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necessary to preserve the peace, good order and safety of the inhabitants thereof.

Powers of the town.

GEORGETOWN. ACT of Dec. 19, 1805. Pamphlet edit. 31. 335. SEC. VI. And be it enacted, &c. That the said town council shall also have full power to make and establish, and th when they see fit, to alter all such rules, by-laws, and ordinan- council. ces, respecting the regulation of seamen, boatmen and disorderly people, slaves, free people of colour, and in general every other by-law and regulation, that shall appear to them requisite and necessary for the health, security, welfare, good government and convenience of the said town.

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. HAMBURG. ACT of Dec. 19, 1827. Pamphlet edit. 54. 336. SEC. VII. And be it enacted, &c. That the town council shall have full power and authority to make and establish, and when they see fit, to alter all such rules, by-laws and ordinances duties of the respecting the streets, lanes and alleys, public buildings, markets, como weights and measures, the assize, prices and inspection of bread, the cording and measuring of firewood, public houses, billiard tables, retailers of spirituous liquors, pumps, fire engines and buckets, disorderly places and free people of colour; and in general, every other by-law and regulation that shall appear to them requisite and necessary for the health, security, good government and welfare of said town.

MOULTRIEVILLE (Sullivan's Island).

'ACT of Dec. 14, 1819. Pamphlet edit. 43. 337. Sec. 1. Be it enacted, &c. That it shall be lawful for the intendant and wardens of Moultrieville, on Sullivan's Island, to provide by ordinance under their corporate seal, for the performance of patrol duty on the said island, by the whole of the inhabitants of the said island, including as well the owners of wardens to

Intendant & the houses who reside there, or whose families reside there, as regulate paalso those who hire houses or keep lodging houses, public houses or stores, and all persons lodging or residing therein, who are capable of performing patrol duty, prescribing also, by ordinance, into how many squads or patrol companies, the inhabitants shall be divided, how often they shall ride patrol, and the penalties to be imposed on defaulters, and the mode of recovering and appropriating such penalties, together with all other matters necessary for organizing and regulating patrols according to the circumstances of the island; Provided, that the patrols shall not be vested with any higher or greater powers than patrols now possess under the laws of the state, and that no penalties be pre- Penalty not scribed for any default in riding patrol, exceeding five dollars for or


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five dollars

each default, and no reference to a per centage on the general tax.

ACT of Dec. 20, 1826. Pamphlet edit. 37. .

338. Sec. v. And be it enacted, &c. That the said intendant Intendant & and wardens shall have full power to abate and remove nuisances regulate pa. in said limits, and to classify and arrange the inhabitants liable

to do patrol duty, and to require them to perform such duty as often as occasion may require, and to enforce the performance thereof under the same penalties as are now established by law.

wardens to


YORKVILLE. ACT of Dec. 18, 1824. Pamphlet edit. 52. 339. Sec. xxxi. And be it enacted, &c. That the said commissioners* shall have power, and it shall be their duty to cause patrol duty to be performed by the inhabitants of the said vil. lage, and within the above prescribed limits, by those who are now liable by law to perform patrol duty within the saine, and to inflict the same fines and penalties for refusal or neglect as are now imposed by law; and the said inhabitants are hereby exempt from the performance of patrol duty beyond the said above prescribed limits.

. *Commissioners of the streets for the village of Yorkville







340. (See Decisions on the Militia Acts, No. 262.]

City Council vs. Payne. 2 Nott f. M.Cord, 475. May, 1820.

341. The City Council of Charleston are authorised by the legislature to make such rules and ordinances as they consider requisite for the security, welfare and convenience of the city, and for preserving peace and good order within it; they are also empowered to appoint such officers as they may deem necessary to carry into execution their rules and ordinances. Under these provisions of their charter the city guard is constituted, for the purpose of preserving the peace of the city. The city guard are City guard to be regarded in the light of watchmen and constables, possess men. the same powers as those officers, and have a right to arrest Mav arrest persons committing affrays or breaches of the peace, without any wishout warwarrant.

are watch


*From the

The Hon. Wm. Johnson ads. The OFFICERS OF THE CHARLES-

Ton Neck RANGERS. March 24, 1829.* 342. Appeal from an order at Chambers, by judge Bay, re- original M.s. fusing the application of the relator for a prohibition to restrain the respondents from proceeding to collect from him by execution, certain fines imposed on him by a court martial, for neglecting to perform patrol duty, in the militia beat company in which he resided.

The relator is one of the associate judges of the Supreme Court of the United States, and the question was, whether he was or was not bound to perform that duty. The relator claim

ed to be exempted from the performance of patrol duty, on the grounds,

1st. That this is a military duty from which the Congress of the United States, having the power under the constitution, have, by the act of 5th May, 1792, expressly exempted him as one of the judicial officers of the United States.

2dly. That whether the duty required be military or civil, the performance of it is incompatible with his duty as a judge of the Supreme Court of the United States, and therefore he was not bound to perform it.

Determined—that there is nothing in any provision of the constitution, which takes from the States the power of using its own armed inhabitants for the purpose of preserving its domestic tranquillity. Whether patrol duty be a civil or military duty, or a compound of both, it is not embraced in the power granted to Congress to prescribe a mode in which the militia shall be disciplined; and, consequently, that it has no right to determine who shall or shall not perform it.

When the law imposes on a citizen different and incompatible duties of equal obligation, he may elect which he will perform.

When one duty is inconsistent with and paramount to another, the citizen is bound to discharge that of superior obligation. It is the privilege of the government to appropriate to itself exclu

sively the services of a portion of its citizens to carry on its opeJudge of the rations. That the duty which devolved on the relator as a judge Court of the of the Supreme Court of the United States was paramount, and from patrol that he was exempted from performing patrol duty, not as a matduty.

ter of favour or excuse, but as a matter of right.


U.S. exempt

FINES. Gist vs. Cole. 2 Nott f. M Cord, 456. May, 1820. 343. The plaintiff, Gist, had been fined by captain Cole, for divers defalcations, in not performing patrol duty. For the recovery of the fines, captain Cole issued his warrant, under his hand and scal, pursuant to the directions of the patrol law, by virtue of which the sergeant or other military officer charged with the service of the execution, levied upon a negro, the property of Gist. Whilst the negro was in possession of the officer under the levy, and before sale could be made to satisfy the fines, the plaintiff sued out a writ of replevin to the sheriff of Charleston district, who took the negro, by virtue thereof, out of the

possession of the military officer, and delivered him into the posProperty session of Gist. Determined that where property has been der the pa- levied on by an execution, issued under the patrol law, it cannot to be replev. De

be taken from the officer who has it in possession, by a writ of replevin.

The State vs. J. COLE. 2 M Cord, 1. 344. Motion for a prohibition to prevent the collection of certain fines imposed by captain Cole, on William Brisbane, for the non-performance of patrol duty. The relator was fined, and

levied on un

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the executions were issued under the patrol act of 1809, before the patrol act of 1819 was passed. The suggestion stated a variety of grounds, but the motion was granted on the ground that the act under which the fines were imposed, had been repealed by a subsequent act of the legislature. A motion was now made to reverse the decision of the presiding judge, and to dismiss the rule, because the act has not been repealed, so far at least, as the fines that had been imposed prior to the passage of the last act, which is considered as the repealing act.

No doctrine of law is better established than that where one commits an offence which is made felony by statute, and then the statute be repealed, he cannot be punished as a felon in respect to that statute. And the doctrine applies as well to the imposing and recovery of penalties, as to the creating and punishment of felonies. It would not be less absurd to punish a man for an act which is not illegal at the time the punishment is inflicted, than to punish him for one which never has been declared illegal. The present case is not embraced within this doctrine. The patrol act of 1819 is only a re-enactment of the act of 1809, and the former acts, with some small alterations. It is a continuation of the same system of police which has been in operation for upwards of seventy-six years. There is no repugnancy in

Patrol acts of these acts; all of them require the performance of that duty 1809 and 1819 which the relator neglected to perform ; all of them imposed a not repuga penalty on the non-performance, and all of them recognize the old and long established jurisdiction by which the fines are to be recovered. The act of 1819 and that of 1809, differ in three particulars-1st. as to the amount of fines ; 2d. in the person before whom the penalty is to be recovered ; and lastly, in the appropriation of fines.

The first and second points of difference do not constitute a repugnancy, and the third point of difference cannot affect the question, for the appropriation of the fine cannot take place until after the determination of the question whether it can be recovered. The repealing clause of the act of 1819, ouly repeals so much of the former laws as are repugnant to the provisions contained in it. The question before the Court is not whether the relator is to be fined, and in what amount, but whether he has been legally fined, and in a proper amount, and whether judgment and execution can now be enforced ; and of this the Court entertains no doubt. The motion is therefore granted.



16TH REGIMENT. 345. Prohibition to restrain the collector of militia fines, from proceeding to collect certain militia and patrol fines from the plaintiff, with the assessment of fifty per cent. on his last general tax.

Determined that the law subjects a militia defaulter to a specific fine and fifty per cent, on the amount of his last general tax; the percentage is not laid on his taxable property, but on his

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