City of Charleston v. Jenkins, No. 18120

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMorris D. Rosen; MOSS; TAYLOR
Citation243 S.C. 205,133 S.E.2d 242
PartiesCITY OF CHARLESTON, Respondent, v. Esau JENKINS, Appellant.
Decision Date11 November 1963
Docket NumberNo. 18120

Page 242

133 S.E.2d 242
243 S.C. 205
CITY OF CHARLESTON, Respondent,
v.
Esau JENKINS, Appellant.
No. 18120.
Supreme Court of South Carolina.
Nov. 11, 1963.

[243 S.C. 206] Moore & Brown, Benjamin L. Cook, Jr., Charleston, for appellant.

Morris D. Rosen, J. Kenneth Rentiers, Charleston, for respondent.

[243 S.C. 207] MOSS, Justice.

Esau Jenkins, the appellant herein, was arrested on October 12, 1962, and charged with the violation of Section 3-11, 1952 Code of the City of Charleston. He was tried before the Municipal Court of the City of Charleston on October 17, 1962, and found guilty of a violation of said ordinance. The conviction of the appellant was sustained by the Circuit Court. This appeal followed.

Section 3-11 of the Charleston City Code provides:

'It shall be unlawful for the owner or person in charge of any store, beer

Page 243

parlor, or other place of business or commercial establishment to sell, give away, or in any manner dispense or permit the consumption of any wines or malt liquors, in such store, beer parlors, or other place of business or commercial establishment between the hours of 1:30 A.M. and 7:00 A.M. * * *'

When this case was called for trial in the Municipal Court of the City of Charleston, the appellant made motions to quash and dismiss the warrant charging him with the violation of Section 3-11 of the Charleston City Code because it was inconsistent with Section 4-204 of the Code of Laws of South Carolina. The appellant further moved to dismiss and quash the warrant in this case upon the ground that he had a right, under Section 4-204 of the 1962 Code, to sell beer at all hours except between the hours of 12:00 o'clock on Saturday night and sunrise Monday morning, and Section 3-11 of the Charleston City Code was an unreasonable exercise of the police power of said City because it diminished the privilege guaranteed to him by Section 4-204 of the Code. The aforesaid motions to quash and dismiss were refused by the Judge of the Municipal Court of the City of Charleston and such was affirmed by the Circuit Court.

The City of Charleston was incorporated as such by an Act of the General Assembly enacted August 13, 1783. 7 Stats. 97. The charter of the City of Charleston granted [243 S.C. 208] to its City Council, inter alia, the power and authority to make and establish rules, regulations and ordinances '* * * requisite and necessary for the security, welfare and convenience of the said City, or for preserving peace, order and good government within the same.'

Section 47-61 of the 1962 Cod of Laws, confers upon municipalities the exercise of police power, subject to the limitations therein expressed, as follows:

'The city and town councils of the cities and towns of the State shall, in addition to the powers conferred by their respective charters, have power and authority to make, ordain and establish all such rules, by-laws, regulations and ordinances, not inconsistent with the laws of this State, respecting the roads, streets, markets, police, health and order of such cities and towns or respecting any subject as shall appear to them necessary and proper for the security, welfare and convenience of such cities and towns or for preserving health, peace, order and good government within them. * * *'

'Governmental authority known as the police power is an inherent attribute of state sovereignty. It can belong to cities or other subordinate government agencies or divisions of the state when and as conferred by the state. But without doubt a state can delegate the power or at least authority to exercise it to municipal and other governmental agencies of the state. The delegation may be by constitution, statute or charter.' McQuillin on Municipal Corporation, Sec. 24.36, page 522.

This grant of power for purposes of municipal legislation is as broad and comprehensive as it was within the power of the State to delegate. It is a grant of the sovereign police power of the State itself limited alone (1) by the territorial confines of a municipality authorized to exercise it, and (2) by the proviso that legislation thereunder shall not be inconsistent with the laws of the State. Lomax v. City of Greenville, 225 S.C. 289, 82 S.E.2d 191. Any and all ordinances enacted under Section[243 S.C. 209] 47-61 of the Code must be in the exercise of the police power thus granted. Southern Fruit Company v. Porter, 188 S.C. 422, 199 S.E. 537.

The law of this State authorizes the sale of beer by persons duly licensed. Section 4-201 et seq., of the 1962 Code of Laws of the State. However, Section 4-204 of the Code, provides that 'It shall be unlawful for any person to sell or offer for sale any wine or beer in this State between the hours of twelve o'clock Saturday night and sunrise Monday morning', and provides a penalty

Page 244

upon conviction of a violation of the provisions of this section.

It is apparent from a reading of Section 3-11 of the ordinance contained in the Charleston City Code and Section 4-204 of the State Code, that the former imposes an...

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15 practice notes
  • Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728
    • United States
    • United States State Supreme Court of South Carolina
    • March 29, 2017
    ...limits." Denene, Inc. v. City of Charleston , 359 S.C. 85, 98, 596 S.E.2d 917, 924 (2004) (quoting City of Charleston v. Esau Jenkins , 243 S.C. 205, 210–11, 133 S.E.2d 242, 244 (1963) ). This mandate is especially broad with respect to regulating liquor:In the exercise of the police power ......
  • Cincinnati v. Baskin, No. 2004-1829.
    • United States
    • United States State Supreme Court of Ohio
    • December 8, 2006
    ...622 P.2d 568, 570; Illinois Liquor Control Comm. v. Joliet (1975), 26 Ill.App.3d 27, 33, 324 N.E.2d 453; Charleston v. Jenkins (1963), 243 S.C. 205, 211-212, 133 S.E.2d 242; Taggart v. Latah Cty. (1956), 78 Idaho 99, 104, 298 P.2d {¶ 39} This interpretation of "conflict" is also exemplified......
  • Martin v. Condon, No. 24518
    • United States
    • United States State Supreme Court of South Carolina
    • November 14, 1995
    ...of a particular section of the State may demand. Id. at 191, 128 S.E. at 39 (emphasis added); accord City of Charleston v. Jenkins, 243 S.C. 205, 209, 133 S.E.2d 242, 244 (1963) (upholding law forbidding alcohol consumption in City of Charleston during certain hours; finding that "[t]he pre......
  • State v. Solomon, No. 18330
    • United States
    • United States State Supreme Court of South Carolina
    • April 12, 1965
    ...v. City of Spartanburg, 148 S.C. 229, 146 S.E. 12; McAbee v. Southern Ry. Co., 166 S.C. 166, 164 S.E. 444; City of Charleston v. Jenkins, 243 S.C. 205, 133 S.E.2d The prior statute contained no provision granting to municipalities the right to determine what business or labor was necessary ......
  • Request a trial to view additional results
15 cases
  • Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728
    • United States
    • United States State Supreme Court of South Carolina
    • March 29, 2017
    ...limits." Denene, Inc. v. City of Charleston , 359 S.C. 85, 98, 596 S.E.2d 917, 924 (2004) (quoting City of Charleston v. Esau Jenkins , 243 S.C. 205, 210–11, 133 S.E.2d 242, 244 (1963) ). This mandate is especially broad with respect to regulating liquor:In the exercise of the police power ......
  • Cincinnati v. Baskin, No. 2004-1829.
    • United States
    • United States State Supreme Court of Ohio
    • December 8, 2006
    ...622 P.2d 568, 570; Illinois Liquor Control Comm. v. Joliet (1975), 26 Ill.App.3d 27, 33, 324 N.E.2d 453; Charleston v. Jenkins (1963), 243 S.C. 205, 211-212, 133 S.E.2d 242; Taggart v. Latah Cty. (1956), 78 Idaho 99, 104, 298 P.2d {¶ 39} This interpretation of "conflict" is also exemplified......
  • Martin v. Condon, No. 24518
    • United States
    • United States State Supreme Court of South Carolina
    • November 14, 1995
    ...of a particular section of the State may demand. Id. at 191, 128 S.E. at 39 (emphasis added); accord City of Charleston v. Jenkins, 243 S.C. 205, 209, 133 S.E.2d 242, 244 (1963) (upholding law forbidding alcohol consumption in City of Charleston during certain hours; finding that "[t]he pre......
  • State v. Solomon, No. 18330
    • United States
    • United States State Supreme Court of South Carolina
    • April 12, 1965
    ...v. City of Spartanburg, 148 S.C. 229, 146 S.E. 12; McAbee v. Southern Ry. Co., 166 S.C. 166, 164 S.E. 444; City of Charleston v. Jenkins, 243 S.C. 205, 133 S.E.2d The prior statute contained no provision granting to municipalities the right to determine what business or labor was necessary ......
  • Request a trial to view additional results

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