December 22, 1923. The opinion of the Court was delivered by The following statement appears in the record:
"This is an action brought against the town of West Greenville and Southern Railway Company, for damages alleged to have been sustained by plaintiff, by reason of the closing of the street on which plaintiff's property abuts. It was commenced in the Court of Common Pleas for Greenville County, in November, 1919. The defendants answered, and the case was set down for trial at the November term, 1920. Upon the call of the case the defendant Southern Railway Company, in pursuance of notice to that effect, demurred to the complaint as not stating facts sufficient to constitute a cause of action against said defendant. The trial Judge sustained the demurrer, whereupon plaintiff appealed. This Court confirmed the judgment below on the demurrer. The case is reported in116 S.C. 248; 107 S.E., 902.
"The case was again set down for trial, before Judge R.W. Memminger and a jury, at October term, 1921. Upon the call of the case the defendant town of West Greenville, in pursuance of notice to that effect, demurred to the complaint as not stating facts sufficient to constitute a cause *Page 493 of action. The trial Judge sustained the demurrer, and this appeal is from the judgment entered on said order.
"The demurrer was argued with the ordinance of the town of West Greenville, a copy of which was attached to the complaint and considered as a part of the complaint for the purpose of passing upon the demurrer."
The grounds upon which the respondent demurred to the complaint are as follows:
"(1) It appears upon the face of the complaint that the street in question was closed by the town council of West Greenville acting within their powers as a municipal corporation.
"(2) It appears upon the face of the complaint that the plaintiff has not suffered any damage peculiar to himself, and different in kind, though not in degree, from that suffered by the public generally.
"(3) It appears upon the face of the complaint that the plaintiff's property, claimed to have been damaged by the closing of the street in question, does not abut upon the portion of said street vacated, as alleged.
"(4) That admitting all the facts in the complaint, the issue has already been decided against the plaintiff, by the Supreme Court of South Carolina."
At the close of the argument his Honor, the Circuit Judge, in a mere formal order, sustained the demurrer, and dismissed the complaint.
The plaintiff appealed upon the following exceptions:
"(1) That his Honor erred in not overruling the demurrer of the town of West Greenville to the plaintiff's complaint, and in dismissing the Complaint, and in failing to hold that said complaint set out a good cause of action against said defendant, for the following reasons:
(a) The ordinance under which Woodside Avenue was closed was not a legislative exercise of the municipality's police power, but on the contrary a mere exercise of its *Page 494 ministerial or administrative powers in making a business contract.
"(b) Said contract was unlawful and void because it was an attempt by the municipality to barter away its right to close streets in return for the opening of other streets by the Southern Railway Company.
"(c) The ordinance being based on an unlawful and void bargain between the town of West Greenville and Southern Railway Company is itself void, and the town of West Greenville is liable to plaintiff for such damage as he sustained by reason of the acts of the town of West Greenville done under said ordinance.
"(d) The acts of the town of West Greenville in obstructing and closing Woodside Avenue constituted an unlawful and unconstitutional invasion of plaintiff's rights as an abutting property owner, entitling him to damages.
"(e) The complaint stated a cause of action against the town of West Greenville for unlawful street obstruction resulting in a special and peculiar damage to plaintiff as an abutting property owner.
"(f) The damage to plaintiff consequent upon the closing of Woodside Avenue was a taking of property within the meaning of the State and Federal Constitution, entitling him to damages.
"(g) It was unlawful for the town of West Greenville to close Woodside Avenue under the facts set forth in the complaint and admitted by the demurrer."
The complaint and the ordinance (which is made a part thereof) will be reported.
In order to discuss, understandingly, the powers which the respondent was authorized to exercise, we quote the following provisions in sections of the Code of Laws of 1912:
Section 2946: "The said city or town council shall have full power to make, ordain and establish all such rules, by-laws, regulations and ordinances respecting its roads, *Page 495 streets, markets, police, health and order of said city or town, as shall appear to them necessary and proper for the security, welfare and convenience of the said city or town, or for preserving the health, peace, order and good government within the same. * * *"
Section 2951: "The said city or town council shall have power, and it shall be their duty, to keep in good repair all the streets, ways and bridges, within the limits of said city; and for such purpose they are invested with all the powers, rights and privileges within the limits of said city that are now given or that may hereafter be given to the County Board of Commissioners of the several Counties of this State, as to the public roads. * * *"
Section 2994: "The city councils and town councils of the cities and towns of the State shall, in addition to the powers conferred by their respective charters, have power and authority to make, ordain and establish all such rules, by-laws, regulations and ordinances respecting the roads, streets, markets, police, health and order of said cities and towns, or respecting any subject as shall appear to them necessary and proper for the security, welfare and convenience of such cities and towns, or for preserving health, peace, order and good government within the same. And the said city or town councils may fix fines and penalties for the violation thereof, not exceeding one hundred dollars' fine or thirty days' imprisonment: Provided, that such rules, by-laws and ordinances shall not be inconsistent with the laws of this State."
Section 3065: Whenever the mayor and aldermen of any city or the intendent and wardens of any town in this State shall think it expedient to widen, open, lay out, extend or establish any street, alley, road, court or lane, they shall have power to purchase the lot, lots or parts of lots of land necessary for such street, alley, lane, road or court, and the fee simple of said land shall be vested in said city or *Page 496 town for the use of the public from the day of the deed of sale."
It appears upon the face of the ordinance, that the municipality undertook, not only to exercise its power of police, but likewise to enter into a contract with the Southern Railway Company.
In so far as the ordinance conformed to the requirements of law, it was a protection to the municipality, in the exercise of its power of police; but it was not allowed to violate Article 1, § 17, of the State Constitution, which provides, that "private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor," nor Article 1, § 5, of that Constitution which provides, "Nor shall any person be deprived of life, liberty or property without due process of law;" nor the Fourteenth Amendment of the Federal Constitution which provides, "Nor shall any State deprive any person of life, liberty, or property, without due process of law."
The following decisions show that the ordinance is in violation of the said Constitutional provisions and subjected the town of West Greenville to liability for damages to the plaintiff: State v. Earle, 66 S.C. 194;44 S.E., 781. Railroad v. Burton, 67 S.C. 515; 46 S.E., 340.Town of Brunson v. Youmans, 76 S.C. 128;56 S.E., 651. Faust v. Richland County, 117 S.C. 251;109 S.E., 151.
In so far, however, as the contractual relations between the defendants are concerned, the municipality did not have the power to enter into them. The ordinance in this respect is against public policy, ultravires, and does not prevent the municipality from exercising its power of police, in the future, just as if no contractual relations with the Southern Railway Company had been attempted. *Page 497
The authorities cited by the appellant's attorney fully sustain the proposition that such contracts are against public policy, and therefore void.
Reversed and remanded for new trial.
MESSRS. JUSTICES FRASER and MARION concur.
MR. ACTING ASSOCIATE JUSTICE SHEPPARD concurs in the result.
MR. JUSTICE COTHRAN, disqualified.