Town of Brunson v. Youmans
56 S.E. 651
S.C.
1907
Check Treatment

The opinion of the Court was delivered- by

Mr. Justice Jones.

The judgment of the Circuit Court should be affirmed for these reasons :

1 1. It is well- settled that this Court will' not consider a matter -sought to be reviewed which appears nowhere in the record, except in the exceptions. Lites v. Addison, 27 S. C., 229; State v. Levelle, 36 S. C., 601, 15 S. E., 380; Ragsdale v. Southern Ry., 72 S. C., 125, 51 S. E., 540; Chitty v. Ry. Co., 62 S. C., 527, 531, 532, 40 S. E., 944.

*129 We find nowhere in the case, outside the exceptions, that the intendant refused to allow testimony as to> the condition of other lots in which hogs were kept in the town of Brunson.

2 2. But assuming that such testimony was excluded, there w'as no reversible ¡error of law. The law in this State is that an ordinance cannot be set 'aside by a Court for mere unreasonableness, 'since questions as to the wisdom and expediency of a regulation rest with the lawmaking power. Whether a particular regulation lies within the power of a municipality is a judicial question, but whether a regulation within the power of a municipality is unreasonable, is not a judicial question. In considering the validity of an ordinance, the real question, therefore, is whether the municipality had power to pass it, whether it violates some constitutional principle, State or Federal. Hence the rule in State andi Federal Courts that an ordinance may be declared invalid when it is so unreasonable and oppressive in its operations as to wiarran-t an inference that it violates some-right guaranteed by the Constitution. Darlington v. Ward, 48 S. C., 582, 26 S. E., 906; State v. Earle, 66 S. C., 303.

We are unable to see how testimony which was only designed to show the condition of other lots than that of defendant could be a material circumstance in determining whether the town of Brunson had the power under statute and constitutional law to' forbid the keeping of hogs within the corporate -limits within one hundred -and twenty-five yards of a dwelling house in which person© live, -and provide punishment therefor. Whether such particular lots were large or small, low or 'high, sand or clay, drained or undrained, wooded or cleared, cultivated or uncultivated, clean or unclean, would constitute no test of the power of the municipality to pass the ordinance in- question. In Darlington v. Ward, supra, a conviction under an ordinance of the town of Darlington, making it unlawful to keep any hog- within the town, was sustained and- the ordinance declared to be *130 within the power of the municipality, notwithstanding the defendant kept a single hog in a two acre lot kept clean.

If the object of the testimony w'as to show inequality and discrimination by proving that others in the town kept hogs therein and were not prosecuted, that would merely go to show neglect of duty on the part of officials and not inequality or discrimination in the ordinance.

3. We do not regard the ordinance invalid' under any of the obj ections raised in 'the exceptions.

The judgment of the 'Circuit Court is, therefore, affirmed.

Mr. Chibe Justice Pope did not sit in this case.