Appeal
from General Sessions, Circuit Court of Charleston County.
POPE
C.J.
The
defendant was convicted before the police court in the city
of Charleston for violating the 694th section of the city
ordinances of Charleston, S. C., for firing a gun in said
city, and was duly sentenced to pay a fine of $10. From this
sentence the defendant appealed to the court of general
sessions of Charleston county on the following two grounds
First, that section 694 of the city ordinances is
unconstitutional, null, and void, in that it interferes with
the constitutional right of the citizen to bear arms, and
also discriminates against one class of citizens in favor of
another class of citizens; and, second, that the fine imposed
is excessive. This appeal, on the aforesaid
grounds, came on for a hearing before his honor, Judge
Townsend, who decided that such judgment should be set aside,
and the defendant discharged. From that decision the city
council has appealed upon the following five grounds:
"(1) Because his honor erred in holding as follows:
'An examination of the ordinance suggests that its
apparent intent and purpose was, in the exercise of the
police power of the municipality, to guard against certain
risks and annoyances resulting from the unrestricted use of
fireworks, making of fires or bonfires in the open and flying
of kites, the evident purpose being to restrict the
community, not in matters of great moment or necessity but
rather in more trivial matters, amusement and pastime.'
Whereas, his honor should have held that the said ordinance
was passed in the exercise of the discretion vested in the
city of Charleston for the protection of the life and safety
of the inhabitants of the city, and not in trivial matters of
amusement. (2) Because his honor erred in holding that
'by an inconsiderate afterthought, the firing of
"any gun, pistol or other firearms" was included in
the ordinance in such terms as amount to an absolute
prohibition, unless it be on occasion of some military
parade.' Whereas, it is respectfully submitted that the
ordinance does not amount to an absolute prohibition of the
constitutional right to bear arms, but is a wise and
necessary regulation for preserving peace and order within
the city. (3) Because his honor erred in holding that the
ordinance would in terms deprive the citizen of this right
[to bear arms], and
is therefore, in so much as relates to firearms,
unconstitutional and void. Whereas, his honor should have
held that the ordinance in question was a salutary and wise
regulation of the use of firearms within the limits of the
city of Charleston, and was necessary for the protection,
security, and welfare of the inhabitants of the community . (4) Because his honor erred in holding that the
ordinance in question excepted coopers alone from the
operation of a part of the ordinance, on the ground,
presumably, of the inconvenience that would result to them in
their business, would seem an unjust discrimination in favor
of that class of citizens, and might add another element of
unconstitutionality to that which has been already adjudged.
Whereas, his honor should have held that defendant was
charged solely with the offense of violating that portion of
the ordinance which prohibits the firing of a gun within the
limits of the city of Charleston, to which the exemption of
coopers did not apply, and that even if a portion with which
defendant was not concerned of the ordinance would be held
unconstitutional, that this would not affect the other
portion of the ordinance which was before the court. (5)
Because his honor erred in ordering that the judgment of the
police court be set aside and the defendant discharged;
whereas, his honor should have affirmed said judgment."
1. The
majority of the court are of the opinion that the state has
the right of appeal in this case. The authorities settle that
the state has the right of appeal from an order quashing an
indictment. State v. Young, 30 S.C. 399, 9 S.E. 355;
State v. Bouknight, 55 S.C. 357, 33 S.E. 451, 74 Am.
St. Rep. 751. In State v. Long, 66 S.C. 398, 44 S.E.
960, this court entertained an appeal in behalf of the state
on question raised in a manner similar to this case, treating
it in substance as a motion to quash the indictment, or as a
demurrer to the indictment. It is true, that the right of the
state to appeal was not questioned in that case, but neither
is such question made by counsel in this case.
2. We
will now pass upon these grounds of appeal in their order:
First. We do not regard this ordinance unconstitutional and
void, the section in question reading as follows: "No
person or persons shall fire any squibs, crackers or other
fireworks within the city, except at times of
public rejoicing, and at such times and places as the mayor
may under his hand permit it; or shall burn any chips
shavings or other combustible matter, in any street, lane,
alley, or open or enclosed lot, within the city [coopers
excepted, who shall be permitted to make fires below the
curtain line with the consent of the
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