December 22, 1919. The opinion of the Court was delivered by The defendant owns and operates a toll bridge across Ashley River, between the city of Charleston and St. Andrews parish, under and by virtue of the provisions of certain statutes. The defendant was indicted, tried, and convicted under section 618 of the Criminal Code, and sentenced to pay a fine of $10,000 — one-half to go to the informer, and the other half to go to the Charleston Bridge Company. That section is as follows:
"The proprietor or proprietors of every bridge or turnpike road now constructed, or hereafter to be constructed by the authority of the legislature, shall be liable to indictment at common law for not keeping their respective works in such condition as to answer the ends of their creation. *Page 125 All the penalties which may be recovered for offenses against owners of bridges or turnpikes shall be paid one-half to the informer and the other half to the corporation or individual or individuals owning the works respecting which the said offenses shall have been committed."
The defendant appealed upon numerous exceptions, which will be reported.
The first question which we will consider involves the construction of section 618 of the Criminal Code of 1912. The appellant's attorney, in his argument, says: "We contend that if this act (section 618) is of force and applicable, that its true construction as a penal statute is to punish only when a bridge is in such a condition as practically not to be a bridge, and becomes a nuisance across a navigable stream, or highway. His Honor, however, took the position `that not only must the bridge answer the ends of its creation, but it should accommodate itself to the growing demands of modern traffic, or surrender its charter, and, failing to do so, it was guilty of a criminal offense.'"
The appellant's attorney did not cite any authorities to sustain the proposition for which he contends, but the solicitor and the respondent's attorneys have cited numerous cases, which show that the foregoing exceptions cannot be sustained.
The cases of Park v. Laurens Cotton Mills, 75 S.C. 560,56 S.E. 234, and Nexsen v. Ward, 96 S.C. 313,80 S.E. 599, show that the second exception cannot be sustained.
The next question that will be considered is whether the common law is of force in this State, on the ground that the following statute, which was first adopted in 1712 (Rev. St. 1872c, 146, sec. 10), is not included in the Code of Laws of 1912: "All and every part of the common law of England, where the same is not altered by this act or inconsistent with the Constitution, customs *Page 126 and laws of this State, is hereby continued in full force and virtue within this State in the same manner as before the adoption of this act."
In the first place, the provision in section 618, that proprietors of turnpike roads shall be liable to indictment at common law, shows clearly that it is applicable to the present case; and, in the second place, the statute, making the common law of force in this State, is merely declaratory in its nature. In the case of Shecut v. McDowel, 1 Tread. Const. 35, the principle is thus correctly stated by Nott, J.:
"The first question * * * is whether * * * this Court is to be governed by the principles of the common law, as settled in England. * * * As to the first point, our act of Assembly, passed in the year 1712, says the common law of England shall be in as full force and virtue in this State as in England. And, even if it did not, I do not know by what other law we should be governed; for the common law is as much the law of this country as of England. I do not mean to say that we are bound by every decision made by the Courts of England. We have a right to take our own view of the common law."
We proceed to the consideration of the question whether the sentence imposed upon the defendant was illegal. The two paragraphs in section 618 were first made a part of a lengthy act, adopted in 1827. 7 St. at Large, p. 315. They did not therein appear as a single section. The first provision in the section 618, as it appeared in the act of 1827, included the words: "In the same manner as if no provisions were contained in this act to enforce them."
And the second provision was as follows:
"And be it further enacted, That all penalties which may be recovered for offenses created by this act, shall be paid one-half to the informer, and the other half to the corporation *Page 127 or individual or individuals owning the works respecting which the said offenses shall have been committed."
These provisions were re-enacted as separate sections in the Revised Statutes of 1873 (page 282, secs. 21 and 22; also in the General Statutes of 1882 (page 335, secs. 1131 and 1132). But they were incorporated in the Revised Statutes of 1893 (page 382, sec. 354) and in the Code of Laws of 1902 (page 379, sec. 443) as a single section. Section 105 of the Criminal Code of 1912, is as follows:
"In cases of legal conviction, where no punishment is provided by statute, the Court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution."
The defendant was convicted of an offense committed by him, and the sentence imposed on him was for an offense against the owners of the bridge, which he had not committed. Therefore, the Court did not award such sentence as was conformable to the common usage and practice in this State, according to the nature of the offense. The sentence was, therefore, illegal.
There was no prejudicial error assigned by the other exceptions.
The judgment of this Court is that the judgment pronounced be reversed, and the cause remanded to that Court for the pronouncement of a sentence pursuant to section 105 of the Criminal Code of 1912 in conformity to the usage and practice of this State. *Page 128