
    THE STATE, EX RELATIONE JOSIAH PRICE, VS. THE COMMISSIONERS OF ROADS FOR LANCASTER DISTRICT. THE SAME VS. THE SAME. THE STATE, EX RELATIONE H. R. PRICE, VS. THE SAME.
    Where the person and the subject matter are within the jurisdiction of the board of commissioners of roads, their decision will be final and conclusive, unless they have in some way exceeded the bounds prescribed to them, admitted illegal evidence, or otherwise violated the settled rules of law.
    The relator being liable to work on both the Landsford’s and Lanier’s ferry roads, received notice to work on the Landsford road, and while at work there was duly warned to work on the same road the ensuing week. He was after-wards warned, under the authority of another commissioner of the same board, to work the ensuing week on the Lanier’s ferry road. He chose the second week to obey the last ivarning instead of the first — and worked on the latter road instead of the Landsford road. The board of commissioners within whose jurisdiction both roads are situated, regarded him as a defaulter for not working on the Landsford road, and fined him accordingly. The judge below ordered a prohibition. On appeal, it was held, that as there was no question of exemption from work, but one merely of the sufficiency of the relator’s excuse, it.jyas exclusively within the jurisdiction,of t.he b.oard of commissioners: that it was for them to say whether it was reasonable that he should obey the latter summons; and that their decision was final and conclusive.
    (Second case.) The relator being warned to work on the Lanier’s ferry road for twelve days, began and worked there four days, when some of the hands taking sick, they were dismissed, and the residue of the work was postponed until the end of the same month or the beginning of the next — specifying no precise time, and malting it necessary that the hands should receive further noti.ce when the remaiedey of the work would be required. Before such notice he was warned to work on the Landsford road for six days. This summons he refused to obey, preferring to work again on the Lanier’s ferry road, jvhich he subsequently did for the residue of the twelve days. For his failure to work on the Lan.dsford road, he was fined by the board of commissioners of roads. .On appeal from the order of the circuit court, granting a prohibition, it was held, in conformity to the principles lai.d down in the preceding case, that the decision of the board was conclusive — that there .was no existing obligation or incompatibility ,.of duty, and that the summons on the Landsford road ought to have been .obeyed.
    Th.e .warner of the hands is not by law exempt from working on the roads. The ,custom is to excuse him, but that cannot supercede the statute — and wbe.the,r he received and accepted the appointment in good faith, and under such pireumstances as should entitle him to the benefit of the custom, is a question exclusively for the determination of the board of commissioners of roads.
    
      
      Before Mr. Justice O’Neall, at Lancaster, Fall Term, 1836.
    His Honor the presiding judge reported the cases as follows:
    These were declarations in prohibition. The cases made will be understood by referring to the Act of 1830, and the special verdicts.
    The Legislature in 1830 established a ferry over Catawba river, called Lanier’s, and directed a road to it tci be laid out and opened from the toad leading from Lancasterville to McDaniel’s ferry: arid then the Act provides — “ And all the male inhabitants within five miles of said road; now-bound to work on public roads, shall be liable to work on the said road.”
    In the first case the jury found the following special verdict, viz : “ That the plaintiff was warned to work on the Landsford road ; while thus working he was warned to meet again the ensuing week to work on the same road. That on the same day when thus last warned, but subsequently in point of time, he was warned to work on the Lanier’s ferry road the ensuing week. That he worked twelve days altogether; but that dufing the second week he worked altogether on the Lanier’s feny road ; and not upon the Landsford road. That he was fined by the commissioners for default in failing to work during the second week in the sum of $30, and that the entry in the books of the commissioners reads thus! “ The case against Josiah Price was next taken up; and after hearing the evidence was fined for five hands one day, August last, $5 ; August last, five hands, #5; do. do. $5; do', do. $5; do. do. $5; do. do, $5 — $30.” We further find that the said Josiah Price lives within three miles of the Lands-ford road, and that he had previously worked exclusively on it until the Lanier ferry road was opened, and that he lives within one mile of the Lanier’s ferry road.”
    It seems to me, upon this finding, and construing the Act of 1830 with the general road law, that the plaintiff in prohibition was liable to work both on the Landsford and Lanier’s ferry road ; and that being equally liable to work, and his services being demanded on both, that he might divide the time between them; and that having worked one week on the Landsford road, he was right to work the succeeding week as required on the Lanier ferry road.
    I therefore ordered the prohibition, and directed the postea to be delivered to the plaintiff to enter up judgment accordingly.
    In the second case between the same parties, the jury found the following special vérdict: “ That the plaintiff was warned to work on the Lahier ferry road for twelve days — that he and his hands worked four days; that some of the hands being sick the residue of the work was postponed to the end of the same or the beginning of the ensuing month, when they again met and worked upon the Lanier ferry road, the residue of the twelve days ; that in the intermediate time between the first and last work, the plaintiff was summoned to work on the Landsford road by another warrier and of a different commissioner, James P. Crockett, but did not work on the Landsford road in compliance with such warning. That he Was fined by the commissioners for the failure, as follows :
    The case against Josiah Price was next taken up : Mr. Price being sworn, said he was warned to work on the Lanier road, and commenced on the 12th August, 1833, and wrought four days, and then adjourned to something like 26th August, 1833, — tried and fined for 6 hands on the l9th August, $6; 6 hands for 20th August, $6 ; 6 hands for 21st August, $6 ; 6 hands for 22nd August, $6 ; 6 hands for 23rd August, $6 ; 6 hands for 24th August, $6 — $36. "We further find that Josiah Price lives within Íhíee miles of the Landsford road, and within one mile of the Lanier ferry load.*’
    The principles previously ruled governed me in this case, and supposing from what Messrs. Clinton and DeSaussure both stated, that the plaintiff had been fined for 7 days default, I ordered a prohibition to prevent the collection of one day’s fine, $6, and directed the postea to be delivered to the plaintiff, to enter up judgment accordingly. But 1 see from looking at the special verdict he was only fined for 6 days’ default, Which Was right; and hence the prohibition in that case should have been denied and the postea delivered to the defendants : and although this objection is not presented by the defendants’ grounds of appeal, I hope the Court of appeals will correct the error.
    Another case depending upon the same Act was a declaration in prohibition, by Henry R. Price v. The Commissioners of Roads for Lancaster District — the jury found the following special verdict; “ That the plaintiff at the time he was appointed Warner of the Lanier ferry road, had worked three days, and was working the fourth day, on the Landsford road, under a previous warning to work 6 days ; and that he was notified again to work the succeeding week on the same road before he received his appointment ; that he ceased to work as soon as he received his appointment, and that he was fined for the whole time'he failed to work — that he lives within three miles of the Landsford road, and that he had previously worked exclusively on it, and that he lives within one mile of the Lanier ferry road.”
    The appointment of Warner, according to the established custom proved on the trial of this case, was equivalent to, and stood in place of, the time he was liable to work on the -Lanier ferry road.
    According to the principles seLtled in the previous cases he was liable to work out six days on the Landsford road — having worked only four he was properly fined for two days, but for the second week (6 days,) he was improperly fined. A prohibition was issued to prevent the collection of the fines for the last 6 days, and the postea was directed to be delivered to the plaintiff to enter up judgment accordingly.
    In relation to all these cases I have to remark, that had it not been for the case of Harrington v. The Commissioners of the Roads, I should have doubted the authority of the court to order a writ of prohibition to prevent the collection of fines imposed by the commissioners of roads. That case has however fixed the precedent and settled the law.
    The plaintiffs and defendants appeal and move to reverse my decision ; their grounds are annexed.
    The commissioners give notice that they will appeal and move to reverse the order of the court.
    1. Because the court ruled, under the Act of 1830, the relators were bound to work partly on the Lanier ferry road and partly on the Lands-ford road; that although previously warned by the commissioners, within whose beat they lived, to work on the Landsford road, they might elect to obey a subsequent warning by commissioner Bell, to work on the Lanier ferry road, in whose division was the Lanier ferry road.
    2. Because, as the commissioners have properly cognizance of all matters upon which relators seek prohibition, the court ought to have refused the motion.
    Clinton, for the commissioners.
    The plaintiffs appeal, upon the grounds following :
    1. That the' prohibition ought to have been ordered as to the fines imposed upon H. R. Price for the Friday and Saturday succeeding the Thursday when he was ordered to warn the hands.
    2. That as to the last fines imposed upon Josiah Price, prohibition ought to have been granted against the fines imposed for the whole seven days, because Josiah Price had been previously warned to work on the Lanier road, and did actually work the 12 days required by law, to wit — four days before the warning for the Landsford road, and eight days after-wards.
    3. Because neither H. R. Price nor Josiah Price were liable to wofk upon the Landsford road, as both lived within five miles of the Lanief road.
    
      DeSaussure, for Price.
   Curia, for

Eaule, J.

These cases come up from Lancaster, on ap* peal from Mr. Justice O’Neall, who granted prohibition to restrain the commissioners of roads from collecting certain fines imposed on the relators for not working on the road.

There are two cases between the same parties. In the first which will be considered, the facts are as follows.

The Legislature in 1830 established a ferry on the Catawba, at La* hier’s, and directed a road to be opened to it, on which all the inhabitants Within five miles were made liable to work. The Act of 1525, the general road law, provides that persons may be compelled to work on any road which passes within ten miles of their residence or plantation. The telator lives within three miles of the public road to Landsford, on which he had exclusively worked, until the new road to Lanier’s ferry was open* ed, and lives within one mile of the latter road. He received notice to work on the Landsford road, and while at work there was duly warned to work on the same road again the ensuing week. He was afterwards warned by another person, under the authority of another commissioner* belonging to the same board, to work the ensuing week on the Lanier’s ferry road. He chose the second week to obey the last warning, instead of the first, and worked on the latter road instead of the Landsford. The hoard of commissioners, within whose jurisdiction both roads are situate* regarded him as a defaulter, for not obeying the summons to work on the Landsford road, and fined him accordingly. It was this judgment which it was moved to prohibit.

Two questions arise for consideration ; was the relator properly sub-' jecl to the jurisdiction of the commissioners'? And if so, have they made a decision so contrary to law, and to the true interpretation of the Act, as to require this court to interfere by prohibition % All male inhabitants, and all male slaves, from 16 to 50 years of age, are made liable to work on the public road; each board of commissioners having authority to prescribe how far, and on what roads, persons and their slaves shall be required to work; each commissioner being authorized to call on the inhabitants liable or assigned to work on the roads in his division, at his own discretion. Ministers of the gospel, millers, and ferry-men, and no others, are exempted from this duty. The persons appointed by each commissioner, to warn the hands, are required to attend the meetings of the board to prove'the defaults — and for the purpose of hearing and determining questions arising out of such defaults, and the excuses made, the board is constituted quasi a judicial tribunal without appeal.

The first question is, was the relator subject to their jurisdiction '! There is nothiug in the facts found by the jury, to show that he and his slaves were not liable to work on the Landsford road. He lives within 3 miles of it, and there is no express legal exemption. And we are led to inquire whether he was exempt by necessary implication, or by the operation of law 1 , Such seems to be the view of the presiding judge; that he was called on to, perform duty on both roads at the same time — being equally hable, and his labor being demanded on both, he might divide his time between them: and having worked one week upon one road, he might work the next on the other — as he did so he was entitled to be discharged. But it seems to this court otherwise. The true question, as suggested by Mr. Justice Richardson,' is between wbat is matter of legal exemption and what is matter of reasonable excuse. In Harrington’s case, decided in 1823, 2 McC., 400, the court-held that the relator, being clerk of the court, and being required by express statute to be present in his office daily, and this being a provision of great importance to the public, which could not be dispensed with, was, by necessary operation of law, exempt from the duty of working on the roads ; and therefore was not subject to the jurisdiction of the commissioners. On examination it will be perceived that the decision there canuot be conclusive of this question. The circuit decision here rests on this, that being equally liable to work on both roads, he might divide his time. In Harrington’s case, it went on the ground that his paramount duty, as clerk of the court, being incompatible with the other, exempted him altogether, and he was not liable at all; not that he was at liberty to choose which duty he would perform. As soon as it is admitted or shown that the relator was not legally exempted from work on the Landsford road, and might not lawfully disobey altogether the summons he received to work there, the first question is disposed of, for it then follows that he was properly subject to the jurisdiction of the board — and the case is resolved into the enquiry, whether he furnished to the board a reasonable excuse for not obeying that summons. And the second question arises, has the board decided in that matter in such direct opposition to law as to require the interference of this court? It would, perhaps, be sufficient to dispose of this question, were we to say, as it is said substantially, almost literally, in every case to'be found in our books, that if the person and the subject matter be within the jurisdiction of the board, their decision must be final and conclusive, unless they have in some matter exceeded the bounds prescribed to them, admitted illegal evidence, or otherwise violated the settled rules of the common law. It) The State v. Wakely, 2 N. & M’C., 410, 412, it is well said by Richardson, J., that “every court acting clearly within its jurisdiction in a case legally submitted, is independent of all other courts, to which no appeal is given. Mere irregularity, insufficiency of proof, or mistaken judgment, in such cases afford matter for appeal only.” The relator was fined for not working on the Landsford road; he was, by law, liable to work there — and had been warned to work there. When brought before the board to answer for his default, he made this excuse — that after being warned to work on the Landsford road, he was warned to work on the Lanier’s ferry road, and chose to' work on the latter. The board did not regard that excuse as sufficient: and the bare statement of the case shows that it was not a question of exemption but of reasonable excuse. At ,the time he was first warned on the Landsford road, he was equally liable ,to be called out on both : when actually warned it ceased to be a mere .liability as to that road. His labor was then required there. When he was afterwards warned on the other, it did not legally exempt him from that .requisition, nor discharge the obligation he had incurred on the former. It was for the commissioners to say whether it was reasonable, that he should .choose to obey the latter summons. Both the commissioners were of that board — and their decision leads to the conclusion, that the relator had, in fact, been assigned to the Landsford road — or that the summons to work there, besides being anterior in point of time, had the sanction of their authority.

Independently of this just conclusion, I think in every such case the first legal summons should be obeyed. The liability to be called out on the Lanier’s ferry road, at the time the relator was first warned on the Landsford road, was no more, in legal contemplation, than a liability, which at all times exists, to be called on to perform any other duty of a citizen. And it would be of mischievous tendency, if we were to sanction the proposition, that a person, when legally summoned to work on the road, a duty of paramount importance, which is, in effect, only a species of taxation, should be permitted to excuse himself, nay, should be considered as entitled to discharge himself) by showing that he was afterwards called on to perform some other duty, of no higher or of inferior obligation, less laborious, and more agreeable. For on the principle of the decision claimed for the relator, it seems to me that any other duty required of him, however unimportant, would be equally efficacious to entitle him to exemption, if it were to be performed at the same time. To allow a subsequent summons, even to work on another road, to be regarded as a legal exemption, or discharge from a prioi summons for the same time, and to hold that the commissioners should be compelled to regard it as a legal excuse, would otherwise lead to mischievous effects. It would put it in the power of a commissioner on one road to defeat all the efforts of a commissioner on some other, if he had any motive to prevent the latter from being repaired, and if the same hands were liable to work on both. Such rivalship does sometimes exist; and a collusion between the hands and a favorite commissioner on a favorite road, is not an improbable occurrence.

I think the commissioners pronounced a judgment within their juris, diction — and that there is no ground for this court to order the prohibition.

The motion to set aside the judgment of the circuit court awarding the prohibition, is granted. 
      
       Note. — The third ground taken on the part of the relator in these two cases, and on the part of H. R. Price in the next case — because neither of them was liable to work on the Landsford road, as both lived within five miles of the Lanier’s ferry road, we understand to have been decided by the late Court of Appeals, when these cases were brought up before. That ground has not been urged at the present hearing ; although it has not been overlooked by the court. The opinion of the majority is in conformity with that of the late court, that the relators were liable to work on the Landsford road — the Act of 1830 creating the ferry at Lanier’s, not making them exempt. Indeed, on looking into the suggestions it will be perceived that neither Josiah nor H. R. Price Glainis exemption on that ground — but both expressly admit that they were liable to work on both roads. In this last case I granted a prohibition nisi on the suggestion— but the verdict I think makes a different case. And if it did not I should adhere to the views now expressed, as being better considered than any opinion .expressed on the circuit.
     