44 S.E. 781 | S.C. | 1903
April 22, 1903. The opinion of the Court was delivered by *196 Statement of facts. — There are three sets of exceptions in these two cases: (1) Those assigning error on the part of his Honor, the Circuit Judge, in overruling the demurrer to the rule to show cause; (2) those complaining of error in refusing an order of reference in order that the petitioner might have the opportunity of showing that the ordinance hereinafter mentioned was unreasonable and, therefore, deprived the petitioner of its property without due process of law, in contravention of section 1 of the 14th amendment to the Constitution of the United States; (3) those alleging error in the final judgment dismissing the petition. The following is the order refusing the reference:
"This is a proceeding in prohibition to restrain the mayor and chief of police of the city of Columbia from enforcing an ordinance of said city, entitled `An ordinance to amend section 347a of the revised ordinances of the city of Columbia, ratified the 26th day of May, 1896.' Said ordinance, according to the allegations of the petition herein, was ordained and passed, or attempted to be ordained and passed, on February 26th, 1901, so that said section of the revised ordinances as amended `shall read:' `Section 347a. In order to provide for the safety of the public at places where the tracks of the steam railroad companies cross the streets of the city of Columbia, it shall be the duty of said companies to station both day and night at such crossings as in the judgment of the city council the public safety may require, to be designated by the city council, a flagman, whose duty it shall be to show a red flag whenever a train may be approaching or crossing such streets; and it shall also be the duty of said companies to provide and maintain at such crossings a good and sufficient light, to burn from thirty minutes after sunset until one hour before sunrise. Any person or corporation violating any of the foregoing provisions shall be punishable upon conviction before the mayor, or alderman acting as mayor, by a fine not exceeding forty ($40.00) dollars.' *197
"Thereafter the intersections of a number of streets were designated by the city council, and the petitioner herein, through its proper officers, was notified to place flagmen and lights, as required by the ordinance. In January, 1902, the said ordinance was enforced, or attempted to be enforced, by fining an agent of petitioner for violating the same. On January 9th, 1902, his Honor, Judge Ernest Gary, issued a rule against the respondents to show cause before him, at chambers, in Columbia, S.C. `Why the writ of prohibition prayed for in the petition in the above stated proceeding should not issue in accordance with the prayer thereof,' and restrained respondent, `until the further order of this Court, from further prosecuting the proceedings against the said Southern Railway Company, or its officers and agents, on account of the matters and things alleged in said petition.' and answered the petition herein.
"Petitioner contends: 1. That the city had no power, express, implied or incidental, to pass the ordinance in question. 2. That the legislature was without power to confer The respondents have made return to the rule to show cause the right to pass such an ordinance, because it would contravene art. I., sec. 5, of the Constitution of South Carolina, as well as sec. 1 of the 14th amendment to the Constitution of the United States, in that it is a taking of property without due process of law, and denies the equal protection of the laws. 3. That it appears upon the face of the ordinance itself, and from the facts before the Court: a. That this ordinance is unreasonable, unjust, oppressive and a burden upon the petitioner, and therefore void. b. That it is in contravention of the sections and articles of the Constitution above referred to, in that it attempts to impose upon the railroad company the whole expense of providing good and sufficient lights where the railroad track crosses any streets in the city of Columbia, as well as requires flagmen at road crossing night and day, the entire expense of which to fall upon the railroad company. c. That the ordinance has never been duly promulgated, as is required by the charter *198 of said city (14 Stat., 569, sec. 10, revised ordinances city of Columbia, page 176).
"The proceeding now comes before me upon the petition and return. As preliminary to the hearing, petitioner moves the Court for an order of reference to the master, directing him to take and report the testimony upon the issues of fact raised in the pleadings. This motion of reference is predicated upon the claim of petitioner that it has the legal right to show, by testimony, that `this ordinance,' the one in question, `is unreasonable, unjust, oppressive and a burden upon the petitioner, and, therefore, void.' In my opinion, petitioner has no such legal right. The ordinance in question, upon its face, purports `to provide for the safety of the public at places where the tracks of the steam railroad companies cross the streets of the city of Columbia.' It, therefore, falls under and within the police power. The ordinance may be illegal, because either without authority of law, or because it is unconstitutional; but if the ordinance is legal, Courts `cannot run a race of opinions upon points of right, reason and expediency with the law-making power.' Darlington v.Ward,
"Whether the ordinance in question is void, because illegal, for the reasons stated, can, and will be, determined without taking testimony as to the reasonableness, c., of the ordinance. The respondents, when the proceeding came up before me, discussed all of the issues presented by the pleadings, and demanded that the petition herein be dismissed and the rule discharged. The Court must refuse *199 such demands, and for two, among other reasons: 1st. The petitioner only argued the motion to refer, and did not discuss all of the issues raised. There was, of course, reference to these issues; but they were not fully presented, and naturally so, as the motion to refer was preliminary to the argument upon the merits.
"2d. There is an issue of fact upon which some record evidence is needed, to be passed upon. I refer to the allegations and contention of the petitioner, `that the ordinance' in question, `has never been duly promulgated, as is required by the charter of the city,' c. In paragraph 10 of the petition it is alleged that the city council, `claiming and assuming authority to act under the charter of said city, and the laws of the State relating thereto, did attempt to ordain and pass the following ordinance,' and the ordinance above stated is then set out in full; but there are no words purporting to show that said ordinance was made and ratified under the seal of the city, signed by the mayor, or attested by the clerk. Whether or not the ordinance was duly and legally ordained will appear upon the records, or the original ordinance. The production of such original, or the proper evidence of the same, should be an easy matter, involving little time and trouble, and a reference to take such testimony should not be necessary. If, however, I am mistaken in this respect, and it is necessary, petitioner may renew his motion for a reference to take such testimony or proof.
"Wherefore, it is ordered, that the motion of petitioner for an order of reference herein to take testimony be and hereby is refused."
The order is dated 23d July, 1902.
On the 26th day of July, 1902, the petitioner served notice of appeal from said order, and thereafter on 28th July, 1902, perfected its appeal by filing with the clerk of this Court the return required by the rules. On the 1st of August, 1902, Chief Justice Pope granted an order staying proceedings until the appeal should be disposed of by the Supreme Court. On the 12th of August, 1902, Chief Justice Pope modified *200 his previous order by ordering, "that so much thereof as prevents Judge Aldrich from continuing the hearing and rendering his decision upon the merits be rescinded, and the said Judge be, and is authorized, to proceed to hear and dispose of the same in the same manner as if said order had not been granted." Thereafter Judge Aldrich heard the case upon the merits and dismissed the petition.
Opinion. — The first ground of the demurrer to the return to the rule to show cause was that "it does not show that the ordinances set forth in the petition have been duly and regularly ordained and passed by the said city council and promulgated as required by the charter of said city of Columbia." The tenth paragraph of the petition is as follows:
"(10) That on the 26th day of February, 1901, the city council of the city of Columbia, claiming and assuming authority to act under the charters of said city, and the laws of the State relating thereto, did attempt to ordain and pass the following ordinance:
"`An ordinance to amend section 347a of the revised ordinances of the city of Columbia, ratified the 26th day of May, 1896.
"`Be it ordained by the mayor and aldermen of the city of Columbia, in council assembled, and by the authority of the same,
"`Section 1. That section 347a of the revised ordinances of the city of Columbia, ratified the 26th day of May, 1896, be, and the same is hereby, amended by striking out after the word "station" the words "during the daytime," and inserting in lieu thereof the words "both day and night," so that the section as amended shall read:'" Then follows a copy of the ordinance set out in the order of Judge Aldrich.
In the return the respondent admits the allegations contained in paragraph 10 of the petition. It will be observed that paragraph 10 does not allege that the ordinance was not promulgated in the manner required by law. The reasonable interpretation of its language is that it intended to allege *201 the invalidity of the ordinance because it was in violation of the Constitution, which provides that a person shall not be deprived of property without due process of law. The admission of the respondent is not susceptible of the construction placed upon it by the petitioner. There are several other reasons that could be assigned in support of this conclusion, but we deem them unnecessary.
The second ground of the demurrer was as follows: "2. Although it is admitted that the agent of the Southern Railway Company was tried before the mayor's court as alleged in paragraph 15 of the petition, the return does not show that the said city of Columbia has ever complied with the said ordinance set forth in the petition by designating at what crossings, in the judgment of the city council, the public safety required a flagman to be stationed, and good and sufficient lights to be also provided and maintained by said railroad company." It is presumed from the judgment of conviction before mayor's court that there was a compliance with all the requirements of law until the contrary is made to appear. Furthermore, the allegations of the petition show that the city designated the crossings mentioned in the ordinance.
The next question that will be considered is whether the Circuit Judge, in refusing the order of reference, erred in ruling that the petitioner did not have the legal right to show by testimony that the ordinance is "unreasonable, unjust, oppressive and a burden upon the petitioner." The ruling of the Circuit Judge is unquestionably free from error, unless, as a federal question, a different principle prevails in cases arising under the Constitution of the United States. When there is conflict in cases involving a federal question between the decisions of a State Court and the United States Supreme Court, it is the duty of the State Court to follow the decisions of the United States Supreme Court. Construction Co. v. Township,
The question whether the Circuit Judge had jurisdiction to hear the case upon the merits after the Supreme Court had *204
acquired jurisdiction by the filing of the return with the clerk of the Court, does not necessarily arise, as the Circuit Court could not hear the case on the merits until the plaintiff had the opportunity of introducing testimony to show that the ordinance was unreasonable. The cases ofBank v. Stelling,
The question as to the power of a single Justice to grant permission to the Circuit Court to hear the case upon the merits after the Supreme Court had acquired jurisdiction, need not be considered, as we have shown that the judgment must be reversed for the reasons hereinbefore stated.
The judgment of the Circuit Court must be set aside, but without prejudice to the rights of the parties to a new trial, and such is the judgment of this Court. It is also the judgment of this Court, that the order of the Circuit Court, in both cases, refusing the order of reference, be reversed, with leave to the petitioner to renew its motion.