Richards v. City of Columbia, 17032

• Decision Date: 18 July 1955
• Docket Number: No. 17032,17032
• Citation: 88 S.E.2d 683,227 S.C. 538
• Parties: Clarence RICHARDS et al., Appellants, v. CITY OF COLUMBIA et al., Respondents.
• Court: South Carolina Supreme Court

Page 683

88 S.E.2d 683

227 S.C. 538

Clarence RICHARDS et al., Appellants, v. CITY OF COLUMBIA et al., Respondents.

No. 17032.

Supreme Court of South Carolina.

July 18, 1955.

Townsend Belser, Fred D. Townsend and John Grimball, Columbia, for appellants.

Paul A. Cooper, D. W. Robinson, Jr. and James F. Dreher, Columbia, for respondents.

STUKES, Justice.

In 1939 the General Assembly passed an act entitled, quoting: 'To Authorize Cities and Towns Having a Population of More Than Five Thousand Inhabitants to Adopt Ordinances Relating to the Repair, Closing and Demolition of Dwellings Unfit for Human Habitation; and to Provide for the Remedies and Procedure in Connection With Action Taken Under Such Ordinances.' 41 Stat. 347. With subsequent amendments it appears as sections 36-501 et seq. of the Code of 1952 and supplement. Pursuant to this statute the City Council of Columbia, the largest city in the State, enacted, after years of investigation, an ordinance on May 26, 1954, providing for the repair, alteration, improvement, vacation, closing or demolition of dwellings or dwelling units unfit for habitation, which was the title of the ordinance. Section 1 of it follows:

'The City Council of the City of Columbia, South Carolina, finds and hereby declares that there exist within the corporate limits of the City dwellings and dwelling units which are unfit for human habitation due to dilapidation, defects increasing the hazards of fire, accident or other calamities, lack of ventilation, light or sanitary facilities or other conditions rendering such dwellings and dwelling units unsafe or unsanitary, dangerous or detrimental to the health, safety or morals or otherwise inimical to the welfare of the residents of the City.'

Section 2 contains appropriate definitions of certain terms which are used in the ordinance.

Section 3 sets up the enforcing agency which is called the Commission for Urban Rehabilitation, composed of five qualified electors of the city appointed by the Mayor with the approval of Council for terms of five years after the first staggered terms of the initial appointees, subject to termination at the pleasure of Council and the Mayor and Council are empowered to fill vacancies. The duties of the Commission are set forth to be to formulate policies for the effectuation of the ordinance, to administer oaths and examine witnesses, hear testimony and make findings and orders thereon in cases of disagreement between a property owner or his agent and the Rehabilitation Director. Section 4 of the ordinance establishes the position of Rehabilitation Director and authorizes assistants who shall investigate dwellings in the City to determine which are unfit for human habitation, and, quoting,

'To enter upon premises for the purpose of making examinations, provided that such entries shall be made in such manner as to cause the least possible inconvenience to the persons in possession.'

Section 5 of the ordinance provides that when a petition is filed with the Director by a public authority or at least five residents of the City charging that any dwelling is unfit, or when it so appears to the Director, after preliminary investigation, which discloses basis for the charge, he shall issue and cause to be served upon the owner of, and all parties in interest in, such dwelling a complaint stating the charges and with notice that if a hearing is requested by the owner such will be held before the Commission not less than ten days, nor more than thirty days, after service. The owner and other parties in interest are given the right to file an answer in person or otherwise and give testimony at the hearing. This section concludes as follows: 'The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Commission.'

In section 6 it is provided that if the Commission determines after hearing that the dwelling in question is unfit for human habitation, it shall state its findings of supporting facts in writing and shall issue and serve upon the owner an order requiring him, within a specified time, to repair, alter, or improve the dwelling to render it fit or to vacate, close for habitation or demolish the dwelling. In a case where there is no hearing, the order shall be similarly prepared and served on the owner.

Methods of service of complaints and orders are provided in section 7, as to which there is no present question.

Section 8 provides that if there is failure of compliance to repair, etc., the Director shall close the dwelling and post at the entrance a notice, in effect, that it is unfit for human habitation and its use or occupation therefor is prohibited and unlawful.

Because of its importance in the controversy section 9 of the ordinance is copied in full, with added emphasis on certain of its provisions which will be later discussed:

'Section 9. Standards of Dwellings or Dwelling Units Fit for Human Habitation. The Commission and/or the Rehabilitation Director may determine that a dwelling or dwelling unit is unfit for human habitation if conditions existing in such dwelling or dwelling unit are dangerous or injurious to the health, safety or morals of the occupants of such dwelling or dwelling unit, the occupants of neighboring dwellings or other residents of the City.

'Without limiting the generality of the foregoing the following conditions are hereby declared essential to make a dwelling fit for human habitation:

'A. Inside running water connected to a kitchen sink, and to a lavatory or laundry sink, and to a bathtub or shower, and to a toilet, all connected to the public sewer, or other disposal approved by the City Board of Health;

'B. Adequate screens and glass panes for all doors and windows;

'C. Fireplaces, flues, or other provisions for heating to afford reasonable comfort;

'D. A window in each living room and bedroom which opens not less than 45% of its area and can be effectively opened and closed as a means of ventilation;

'E. Electrical wiring system connected and installed in accordance with the electrical ordinance of the City.

'F. Privacy for toilet and tub or shower, effectively ventilated.

'G. The roof, flashings, exterior walls, basement walls, floors and all doors and windows exposed to the weather constructed and maintained so as to be reasonably weather tight and water tight, and sound and safe, and capable of affording privacy.

'In addition to the foregoing, a dwelling unit may be found to be unfit for human habitation if there are defects therein increasing the hazards of fire, accident, or other calamities, conditions making the structure unsafe, unsanitary, or failing to provide for decent living or which are likely to cause sickness or disease.'

Section 10 provides penalties for violations of stated terms of the ordinance which are enforceable in the court of the City Recorder in which, incidentally, the right to trial by jury obtains.

Section 11 makes the provisions of the ordinance cumulative to other appropriate remedies of the City provided by State laws or other ordinances.

Section 12 is a separability provision wherein the legislative intent of Council is declared that if any provision of the ordinance or the application of it under any circumstances is held invalid, the remainder of the ordinance and the application of it under other circumstances shall not be affected.

Action was brought by the appellants to enjoin the enforcement of the ordinance for invalidity upon various constitutional grounds which will be discussed seriatim as they are presented in the brief. The first named appellant testified that he is the owner of over a hundred dwellings in the city which he rents to tenants and about seventy-five of them are not equipped as required by the terms of the ordinance. The other appellant is the owner of two sub-standard residences, one of which he and his wife occupy and the other he rents to a tenant. Both appellants testified that none of the property is subject to mortgage.

After hearing the evidence and arguments the trial court overruled all of the grounds of attack upon the ordinance and upheld it as valid and constitutional, whence this appeal.

It is first contended by appellants that the ordinance permits the taking of their property without due process and denies to them the equal protection of the law. The evidence was that the expense of improving the sub-standard houses of appellants to meet the requirements of the ordinance would run from $575 to $750 per dwelling. In that connection, the following from the opinion in Arnold v. City of Spartanburg, 201 S.C. 523, 23 S.E.2d 735, 741, is pertinent: 'Furthermore, we find no merit in the contention of the plaintiffs that the enforcement of the ordinance will result in financial loss to them, as affecting the validity of the ordinance. In the case of City Council of Charleston v. Wentworth Street Baptist Church , it was held that in this State the law will never, by any construction, advance a private interest to the destruction of a public interest; but, on the contrary, that it will advance the public interest, so far as it is possible, though it be to the prejudice of a private one. In this same connection, see 16 C.J.S., Constitutional Law, § 188, page 556.'

Statutes and municipal ordinances calculated to better the health, safety and welfare of the people have long and universally been recognized to be within the police power. The following is section 3, Buildings, 9 Am.Jur. 199, 200:

'Regulations and restrictions upon the manner in which a property owner may use his property when necessary for the general welfare are properly a part of the police power of legislative bodies and, if reasonable, are valid in so far as they tend to prevent harm to the public and to promote the common good. Under the police power, the legislative authority may, within proper limitations, impose and enforce regulations governing buildings upon...