Law v. City of Spartanburg

• Decision Date: 07 December 1928
• Docket Number: 12543.
• Citation: 146 S.E. 12,148 S.C. 229
• Parties: LAW et al., Spartanburg County Board, v. CITY OF SPARTANBURG.
• Court: South Carolina Supreme Court

146 S.E. 12

148 S.C. 229

LAW et al., Spartanburg County Board, v. CITY OF SPARTANBURG.

No. 12543.

Supreme Court of South Carolina

December 7, 1928

Original proceeding by John A. Law and others, as members of the County Board of Spartanburg County, for permanent injunction to be directed to the City of Spartanburg. Petition granted.

Nicholls Wyche & Byrnes, of Spartanburg, for plaintiffs.

C. E Daniel, of Spartanburg, for respondent.

WATTS C.J.

This is a petition to the Supreme Court, in original jurisdiction, by the county board of Spartanburg county against the city of Spartanburg, for a permanent injunction enjoining the city of Spartanburg from enforcing or attempting to enforce an ordinance of the city of Spartanburg prohibiting the construction within the limits of the city of Spartanburg of a tubercular hospital and to require the city of Spartanburg to grant unto the county board of Spartanburg county a permit to construct such building for a tubercular hospital within the limits of the city of Spartanburg upon the presentation of plans and specifications for the construction of the same upon the ground that the ordinance is invalid, unconstitutional, null, and void. By an act of the General Assembly of South Carolina, approved March 9, 1928 (35 St. at Large, p. 2013), the county board of Spartanburg county is required to construct a tubercular hospital upon a site selected by the board of trustees of the Spartanburg General Hospital.

The trustees of Spartanburg General Hospital have selected a site within the limits of the city of Spartanburg, containing 5 1/2 acres, adjoining the grounds of the Spartanburg General Hospital, and making together a tract of land containing 27 acres, upon which 27-acre tract the trustees of the Spartanburg General Hospital have requested the county board of Spartanburg county to construct such tubercular hospital. The city council of the city of Spartanburg thereafter passed an ordinance prohibiting the erection, maintenance, establishment, and operation within the limits of the city of Spartanburg of any hospital, sanatorium, camp, or other establishment designed and intended primarily or principally for the hospitalization, housing, care, or treatment of the tubercular, and providing that any violation of said ordinance shall be a misdemeanor and punished by a fine not exceeding $100 or by imprisonment for a period not exceeding 30 days.

Plaintiffs contend that the city council of the city of Spartanburg has no authority to pass any ordinance in conflict with or inconsistent with the laws of the state, and that, when the Legislature of South Carolina authorizes and directs the county board of Spartanburg county to erect a building to be used as a tubercular hospital, an ordinance passed by the city of Spartanburg prohibiting the construction of such hospital is in conflict with and inconsistent with the laws of the state of South Carolina, and is therefore invalid, and that the ordinance is unconstitutional, null, and void, in that it is in violation of and in conflict with the Constitution of South Carolina 1895 and the Constitution of the United States, in that it attempts to deprive plaintiffs of their property without due process of law, and denies to plaintiffs equal protection of the law, land further violates section 1, article 8, Constitution of South Carolina.

The defendant both demurred and answered.

That which the State authorizes, directs, requires, licenses, or expressly permits a municipality is powerless to prohibit. The following is an act passed by the Legislature of South Carolina and approved March 9, 1928:

"Section 1. That there shall be erected for Spartanburg county a tuberculosis hospital.

"Section 2. The location for the building shall be determined by the board of trustees of the Spartanburg General Hospital.

"Section 3. The contract for the construction of said building shall be let and the furnishings and equipment therefor shall be purchased by the Spartanburg county board.

"Section 4. Upon completion of the building and equipment, the board of trustees of the General Hospital is charged with power and authority to carry on the operation and maintenance thereof in the manner as the General Hospital is now controlled and operated."

Section 5 makes appropriation upon certain conditions. Acts 1928, p. 2013.

The General Assembly passed an act, approved March 9, 1928, authorizing Spartanburg county to issue bonds for the purpose of building and equipping a tubercular hospital, and providing for a tax to pay said bonds. Acts 1928, p. 2016.

Section 4388, Code of Laws of South Carolina 1922, volume 3, provides that:

"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 this state."

An ordinance which is repugnant either to the Constitution or general laws is ipso facto void. Clegg v. City of Spartanburg, 132 S.C. 182, 128 S.E. 36. "All ordinances or by-laws adopted by" a municipality "contrary to the laws of the land are void." State ex rel. Fanning and Lord v. Mayor of Charleston, 12 Rich. 480. "An ordinance is the product of legislative power conferred upon the municipality. One essential to its validity is that it shall not conflict with the laws of the state." 28 Cyc. 290; Southport v. Ogden, 23 Conn. 128; Adams v. Mayor of Albany, 29 Ga. 56; Burg v. Chicago, R.I. & P. R. Co., 90 Iowa, 106, 57 N.W. 60, 48 Am. St. Rep. 419; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Trotter v. Board, etc., of St. Louis Public Schools, 9 Mo. 101; Volk v. Mayor, etc., of City of Newark, 47 N. J. Law, 117; Taintor v. Mayor and Common Council of Morristown, 33 N. J. Law, 57; Nolan v. King, 97 N.Y. 572, 49 Am. Rep. 561; Weith v. Wilmington, 68 N.C. 24; Mays v. Cincinnati, 1 Ohio St. 268; Katzenberger v. Lawo, 90 Tenn. 235, 16 S.W. 611, 13 L. R. A. 185, 25 Am. St. Rep. 681; Flood v. State, 19 Tex.App. 584; In re Snell, 58 Vt. 207, 1 A. 566. A statute will override a conflicting city ordinance, whether it precedes or follows the ordinance in point of time. In re Smith, 26 Cal.App. 116, 146 P. 82. "A state law is paramount to a conflicting city ordinance, where they both relate to a subject with reference to which the right to legislate is concurrent." St. Louis v. Ameln, 235 Mo. 669, 139 S.W. 429. City ordinances conflicting with state Constitution or statute are void. Mayor, etc., of City of Savannah v. Hussey, 21 Ga. 80, 68 Am. Dec. 452.

" Where the Legislature directs or authorizes a particular thing to be done, the doing thereof cannot be charged or complained of as a nuisance, although, apart from such authority, it might be a nuisance." 29 Cyc. 1197. "When the Legislature of the state directs or allows that to be done which would otherwise be a nuisance, it will be valid, on the ground that the Legislature is ordinarily the proper judge of what the public good requires." 20 Ruling Case Law, 388. "That which is authorized by the Legislature, within the strict scope of its constitutional power, cannot be a public nuisance." Blanc v Murray, 36 La. Ann. 162, 51 Am. Rep. 9; L. & N. Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S.W. 881, 1 L. R. A. (N. S.) 50. "As a general proposition, it is true that the courts will not hold conduct to constitute a nuisance where authority therefor exists by virtue of legislative enactment." 20 Ruling Case Law, 500; Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336; Frazer v. Chicago, 186 Ill. 480, 57 N.E. 1055, 51 L. R. A. 306, 78 Am. St. Rep. 296; Bell v. State, 153 Md. 337, 138 A. 227; Murtha v. Lovewell, 166 Mass. 391, 44 N.E. 347, 55 Am. St. Rep. 410; Levin v. Goodwin, 191 Mass. 341, 77 N.E. 718, 114 Am. St. Rep. 616; Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 6 L. R. A. 763; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75, 86 Am. Dec. 252; Cogswell v. N. Y., N.H. & H. R. Co., 103 N.Y. 10, 8 N.E. 537, 57 Am. Rep. 701. "The delegation of this authority over nuisances is very apt to raise troublesome questions and the authority itself is likely to be taken to be broader than it is. It is first to be understood that nothing is a public nuisance which the law itself, either common or statute, authorizes. And, therefore, if the municipal authority should assume to declare something which was entirely lawful by the law of the...