Clegg v. City of Spartanburg

• Decision Date: 14 January 1925
• Docket Number: 11320.
• Citation: 128 S.E. 36,132 S.C. 182
• Parties: CLEGG ET AL. v. CITY OF SPARTANBURG.
• Court: South Carolina Supreme Court

128 S.E. 36

132 S.C. 182

CLEGG ET AL. v. CITY OF SPARTANBURG.

No. 11320.

Supreme Court of South Carolina

January 14, 1925

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by W. F. Clegg and R. T. Thomason, partners doing business as the Wigwam Billiard Parlors, on behalf of themselves and such other similarly situated owners and operators of billiard parlors in the City of Spartanburg, S. C., as may avail themselves of the benefits and contribute to the expenses of this action, against the City of Spartanburg. Judgment for defendant, and plaintiffs appeal. Affirmed.

Cothran and Watts, JJ., dissenting.

Nicholls & Wyche, of Spartanburg, for appellants.

Lyles Daniel & Drummond, of Spartanburg, for respondent.

MARION J.

The appellants are proprietors of a pool room in the city of Spartanburg. The city adopted an ordinance prohibiting the maintenance and operation of public pool rooms within its limits. The appellants brought this action to enjoin the enforcement of the ordinance. On the verified complaint a rule to show cause, carrying a temporary restraining order was issued. At the hearing on the rule the city made a return which was substantially a demurrer to the complaint. His honor, T. S. Sease, circuit judge, sustained the demurrer upheld the validity of the ordinance, and dissolved the temporary restraining order. On due application by the appellants, Mr. Justice Cothran superseded Judge Sease's order pending the determination of this appeal.

The appeal raises the one question of whether the ordinance may be sustained as a valid exercise of the city's police power. The points of attack upon the ordinance, generally stated, are:

(1) That the operation of billiard and pool tables for hire is authorized by the state and that a municipality is powerless to prohibit it; (2) that such operation is not a nuisance per se, and that a municipality has the power only to regulate, either in the mode or locality of operation; (3) that the municipality is authorized by statute to license and regulate such operation and that the power to regulate, not only does not include the power to prohibit, but by that grant excludes it.

It is apparent, and, as we understand, is conceded by appellants, that the soundness of their position as embraced within the foregoing contentions depends upon the validity of the postulate that the state, in subordination to whose reserved police power the delegated powers of the municipality are held and must be exercised, has through the supreme legislative department, either expressly or by clear implication, declared that the business of maintaining and operating public pool rooms for gain is such a business as may not be prohibited within the borders of the state by any subordinate agency of government. The validity of that proposition turns upon the construction and interpretation which shall be given to certain acts of the General Assembly now embodied in the general statute law of the state. In determining whether such meaning and effect are to be given these legislative enactments as precludes the city from enacting a valid ordinance of this character, attention may logically be directed first to ascertaining the nature and extent of the power of the city in that regard, considered apart from the particular statutory provisions upon which the appellants rely.

So considered, that is, apart from the statutes invoked by appellants as the controlling expression of the legislative will, would the enactment of this ordinance have been a valid exercise of the police power of the city? The portion of the sovereign police power of the state, carved out and delegated to the city, is that embraced in the legislative enactment, passed in 1898 (22 Stat. 820), incorporated in the Civil Code of 1912 as section 2994, and in Civil Code of 1922, as section 4388, as follows:

" The City Councils 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 respecting the roads, streets, markets, police, health and order of said 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 the same. And the said city or town councils may fix fines and penalties for the violation thereof, not exceeding one hundred dollars fine or thirty days imprisonment: Provided, that such rules, by-laws and ordinances shall not be inconsistent with the laws of the state," etc.

It is apparent that 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 the municipality authorized to exercise it, and (2) by the proviso that legislation thereunder "shall not be inconsistent with the laws of the state." If so, subject to those limitations, the authority of the city to prohibit the maintenance and operation of public pool rooms for gain is as ample and plenary as the power of the state to prohibit such business. The only limitations upon this power of the state in that regard are the constitutional guaranties which safeguard personal liberty and private property. That a state, in the exercise of its police power, may prohibit the keeping of public pool rooms and billiard halls without infringing those constitutional guaranties is well settled. In upholding the constitutionality of section 3431, Civ. Code 1912, now section 5175, Civ. Code 1922, requiring every person operating any pool or billiard table for private gain outside of an incorporated city or town to pay an annual license of $100, to be turned into the school fund of the County, this court, in Thomas v. Foster, 108 S.C. 98, 93 S.E. 397, by Hydrick, J., said:

"Section 3431 is clearly within the police power of the state. It deals with a business potential of evil. Playing pool and billiards is fraught with some danger of the morals of those who play, even when the playing is done under the most favorable surroundings in the atmosphere and under the restraining influence of the home, or in the privacy of the clubroom. The danger is greatly increased when the playing is done at a public resort, where all who can pay the price are at liberty to come and play. There is more danger of playing at such places leading to gambling and other vices. The Legislature might have prohibited playing at such places altogether. State v. Berlin (21 S.C. 292, 53 Am. Rep. 677) supra. The right to prohibit includes the lesser measure of regulation provided for by license under the statute."

That a municipality, acting within the scope of power delegated by the state, may as freely exercise this power to prohibit without infringing constitutional guaranties, follows as a necessary sequence. Thus, in Murphy v. People, 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229, 41 L. R. A. (N. S.) 153, the Supreme Court of the United States, in sustaining the validity of such an ordinance, passed by the town of South Pasadena, Cal., "in pursuance of police power conferred by general law," said:

"Playing at billiards is a lawful amusement; and keeping a billiard hall is not, as held by the Supreme Court of California on plaintiff's application for habeas corpus, a nuisance per se. But it may become such; and the regulation or prohibition need not be postponed until the evil has become flagrant. That the keeping of a billiard hall has a harmful tendency is a fact requiring no proof, and incapable of being controverted by the testimony of the plaintiff that his business was lawfully conducted, free from gaming or anything which could affect the morality of the community or of his patrons. The fact that there had been no disorder or open violation of the law does not prevent the municipal authorities from taking legislative notice of the idleness and other evils which result from the maintenance of a resort where it is the business of one to stimulate others to play beyond what is proper for legitimate recreation. The ordinance is not aimed at the game, but at the place; and where, in the exercise of the police power, the municipal authorities determine that the keeping of such resorts should be prohibited, the courts cannot go behind their finding and inquire into local conditions, or whether the defendant's hall was an orderly establishment, or had been conducted in such manner as to produce the evils sought to be prevented by the ordinance. As said in Booth v. Illinois, 184 U.S. 425, 429, 46 L.Ed. 623, 626, 22 S.Ct. 425: 'A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law.' Under this principle ordinances prohibiting the keeping of billiard halls have many times been sustained by the courts. Tanner v. Albion, 5 Hill, 121, 40 Am. Dec. 337; Tarkio v. Cook,

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