#### The State *ex relatione*David Truesdale *v.*Town Council of Moultrieville.

In the act incorporating the village of Moultrieville, the power of making bye-laws is conferred on the Town Council; The act further provides “that the said Town Council may affix fines for offences against their bye-laws, and appropriate the same to the public uses of the island; but no fine shall exceed twenty pounds sterling for any *one offence:*which fines, where they exceed five pounds sterling, may be recovered in the Court of Common Pleas in Charleston, and when under the sum of *£5,*before the Intendant and Wardens, or any two of them.”

An Ordinance of the Town Council provides “that from and after the passing of this ordinance, it shall not be lawful for any person, or persons, at any time to cut down and make use of the cedars, or other trees, on the east end of the island, known as the “myrtles,” for posts, ship timber, or for any other purposes whatsoever, except for fascines to resist the encroachment of the sea: any person, or persons, offending in the same shall forfeit and pay for *each*and *every*offence, to the use of the corporation, the sum of $5, to be recovered before the Intendant and Wardens.”

The relator in one proceeding before the Intendant and a Warden, and by one judgment, had been convicted of forty different offences under this ordinance, and fined $5 for each offence, making an aggregate of $200; each offence being supposed to consist in each tree by him cut down.

The specification of the relators offence, was “that he *cut down*at various times, a cedar tree, and did from time to time continue cutting down the same, until he committed one hundred violations of the ordinance aforesaid, by cutting down one hundred trees:” Held insufficient in not setting out that the relator “made use of the cedars” by him cut down, as the of-fence under the ordinance does not consist merely in cutting down, but in cutting down and making use of the trees.

The matter, as charged in this specification, amounts to no more than a *single offence,*for it may well be that every tree cut down by the relator, of which he stood convicted, were cut on one day, and under the ordinance the cutting down more trees than one, *at one time,*would be but *one offence.*

Under the act of incorporation above referred to, the Town Council had no power by *one*judgment to fine for more than *£5.*This is limited by the act, and according to its very words, “where the fines exceed *£5,*they are to be recovered in the Court of Common Pleas for Charleston.” In this case, the fines imposed and about to be collected under the warrant *159of the Town Council, are far beyond the sum thus limited. It will not do to say they are for separate offences. They are imposed at one sitting, and for offences anterior ,to it, and thus make an aggregate of fines incurred by the party beyond *£5,*and one, therefore, according to the charter, to be sued for and collected in another jurisdiction. Prohibition ordered.

*Before EARLE, J., at Charleston, May Term,*1838.

This case came up on a motion for a prohibition made before his honor, Judge Earle, whose report of the case is as follows: — ■ “This was a suggestion for a prohibition to restrain the respondents from collecting certain fines which they had imposed on the relator, for alleged violations of the by-laws and regulations of the Town Council. The offences consisted in cutting down cedar trees for posts, at a place called the Myrtles, on Sullivan’s Island; and he was charged in the written' specification made out at the trial, “with having cut down a cedar tree at various times, and continued so to do from time to time, until he committed one hundred violations of the ordinance, by cutting down one hundred cedar trees.” The relator appeared by counsel before the tribunal prescribed by the charter for the trial of such offences ; and the trial proceeded. The relator was convicted on evidence, of having violated the ordinance referred to, forty different times, and for each offence was fined five dollars; and an execution was awai’ded, directing the marshal to collect each fine from the relator: and the question seemed to be on the jurisdiction of the Council to hear and determine this prosecution. The ordinance, as I construe it, provides a penalty of five dollars for each tree cut down; each constitutes a separate offence: and the jurisdiction is not ousted because the defendant cut so many as to make a large aggregate of penalties. Nor did it seem to me to be irregular, or to deprive them of jurisdiction, to include them in the same proceeding or prosecution. The insufficiency of the specification on which the trial was had, did not appear to be a ground for prohibition. And the motion for the writ was refused.”

The relator appealed from the decision of the Court below, and now moved to have the same reversed and that a prohibition issue, *160on the ground, That the -facts stated by the relator in his suggestion were such as to entitle him to a writ of prohibition, and that the demurrer admitted those facts.

Cukia, per O’Neall, J.

In the act incorporating the village of Moultrieville, the power of making by-laws is conferred on the Town Council, “And the said. Town Council,” (in the language of the act,) “may affix fines for offences against their by-laws and appropriate the same to the public uses of the Island; but no fine shall exceed twenty pounds sterling for any one offence — which fines, where they exceed five pounds sterling, may be recovered in the Court of Common Pleas in Charleston, and where under the sum of five pounds, before the Intendant and Wardens, or any two of them.”

The ordinance under which the relator has been fined, is in the following words, “That from and after the passing of this ordinance, it shall not be lawful for any person, or persons, at any time to cut down and make use of the cedars, or other trees, on the east end of the island, known as the Myrtles, for posts, ship timber, or for any other purposes whatsoever, except for fascines to resist the *encroachment of the*sea. Any person, or *persons, offending*in the same, shall forfeit and pay for each and every offence, to the use of the corporation, the sum of f 5, to be recovered before the Intendant and Wardens, or any two of them.”

The relator, in one proceeding and by one judgment, has been convicted of forty different offences under this ordinance, and fined five dollars for each offence, making an aggregate of f200. The “each offence,” of which he has been convicted and for which he has been' fined, consists in each tree by him cut down. Looking to the ordinance, the offence we find is defined to be, “to cut down at any time and make use of the cedars on the east end of this island, known as the myrtles.” The specification of the relators of-fence, is that he “cut down” at various times a cedar tree, and did from time to time continue cutting down the same, until he. committed one hundred violations of the ordinance aforesaid, by cutting down one hundred trees. To say nothing about this specification, not setting out that the relator “made use of the cedars” by him *161cut down, which would have been a fatal objection to an indictment. I am satisfied that this is really as charged, but a single of-fence. It is a trespass with a continuando, which is in law but one offence. For it may well be that every tree cut down by the relator, of which he stands convicted, were cut on one day. According to the ordinance, the cutting of more trees than one, at one time, would be but one offence. It seems to me, therefore, that the Town Council exceeded their powers, in convicting under this charge, for forty offences. Independent of this view it is plain that they had no power, by one judgment, to fine for more than £5. This is limited by the act of incorporation. Indeed, according to its words, “where the fines exceed £5, they are to be recovered in the Court of Common Pleas for Charleston. In this case, the fines imposed and about to be collected under the warrant of the Town Council, are far beyond the sum thus limited* It will not do to say they are for separate offences. They are iml posed at one sitting, and for offences anterior to it, and thus make an aggregate of fines incurred by the party beyond £5, and are, therefore, according to the charter, to be sued for and collected in another jurisdiction.

*M’Crady,*for the motion.

*Wilson,*contra.

The motion, therefore, to reverse the decision below and for the writ of prohibition, is granted.

Gantt, Evans and Butler, Justices, concurred. Richardson, J., absent from indisposition. Earle, J., absent.