77 S.E. 727 | S.C. | 1913
March 14, 1913. The opinion of the Court was delivered by *554 On May 23, 1912, the board of health of the city of Charleston passed a resolution requiring all dairies in the city to be closed on or before July 1, 1912.
Plaintiffs, who were conducting a dairy within the city, brought this action to enjoin the board from enforcing the resolution. On plaintiffs' motion, Judge Memminger ruled the board to show cause why it should not be enjoined, and granted a preliminary restraining order, pending the hearing of the return. On hearing the return, his Honor found that plaintiffs had failed to make out a prima facie case, entitling them to an injunction, until the case could be heard on the merits. From his order, refusing their motion, plaintiffs appealed.
As the city council undertook, by resolution, to nullify the action of the board of health, the first question to be decided is: Which of these bodies has superior authority in the premises? Under the Constitution and statutes, boards of health derive their powers directly from the legislature, and not from the municipalities. Kirk v.Board,
Sections 1451 and 1463 of the Civil Code of 1912, confer ample authority on the boards of health to make and enforce all needful rules and regulations to prevent the introduction and spread of infectious or contagious diseases, and generally to make all such regulations as they shall deem necessary for the preservation of the public health, and to define, declare and abate nuisances injurious to the public health. Therefore, the board had authority to pass the resolution in question.
The Court has so recently considered at length the principles involved in this appeal that it will be necessary only to state and apply them.
As the powers of boards of health are conferred upon them by the legislature, it follows that, as long as their *555
actions are not arbitrarily or capriciously taken, and are confined within the limits of powers constitutionally conferred upon them, they are subject to no control, except that of the legislature; and the Court will review their actions only so far as may be necessary to see that they bear a just and reasonable relation to the object sought to be attained, and do not invade personal or property rights vouchsafed to the citizens by the Constitution. Within the limits of their power, they are the exclusive judges of the propriety and wisdom of their actions, and so long as they act strictly within those limits, and not arbitrarily or capriciously, they are not subject to the control of the Court. In other words, the Court cannot set its judgment against theirs, for that would be to usurp their powers. Kirk v. Board, supra;Douglas v. Greenville,
The Circuit Judge did not err in considering the whole case, — the showing made by defendants as well as that made by plaintiffs — in determining whether he would exercise his discretion to grant or refuse the injunction. While a Judge, at chambers, cannot finally decide
anything as to the merits, he can and ought to look into the merits, whether they present issues of law or fact, and consider them to the extent necessary to enable him to exercise his discretion wisely. In Sease v. Dobson,
Affirmed.