Charleston v. Werner

The opinion of the court was delivered by Mr. Justice McGowan. This is an action by the city council of Charleston to recover from the defendant, Doris Werner, the amount paid by the city council for filling up a low lot in the city, the property of the said defendant, which said lot, or a portion thereof, had been inspected by the “boai’d of health,” determined to be a nuisance dangerous to the public health, and ordered to be filled. The defendant having been notified, as required by law, to fill the said lot, and having failed so to do, the same was filled by the city authorities, and the present action is for the recovery of the cost of the said filling, viz., for 1,503 cubic yards of earth at an expense of $1,157.10, which has been paid out of the city treasury. The plaintiff alleges that no part thereof has been paid by the said defendant, and that said sum does not exceed “one-half the value of defend — 492 — ant’s said lob of land.” Whereupon plaintiff demands j udgment against the said defendant for the said pm of $1,157.10, with interest and costs. When the complaint was read, the defendant, by her counsel, interposed a verbal demurrer, and moved to dismiss the complaint, for the reason that it did not state facts sufficient to constitute a cause of action. His honor, Judge Kershaw, overruled the demurrer, and the defendant appeals to this court upon the following exceptions (the complaint in full should appear in the case): First. Because sections 227 and 228 of the revised ordinances of the city of Charleston (September 26, 1882,) are in violation of the fifth amendment to the Constitution of the United States, as well as section 23, article I., of the Constitution of South Carolina, because said sections authorize a personal judgment against the defendant as the alleged owner of the lot described in the complaint, &c. Second. Because the act of the General Assembly of the State of South Carolina, “To authorize the city council of Charleston to fill up low lots and grounds in the city of Charleston in certain cases, and for other purposes,” &c. (December 18,1830), as well as the act to amend the same (December 19, 1883), and each and both, are in violation of, and in contravention to, the fifth amendment to the Constitution of the United States, as well as section 23 of article I. of the Constitution of the State of South Carolina. Third. Because the oral demurrer should have been sustained, in that it appears upon the face of the complaint, that the cost of the alleged improvement was not apportioned among all the property owners of the special taxing district, and that there was no system of apportionment whatever. Fourth. Because the said sections of the revised ordinances of the city of Charleston are ultra vires and void, in that no provision is made in said sections for condemning the land, should the cost of the proposed improvement exceed one-half of the value of the land. 1 There seems to be some misapprehension as to the nature and object of this proceeding. Reference is made to the “alleged improvement” and “the apportionment of the costs among all the property owners of the special taxing district.” This clearly refers to the principles applicable — 493 — to a local tax, for the purpose of making improvements, such as paving a street or opening one. But, as we understand it, this is not a matter of taxation at all, either general or local. The object of this proceeding is not to raise money to support the city government, or to improve the value of property in a particular locality (which may, however, be incidentally the result), but to put in operation the police power granted to the city council for the purpose of preserving the health of the city. It is the machinery provided for enforcing the law against nuisances which menace the health of the public. “A law which might be invalid as an exercise of the right to tax for revenue, might be sustainable where its purpose was the promotion of the general public health or morals. In exercising the power of taxation, no discriminations are to be made; while in the exercise of police power, the State is ordinarily to be governed only by considerations of what is for the public welfare.” 18 Am. & Eng. Enc. Law, 544, and notes. We must not, therefore, confound an exercise of the police power with the nice distinctions which belong to the doctrine of taxation for local improvements. In 1793, the city council of Charleston was incorporated with the usual police powers. 7 Stat., 97. In 1830, the charter was amended, giving expressly the following police powers: “That whenever the city council of Charleston shall be of opinion that any lobs or grounds within the city, belonging to any person or persons, &c., are in a state of nuisance, or so situated, that in warm or unhealthy seasons a nuisance may thereby be created, and the health of the city endangered; or whenever the land or streets in the vicinity of said lots may become liable to injury therefrom, the city council, &c., shall have full power and authority to cause a notice to be served on the owner of such lots or grounds, directing him or them to have the same filled up to such extent, in such manner, with such materials, and within such reasonable time, as may be prescribed in such notice; and in case the owner of such lob shall neglect or refuse to fill up said lots, that the said city council are hereby authorized and empowered to have such lots filled up, &c. II. All expenses or charges paid or incurred by the — 494 — said council, in ease sucb lots shall be filled up under their authority, shall and may be recovered in an action of debt against the owner or owners of such lots or grounds: Provided, the said expenses and charges do not exceed more tbau half the value of said lots or grounds,” &c. In 1839, the city council passed an ordinance containing two sections, in conformity with the above act, which, in 1882, were re-enacted in the revised ordinances as sections 227 and 228. In 1883, the General Assembly again amended the charter by adding the following words: “Provided, however, that if the estimated expenses and charges of filling said lots shall exceed more than one-half the value thereof, then, and in that event,.the said city council shall have power and authority to condemn the said lots, and upon paying to the owner or owners the price that may be fixed therefor, as hereinafter provided, the title thereof shall vest in the said city council of Charleston,” &c. 2 It will be observed that the complaint recites sections 227 and 228 of the revised ordinances of the city, which are in exact conformity to the terms of the act of 1830; and, if that act is constitutional, it is difficult to see the point made by the last ground of appeal, that “the said sec-tions of the revised ordinances are ultra vires and void, in that no provision is made in said sections of said ordinances for condemning the land, should the cost of the proposed ‘improvement’ exceed one-half of the value of the land,” &c. The right to condemn the land, and pay for it, is mentioned for the first time in the amendment of 1888, which was long after the said sections of the ordinances were passed, and that right — to condemn — was given only in the event that the charge of filling the lots “shall exceed more than one-half the value thereofThis was nob a ease falling in bhab category, for the complaint alleged distinctly, “that the said sum of ‡1,157.10 does not exceed one-half the value of defendant's lot of land,” &c. The oral demurrer, for the purposes of the issue made by it, admitted that fact, and, therefore, it was nob necessary to make that poiut under the amendment of 1883, which did not cover the case, and the matter stood precisely as if that act had never been passed. — 495 — As urged for the plaintiff: “In 'the amendment of 1883, we have no express provision for, but an unmistakable exclusion of, such a case as the present.” 3 Then the only question in the case is, whether the act of 1830, amending the charter of the city council of Charleston, is constitutional or not. The State, through the lawmaking 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. Although not clearly defined, it- is' an extensive power, distinguished not only from the power of taxation, but also from that of eminent domain, and in its widest sense is said to be the general power of a government to preserve and promote the general welfare, even at the expense of private rights. “It is difficult, if not impossible, to define the exact scope of the term. The Supreme Court of the United States have declined to do so, stating that they would only determine each case as it arose.” Stone v. Mississippi, 101 U. S., 814, and 18 Am. & Eng. Enc. Law, 740, and notes. The title of the act in question was, “To authorize the city council of Charleston to fill up low lots and grounds in the city of Charleston, in certain cases,” &c. Its whole and exclusive purpose was to promote and secure the health of the city of Charleston; and it would be difficult to conceive of a clearer ease of the exercise of the police power. “Health being the sine qua non of all personal enjoyment, it is not only the right but the duty of a State to pass such laws as may be necessary for the preservation of the health of the people. For this purpose a State may compel the clearing and drainage of lands, which might otherwise create malarial or other diseases; or provide in any other reasonable way for the preservation of the public health,” &c. See The Council v. Baptist Church, 4 Strob., 307; Railroad Company v. Gibbes, Treasurer, 24 S. C., 60; Town Council v. Pressley, 33 Id., 56; 18 Am. & Eng. Enc., 750, and notes. We have no doubt that the amending act of 1830 was' constitutional, and that the General Assembly had the right to delegate the police power to the city council of Charleston. — 496 — The judgment of this court is, that the judgment of the Circuit Court be affirmed.