*1 VO 1-0 1-0 conclude reasonably means may limited An owner of nance. connections of the plumbing afford all four he cannot that are screens feel that He may subdivision (a). required be unreasonable It would inside doors. unnecessary as un- his house condemn officer to an administrative allow are broken. windowpanes because several habitation fit for facilities in heating “reasonable comfort” constitutes What home is within Privacy to decide. matter for him is a to the occupants. matter personal its limita- has kaleidoscopic, however The police power, rights exercise tions, private its requires and where necessi- welfare, be limited to it should to the public yield morals, should health, safety, peace ties public and conveniences. comforts individual not be concerned J., Oxner, concurs. GREENVILLE, JAMES, OF Appellant, v. THE CITY
J. C. Respondent 661) (2d) E. (88 S. *2 Bouton,
Messrs. J. D. and William I. of Green- Lanford ville, Appellant, for Arnold,
W. H. Esq., Greenville, Respondent,
(J1 On 20, 1955. July
Baker, Chief Justice.
This arises under the Ordinances appeal of Greenville. City, July, Said adopted plan with the state law. At that time zoning conformity *3 limits. real estate here was not within its corporate involved Petitioner his located at No. 3000 purchased property 1945, commenced the Road in the year opera- Augusta What is tion of a trailer court thereon 1947. February, Road referred to in as the ordinarily Augusta Greenville area, to was annexed which includes Petitioner’s property, 1, the as of 1948. City January Greenville 14, February The rezoned the Road area Augusta “A,” 1950, in the Sin- and Petitioner’s placed district, District. This is the most restricted gle Family residences. As we down go only single family permitting Districts, the the various Zoning alphabet designating court, A become less. trailer under restrictions Ordinances, the “G” Business District is not until permitted is reached. 11, 1950, Build- by
Petitioner was notified May Ordinance, Commissioner, who was administering ing his constituted that the use of non-conforming to be discontinued after and that such use would have use Petitioner notified by was subsequently 1951. February 28, 1950, on that any Commissioner August Building 568 or trailer would
addition or any building improvement have to be removed 1951. by February Petitioner from the action Com- Building appealed which been cre- missioner to the Board of had Adjustment Code, ated 7396 of 1942 Sections Section pursuant Code, Board, and this 47-1007 to 47-1015 of 21, 1950, sustained the action of the Building December Commissioner. Pleas, then to the of Common
Petitioner Court appealed filed and Petition with the and also his Summons Court of the stated authority Common Pleas under above Section, 12, 1951, Honorable E. H. Code and on April Henderson, the then under the Judge, provision Presiding Code, referred the matter to Section 7396 the Master for “to take County testimony Greenville to hear and determine all issues of law and fact with leave recommend his Court.” The report findings Master heard the matter and dated duly by Report May 27, 1953, recommended that the Petition and be Appeal Decree to dis- dismissed and that such as may necessary his trailer court be handed down. continue business Master, Petitioner filed to the Exceptions Report the same were as the Ex- Exceptions substantially was heard now Court. ceptions presented Appeal Martin, 19, 1954, Honorable Robert and on Jr., July J. he confirmed the of the Master and made it the Report judg- *4 ment of the and ordered Petitioner to discontinue Court 23, the of his trailer court on or before August operation time, due Petitioner filed a Notice of Inten- 1954. Within tion to to this Court from Order of Mar- Appeal Judge in tin. The Petitioner contends substance he was oper- a business before Road area ating legitimate Augusta Greenville, annexed to the and the was application and administration of the Ordinance Zoning question of his amounts without arbitrary taking law, and that without due process just compensation to what is re- commonly amounted the zoning question all of the denies to as The Respondent ferred spot zoning. and contends that Ordi- Zoning contentions of Petitioner officials action of the City proper. nance is reasonable and the 6 and 7 The Petition of pages appellant appearing with this of Record will be reported opinion; Transcript before of testimony the taking and immediately preceding there County, appears the Master in for Greenville Equity the following: entitled in the above
“Pursuant to an of the Court Order case, this 26th day a reference was held before me June consent taken. By and the was testimony following Howard, F. Mary was taken shorthand testimony by with, her reasonable of witnesses dispensed signatures the costs in the case. taxed as a therefor to be part charges stands, both it is As this matter now Mr. Lanford: “By Board, un- created from the Adjustment by way Appeal Com- of Greenville Zoning the Ordinance of the City der Pleas and also mission, enlarged of Common Court attached. which Summons additional allegations a Trial referred and this being since the matter has been But same matter to one and the subject De Novo pertaining Petitioner under any rights given without waiving does to waive the Petitioner agree an Ordinance by Appeal, it and the con- before in the manner of hearing irregularities its duct of hearing. we now stands and as Mr. As this matter Walker:
“By raised in forward, your De Novo on all issues it is a Trial go De matter a Trial hear the and the Master will Appeal Novo. than one this to be other any
“I do not interpret certainly action. waived, the Pe- are but
“Any procedure irregularities legal rights, regard- titioner does not waive any or its of Greenville applica- Law tion to this matter.”
o Ol vr case, in this testimony
At the date taking 26, 1951, was a man 72 years age. the appellant June that of a farmer until 1946. His life work had been acre, than one contains a little more land here involved 1945, In Road. appellant pur- is known as Augusta thereon time there was situate at which chased property, residence, $9,000.00. He sum wooden two-story thereto, residence, rooms after two adding converted this rented at which have been three into complete apartments, 1951, him times, per in were June, netting all $125.00 1946, to him of approx- In the fall of at an expense month. on the re- he and established $3,300.00 equipped imately will accommo- a trailer court which mainder of trailers, owned nine of the trailers being date twenty-five are owned by trailers and the remaining by appellant, them. there are unoccupied spaces, When who occupy people trailers, but not other- their who own he rents to tourists in a he will wise, pinch” “sometimes when they get except his trailer for one on the court with come let a transient in- water. The is not furnished transient but such night, him between court nets from this trailer come $300.00 month, per is in addition which $125.00 per $400.00 thereon. he received from apartments month meets every requirement trailer court Appellant’s has been Health, of fact respondent Board State this, claim any and without advised, notwithstanding but conducted it is not properly on-the respondent part is, situation, or, that an unsanitary in creates anywise effect, in record to this respond- no testimony there is that he abandon pres- its officers demands ent through ordinance due to a zoning passed ent usage on 1950. February as amended by respondent residences the vicinity is testimony expensive There that the but no testimony appellant’s of appellant’s property, fact, In of those residences. affects the value court trailer and nowhere else cross-examination of appellant, thereabout the follow- record does appear, anything *6 ing: court in the vicinity of this trailer The operation
“Q. of those residences? to the value would tend effect (affect?) them, bother no more “A. I don’t think so. We don’t to do with the you ugly the looks—but what are than going man, can’t his off—” cut head you these resi- does the record disclose when expensive
Nor built, the whether to establishment dences were prior his trailer court and conversion dwelling appellant’s into or there- thereon three apartments, which was situate after, reasonable inference from the testi- only the although thereafter; and is some built a whole that were mony as that is the testimony gen- the record likewise devoid any welfare, or health of resident respond- eral morals any Yet, to the is the Master’s ent affected. injuriously report Court, the adopted by Circuit which was approved fact, thereof, and we makes this Judge positive finding “I find all the facts and surround- further under quote: to that it be contrary circumstances would ing general in that and the morals of neighborhood welfare people later to continue And to this trailer court operation.” permit Re- “that action of is a of fact in this report finding in to discontinue the Petitioner opera- requiring spondent reasonable, his trailer court business proper tion of health interest of and welfare and to the best general those and particularly the inhabitants Respondent neighborhood.” the surrounding the one from
In the paragraph immediately preceding taken, above is a state- the first appears quotation of Master consent "By in the reading: ment report I have although I viewed premises counsel question, many with the area for great been familiar generally re- the statements in the Master’s and presumably years”; his conclusion there- merely referred represent above port does he testimony But such not constitute where about. cross-examination, testi- and rebuttal be subject would could offered. He offers no basis such mony conclu- sion, is therefore only after view- personal opinion welfare,” toAs health and ing premises. “general Master’s thereabout is more than opinion by offset the fact that after of these an in- thorough inspection premises, for the Board of Health State found vestigator absolutely we can contrary, and well assume that such investi- had sufficient to him make gator training competent pass this issue. As the morals of the upon people affected continuation neighborhood being court, as a trailer such has to be conjecture, pure far, discloses, but thus so far this record there has been no therein. Morals are who change are possessed by people *7 forced to trailers by circumstances live in as just by people, who reside in fine houses. There is not in the entire record a scintilla of that the for evidence use which this property in has been utilized has affected the anywise wel- “general fare the and morals people neighborhood”; and this is true to its for as future use the same purpose if and its moral operated sanitary standard. present aforestated,
As the' in the only testimony record is that it not does affect the value of the fine residences in that hand, On the other to neighborhood. compel appellant to his abandon use thereof would entail loss to present a him two-thirds of the value approximately of the improve- he thereon, ments has and a placed considerable decrease in the value of the lot with such limited The record usage. does not disclose it what would cost the to build appellant residences on this single that he has property, assuming so, “wherewithal” to do nor his what income therefrom would It is be. evident that the value this quite property is dependent upon to, can usage and that its put is the most present usage one from the stand- advantageous of income. point
Because it writer, be overlooked may by he desires remark here how he is upon impressed with the apparent the appellant by the truth possessed respect and honesty testimony. his throughout worst-feature, is if possible, such upon now enter
We de- and taking successful) far thus (and this proposed respondent, his of the appellant privation any compensa- but without without, not compensation, just and this property, purchased time the appellant At the tion. court trailer it and established he time improved at precautions, required and sanitary all thereon there- residence two-story he converted time at the and two rooms adding apartments, complete three on into limits in the corporate not was residence, this property said is situate this property in which area the respondent. December until respondent not annexed was been operation then had court trailer appellant’s whereas minor a few Only that year. 1st of February since such as area since thereon made been have improvements to respondent. annexed Zoning on its wholly relies this case
The respondent of such ordinance if the application Ordinance, therefore prop- it affects the in so far unreasonable arbitrary is amounts thereof involved, the enforcement here erty him of or depriving of appellant’s taking such then compensation, just without property, Article in violation unconstitutional, being *8 Ordinance this State. of the 17 of Constitution and 5 Sections respondent’s of the portions out the pertinent here set We of XIV—Board of Article ordinances, Section omitting matter the heard Master Equity since Adjustment, had Adjustment Board after De Novo” “Trial as a this property relief, to even placing any the appellant refused zone. is, commercial zone, that “E” into an Greenville, South Ordinance, From “Excerpts Carolina: and health, morals safety, to promote
“An Ordinance of Green- inhabitants of the welfare the general ville, Carolina, South to and and restrict loca- regulate trade, tion and use structures and land for in- buildings, and dustry, residence other to and purposes; re- regulate erection, construction, strict the reconstruction or alteration structures; and to and restrict buildings regulate stories, number of and size height, and struc- buildings tures, and the size of and other yards open spaces surround- to and restrict the ing buildings; regulate density popula- tion, and said for all to into divide dis- purposes city tricts; to for the of its prescribe penalties violation provi- sions; to amendments; and provide changes to provide enforcement; for its for a Board of provide Adjustment, their and and duties. prescribe powers “Article I—Definitions: Use: Non-Conforming “Section 32. or land Any building lawfully occupied by at the time of use this Ordinance or amendments passage thereto which does not conform after of this passage ordinance or amendments thereto with the use regulations of the district in which it is situated.
“Article Non-Conforming Uses: XII— “Section 1: The use of lawful land which does not con- form the of this ordinance shall be provisions discontin- ued within one year from the effective date of this ordi- (1) nance, however, that the use of provided, land which be- comes reason of a non-conforming by subsequent change ordinance shall also be this discontinued within one (1) from the date of the year change.
“Article and Interpretation, Conflict: Purpose XVIII— “Section 1: In interpreting applying provisions ordinance, of this shall be held they the minimum re- for the health, quirements promotion safety, public convenience, comfort, morals, wel- prosperity general It is fare. not intended this ordinance to interfere with or or ordinance, rules, annual abrogate any regulations, or issued, or permits previously adopted not in conflict ordinance, any provisions shall *9 be or issued law adopted use of pursuant relating or not in conflict with buildings premises, likewise this ordinance; nor is it intended this ordinance interfere or or easements, annul covenants or other abrogate any between if this ordinance agreements parties, except restriction, imposes this ordinance shall control. greater “Article XIX—Amendments:
“Section 1. The Council from time to time may on their amend, own motion or on petition, supplement, change, or modify ordinance boundaries or repeal by districts or or regulations, restrictions herein established. Any pro- amendment, posed modification or supplement, re- change, shall first be submitted to the and Zon- peal City Planning ing Commission for its recommendations and report. Ii Commission no re- Planning makes within shall (30) days, it be considered to port thirty have amendment, made report approving proposed supple- *” * * ment, modification change. pertinent sections of the Constitution portion above referred to read:
“The immunities citizens of State privileges and of the United States under this Constitution shall not * * * be nor abridged, any shall be person deprived of prop- law, without erty due nor shall process be any person denied the of the laws.” equal protection (Emphasis added.)
“* * * Private shall not be taken for private use owner, without consent of the nor for use with- public just out made first therefor.” compensation being As a of this shall part there opinion reproduced the etc., sketch of this property, page Transcript Record, and at this juncture. *10 time discussing but little unnecessary expend
It is zon- amounts to “spot line shown above whether zoning such, it is and apparently it so obvious that being ing,” the property appellant. the chief purpose including is there to the south of Immediately appellant’s is not included, of which lot the ownership small also one south, record, to the is but by adjoining disclosed be- line “Drive-In,” dividing its northern line done “E” District. This was “A” District and the tween line it reached the crooking dividing upward “Drive-In” Ah “E” is a District commercial dis- property. trict. So in short or distance is a from there space jump “E,” “A” reminds the writer of the old saying: “It is to tell hard the distance a will from where jump frog sits.” (The appellant appeal Adjusting Board, loss, in an to somewhat diminish his re- attempt that his be at least in the “E” Dis- quested placed trict, So, even but that was denied him. if the writer hereof caustic, is considered rather it is not without basis.) *11 In the case of Best v. & Co. Gar- Incorporated Village of 893, den 980, 247 City, Div. N. Y. S. ordi- App. 286 an nance held was void as to owners had made who expensive to of the improvements prior passage ordinance. Court Kotras, 591, Appeals Maryland, Amereihn v. 194 Md. of of 865, 868, 71 A. a yardstick (2d) announcing by which uses of are en- nonconforming to be property attempted forced, has spoken thusly:
“It is well law established that if a prior person, time effective, zoning- are regulations commences to build on his a property building of purpose conducting in this light manufacturing (as case) expends money in the erection of such a or in building, partially erecting such a building, subsequent cannot zoning regulations pre- vent him from completing building light conducting therein.” manufacturing Smith,
In Burmore Co. v. 541, 124 L. 12 N. A. (2d) J. 353, the court held use that the which owners made of their at time of the property passage ordinance zoning becomes the authoritative standard for the use determining which may continue make their after they property of the ordinance. See passage zoning Yokley’s Zoning Practice, Uses, Law and Sec- Nonconforming particularly 150, tions et seq. it
We think to cite further unnecessary authority, espe- in the of the cially fact that all decided light cases to which the various states from access, and coming had
we have ordinance, a zoning Union, notwithstanding that hold same for the to be used continued be may one’s property of a time of passage at the used it was being purpose ordinance. zoning a fairly been has given “taking” the word
Apparently Eminent Jur., Am. In 18 or meaning. construction broad the constitutional is indicated Domain, Section intended was the taking property against prohibition make ownership elements all of the essential protect is the right elements valuable, these among property owner’s a taking there is stated that It is also use. restricts substantially done which any act that there stated It is further owner. right abridges with, interference actual involves an the act when is a taking in injuries which of, resulting rights, or disturbance or incidental. merely consequential are not C. 194 S. Conway, v. Town of Gasque In the case re- an action 871, 873, brought there was E.S. (2d) refusal account of the Town against cover damages involved the issues One permit. building issue amounted the permit refusing action the Town’s whether *12 case in this particular the Court held While taking. to a taking, to a did not amount the Town’s action that a fairly has “taking” that the indicate does opinion Court’s from opinion: that We quote meaning. broad 17) pro- Sec. (Art. of this State “The Constitution * ** for pub- be taken shall not property that ‘private vides therefor.’ first made being just compensation without lic use Constitution,’ have we this provision construing “In courts, physi- that an actual other held, many with along its owner to entitle necessary not is of taking property cal taken, within may man’s property A to compensation. and pos- his title although of this provision, the meaning ordinary him of the To undisturbed. deprive remain session is, law, in of his property and enjoyment use beneficial
1-0 IN. o\ it, as to the and is as much taking taking equivalent itself were actually property appropriated. though in in consists not its merely a thing ownership “Property use, in the unrestricted but right enjoy- possession, ment, one or more destroys Anything disposal. extent elements of to that destroys these property conceded that the substantial itself. It must be value property Greenwood, Henderson v. City lies in its use. of property denied, If the of use be E. 689. right S. C. S. annihilated, is is the value of the ownership property rendered a barren right.
“The constitutional prohibition against taking private must use without public just compensation property all the elements of have been intended to essential protect valuable, which make property ownership including, * ** course, user, and of enjoyment. right right is a “What within constitutional ‘taking’ but, clear; is not so far as rules always provision general of declaration on the it be said may are permissible subject, that there is a where the act the actual in- involves taking with, of, or the terference disturbance re- property rights, which are not or in- injuries sulting merely consequential * * * cidental. that constitutional
“We can agree appellant powers never transcend constitutional and that rights, police of a to the limitation power municipal corporation subject ” * * * the Constitution. imposed case, in the the Court some em- Apparently, Gasque gave to the that the fact Town’s action was more of a phasis one, action than an affirmative and at first blush negative that the case is in the same may appear present category case refused to Gasque just municipality is, course, there issue a But this vast difference. permit. Here the appellant putting usage *13 use, now claims is a respondent nonconforming to the enactment of the And ordinance. not prior zoning only
that, to its annexation We respondent. but prior of Greenville The Master momentarily. Equity digress con- order that states his County petitioner (appellant) in the “E” zone. that his should be placed tends property his made mention of to have hereinbefore request We statement as to what petitioner After such making effect. contended, the Master that he finds that says (appellant) 1945, and, ordinance of is bound by zoning petitioner fact, ‘This “In he in his written brief states continuing, dated 1945.’ tried under the Ordinances matter is being ex- a trailer court is not this Ordinance permitted Under shows that the near- District. The testimony in the ‘G’ cept was in the vicinity to Petitioner’s est District property ‘G’ Senior High Greenville Bakery Claussen’s School.” that the Master utterly be seen from the
It will foregoing do. to undertaking Ap- failed to what appellant grasp ordinance was was under impression pellant enforceable, his and that even if placed respondent District, trailer not continue to conduct a “E” he could an there, him considerable save but such would probably court to his if he was forced abandon in the sale of loss use, same. its then and sell had merely after if the respondent
Reverting digressing, his trailer to issue permit operate refused appellant court, in the could opinion some of the statements Gasque but such authority position, be considered as respondent’s action on the the case. There was affirmative part is not soon after the annexa- The respondent, of the respondent. effected, an to enact amendment tion had been proceeded so as to include appellant’s its Ordinance it acted it was thereafter that negatively property, to continue to appellant operate refusing permit case court. case present Gasque trailer Factually, so it serve no to make further are far will purpose apart, case, out to the facts in the reference Gasque except point therein makes no reference to' Section that the opinion *14 Constitution; and that in the I the present Article of S. C. case, orders the to discon- the order from appellant appealed was, to its he and had been prior tinue the use to which it. annexation to applying respondent, “The The Master’s contains the statement: report not the It is him as to the property. merely directing taking use to which may put.” respondent didn’t have to into actual (City Greenville) go posses- in sion of order for its action to consti- appellant’s property hereinabove from tute See “taking.” quotations Gasque 15, v. Town Also 194 S. C. 8 S. E. 871. Conway, (2d) 504, v. E. 311. see 178 S. C. 183 S. City Easley, Sheriff reminded related in I We are Biblical story Kings, 21, Ahab, Samaria, a small where coveted Chapter King Naboth, owned because it was near unto his vineyard by house, and offered in or Naboth therefor its worth money, a better all of This even which Naboth refused. vineyard, caused Ahab to become and and he “heavy displeased” Ahab, However, eat no bread.” “would the wife of Jezebel, trouble, of the cause of learning apparent arranged Naboth, in have of a accused presence large gathering, witnesses of cursed and the and two God by having King, was carried Naboth without where the thereupon city death; had stoned to and and thereby gathering Jezebel of the to Ahab. delivered possession vineyard the ordinance in this Whether involved case is considered domain, from the of eminent standpoint theory upon Court, which the case was tried the lower apparently is, from the so far as it police power, standpoint ap- violation of the two sections plies appellant’s property, case, hereinabove; referred to and each Constitution brief, determined on as admitted has to be by respondent’s facts. its own particular
It is the of this Court that the opinion exceptions and discussed herein should be sustained the judg- appellant ment of the lower Court reversed.
CM
Petition of Appellant I That is a citizen and resident of the Coun- your petitioner Greenville, Carolina; that the State South ty respond- State; ent is a in said and located body politic County in this is located in involved said proceeding 11, 1950, State; that on County May August servant, said its agent respondent *15 or issued certain notices Commissioner Building Inspector, to cease Me” Trailer “Try to the petitioner operating Court, Road, Greenville, C.; at 3000 located S. Augusta 29, 1950, hied his November said Notice petitioner that on of for the of Green- City of with Board Adjustment Appeal ville; the said Board of conducted a hear- Adjustment and rendered the said on December appeal ing 29, 1950, decision its decision on December said being and the of the Commissioner Building Inspector, favor same denied said appeal petitioner.
II erred in said Board of and Adjustment finding That that no would be inflicted in said decision hardship holding should have found and when said Board on the petitioner, enforcement would constitute a hardship held that the of the following particulars: view The “National present Emergency”; (a) The of materials for and construc- scarcity building (b) tion purposes; market demand for this The restrictive particular
(c) property; The and state of health of the and
(d) age petitioner, and removal dismantling present improve- (e) ments used in connection with the of said Trailer operation Court.
III That the said Board of erred in not sustain- Adjustment that the en- effect petitioner ing position forcement of said Ordinance be would taking prop- erty without due process of law and without making just compensation for such taking direct violation of the Con- stitution of the State South Carolina, and the United States America, in the following particulars: That
(a) prior the inclusion of the Augusta Road area into the Greenville, the petitioner had for many years acquired, developed, operated the subject Trailer Court, and had gone considerable expense advertising building business at up address, said and the en- forcement of this Ordinance would destroy business; and That the
(b) petitioner, a number of years, con- spent siderable sums of money from time to time in equipping improving subject property for trailer court purposes which created a vested interest in the same prior to the in- clusion of said section within the Greenville, may not summarily destroyed by enforcing abandon- ment aforesaid business in violation of the Constitu- tion of the State of South Carolina and the United States of America.
IV That said Board further erred in that holding the unsworn petition offered evidence at said was hearing competent and testimony, the same considering as evidence by the set declarations forth in decision, said when the Board should have sustained your petitioner’s objection to the in- troduction of said petition on the that it was ground hearsay testimony.
V. That said Board of Adjustment was not legally consti- tuted in accordance with the requirements said of Ordinance shall, which that the requires Board consist of five mem- (5 ) bers and that said Board shall keep of minutes its proceed- ings, the vote showing of each member upon each question, or if absent or vote, to failing fact, such indicating and said decision shows on its face that four only (4) members of said Board were and present, the absent member nor
584 no witnesses hearing said at for; that accounted was vote introduced; testimony competent and no sworn were Zon- City the said of Article XIV of wording the very wit- with proceeding a judicial contemplates Ordinance ing the recognized to comply oath under appearing nesses so- of manner that the inquiry; judicial procedure considering and receiving of the appeal hearing called parties interested of declarations and statements, a petition, testi- hearsay considering and to, receiving and unsworn procedure of judicial rules all recognized contrary mony the Ordinance Carolina, contrary and in South Ordinance as the known of Greenville attempting Board, thereby Appeal said created allowed if of the petitioner, rights the property upon pass of a from petitioner a taking stand, constitute would law pro- as due process without right valuable 1895, Article Carolina, of South Constitution in the vided States the United V, the Constitution I, Section XIV. andV Articles 1787, Amendments America 25, 1951. January J.,
Taylor, concurs. in result. concur Legge, JJ., Stukes, Oxner in result). (concurring Legge, Justice to enact a zoning municipality of a authority owned prop- of privately use restricting ordinance domain, but in in eminent not founded erty E. Smith, (2d) 58 S. C.S. 216 v. Owen power. police restriction for the to compensation not entitled isOne 332. the result of his property use, deprivation, or for S., Eminent C. the police power. exercise J. proper Spartanburg, v. 784; Arnold Domain, p. § *17 un- is not But this power 735. E. 523, (2d) 23 S. S. C. removal or to the suppression not extend limited, does and estab- already business aof lawful district a residence from showing factual of a there, in the absence lished detrimental be would business such of continuance 585 health, morals or welfare. 58 Am. public safety, general 148, Section Standard Oil Jur., 1022; Co. v. Zoning, page Green, City Bowling 362, 960, 244 50 S. Ky. W. 86 (2d) of 648; L. v. A. R. Jones Los Angeles, 304, 211 Cal. of Co., 14; 295 P. Adams v. Ice Fuel Kalamazoo & 245 Mich. 261, 222 State 86; 1931, N. W. v. MacDuff, 161 Wash. 600, 733; Miller, 297 P. v. People 105, N. 304 Y. 106 N. E. 34; State ex rel. Seattle Title Trust (2d) Washington of v.Co. 116, Roberge, 278 U. 50, 210, S. 49 S. Ct. 73 L. Ed. 86 A. L. R. 654. The contrary view in Dema expressed McDonald, Co. Realty v. La. 121 172, 613, 168 So. and in Standard Tallahassee, Oil Co. v. City Cir., 183 F. (2d) of 410, cited in the Master’s case, the instant is report not supported by weight authority.
The decision in Dema Co. Realty v. McDonald has been criticized as “a confusion exhibiting between the objects zoning nuisance See Jones v. regulation.” Los City of And in Standard Angeles, supra. Oil Co. v. Tallahas- City of see, supra, which involved validity law so zoning far it station, the discontinuance aof required there filling Hutcheson, dissent vigorous by Chief based Justice the decision in Standard v. upon Oil Co. City Bowling Green, and the Florida cases supra, West Palm City of Fla., Beach v. Edward 709, U. Roddy Corp., So. (2d) Co., Fla., Miami Beach v. First Trust 45 So. 681. (2d)
“The an power to declare ordinance invalid because sois unreasonable as to consti- impair destroy tutional is one which rights will exercised care- as it is not the function of fully cautiously, the courts the wisdom or pass upon ordi- expediency municipal Groover, nances or regulations.” DeTreville v. 219 S. C. 65 S. E. 240. But where an is (2d) ordinance violative of clearly constitutional it is our so rights, duty it, for in the to declare final due analysis question not a judicial, one. process legislative, Columbia City of
586 Alexander, 530, 241, A. R. v. 125 S. C. 119 S. E. 32 L. 746; Union, 232, 1. Fincher v. S. 196 S. E. 186 C.
In the have the nothing case before us we uphold it in its unless be appellant ordinance application “An Pro- found in its entitlement as Ordinance To Welfare,” Health, The General Morals And Safety, mote The 1 that etc., in Section of Article XVIII and the statement of this ordi- the provisions “in interpreting applying be held to the minimum nance, requirements shall be they health, convenience, safety, the public promotion morals, welfare.” If comfort, and general prosperity that business a declaration appellant’s be taken as legislative health, morals and to the safety, gen- is detrimental public welfare, is, out in the Chief opinion it as pointed eral evidence; Baker, the wholly without support Justice refuted the facts as dis- by it is thoroughly contrary, the As testimony. the by applied closed uncontradicted invalid ex- clearly the ordinance presents locus particular ex v. rel. Warner Hayes State power. ercise of police Cf. 262, 306, 13 125 P. Wash. (2d) (2d) Investment Corp., the continued operation ordinance prohibiting where an the use of the land camp restricting trailer an established was, invalid, evidence there no as being held involved, in business promotion particular applied health, or To same morals welfare. safety, the public Pontiac, 666, v. 305 Mich. N. Richards is effect 885, 889, “In where said: our opinion court (2d)W. se. a nuisance If the trailer not per of a park operation accidens, then to be a nuisance per regula- proves trailer park having for. plaintiffs, purchased tion called may thereon, trailer operated money expended property, ordinances, to the existence either zoning camp prior in accord- such trailer operate camp have a vested right 1941, 255, of Act No. Pub. Acts. ance with provisions be amended.” For rules and as such act may regula- and maintenance of trailer tions operation governing Carolina, the State Board promulgated by South parks 3, 5002, 1942, Health, of Laws Section see Code Volume 113-114, Laws, Volume pages and Code pages 675-677. Taylor concur. JJ., Oxner,
Stukes, *19 DAVIS, Respondent, BENJAMIN H. v. BANKERS LIFE and COMPANY, Appellant CASUALTY
(88 (2d) 658) S. E.