State v. Young
| Decision Date | 20 March 1889 |
| Citation | 9 S.E. 355,30 S.C. 399 |
| Parties | STATE v. YOUNG. |
| Court | South Carolina Supreme Court |
Appeal from general sessions circuit court of Charleston county; B C. PRESSLEY, Judge.
The indictment charged "that Thomas Young, late of county aforesaid, on," etc., etc., "with force and arms, at Charleston, in the county and state aforesaid, did willfully unlawfully, and injuriously impose, demand, and receive, in his character as wharf-owner and wharfinger, on, of, and from persons, owners of certain merchandise and commodities known as 'bales of cotton,' and doing business as merchants in and about the said city of Charleston, a charge of eight cents layage for each bale of cotton shipped at certain wharves known, respectively, as 'Vanderhost's Wharf,' 'Commercial Wharves,' and 'Southern Wharf,' for the use of said wharves erected on the shores of the harbor and port of Charleston, and still doth continue so to impose, demand, and receive the said sum of eight cents layage for each bale of cotton so shipped at the said wharves, and either of them, to the common nuisance of the good citizens of the said state, to the injury of the said port, and to the evil example of all others in like manner offending against the form of the statute in such case made and provided, and against the peace and dignity of the same state aforesaid." Motion to quash was granted, and the state appeals.
W. St Julien Jervey, for the State.
Mitchell & Smith, for defendant.
This was an indictment for a nuisance against Thomas Young, as wharfinger of certain wharves in the port and harbor of Charleston, for charging, demanding, and receiving larger rates and sums than the law allows, viz., a charge of eight cents wharfage for each bale of cotton shipped at said wharves; and also for demanding and receiving a charge of eight cents layage on every bale of cotton passed over said wharves,--"to the common nuisance of the good citizens of the said state, to the injury of the said port, and to the evil example of all others in like manner offending against the form of the statute in such case made and provided, and against the peace and dignity of the same state aforesaid." On reading the indictment to the defendant, and before the jury were sworn, the defendant's attorney moved to quash the indictment, on the ground that on its face there is no common or public nuisance charged, for the following reasons: "(1) That the act of 1807 had been repealed, and consequently there was no act in force regulating charges; (2) that the limitation of charges at common law was that they must be reasonable; (3) that, as to the prohibition of the constitution, the long usage and recognition by the legislature warranted a presumption of a legislative grant." After argument the circuit judge quashed the indictment, holding that, although the right to charge wharfage was a franchise, and one exercising it without proper authority, or exceeding the authority given, would be guilty of a common nuisance, nevertheless this indictment was not good at common law, because it did not allege that the charges were "unreasonable and improper," nor under the statute, for the reason that there was no statute in existence regulating charges; the statute of 1807, under which the indictment was framed, having been, as he thought, repealed indirectly by Gen. St. 1872, c. 147, p. 737. The solicitor for the state appealed from the order quashing the indictment, on the following grounds: "(1) That his honor erred in granting a motion to quash the indictment on the grounds proposed, which were a proper subject of demurrer; (2) that his honor erred in ruling that the indictment was defective as an indictment at common law, because the charges for wharfage and layage were not therein characterized as "unreasonable," and therefore quashing the indictment; (3) that the indictment in this case, in addition to allegations as to time and place as required by law, charges the crime substantially in the language of the common law, and so plainly that the nature of the offense charged may be easily understood, and his honor, therefore, erred in quashing the same; (4) that his honor erred in holding that the offense charged does not lie for violation of the constitution and statutes of the state in such case made and provided, and therefore quashing the indictment; (5) that his honor erred in holding that the requirements of section 40, art. 1, of the constitution, forbidding the imposition of any wharfage, 'unless the same be authorized by the general assembly,' can be fulfilled by implication; (6) that his honor erred in holding that the said clause of the constitution does not call for any express act; (7) that his honor erred in holding that the act of assembly of 1807, regulating the rate and charge for wharfage on the shores of the harbor of Charleston, had been repealed, and therefore quashing the indictment; (8) that his honor erred in refusing to allow the plaintiff to amend the indictment by adding the words 'unreasonable and improper,' which he ruled were necessary to an indictment at common law." The respondent served the solicitor with notice that if the supreme court should decide that the order quashing the indictment is appealable, and find itself unable to sustain the judgment of the circuit court on the grounds upon which it was rested, then that he would insist upon its being sustained on the following grounds, viz.: etc.
Was the order quashing the indictment appealable by the state? The defendant was not "acquitted by a jury." Indeed his case was never given in charge to the jury, but, upon being read, was summarily quashed, which was certainly a final order, as it put an end to the case. As we understand it, under the former practice, motions to quash were granted for some fault in the form of the indictment itself; but when the indictment was regular in form, and the objection was to the facts or the law, the parties were put to plead the same. The old books say that etc. See Toml. Law Dict. tit. "Indictment," and authorities cited. The objection made here, in one aspect certainly, was not to the faulty form of the indictment; for it was conceded to be entirely regular and formal as an indictment under the statute, but to the law involved, and might have been presented by demurrer....
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