Town of Darlington v. Ward

• Decision Date: 26 March 1897
• Citation: 26 S.E. 906,48 S.C. 570
• Parties: TOWN OF DARLINGTON v. WARD.
• Court: South Carolina Supreme Court

26 S.E. 906

48 S.C. 570

TOWN OF DARLINGTON v. WARD.

Supreme Court of South Carolina

March 26, 1897

Appeal from common pleas circuit court of Darlington county; O. W Buchanan, Judge.

J. J Ward was convicted before the mayor of the town of Darlington of violating a city ordinance. From the judgment sentencing him to pay a fine of $20 he appealed to the circuit court where his appeal was dismissed, from which judgment he appeals. Affirmed.

The following are the judgment and the grounds of appeal:

"Judgment.

"This case comes up on the appeal from the decision of the mayor fining the appellant for the violation of an ordinance forbidding the keeping of hogs within the corporate limits. Soon after the decision I made and filed a short memorandum of my reasons for the judgment rendered, but owing to the scarcity of time and the absence of authorities at the moment, I have thought a more extended view of my reasons may not be amiss when the importance of the powers conferred by the recent act is remembered. The ordinance in question reads: 'That on and after December 31st proximo, it shall be unlawful for any person or persons to keep any hog or hogs on any premises within the corporate limits of the town, and any person or persons so doing shall be punished by a fine of not less than ten dollars or by imprisonment not exceeding thirty days, or both, at the discretion of the said board of health.' No question, as I understand, was made as to the latter part of the ordinance; the purpose being merely to test whether the town council have the power to pass an ordinance forbidding the keeping of hogs within the corporate limits and punishable with fine. The appellant was fined twenty dollars for a violation of the ordinance. I have therefore confined myself simply to the points made which presuppose the proper passage and sufficient phraseology of the ordinance in question.

"The grounds of appeal raised before me are as follows (1) That the ordinance by virtue of which the defendant has been fined is unconstitutional and void, inasmuch as it takes from the citizens valuable rights in property without compensation. (2) That the said ordinance is without authority in law, and illegal. (3) That the said ordinance transcends the powers granted to the town council of Darlington and the mayor of the town, and is ultra vires and illegal. (4) That if the keeping of a hog by Mr. Ward was an offense, sections 960-969, inclusive, of the Revised Statutes, provide a way of dealing with the same, and that the said provision is exclusive of any other way of dealing with the said offense. (5) That the said ordinance is inconsistent with the laws of this state as laid down in sections 960-969 of the Revised Statutes, and so is without authority of law and void. (6) That it is apparent that the keeping of the hog by Mr. Ward was not a nuisance, and it did not affect the health of the town.

"Every citizen holds his property subject to the proper exercise of the police power, either by the legislature directly or by public corporations to which the state legislature may delegate it. Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants are comprehensively styled 'police laws or regulations.' And it is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional. They do not appropriate private property for public use, but simply its proper use and enjoyment. Dill. Mun. Corp. § 146 et seq., cited and approved in Town Council of Summerville v. Pressley, 33 S.C. 62, 11 S.E. 545. It is perfectly clear, if such an authority is given the town, that the exercise of such power would be unconstitutional.

"This leads us to a consideration of the second ground of appeal, which involves the consideration of exceptions 3 and 5. Was the town without authority to make and pass such an ordinance? It is to be observed that the power sought to be exercised is a very common police power,--a power exercised for the health and comfort of a town. In addition to the powers given specifically to the town of Darlington by its charter and amendment, the powers conferred by sections 960-969 of the Revised Statutes and the supplemental act of 1894 are invoked. Section 961 of the Revised Statutes gives local boards ample powers, among others, 'to define and declare what shall be nuisances to health in lots and streets,' etc., 'and to regulate and control the keeping or slaughter of all kinds of cattle, sheep, goats and swine or other animals in any city or town or part thereof.' Again it says: 'And to prohibit and remove any nuisance or offensive matter in any public highway, road, street or other place, public or private, in such city or town, and to cause the removal of the same at the expense of the owner thereof, if he decline to move it after notice.' Section 962 provides that such board of health shall notify the municipal authorities, who shall remove the same at the expense of the owner where necessary. Section 3 of the act of January 5, 1895 (21 St. at Large, 820), after reciting other powers, says: 'And by abating and removing all nuisances which they shall deem prejudicial to the public health.' Again: 'And make all such other regulations as they shall deem necessary for the preservation of the public health.' Section 8 of this act provides for the making of the rules and regulations necessary for the carrying of the powers granted into effect, and when approved as an ordinance such regulations shall have the same force and effect as other ordinances of the town. It then recited significantly: 'And all penalties for the violation thereof, as well as expenses necessarily incurred in carrying into effect the same, shall be recoverable for the use of the town or city in the same manner as penalties for the violation of their city ordinances subject to the like limitations as to the amount thereof.' Certainly the powers given in both the Revised Statutes and the act of 1895 are amply sufficient to prohibit the keeping of anything that may be injurious to the health or comfort of the town. Could more power be given? If the act of 1895 is considered as supplementing the power given in the Revised Statutes, the powers are ample, and both abatement, fine, or imprisonment may be given in the sentence, unless such fine or imprisonment be for a higher sum or longer term than is justified by the charter of the town. If the act of 1895 repeals all prior legislation upon the subject, yet such act contains enough to empower the passing of such ordinance upon such subject.

"This brings us to a consideration of the sixth exception. What is the effect of the ordinance which was passed by the town council upon the recommendation of the board of health, as required by section 8 of the act of 1895? In this connection it is to be observed that, while such ordinance prohibits the keeping of a hog within the corporate limits, it does not in so many words call it a nuisance, although it treats such matter in the same manner as if it had been denominated a 'nuisance.' In this connection it bears a resemblance to the ordinance of the town council of Summerville, for a violation of which Judge Pressley was fined. Assuming for the present that the town council had the power to pass the ordinance, no question can be made whether a 'nuisance' has been created nor whether the restrictions complained of were necessary to accomplish the purpose in view. It was their exclusive right to judge what was 'necessary and requisite' to preserve the health of the town. Town Council of Summerville v. Pressley, 33 S.C. 61, 11 S.E. 545. Again, in the same case it was contended that the citizen 'was not bound to conform to the restrictions as to the amount to be cultivated for general agricultural purposes, without allegation and proof that such cultivation was negligent or of such a character as to create a nuisance. As it seems to us, this view ignores entirely the existence of the ordinance.' Id., 33 S.C. 61, 11 S.E. 546. So, here, that the hog is properly or cleanly kept is beyond the question. It may be now so kept, and may not be so kept in the future, or it may be so kept in the future. I can very well understand that, however well and cleanly kept a hog may be, the smell, the noise, indecent exhibitions, etc., may necessitate such an ordinance. This may be emphasized by reason of the levelness of the territory, the probability of smell being circumscribed or confined, or other circumstances showing a prepared and fertilized hotbed for the rapid growth and development of contagion upon its sudden arrival. The legislature having granted the power, the exercise of it, according to the decisions of the courts of this state, is left to the discretion of the municipal corporation, which discretion cannot be controlled by the courts, unless the exercise of the power violates some constitutional provision. Kennedy v. Sowden, 1 McMul. 326; Crosby v. Warren, 1 Rich. Law, 385; City Council of Charleston v. Wentworth St. Baptist Church, 4 Strob. 310; State v. Mayor, etc., of City of Charleston, 10 Rich. Law, 502; Town Council of Summerville v. Pressley, 33 S.C. 61, 11 S.E. 545. The two former cases grew out of ordinances prohibiting the running at large of hogs, etc. The first is valuable as showing an attempt to prove that the judgment of the town council was erroneous, and that 'hogs were the best of scavengers, and do their duty better than all the marshals the town ever had.' Kennedy v. Sowden, 1 McMul. 325. Surely, if hogs running at large are injurious to the health of the town, the confinement of a hog in a town lot in summer time can be considered injurious, actual or

...