Alston v. Ball

• Decision Date: 14 March 1913
• Parties: ALSTON et al. v. BALL et al., Board of Health of City of Charleston.
• Court: South Carolina Supreme Court

77 S.E. 727

93 S.C. 553

ALSTON et al. v. BALL et al., Board of Health of City of Charleston.

Supreme Court of South Carolina

March 14, 1913

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

"To be officially reported."

Action by Susan B. Alston and another, partners, against J. Alwyn Ball and others, comprising the Board of Health of the City of Charleston. Judgment for defendants, and complainants appeal. Affirmed.

Ficken Rivers & Erckmann, of Charleston, for appellants. Wm. Henry Parker, of Charleston, for respondents.

HYDRICK J.

On May 23, 1912, the board of health of the city of Charleston passed a resolution requiring all dairies in the city to be closed on or before July 1, 1912. Plaintiffs, who were conducting a dairy within the city, brought this action to enjoin the board from enforcing the resolution. On plaintiffs' motion, Judge Memminger ruled the board to show cause why it should not be enjoined and granted a preliminary restraining order, pending the hearing of the return. On hearing the return, his honor found that plaintiffs had failed to make out a prima facie case entitling them an injunction, until the case could be heard on the merits. From his order, refusing their motion plaintiffs appealed.

As the city council undertook, by resolution, to nullify the action of the board of health, the first question to be decided is: Which of these bodies has superior authority in the premises? Under the Constitution and statutes, boards of health derive their powers directly from the Legislature, and not from the municipalities. Kirk v. Board, 83 S.C. 372, 65 S.E. 387, 23 L. R. A. (N. S.) 1188. Therefore council was without power to nullify the action of the board of health. Sections 1593 and 1611 of the Civil Code of 1912 confer ample authority on the boards of health to make and enforce all needful rules and regulations to prevent the introduction and spread of infectious or contagious diseases, and generally to make all such regulations as they shall deem necessary for the preservation of the public health, and to define, declare, and abate nuisances injurious to the public health. Therefore the board had authority to pass the resolution in question. The court has so recently considered at length the principles involved in this appeal that it will be necessary only to state and apply them.

As the powers of boards of health are conferred upon them by the Legislature, it follows that, as long as their actions are not arbitrarily or capriciously taken, and are confined within the limits of powers constitutionally conferred upon them, they are subject to no control, except that of the Legislature; and the court will review their actions only so far as may be necessary to see that they bear a just and reasonable relation to the object sought to be attained, and do not invade personal or property rights vouchsafed to the citizen by the Constitution. Within the limits of their power, they are the exclusive judges of the propriety and wisdom of their actions, and so long as they act strictly within those limits, and not arbitrarily or capriciously, they are not subject to the control of ...