The dissenting opinion heretofore filed by me is withdrawn, and this opinion is submitted as a dissenting opinion to the opinion of the majority of the Court, and as a dissenting opinion to the proposed order dismissing the petition for a rehearing.
I respectfully suggest that it does not appear to me to have been apprehended by a majority of the Court, that the appeal in this case involves the sole issue, a procedural question *Page 511 simply, whether Judge Shipp committed error in referring the case to the master, to take and report the testimony upon the issues presented by the petition and return. He either had, or he did not have, that authority; if he had the appeal must be dismissed; if not, the case is still upon the docket of Orangeburg County for trial upon the issues presented; it cannot rightly be dismissed upon the ground of error in referring the case, when there has been no decision upon the merits in the Court below, and of course no appeal from such a decision.
As a matter of fact, there could have been no decision by Judge Shipp upon the merits if he had attempted to make one, for the case was pending in Orangeburg County, and the application for a reference was to him in Berkeley County, where, under the cases following, he was without jurisdiction to decide the case upon the merits: La Mottev. Smith, 50 S.C. 558, 27 S.E., 933; State ex rel. Cunninghamv. Williams, 52 S.C. 416, 29 S.E., 814; Stateex rel. Kirven v. Scarborough, 70 S.C. 288, 49 S.E., 860.
So that there was not only no decision upon the issues presented (upon the merits of the case), but, at the time and place, and by the particular Circuit Judge who was neither the resident nor the presiding Judge in the County of Orangeburg, none could have been made.
The judgment of this Court presents the anomaly of a decision upon the merits, when there has been no such decision by the Circuit Court, and of course no appeal therefrom.
The petitioner owned a lot in the City of Orangeburg; she wished to make, in her judgment, the most profitable use of it by erecting, or permitting to be erected by others, a filling station upon it.
On account of the ordinance set forth in the opinion of Mr. Justice Carter, it became necessary for her to apply to the City Council for permission to erect the filling station, which she did. *Page 512
Upon receiving her application for the permit, the matter was brought before the Council, and, after hearing affidavits on both sides, the Council passed a resolution refusing the permit, basing their refusal entirely upon the affidavits of physicians to the effect that the installation would prove injurious to patients in the hospital.
The petitioner then instituted the present proceeding, by a petition in the Court of Common Pleas, for a writ of mandamus, to compel the City Council to grant the permit, upon the ground that the action of the Council in refusing her relief was arbitrary and without good cause; "that there was no valid or sound reason for such refusal and that the same constituted a violation of her legal rights and will result in great loss to her in her aforesaid property rights and will prevent her from using and enjoying her property as she has a right so to do under the laws of this State and of the United States of America."
The petition was served upon the City Council, and with it was an order of his Honor, Judge Shipp, signed at St. Matthews, requiring the respondents in that proceeding, to show cause before him, at Moncks Corner, in the County of Berkeley, on a day named (December 8, 1927?), why the writ should not be granted as prayed for.
To this order or rule to show cause, the respondents, in that proceeding, made a return, in which they relied upon the ordinance referred to, which empowered them to refuse the permit when in their judgment the installation of the proposed filling station would be so near to the City Hospital "as to prove injurious to it." I assume, though it does not distinctly so appear in the transcript, that along with, and as parts of the return, were a resolution of the City Council refusing the permit, upon the ground stated, and certain affidavits of physicians and others, sustaining the ground of refusal.
The return stated that the Council were "honest, conscientious and sincere in carrying out their duties under the *Page 513 ordinance quoted above, and that while they were reluctant to refuse the permit requested they were impelled to do so on account of the affidavit, submitted by Dr. C.A. Mobley and Doctors G.M. Truluck, H.T. Schiffley, George H. Walter, and C.I. Green, all reputable practitioners and known to them as citizens of the highest type and skilled in their profession."
It will be observed that the resolution, with the supporting affidavits was passed and was used in the refusal of the request for the permit, after the hearing before the City Council. They were irrelevant and hearsay in support of the return.
It does not appear that the respondents in that proceeding have ever filed an answer to the petition for the writ. By common consent, however, it appears that the return has been treated as an answer.
The hearing of the rule then came up for hearing (I assume on December 8, 1927, as that is date of the order of Judge Shipp), before Judge Shipp who signed an order of reference as follows:
"This matter having come before me upon return to a rule heretofore issued requiring the respondents to show cause why a writ of mandamus should not be issued requiring it and them to grant a permit to the respondent to construct a filing station upon her property in said City; andit appearing that such return traverses the petition and raisesissues of fact; so now, upon consideration thereof and upon motion of petitioner's counsel, it is
"Ordered that this proceeding be and hereby is referred to Edward C. Mann, Esq., Master of Orangeburg County, to take such testimony therein as the parties may desire to offer; and to report such testimony to this Court with all convenient speed."
From this order the respondents in that proceeding have appealed. *Page 514
It will be noted that in the order of his Honor, Judge Shipp, he held that the return of the City Council traversedthe petition, and "raised issues of fact."
The petitioner alleges that the property belonged to her; a fact not disputed; the title and possession carried the right to a reasonable use of the property, consistent with the laws of the land; she had the right therefore, prima facie, to establish a filling station upon it; a right, however, which might be defeated by a showing, on the part of the City Council, that the proposed occupation would violate the terms of the ordinance. She alleges also that the refusal of the permit was without any valid or sound reason and destructive of her property rights.
If those allegations were not sufficient to apprise the City Council of the position taken by the petitioner, their remedy was clear, by motion, to make more definite and certain. They chose not to do this, but to meet the petitioner upon common battle ground, without further detail, by attempting to show that the operation of the station would be prejudicial to the health and comfort of the patients in the hospital. They admit that they were controlled entirely by the opinions of the physicians upon this point, opinions that might or might not be justified by the facts. I do not suppose that any one would contend that a filling station was a nuisance per se. It may be or become so by reason of the methods of operation or its location under peculiar conditions. Clearly that presents an issue of fact.
The law seems clear that, where there are issues of fact in the case, the Circuit Judge may take the testimony and decide the issues or refer the matter to a referee either to pass upon all issues of fact and law or to take the testimony and report it for this decision.
In 18 R.C.L., 355, it is said: "But while there may be a few authorities to the contrary, the general rule in the absence of statute is that proceedings in mandamus are not within the constitutional provision securing the right to trial *Page 515 by jury, and hence that neither party can demand as of right a jury trial in such a proceeding, but that it is discretionary with the Court, after issues of fact have been joined by the pleading, to decide such issues itself, or to order them to be tried before a jury or before a referee." That was the practice adopted in State v. Mayor, etc., of City of Columbia,22 S.C. 582.
Another objection that I have to the conclusion of the majority in this case is that it is proposed to deprive this woman of a legitimate use of her property with little evidence as to the situation, the distance from the filling station to the hospital, the exposure, the noise, the effect upon patients and other considerations that would justify denying to the petitioner at least her prima facie rights. Some tribunal, the Circuit Court first, should decide the issue with all the facts before it. Up to this moment no tribunal has decided that the petitioner's property is a nuisance. If there be no good and valid reason for doing so, the taking would be arbitrary and capricious.
I do not think that there can be a question as to the authority of a municipality, in the exercise of its police power, to adopt an ordinance regulating the location of certain establishments, which, though not nuisances per se, may be or become such by reason of the particular location and the immediate injury to citizens thereby.
It appears, too, as well settled as the foregoing proposition, that "The power of the Legislature to authorize municipalities to regulate and suppress all such places or occupations as, in its judgment, are likely to be injurious to the health of its inhabitants, or to disturb people living in the immediate neighborhood by loud noises or offensive odors, is so clearly within the police power as to be no longer open to question. * * * As the dispensing powers must be vested in some one, it is not easy to see why it may not properly be delegated to the municipal assembly which enacted the ordinance." Fischer v. St. Louis, 194 U.S. 361, *Page 516 24 S.Ct., 673, 48 L.Ed., 1018, quoted with adoption by this Court in Douglass v. City Council, 92 S.C. 374,75 S.E., 687, 689, 49 L.R.A. (N.S.), 958. At the same time the Court in the Douglass case said: "Although it should be a matter resting in discretion, the Court would nevertheless compel its performance, if its refusal should be based upon a conclusion which is without foundation in fact — in other words, if the refusal is arbitrary or capricious. Mauldin v.Matthews, 81 S.C. 414, 62 S.E., 695, 128 Am. St. Rep., 919."
If, as alleged in the petition, there was under the circumstances no valid or sound reason on the part of the City Council for refusing the permit, an issue joined by the allegations of the return, the refusal was "arbitrary and capricious," in the language of the Douglass case. That issuecould not possibly be solved in an appeal from the order ofreference.
In Symmonds v. Novelty Cemetery Ass'n of Knox County (Mo.App.), 21 S.W.2d 889, the Court held, quoting syllabus: "Use of property will not be restrained as nuisance unless use is ipso facto nuisance or facts are charged showing it must become one."
If, as alleged in the petition, there was no valid or sound reason for refusing the permit, then the application of the ordinance to the particular petitioner was unreasonable, a sufficient ground in itself to entitle the petitioner to relief.
I concede that the ordinance is valid upon its face; that being so, the burden would fall upon the petitioner to show a state of facts which would render its application to her unreasonable.
In 2 Dillon M.C. (5th Ed.), § 591, it is said: "When the ordinance is within the grant of power conferred upon the municipality, the presumption is that it is reasonable, unless its unreasonable character appears upon its face. But the Courts will declare an ordinance to be void because unreasonable upon a state of facts being shown which makes *Page 517 it unreasonable. If the ordinance is not inherently unfair, unreasonable or oppressive, the person attacking it must assume the burden of affirmatively showing that as applied to him it is unreasonable, unfair and oppressive. And an ordinance general in its scope may be adjudged reasonable as applied to one state of facts and unreasonable when applied to circumstances of a different character."
The operation of a filling station is legitimate; there is no business establishment that compares with them in attractiveness and maintenance; their operation is accompanied by the least degree of noise except the stalling of automobiles driven in for service; they are established in business and resident sections everywhere without complaint or objection. I do not feel that the ban of a City Council acting upon the opinions of others should be placed upon them in the absence of a judicial determination that they constitute a nuisance in the particular case.
The City relies upon the legal position that, as the petitioner did not traverse the return of the City, she is concluded by the statements of fact contained in the return. The case of Bryan v. Auditing Board, 94 S.C. 43,77 S.E., 736, 738, is relied upon as sustaining this position. In that case the Court did say that "the return was not otherwise traversed, and the other facts therein alleged must therefore be considered as admitted by the relator." Section 796 of the Code of Civil Procedure 1922, however, specifically gives the petitioner the privilege of traversing the return, but it does not require him to do so. All that the petitioner could accomplish by traversing the return would be to join issue with the respondent as to such facts, and his Honor, the Circuit Judge, has held that without such traverse the parties were at issue upon the facts alleged in the petition and denied by the return.
I think, therefore, that the order of Judge Shipp should be affirmed and necessarily that the petition for a rehearing should be granted. *Page 518