38 S.C. 488 | S.C. | 1893
The opinion of the court was delivered by
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
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.
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
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.