
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY 1809.
    The State v. The Commissioners of the Roads of Lancaster District.
    Commissioners of the roads are not a body corporate. They may fill up vacancies, but have no power to remove. An alien may exercise the office of Commissioner, if appointed by the legislature.
    Motion from Lancaster district, to reverse a decision of Bay, J., on a rule to show cause why a mandamus should not issue. The suggestion, on which the rule was obtained, set forth the following facts. That James Douglas left Ireland, of which country he is a native, and arrived in this State in the autumn of the year 1780, where he has continued to reside ever since. That in December, 1799, the legislature of this State, by a joint resolution of both houses, appointed him one of the commissioners of roads for Lancaster district. That the said James Douglas applied to the District Court of Lancaster, in April term, 1807, and was admitted a naturalized citizen of the United States. That in the month of June following, the board of commissioners of the roads for Lancaster district expelled him from the said board, as incompetent to hold the office of commissioner, on account of his alienage at the time of his appointment. The District Court, in November term, 1807., granted a rule in the following words : *< On hearing the suggestion of James Douglas, stating that he had been expelled from the said board, it is ordered that the aboye named commissioners do show cause, at the next court, why a mandamus should not issue against them, commanding them to restore the said James ■Douglas to his place, .as commissioner of the roads of said district, or show cause to the contrary.” The defendants made the -following return to the rule.
    ;* The commissioners of the roads for Lancaster district, by way of showing cause to the rule annexed, respectfully suggest to the ■court the reasons following, for the removal of the said James Douglas from his seat, as commissioner 'of the roads for the said district. 1. Because the said James Douglas, at the time of his appointment, was an alien, and not a citizen of this country, and had no constitutional right to hold such an office. 2. Because the ■commissioners of the roads have a legal right, incidental to them as a corporate body, to remove a member thereof.”
    The district .court, after hearing argument on this rule, and the re» tern thereto, ordered the rule to be discharged.
    
      The motion, in this court, was argued by Blanding, in support thereof, who took two grounds. 1. That the right of removing a member of the board of commissioners, for any cause, does not exist in the board. 2. That, admitting the right to exist in the board, the cause shown for the removal, or expulsion, of James Douglas, was insufficient.
    1. The power of removal is not vested in the commissioners, or a majority of them. They have no powers, but such as are expressly given by the legislature. In case of the death of any of them, they are authorized to fill up vacancies. This power is expressly given; and expressio unius est exlusio alterius. P. L. 423. The board oí commissioners cannot be considered as a body corporate. Douglas was under no obligation to make a defence against a charge brought before a tribunal which had no jurisdiction over the subject matter. It could not appear that he had not a right to his seat, since his expulsion was unlawful, for want of jurisdiction. 1 Burr. 517. 1 Salk. 192. Sayer’s R. 37, 40. 2 Esp. 670. 2. The legislature might appoint an alien a commissioner of the roads. That body was not restrained, by the constitution, in that particular. The appointment v/as afterwards confirmed by an act passed the same year, if the appointment was not unconstitutional, what right have the commissioners to gainsay it ? But let it be admitted that the appointment was unconstitutional, so far as that an alien cannot hold the office, yet Douglas was a naturalized citizen when he was expelled. He was competent to hold the office, at the time of his removal by reason of alienage. If the defendants had not the power of removal, or if they have exercised the power improperly, Douglas has a rightful claim to be restored, and a writ of mandamus is the proper remedy.
    Richakdson, contra.
    
    The board of commissioners of the roads have.the rights of a body corporate. The right of perpetuating their existence belongs to them. Their rights and duties are transmissible to their successors. The right of electing new members is expressly given to them. But this power might be implied, if it were not expressly given. The power of removing an unfit member is also incidental to a corporation, being necessary to good order and government. Cited 1 Wooddes. 471. 1 Bac. Abr. 499. 4 Mod. 54. 1 Burr. 539. 2 Str. 533. The cause of removal was sufficient to justify it. Douglas was incapable of taking the office, at the time of his appointment, which was therefore void. Foreigners are not entitled to the enjoyment of the municipal rights of citizsns. 1 Woodd. 368. HÍ3 becoming a citizen afterwards, could not, by relation, operate on the appointment to give it a legal sanction. But admit there might be some irregularity, in the man. ner of removal, yet if the court now see that he was not legally entitled to the office, at the time of bis expulsion, they will not grant him this extraordinary remedy to restore him. Cowp. 533.
    Blakding replied.
   Curia. 6th May, 1809,

Waties, J.,

delivered the opinion. The commissioners of the roads are not. a corporation. They have none of the incidental powers of a corporation. They derive their powers from the express grant of the legislature, for public purposes. The right of filling up vacancies is a power expressly granted to them. It is a power incident to a corporation. The right of removal is not given, and cannot be implied. If Douglas was improperly, or unconstitutionally, appointed to office, yet they could not legally refuse to admit him to exercise the powers and duties of it, or remove him from his seat at the board. But it does not appear to us that he was improperly, or unconstitutionally, appointed. There is no prohibitory article, or passage, in the constitution of the United States, or of this State, to disqualify, or disable an alien from holding and exercising the office of commissioner of the roads, or to restrain the legislature from conferring such an appointment on an alien ; yet, if none but citizens were competent to hold this office, we are now bound to say, that Mr. Douglas is competent, for he has been naturalized according to the laws of the United States, and was a citizen of the United States at the time of his expulsion; and naturalization has a retrospective operation to the time of a man’s birth.

Upon the whole, we are all clearly of opinion, that Mr. Douglas was illegally removed ; that the decision of the District Court was erroneous ; and that a peremptory mandamus should issue to restore him.

'Decision of the District Court reversed, and a peremptory mandamus ordered.  