Town of Summerville v. Pressley

• Decision Date: 19 May 1890
• Citation: 11 S.E. 545,33 S.C. 56
• Parties: TOWN OF SUMMERVILLE v. PRESSLEY.
• Court: South Carolina Supreme Court

11 S.E. 545

33 S.C. 56

TOWN OF SUMMERVILLE v. PRESSLEY.

Supreme Court of South Carolina

May 19, 1890

Appeal from court of common pleas, Berkeley county; WITHERSPOON Judge.

Lord & Hyde and Inglesby & Miller, for appellant.

Charles Boyle, for respondent.

McGOWAN J.

The village of Summerville was originally chartered in 1847, and the corporate authorities were "invested with all the powers and privileges conferred, and subject to the same restrictions and penalties imposed, on the village of Newberry, by an act passed on December 17, 1841, of which act section 5 provides as follows: "And the intendant and wardens shall have full power, under their corporate seal, to make and establish all such rules, by-laws, and ordinances respecting roads, streets, markets, public spring, and police of said village as shall appear to them necessary and requisite for the security, welfare, and convenience of the said village, or for preserving the health, peace, order, and good government within the same," etc. The charter of Summerville was amended in 1885, enlarging the boundaries adding two wardens, and changing the name to that of the "Town of Summerville," but without changing the powers and privileges conferred by the charter of 1847 adopting those given in the charter of Newberry. In 1883 the town council passed an ordinance "to limit the culture of the soil, and more effectually to prevent the destruction of trees in the town of Summerville." The preamble recited: "Whereas, it is necessary, for the protection of the public health of Summerville, that the soil should not be cultivated beyond a limited extent, and that the injury and destruction of trees should be more effectually prevented;" the ordinance prohibited entirely the culture of rice, and then provided as follows: "That from and after the date herein the maximum quantity of land which it shall be lawful for any family or household, or the immediate servants or employes of such family or household, to fertilize, plant, or cultivate for agricultural purposes within the corporate limits shall be one-eighth 1/8 of one acre, which shall be on the lot or premises of such family or household, regardless of the quantity or extent of the lot or tract of land owned or occupied by such family or household, or its immediate servants, or which may form part of the premises of said family residence or tract of land. But this section shall not be construed so as to abolish or prohibit the planting of oats, rye, or barley, between the 1st day of November and February 15th, or the planting and proper cultivation of flower gardens, or of the grape, or fruit trees, or any other kind of trees whatsoever," etc.

It seems that under this ordinance the town council imposed upon the defendant, a citizen of the town, a fine of $20 for violating the ordinance in cultivating his lands for agricultural purposes without regard to the limit imposed. He admitted that he had violated the ordinance, but denied the authority of the town council to pass such an ordinance. Upon appeal, Judge WITHERSPOON held that the duty of the court was limited to the inquiry whether or not the power existed, and, if so, whether or not its exercise violated any constitutional provision. Concluding that the ordinance was valid at the time the fine was imposed on the appellant, he ordered that the appeal be dismissed, and the judgment of the town council in imposing the fine be affirmed. From this decision the defendant now appeals to this court, upon the following grounds: "(1) Because his [defendant's] garden has been continuously cultivated in excess of said town ordinance for more than thirty years, and there is no allegation, claim, or proof that such cultivation was negligent, or in any manner so conducted as to create a nuisance; (2) because, in the absence of such allegation and proof, the legislature has not conferred, and could not confer, on the town council, any authority to prevent the usual, proper use of cleared land by the owner without full compensation to him; (3) because the ordinance of said town council is unequal and unjust, in that it permits the owner of one-fourth or one-half of an acre of land to cultivate one-fourth or one-half of his possessions, and denies to the owner of six acres the right to cultivate more than one forty-ninth part of his land; (4) because his honor omitted to decide one important point argued by the defendant before him, to-wit, the power of town council, reversed in section 3 of said ordinance, whereby it may give permission to any one to cut down trees in the town, violates the fourteenth amendment of the United States constitution," etc.

There must be some misprint in the last ground of appeal, especially in reference to the word "reversed." But, as there is no question before this court arising under the third clause of the ordinance, which allows permission to be given to some persons, and not to all, to cut down trees, etc., within the corporate limits, it will not be necessary to consider now whether it violates the fourteenth amendment of the constitution of the United States.

The first exception complains that a citizen of the corporation who owned cleared land in excess of the limit imposed by the ordinance at the time of its passage was not bound to conform to the restriction 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. Undoubtedly, as a rule, every man may cultivate his own land in his own way, but even in that case he may use his land in such manner as to amount to a "nuisance" indictable at common law. That, however, does not touch the question under the ordinance passed by virtue of the powers conferred upon the corporate authorities by the legislature "for preserving the health, peace, order, and good government of the town." The ordinance, by its declared purpose, was a police regulation for preserving the health of Summerville, a small town in the pines about 20 miles out of Charleston, which affords a convenient summer resort for health. Assuming for the present that the town council had the power to pass the ordinance, no question can be made whether "a nuisance" had 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 requsite" to preserve the health of the town. 1 Dill. Mun. Corp. § 144, and authorities in note.

The second exception makes the objection that the legislature has not conferred, and could not confer, on the town council, any authority to prevent the usual, proper use of cleared lands by the owner without full compensation paid to him. The state, through the law-making body, certainly possesses the police power, which from its very nature has no well-defined limits, but must be as extensive as the necessities which call for its exercise. Judge Dillon describes it thus "Every citizen holds his property subject to the proper exercise of this [police] power, either by the state legislature directly, or by public corporations to which the legislature may delegate it. Laws and ordinances...