City of Charleston v. Jenkins, 18120

• Decision Date: 11 November 1963
• Docket Number: No. 18120,18120
• Citation: 243 S.C. 205,133 S.E.2d 242
• Court: South Carolina Supreme Court
• Parties: CITY OF CHARLESTON, Respondent, v. Esau JENKINS, Appellant.

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.

Moore & Brown, Benjamin L. Cook, Jr., Charleston, for appellant.

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

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 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 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 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 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 additional regulation upon the operator of any place of business in the City of Charleston engaged in the sale of beer. The ordinance is broader than the statute in its scope and application because it covers not only the selling, giving away or dispensing of beer, but also has reference to permitting the consumption of the same in such place of business between the hours stated.

The preservation of the health, safety, welfare and comfort of dwellers in urban centers of population often requires the enforcement of very different and usually much more stringent police regulations in such district than is necessary in a State taken as a whole. A municipal corporation, under its authorized police power, may regulate any trade, occupation or business, the unrestrained pursuit of which might affect injuriously the public health, morals, safety or comfort; and in the exercise of the power particular occupations may be excluded from certain parts of the city or may be required to be conducted within designated limits, and some may be so offensive or detrimental as to justify their total prohibition. It can make no difference that the trade had been lawfully established prior to the prohibitory ordinance and that it has become offensive solely on account of the growing up of the municipality about it. Arnold v. City of Spartanburg, 201 S.C. 523, 23 S.E.2d 735.

The practical question for determination here is whether Section 3-11 of the Charleston City Code is in conflict with Section 4-204 of the Code of Laws. The recognized principles as to what constitutes conflict between a municipal ordinance and the laws of the State is well expressed in the case of McAbee v. Southern Ry. Co., 166 S.C. 166, 164 S.E. 444, as follows:

'The question as to whether or not a municipal ordinance or regulation is in conflict with the general law is sometimes difficult of solution, * * *. In order that there be a conflict between a state enactment and a municipal regulation both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. * * * If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand. * * *

"As a general rule, additional regulation to that of the State law does not constitute a conflict therewith. * * * Merely because a municipal ordinance is not as broad as the statute does not render it so inconsistent as to make it void."

In 37 Am.Jur., Municipal Corporations, Section 165, at page 790, it is stated:

'The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cas...