Town of Marion v. Baxley

• Decision Date: 13 November 1939
• Docket Number: 14966.
• Citation: 5 S.E.2d 573,192 S.C. 112
• Parties: TOWN OF MARION v. BAXLEY.
• Court: South Carolina Supreme Court

5 S.E.2d 573

192 S.C. 112

TOWN OF MARION v. BAXLEY.

No. 14966.

Supreme Court of South Carolina

November 13, 1939

The order of Circuit Judge Stoll affirming the conviction ordered to be incorporated in the report of the case follows:

Judge L. D. Lide, of the Twelfth Judicial Circuit, disqualified himself in this case because as attorney for the Town of Marion he drafted the rules of the Board of Health of the Town of Marion in question here. The appeal was heard before me by consent of all parties.

The Board of Health adopted a rule requiring every head of a family in the City of Marion having in use a sanitary toilet or privy to pay an annual sanitary tax of $3. payable monthly. A warrant was issued for the defendant for nonpayment of such tax. All rules of the Board of Health of the Town of Marion had been adopted as ordinances of the town by the town council and published as such. The defendant was tried before the mayor and a jury and was convicted and sentenced from which conviction and sentence he duly appealed.

The defendant earnestly contended that the rule exceeds the authority granted to the town council and to the Board of Health and was solely an ordinance to raise revenue.

While it is styled in the rule a "sanitary tax", it might just as well have been called a "sanitary fee" or "inspection fee" or "service fee". Its evident purpose is to provide for inspection and service of toilets in the Town of Marion so situated that no sewer connection can be made.

It seems to me to fall within the powers granted to boards of health of municipal corporations by the General Assembly under the Constitutional mandate. It is therefore,

Ordered That the appeal herein be dismissed and the conviction and sentence affirmed.

James C. Hooks, of Mullins, and W. B. Norton, of Marion, for appellant.

S. H. Schoolfield, Jr., and W. F. Stackhouse, both of Marion, for respondent.

CARTER Justice.

The appellant, Lonnie Baxley, was tried by a jury and convicted in the Municipal Court of the Town of Marion, South Carolina, on a warrant duly issued, charging him with the violation of an ordinance of said town, whereupon he was sentenced by the Mayor to pay a fine of $4.75 or to suffer imprisonment for a period of thirty days. From the verdict of conviction and sentence he appealed to the Circuit Court, which appeal was heard and dismissed, and the conviction and sentence thereby affirmed, by his Honor, Philip H. Stoll, Circuit Judge, by order dated June 29, 1939, which order will be incorporated in the report of the case. From this order the said Lonnie Baxley now appeals to this Court.

The charge made against the appellant, as set forth in the warrant and for which he was tried, convicted and sentenced, is to the effect that he failed and refused to pay the "sanitary tax" due and owing by him to the Town of Marion as required under the rules and regulations of the Board of Health of said Town, in violation of the ordinance of said Town of Marion. The charge so preferred was based upon a violation of Section 29 of the Rules and Regulations duly adopted by the Board of Health of the Town of Marion on November 6, 1925, and thereafter approved and duly adopted as an ordinance of the Town of Marion, said ordinance providing that a violation of any of said rules and regulations shall be punishable by a fine of not more than One Hundred Dollars or imprisonment for a period not exceeding thirty days. Section 29 of said Rules and Regulations reads thus:

"In addition to other taxes, every head of a family in the City of Marion having in use a sanitary closet or privy shall be liable for an annual sanitary tax of three dollars, the same to be due and collectible in equal monthly payments to City Clerk and Treasurer or to the City Sanitary Collector and Inspector; Provided, that the keeper of a boarding, lodging or rooming house shall be liable for an annual tax of six dollars, to be due and collectible in equal monthly installments; and Provided, further, that in case any person liable for such sanitary tax makes connections with the city sanitary sewer system, and ceases to use such sanitary closet or privy, shall notify the City Health Commissioner, who shall cause inspection to be made, and if he finds that such connection has been made and such use discontinued, he shall see to it that from and after the first of the month following the date of such connection and such discontinuance of use, no more monthly installments shall be collected from said person notified."

There is no dispute as to the facts of the case, the uncontradicted evidence showing that the appellant was, at the time alleged, the head of a family residing in the Town of Marion, had upon his premises a sanitary toilet and had failed and refused to pay the "sanitary tax" in violation of the Rules and Regulations of the Board of Health and ordinances of the said Town. But the validity of said rules and regulations and the ordinance adopting the same is questioned. Upon the trial below, motions were made to quash the warrant and for direction of verdict in appellant's behalf, the grounds thereof, as well as the basis of his exceptions on appeal to the Circuit Court, being substantially the same as those contained in the nine exceptions now urged upon this Court for reversal of the Circuit Judge's order.

Exceptions 1, 3 and 4 contain no specific assignment of error, not conforming to the rules of the Court. These exceptions, therefore, will not be considered.

Exceptions 2, 5, 6, 7 and 8, which for convenience will be considered together, raise the main and important questions involved on this appeal. By these exceptions appellant attacks the validity of said regulation and ordinance, alleging error on the part of the Circuit Judge in not holding that the adoption and enforcement of such regulation is beyond the scope of the powers delegated to said Board of Health an...