Opinion
15425
June 10, 1942.
Before SEASE, J., Spartanburg County, May, 1940. Affirmed.
Action by Wilbur Willis against the Town of Woodruff and others for the purpose of having declared valid a building permit issued to him by the building inspector of defendant, Town of Woodruff, to build a filling station on certain property. From a decree in favor of the plaintiff, the defendants appeal.
The Order of CIRCUIT JUDGE SEASE, required to be reported, follows:
This action was begun by the plaintiff for the purpose of having declared valid a building permit issued to him by the building inspector of the Town of Woodruff to build a filling station on certain property on North Main Street in the Town of Woodruff, and being adjacent to the home of the plaintiff in a portion of a residential section. The defendants have been properly served and are before the Court.
Originally, when this action was commenced, certain employees of Wilbur Willis were arrested by the city police of Woodruff on the ground that the workmen were alleged to have transgressed the city ordinance. Thereafter, an order was passed by this Court temporarily restraining the Town of Woodruff from further prosecution and imprisonment of these workmen. The matter then came before the undersigned Judge on its merits, and after hearing argument I passed an order referring the case to the Honorable LeRoy Moore, Master, for the purpose of taking testimony and reporting his findings of law and fact to the Court. He held a reference and filed his report. The matter now comes before me on exceptions to this report.
On December 15, 1939, Mr. W.C. Wright, the building inspector of the Town of Woodruff, issued this permit: "December 15, 1939. — This will permit Mr. Wilbur Willis to build a brick filling station twenty-four by thirty feet on the east side of North Main Street between his residence and the C. W.C. siding to Brandon. Metal roof, wood floor and ceiling. Electric work and plumbing to conform to code. (Signed) W.C. Wright, Ins."
This permit was the result of an application which was made by Wilbur Willis, duly filed with the Town of Woodruff and submitted to the council.
The minutes of the council meeting are:
"Regular Council meeting was held in the Council Room Tuesday, Dec. 12, 1939, at 7:30 P.M., with the following officers present: Mayor J.C. Pearson, Thos. W. Cox, Jr., Dr. C.D. Falls, Paul G. Gillespie, R.B. Hunt, Lawrence Montjoy, and O.O. Rogers.
"Motion made and carried that Wilbur Willis' request for a permit to build a filling station on North Main Street be granted if it is agreeable with other property owners, fireproof, and costs about $2,000.00.
"(Signed) J.C. PEARSON, Mayor "DR. C.W. FALLS, Mayor pro tem. "H.K. GENTRY, Clerk and Treas."
"Regular Council meeting was held in the Council Room Tuesday, Jan. 9, 1940, with the following present: Mayor Pro Tem. Dr. C.D. Falls (also Alderman), Aldermen Thos. W. Cox, Jr., Paul G. Gillespie, R.B. Hunt, Lawrence Montjoy, and O.O. Rogers.
"Motion made and carried that Mr. Wilbur Willis and Mr. Will Wright be notified he must get permission from surrounding property owners before his building permit will be valid. And the Clerk to sign permits hereafter with Mr. Wright.
"(Signed) DR. C.D. FALLS, Mayor Pro Tem. "H.K. GENTRY, Clerk and Treas."
"A call meeting was held in the Council Room Jan. 17, 1940, at 7:30 P.M.
"In the absence of H.K. Gentry, Town Clerk, W.M. Swink was appointed to act as Clerk at this meeting and take the minutes.
"Officers present were Mayor J.C. Pearson and Aldermen Lawrence Montjoy, Dr. C.D. Falls, Paul G. Gillespie, O.O. Rogers, and Thos. W. Cox, Jr.
"Mr. W.C. Wright appeared before the Town Council and explained about his writing out a permit to Wilbur Willis to construct a gasoline filling station on N. Main Street in Woodruff, S.C. Mr. Wright stated that Mr. Willis informed him that he had obtained the consent of the Town Council to erect said station, and on that basis he wrote said permit.
"Solicitor Sam R. Watt, as attorney for Mrs. R.T. Beason, presented to the Council a petition signed by Mrs. Grace McAbee, S.J. Workman, Lloyd Church, Jesse Lanford, and Mrs. R.T. Beason, which objected to Wilbur Willis constructing a filling station on N. Main Street.
"(Signed) J.C. PEARSON, Mayor. "H.K. GENTRY, Clerk and Treas. "W.M. SWINK, Acting Clerk."
Reverting to the minutes of the town council of December 12, we find: "Motion made and carried that Wilbur Willis' request for a permit to build a filling station on North Main Street be granted if it is agreeable with other property owners — ." So far as the city council is concerned, you can put a period, a semi-colon or a colon after the word "granted." By this motion, the city council, under its police power, determined that the building of the filling station was not against the public safety, the public health or the public morals; indeed, all of these elements are solved in favor of the permit. What it did attempt to do was to delegate to other property owners the right to say whether or not Willis could build a filling station, and this cannot be done.
"It is not within the power of a municipal corporation, unless expressly authorized by the Legislature, to make a certain use of property, which in the absence of legislation would be lawful, but which is of such a character that it might reasonably be regulated or prohibited by public authority, conditioned upon the assent or permission of the owners of neighboring property." 19 R.C.L., 815, Paragraph 119.
The rule as laid down in 43 C.J., page 245, Paragraph 245, is: "Since the police power of a municipal corporation cannot be exercised for private purposes or for the benefit of particular individuals or classes, it has been held that regulations or ordinances requiring the consent of property owners, or a specified percentage thereof, in the vicinity, for the erection, alteration, or use of particular kinds of buildings or for the maintenance of particular businesses, are invalid on the grounds that such is a delegation of the governmental power to private citizens, and that such regulations deprive the applicant of the equal protection of the law and of their property without due process of law; also, that an ordinance requiring the consent of a majority of the property owners in an adjoining district is invalid as a delegation of the legislative power, and because it may have the effect of permitting discrimination in behalf of certain persons as against others entitled to equal rights; and that an ordinance which requires a committee on streets to establish a building line within a specified location from the street line, upon request of the owners of two-thirds of the abutting property is unconstitutional."
In this same work, 43 C.J., at page 349, the Court holds: "Failure to obtain consent of owners, where a proper officer has issued a building permit on full showing by the applicant therefor of the nature and character of the building and use to be made thereof, the permit was not revokable for failure of the applicant to procure the consent of other property owners of the district as promised. Rehmann v. Des Moines, 200 Iowa, 286 [ 204 N.W., 267, 40 A.L.R., 922]."
The rule being that, "When once the proper authorities grant a permit for the erection or alteration of a structure, after applicant has made contracts and incurred liabilities thereon, he acquires a kind of property right on which he is entitled to protection; and under such circumstances it is generally held that the permit cannot be revoked without cause or in the absence of any public necessity for such action." 43 C.J., 349.
The legislative authority of the Town of Woodruff had issued the permit and Mr. Willis had made contracts and incurred liabilities thereon. The only ground upon which the Town of Woodruff now seeks to stop him in finishing his building is because he had not procured the consent of other property owners and they claim that they notified him that he must obtain this consent.
An unusually interesting case on this point is that of Eubank v. City of Richmond, 226 U.S. 137, 140, 33 S.Ct., 76, 57 L.Ed., 156, 42 L.R.A. (N.S.), 1123, and it involves the same point.
And another case is that of Tilford v. Belknap, 126 Ky., 244, 103 S.W. 289, 11 L.R.A. (N.S.), 708.
The ordinance involved in the case at bar is both unreasonable and discriminatory, for it attempts to confer upon a private citizen who may be so fortunate as to own a house power of the most arbitrary character over the property of his neighbors.
For these reasons, we do not hesitate to condemn the ordinance as unconstitutional and void.
Another interesting case is that of Carey et al. v. City of Atlanta, 143 Ga. 192, 84 S.E., 456, 461, L.R.A., 1915-D, 684, Ann. Cas., 1916-E, 1151. This case comes under the zoning ordinance doctrine whereby the City of Atlanta attempted to designate certain property for the use of whites and to say that it could not be used by colored people. The question was raised that the City of Atlanta had no authority to make such an ordinance, for it deprived the plaintiffs of the use and enjoyment of their property without due process of law and it designated to individuals the right to say how the plaintiff could use its property, and the ordinance was further challenged as being violative of the 14th Amendment of the Constitution of the United States, in that it attempted to deprive the plaintiff of the use of his property without due process of law, and to deny to him the equal protection of the law. The Supreme Court of Georgia held the ordinance unconstitutional for the reason that it delegated legislative powers to individuals who were not members of the city council and it delegated to individuals the right to say how the plaintiff should use his property. The Georgia Court said: "If the residence of the two races in close proximity was a matter requiring regulation by ordinance, the legislative body should determine the fact, and not leave it to depend upon the will of individuals, perhaps the whim of a single resident, and subject to shift from time to time, according to the wishes of some of those who for the time being might reside in the block, so that sometimes the block might be classified as `white,' sometimes as `black,' and sometimes mixed. It provides for no method for determination of the fact by legitimate authority, save as a property owner's neighbors may wish." See also State v. Darnell, 166 N.C. 300, 81 S.E., 338, 51 L.R.A. (N.S.), 332.
Moreover, when a business is condemned on the ground that it is passed for the protection of public health the Court will inquire into the reasonableness or necessity of such a law, for the Court places laws regulating lawful business enterprises in a class separate and distinct from those enacted to protect the health of the community. Kirk v. Board of Health, 83 S.C. 372, 387, 65 S.E., 387, 23 L.R.A. (N.S.), 1188.
The Court, acting on this same principle, has held that although an ordinance might be lawful upon its face and apparently fair in its terms, yet if it is enforced in such a manner as to work a discrimination against a part of the community for no lawful reason, such exercise of power would be invalidated by the Courts. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct., 1064, 30 L.Ed., 220.
In the case of Pendarvis v. City of Orangeburg, 157 S.C. 496, 154 S.E., 756, involving the granting of a permit for the location of a filling station, the facts were: Mrs. Pendarvis was the owner of a vacant lot in the City of Orangeburg. She rented this lot to some parties who desired to erect a filling station on it. They made an application for a permit and the City of Orangeburg refused to grant the permit. Thereupon, Mrs. Pendarvis filed a petition before the city council of Orangeburg asking that she be granted a permit to build a filling station. This was on August 26, 1927. The matter was continued from time to time and on September 14, 1927, a special meeting of the city council was called for the purpose of hearing her petition. In the meanwhile, certain doctors appeared and showed that the lot was located close to a hospital and that in the hospital they daily had operations. and that due to these operations and to the noises such as the honking of horns the condition of the patients would be seriously endangered. There were five doctors who signed affidavits and presented them to the city council in opposition to the granting of the permit, and each of these affidavits alleged in substance the same thing. The city council held a business meeting and refused to issue the permit, whereupon Mrs. Pendarvis filed a petition in the Court of Common Pleas before Judge Shipp, in which she alleged that the city should issue their permit as a ministerial duty. After considering the petition and the ordinance and the return, Judge Shipp ordered a reference and the City of Orangeburg appealed to the Supreme Court. The Court held that it was not a ministerial duty on the part of the City of Orangeburg but that it was a matter where the city council should properly exercise its discretion, and since there was no showing that the city council had not properly exercised its discretion, there was no case in Court.
But in that case the Supreme Court did not hold that the city council could delegate its legislative power to adjoining property owners. The Court cited 38 C.J., 578, which is solely on the question of the procedure of mandamus. It cited State v. Fuller, 18 S.C. 246, on the question of mandamus. It cited Douglas v. City Council of Greenville, in 92 S.C. 374, 75 S.E., 687, 49 L.R.A. (N.S.), 958, where Douglas desired to build a livery stable and for that purpose he bought a lot in the City of Greenville and announced his intention of building a livery stable thereon, and thereafter applied for a permit to build a livery stable and to operate a livery, feed and sales stable on the lot. He obtained the permit; but his neighbors objected to his building the livery stable and on November 7, the City of Greenville adopted an ordinance which provided that it would be unlawful for any person, firm, company or corporation to open and conduct a livery, feed and sales stable, or other similar institution within the city limits at any place at which a similar business had not been conducted immediately preceding the passage of this ordinance; and the ordinance further provided that in considering whether or not said license would be issued that the city council would have the right to take into consideration the proximity of the proposed stable to shipping facilities; to avoid or prevent the danger to pedestrians by large numbers of animals; the presence or absence in a densely populated neighborhood; the nearness to churches, schools or other institutions; whereupon Douglas then commenced an action in the Court attacking the ordinance. Judge Hydrick wrote the opinion of the Court, and he placed it solely on the ground of a health ordinance.
In this case, there is no livery stable affecting the health; all these questions have been solved by the Town of Woodruff; so, also, the issue of morals. All questions have by the ordinance been resolved in favor of Wilbur Willis, and correctly so.
Moreover, in pursuance of this ordinance, Willis has spent considerable money in buying material and in beginning the work on his building.
It is therefore ordered that the permit which has heretofore been issued to Wilbur Willis by the Town of Woodruff be and the same hereby is declared valid and lawful in each and every respect.
It is further ordered that the Town of Woodruff, its officers, agents and servants, be and they hereby are permanently enjoined and restrained from arresting or in any wise interfering with Wilbur Willis in erecting the said filling station under his said permit.
It is further ordered that the report of the Master, LeRoy Moore, be and the same hereby is adopted and made the order of this Court the same as though it were copied herein, and that all exceptions to the report of the Master be and they hereby are overruled.
Mr. W.M. Swink, of Woodruff, and Mr. Sam R. Watt, of Spartanburg, Counsel for Appellants, cite: As to error of Trial Court in overruling demurrer in action to enjoin Criminal Prosecution: 74 S.C. 480, 50 S.E., 110; 150 S.C. 277, 148 S.E., 66. As to error of Trial Court in holding that Council had exhausted its power in issuing Permit: 157 S.C. 496, 154 S.E., 756; 92 S.C. 374, 75 S.E., 687; 43 C.J., pages 345-349, inclusive.
Messrs. L.G. Southard and Messrs. Whiteside Taylor, all of Spartanburg, Counsel for Respondent, cite: As to error of Court in overruling demurrer in action to enjoin Criminal Prosecution: (Counsel here differentiate the Cain v. Daly ( 74 S.C. 48, 55 S.E., 110, 112) line of cases from the instant case); (Tex.), 10 S.W.2d, at p. 151. As to error of Court in holding that Council had exhausted its power, having issued Permit: 19 R.C.L., 815, par. 119, and par. 134 at p. 830; 43 C.J., 245; 226 U.S. 140; 103 S.W., 289, 11 L.R.A. (N.S.), 708; 40 A.L.R., 928: 184 N.W., 823, 23 A.L.R., 1322; 89 F.2d 221; 144 A., 578; 134 N.Y., 163, 31 N.E., 443.
June 10, 1942. The Opinion of the Court was delivered by
We adopt the statement in the Transcript of Record.
"This action was commenced on or about January 22, 1940, by the service of a summons and complaint, in which complaint the plaintiff seeks to permanently enjoin and restrain the defendants from interfering with the erection and construction of a filling station building in the Town of Woodruff, South Carolina. The plaintiff alleges that he secured a permit from the building inspector of the Town of Woodruff, authorizing the erection and construction of the building, and alleges that the chief of police had arrested certain employees of the plaintiff for a violation of the ordinance of the Town of Woodruff, making it unlawful for a person to work on the construction of a building where a permit had not been first obtained.
"On this verified complaint, a rule to show cause was issued by Honorable T.S. Sease, Circuit Judge, on January 22, 1940, requiring the defendants to show cause before him on January 27, 1940, why they should not be enjoined and restrained pendente lite from doing any of the things and committing any of the acts complained of by the plaintiff in the complaint.
"The defendants filed a demurrer to this complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and which grounds are hereinafter set out in full. This demurrer was overruled by an order passed by Honorable T.S. Sease, Circuit Judge, on May 17, 1940, which order is hereinafter set forth.
"The defendants answered, denying all material allegations of the complaint, and allege that if the plaintiff held any permit that the same was issued without authority and in violation of the ordinance of the Town of Woodruff, and was therefore null and void.
"The matter was referred to the master for Spartanburg County, who took the testimony and reported his findings and conclusions of law and fact to the court, and recommended that the relief sought for in the complaint be granted.
"The defendants excepted to this report, and after hearing the matter, Honorable T.S. Sease, Circuit Judge, passed an order on June 16, 1941, granting the relief prayed for in the complaint.
"In due time, the defendants served notice of intention to appeal to the Supreme Court from the judgment entered, or to be entered, and now appeal from the order passed by Honorable T.S. Sease, Circuit Judge, on May 17, 1940, overruling the demurrer, and from the order passed by Honorable T.S. Sease, Circuit Judge, on June 16, 1941, and from the judgment entered, or to be entered, thereon."
If the decree of Judge Sease is to be affirmed, then consideration of appellants' exceptions in regard to Circuit Judge's refusal to sustain demurrer to the complaint of respondent would be an idle gesture.
After careful study of the record in this case we are of the opinion that the decree of Judge Sease disposes of the issues in this case. An attempt to add to the well-considered decree of the Circuit Judge would serve no useful purpose.
Let the decree of Judge Sease be reported.
All exceptions are overruled and judgment affirmed.
MR. CHIEF JUSTICE BONHAM, MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGE E.H. HENDERSON, ACTING ASSOCIATE JUSTICE, concur.