Henderson v. City of Greenwood , 172 S.C. 16 ( 1934 )

It seems to me that the opinion of Mr. Justice Jones would have the effect of overruling the unbroken line of authorities in this state establishing the principle that the constitutionality of a statute cannot be determined in mandamus proceedings."

We have taken occasion to advert to this subject of procedure although it was not raised by the defendant in the Court below. It was, however, mentioned in the Circuit decree.

Following the Burley case, we approve the procedure followed in this case, it appearing that the peculiar conditions existing in the Burley case, which take it out of the general rule, likewise exist in the case now before us.

The plaintiff contends that the ordinance is unconstitutional in that it is violative of Article 1, § 5, of the Constitution of this State, the "due process" clause. It is not pretended in this case that the property of Mrs. Henderson was actually taken by the city, but the actual taking of property is not alone prevented by the constitutional provision. The Constitution prohibits the passage of such laws or ordinances as will interfere with the legal use and enjoyment of property. As expressed in 6 R. C.L., 196: "The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Its capability for enjoyment or adaptability to some use are essential characteristics and attributes without which property cannot be conceived. Hence a law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, or destroys its value, or restricts or interrupts its common, necessary or profitable use, or hampers the owner in the application of it to the purpose of trade, or imposes conditions upon the right to hold or use it, and thereby seriously impairs its value."

The city insists that the ordinance comes within its police power as it appears in Section 1 that the object of the ordinance is "to further protect human life and safety." It has never been denied that the Legislature may pass laws of a salutary nature under the general police power and that a like power may be delegated to municipalities, but even the legislative Acts and, equally so, the municipal ordinances must not go counter to constitutional provisions. The mere statement in the preamble of an ordinance that it is passed under the police power does not give a municipality carte blanche to pass an unreasonable ordinance or one opposed to the Constitution or laws of the State. Yates v. Milwaukee, 10 Wall., 497, 19 L.Ed., 984.

Much could be written and many authorities cited in this opinion relative to ordinances which give a discretionary power to city councils, boards of control, and individual officers to direct and control the apparent power of each individual to use his property as he deems best, pointing out the objectionable features of such legislation, but it does not appear necessary to encumber this opinion with a pursuit into that phase of the law. We will, therefore, confine ourselves to a discussion of the constitutionality of this ordinance based upon its reasonableness.

The ordinance gives to council the absolute control, in so far as buildings are concerned, of all real estate within the city limits within two hundred feet of all railroad crossings. Except by the will of council such property must remain vacant and unproductive, the owner having no right to build thereon, whether the building desired to be erected be anything from a poultry house to a store, residence, or skyscraper. Remembering that the city has no higher rights in passing ordinances relative to the police power than that which is delegated to it by the Legislature, we unhesitatingly say that the Legislature itself has not the power to pass such a drastic and unreasonable law under the guise of acting within the police power.

Under the early decisions of this Court it was held that the Court did not have power to pass upon the reasonableness of an ordinance if the power to pass such an ordinance be conceded. This doctrine was announced in City Council v. Ahrens, 4 Strob., 241; CityCouncil v. Baptist Church, 4 Strob., 306; Town Council ofSummerville v. Pressley, 33 S.C. 56, 11 S.E., 545, 8 L.R.A., 854, 26 Am. St. Rep., 659, and other cases. That the doctrine has been changed very materially can be readily seen by reference to the case of City of Columbia v. Alexander,125 S.C. 530, 119 S.E., 241, 243, 32 A.L.R., 746. In that case all of the authorities are cited and the law established that the reasonableness of an ordinance may be considered by the Court as a test of its constitutionality. After a full review of the authorities as applicable to the facts of that case, the Court says: "It cannot be denied that the enforcement of the ordinance will seriously impair, if not destroy, the defendant's lawful business. Upon its face that appears to have been the purpose of the ordinance."

And so it is in the present case. The unreasonableness of the ordinance is the basis for its unconstitutionality. It only remains to be said that the two cases of Douglass v. CityCouncil of Greenville, 92 S.C. 374, 75 S.E., 687, 49 L.R.A. (N.S.), 958, and Pendarvis v. Orangeburg, 157 S.C. 496,154 S.E., 756, relied upon by the city, are by no means controlling of the present question. They both refer to a specific character of building; the one to a livery stable and the other to a filling station. In neither ordinance in those cases was the erection of any and all buildings subject to the decision of the council but only the character of buildings above mentioned.

The ordinance herein being unconstitutional as depriving the plaintiff of her property without due process of law based upon the unreasonable character of the ordinance,

It is the judgment of this Court that the order of the Circuit Court be, and the same is hereby, reversed; the ordinance in question be, and the same is hereby, declared unconstitutional, null, and void and the application for mandamus to compel the City of Greenwood to issue a building permit to the plaintiff be, and the same is hereby, granted.

MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.