Town of Darlington v. Ward

38 L.R.A. 326, 26 S.E. 906, 48 S.C. 570, 1897 S.C. LEXIS 127

Opinions

The first opinion was delivered by

Mr. Justice Pope.

The town council of Darlington, in this State, by an ordinance adopted on the 24th day of June, 1895, declared that it should be unlawful for any'person to keep any hog or hogs within the limits of the town of Darlington, after the first day of January A. D. 1896, and that any person who shall transgress this ordinance should be punished by a fine of not less than $10 or by imprisonment not exceeding thirty days. The defendant, J. J. Ward, violated this ordinance by keeping one hog in said town, which hog was allowred to run at large in a lot of two acres owned by said J. J. Ward. Mr. Ward was summoned for trial for said offense, and, appearing before the mayor according to the summons, admitted that it was true that he kept such hog on a two acre lot in said town, but denied that he was guilty of any offense thereby; that neither the board of health nor the town council have the power to pass the ordinance in question. He was adjudged guilty and ordered to pay a fine of $20. From this judgment he appealed to the Circuit Court. When this appeal was heard it was dismissed, and he now appeals from such judgment to this Court. The judgment of the Circuit Court and the grounds of appeal will be reported.

. In considering this appeal I admit I have been greatly perplexed. Certain it is tha.t the right of property is here involved, and it is equally certain • that the power of the governmental agencies to protect public health are also deeply involved. If the question could be narrowed down to a question of private right as opposed directly by the rights of the public, I should have no difficulty in subordinating the former to the latter; for in City Council v. Baptist Church, 4 Strob., 308, this Court held: “It is the office of the Judge to make such a construction as will redress the mischief and advance the remedy; * * * that the law will never, by any construction, advance a private interest to the destruction of a public; but, on the contrary, will advance the public interest as far as it is possible, though it be to the prejudice of a private one.” The case just cited arose from these facts: The corporation of the Wentworth Street Baptist Church was organized after the year 1836; it owned a lot of land in the city of Charleston which it desired to use as a burial ground for its members. But the city council in the year 1836 had by ordinance declared it unlawful to so use any lot of land in said city except in certain instances. When, therefore, the church asserted its right to use its land as .it pleased by burying its dead therein, this suit was brought to prevent such use, and the Court held that the private right must be subordinated to that of the public, and the church was compelled to desist from such burials. Of course, the police power is made thus to subordinate private rights to those of the public. In our own State, there have been repeated recognitions of this law, when in the hands of municipal corporations, which have derived their right to its exercise, within their limits, by express grant from the General Assembly of the State. Primarily, of course, this right exists in the latter body. These decisions have related to sales of intoxicating liquors; to the regulations of burials in towns and cities; to regulations touching the observance of the Sabbath day; to the roaming at large upon the streets of incorporated cities and towns of horses, cattle, aird swine; to the regulation of the area of land in said towns and cities which may lawfully be cultivated; and also to the presence of a conductor upon street railway cars where electricé was the motive power; and other kindred subjects. McCullough v. Brown, 41 S. C., 220; State v. Aiken, 42 S. C., 222; City Council v. Baptist Church, 4 Strob., 306; City Council v. Benjamin, 2 Strob., 508; Kennedy v. Sowden, 1 McM., 323; Crosby v. Warren, 1 Rich., 385; State v. Pressley, 33 S. C., 56; State v. Sloan, ante, 21.

The exercise of this police power by the State legislature, or by the cities or towns which the legislature clothes with the right to exercise this power, is not questioned by the appellant here. His contention is that this police power cannot be exercised by the legislature itself, nor by its creatures, known as municipal corporations, without restraint. In other words, his proposition is, that in order that police power may be used by either the legislature or municipal corporations, there must appear affirmatively that its use is reasonable. I must confess that there is not only authority, but sound reason for this contention. As was well said by Mr. Justice Miller, in announcing the unani-, mous conclusion of the United States Supreme Court in the case of Yates v. Milwaukee, 10 Wall., at page 505: “It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws either of the city or the State, within which a given structure can be shown to be a nuisance by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities.” Similar views were expressed in the case of McCullough v. Brown, supra, and in the very recent case of The State &c. v. Sloan, supra, Mr. Justice Gary held: “It is not necessary to cite authorities to sustain the general proposition that street railways are subject to reasonable regulations by the authorities of the municipality where they are located, under its police powers (italics mine). In this case, whether the ordinance is reasonable is not before the Court for consideration” (italics mine). Prom this quotation it would seem that the majority of this Court regarded that it was necessary that such regulation by the city council of Columbia of street- railways should be reasonable. Now, in a densely populated city, it would be entirely reasonable to forbid the presence of a hog in any enclosure, but in a small town, such as Darlington, where, as it appears from the “Case”'itself, Mr. Ward has a lot of six acres, whereon he resides, fronting on the principal street for residences, it might be another matter altogether. The health officer of the town of Darlington reports Mr. Ward’s premises as cleanly and in proper condition. Is there anything in the habits of this animal to put it under the ban? Certainly nothing in the record here discloses any such objection. The decision of the board of health so declares, and the town council enforces by its ordinance such declaration of the board of health. Is the property of the corporators thus to be held at the mercy, so to speak, of these governmental agencies? It is true, that the maxim of the law is, 11 Sic lUere tuo ut alienum non Icedas,” but how is it made to appear that one hog, in a large lot, infringes upon the rights of the public as to health? From time immemorial in this .commonwealth the right to own hogs has been recognized in the citizen. Is this right of property to be struck down upon the simple ipse dixit of a board of health or town council, without any showing whatever that the presence of this species of property is prejudicial to health in a thinly settled town? If courts have the right to inquire into the reasonableness of an exercise of the police power in any given case, surely this is an instance where the same should be done. We would be understood correctly. This ordinance of the town, of Darlington does not pretend to exercise control or regulate the manner in which a hog is kept by any corporator, it denies absolutely his right to keep the same within the town. We recognize the distinction so clearly pointed out in the cases of McCullough v. Brown, supra, including the dissenting opinion therein, and, also, that of State v. Aiken, supra, existing between alcoholic li'quors, lotteries, on the one side, and all other species of property on the other. The sale of alcoholic liquors for drink and the sale of lottery tickets are under the ban of society everywhere, but other personal property is not. As we before remarked, hogs are recognized as a legitimate species of property, and, therefore, in order for their pres ence in the town of Darlington, in the lot of a corporator as its owner, something more must be done than was done in this case to justify the denial to the defendant of his. right to have his property, on his own premises, freed from this ordinance. I do not feel that a law, such as the police power, needs any more discussion at my hands. It is too well understood to justify any extended notice of its general effects. The case of McCandless v. R. R. Co., 38 S. C., 103, is in point here, together with the other cases herein previously cited. I think, therefore, that the conclusion of this Court should be: “It is the judgment of this Court, that the judgment of the Circuit Court be reversed;” but two of the Justices agreeing with the Circuit Judge, it will be otherwise.