Miller v. City of Greenville

• Decision Date: 06 April 1926
• Docket Number: 11951.
• Parties: MILLER et al. v. CITY OF GREENVILLE et al.
• Court: South Carolina Supreme Court

132 S.E. 591

134 S.C. 314

MILLER et al. v. CITY OF GREENVILLE et al.

No. 11951.

Supreme Court of South Carolina

April 6, 1926

Appeal from Common Pleas Circuit Court of Greenville County; John S Wilson, Judge.

Action by Hyman Miller and Abe Miller, doing business as the Japanese Art & Jewelry Store, and another, against the City of Greenville and J. E. Smith, as Chief of Police. From an order refusing plaintiffs' motion for an injunction pendente lite, plaintiffs appeal. Reversed and rendered.

W. B Bryson, of Greenville, for appellants.

E. M Blythe, of Greenville, for respondents.

WATTS J.

"This is an appeal by the plaintiffs from an order of his honor John S. Wilson, presiding over the court of common pleas for the county of Greenville, Thirteenth circuit, refusing plaintiffs' motion for an injunction pendente lite against defendants.

"The agreed facts, so far as they are material to this appeal, are as follows: That during the latter part of December, 1923, plaintiffs appellants, who were conducting a jewelry store in the city of Greenville, put on a sale and sold their stock of goods at public auction. On the 25th day of March, 1924, the city council of Greenville passed an ordinance relating to auction sales of jewelers' merchandise, which ordinance is set out in this appeal and attacked as invalid for the reasons specified herein.

"This action was begun on the 14th day of November, 1924, by the service on defendants of a summons, verified complaint, and rule to show cause why the enforcement of the ordinance should not be enjoined pendente lite. The rule to show cause was argued before his honor, John S. Wilson, presiding judge of the court of common pleas for Greenville county, then in session, on the 22d day of November, 1924, and an injunction pendente lite refused."

The exceptions are:

"(1) That his honor erred in holding that section 4388 vol. 3, Code of 1922, conferred upon the city of Greenville the power to pass the ordinance, which did not regulate, but virtually prohibited, the sale at auction of the goods therein mentioned.

(2) That his honor erred in refusing to hold the ordinance unreasonable and oppressive, and that it makes an unjust and unnecessary discrimination between merchandise located in Greenville for a period of one year or longer and merchandise located in Greenville for a shorter period, in that the former can be sold at auction, although restricted, while the latter is prohibited absolutely.

(3) That his honor erred in refusing to hold that the ordinance violated the inherent right to sell property in a legitimate way, which is incident to ownership and a vested property right protected by the United States Constitution.

(4) That his honor erred in not holding that the ordinance was void because contrary to the laws and policy of the state.

(5) That his honor erred in not holding that the ordinance was void because it virtually prohibits the employment of an agent to sell jewelers' merchandise at public auction, and therefore an unreasonable restraint upon the right to contract, performance of the contract being prohibited.

(6) That his

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