Fairey v. City of Orangeburg, 17028

• Decision Date: 12 July 1955
• Docket Number: No. 17028,17028
• Citation: 88 S.E.2d 617,227 S.C. 458
• Court: South Carolina Supreme Court
• Parties: John L. FAIREY, Appellant, v. The CITY OF ORANGEBURG, Respondent.

Page 617

88 S.E.2d 617

227 S.C. 458

John L. FAIREY, Appellant, v. The CITY OF ORANGEBURG, Respondent.

No. 17028.

Supreme Court of South Carolina.

July 12, 1955.

Moss & Moss, Orangeburg, for appellant.

Rosen, Horger & Sims, Orangeburg, for respondent.

LEGGE, Justice.

This appeal is from an order sustaining a demurrer to a complaint, the allegations of which were substantially as follows:

Between July 28 and November 4, 1953, the city of Orangeburg, a municipal corporation of more than five thousand inhabitants, maintained on its trash and garbage dump a herd of swine, to which it fed uncooked garbage although it had no permit from the proper state or county authorities to do so, and although it knew that such practice was likely to infect the herd with vesicular exanthema, a highly contagious and often fatal disease. On October 16, 1953, the city was notified that its herd would be quarantined if such feeding practice continued, but it failed to heed the warning, and a notice of quarantine was mailed to it on October 28, 1953. On the date last mentioned, the city sold some of its hogs, which were infected with vesicular exanthema, through Peoples Livestock Market, a large auction market in or near the city limits; and these hogs infected other hogs at that market, among them certain grade hogs that the plaintiff purchased there on the same day for the purpose of feeding out and resale. Plaintiff, a farmer of Orangeburg county, was engaged primarily in raising purebred Berkshire hogs for breeding purposes; and at the time of his purchase just mentioned his herd consisted of forty-six purebred Berkshire and forty-seven grade hogs. From the infected hogs so purchased by the plaintiff, the disease rapidly spred among his herd, with the result that the entire herd was condemned and had to be slaughtered and buried, and his farm was so contaminated that it was quarantined and the plaintiff was prohibited (up to the time of the commencement of the action, March 24, 1954) from maintaining any hogs thereon. As the result of the said conduct of the defendant city, which the complaint characterized as negligent, wilful and wanton, plaintiff alleged that he lost his hogs, his feed crops, and the good will of his business, and was put to the cost of slaughtering and burying his hogs, to his damage in the sum of $15,000. Anticipating that Section 47-379 of the 1952 Code would be pleaded in bar, he alleged that its restrictive provisions, so far as they might be construed as applicable to his cause of action, are in violation of the 'equal protection' clauses of the state and federal constitutions.

Section 47-379 of the 1952 Code, which relates to cities of over five thousand inhabitants, reads as follows:

'Any such city shall be liable for all damages done to the property of any citizen thereof, or property holder therein, by any of its officers, agents or servants under and by virtue of any authority or orders of the city council.'

Defendant having demurred upon the ground that the complaint failed to allege facts sufficient to constitute a cause of action against it, Judge Brailsford, in his order sustaining the demurrer, held:

1. That since the complaint failed to allege that the plaintiff belonged to either of the two classes to whom a right of action is given by Section 47-379, it failed to state a cause of action under that statute;

2. That Section 47-379 expresses a single legislative purpose, and the limitation imposed by the words 'thereof' and 'therein' cannot be construed as a separable provision; and

3. That since the provisions of the statute under which the plaintiff had laid his cause of action were not separable, it was unnecessary to determine whether the statute as a whole violated the 'equal protection' provisions of the state and federal constitutions.

Appellant's exceptions, six in number, present three questions for determination here, namely:

1. Is Section 47-379 to be construed as partially unconstitutional, to the extent that it limits the right of action therein conferred to citizens of, and property holders in, the municipalities concerned?

2. If the provisions of Section 47-379 are inseparable, do Article 1, Section 5 of the Constitution of South Carolina and the Fourteenth Amendment of the Constitution of the United States confer upon the plaintiff, despite the limitations of the statute, the same rights that are conferred by the statute upon citizens of and property holders in the municipality?

3. Was the last proviso in Section 22 of the act of February 19, 1901 XXIII Stat. at Large 648, which is now Section 47-379 of the 1952 Code of Laws, ever repealed?

It has long been the settled law of this state that except where the act complained of in effect constitutes a taking of private property for public use without just compensation, which is not the case here, municipal corporations are not liable in tort unless made so by statute. Randal v. State Highway Department, 150 S.C. 302, 148 S.E. 57; Oswald v. City of Orangeburg, 154 S.C. 105, 151...