do the same.” To remedy this grievance, the Act of 1754 (7 Stat. 509,) was passed, by which the district on Edisto, whose inhabitants were in future to work on Haul-over cut, was enlarged ; but as to the inhabitants living on and near Bohickett creek, using precisely the same terms as in the Act of 1721, viz : “all the inhabitants making use of the said cut or creek, to come to Charleston, residing on and near Bohickett creek.” These Acts, taken together, it seems to me, admit of but one construction, that after the cut had been opened, under the Act of 1714, by the labor of all the inhabitants on Bohicket creek, which it is probable had been done before the Act of 1721 was passed, no others of the inhabitants on the creek were intended by that Act to be compelled to work on it, except those who ‘'used the cut to come to Charleston.” This construction is confirmed by the fact that those who reside towards the head of the creek, as the relators do, have a much more direct and convenient passage to Charleston by the new cut. There are similar provisions in .relation to other cuts. Thus by the Act of 1751, (7 Stat. 508,) the inhabitants between Ashepoo and Pon Pon rivers, making use of any landing leading through New cut, are required to work on it; and all male persons making use of any landing on the north west of Wappoo creek, except such as are by law exempted, shall work on the said creek. A similar provision is to be «found in the Act of 1742, sec. 9, (in relation to the opening of Horse Shoe creek.) I am, therefore, of opinion the relators are not liable to work on the Haul-over cut, and the motion to reverse the decision of the Circuit Judge is dismissed.

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