January 17, 1907. The opinion of the Court was delivered by The defendant was convicted before the police court in the city of Charleston for violating the 694th section of the city ordinances of Charleston, S.C. for firing a gun in said city, and was duly sentenced to pay a fine of $10. From this sentence the defendant appealed to the Court of General Sessions of Charleston County on the following two grounds: First, that section 694 of the city ordinances is unconstitutional, null and void, in that it interferes with the constitutional right of the citizen to bear arms, and also discriminates against one class of citizens in favor of another class of citizens, and, second, that the fine imposed is excessive. *Page 41
This appeal, on the aforesaid grounds, came on for a hearing before his Honor, Judge Townsend, who decided that such judgment should be set aside and the defendant discharged. From that decision the city council has appealed upon the following five grounds:
"First. Because his Honor erred in holding as follows: `An examination of the ordinance suggests that its apparent intent and purpose was, in the exercise of the police power of the municipality, to guard against certain risks and annoyances resulting from the unrestricted use of fireworks, making of fires or bonfires in the open and flying of kites, the evident purpose being to restrict the community, not in matters of great moment or necessity but rather in more trivial matters, amusement and pastime.' Whereas, his Honor should have held that the said ordinance was passed in the exercise of the discretion vested in the city of Charleston for the protection of the life and safety of the inhabitants of the city, and not in trivial matters of amusement.
"Second. Because his Honor erred in holding that `by an inconsiderate after thought, the firing of "any gun, pistol or other firearms" was included in the ordinance in such terms as amount to an absolute prohibition, `unless it be on occasion of some military parade.'" Whereas, it is respectfully submitted that the ordinance does not amount to an absolute prohibition of the constitutional right to bear arms, but is a wise and necessary regulation for preserving peace and order within the city.
"Third. Because his Honor erred in holding that the ordinance would in terms deprive the citizen of this right (to bear arms), and is, therefore, in so much as relates to firearms, unconstitutional and void. Whereas, his Honor should have held that the ordinance in question was a salutary and wise regulation of the use of firearms within the limits of the city of Charleston, and was necessary for the protection, security and welfare of the inhabitants of the community. *Page 42
"Fourth. Because his Honor erred in holding that the ordinance in question excepted coopers alone from the operation of a part of the ordinance, on the ground, presumably, of the inconvenience that would result to them in their business, would seem an unjust discrimination in favor of that class of citizens, and might add another element of unconstitutionality to the which has been already adjudged. Whereas, his Honor should have held that defendant was charged solely with the offense of violating that portion of the ordinance which prohibits the firing of a gun within the limits of the city of Charleston, to which the exemption of coopers did not apply, and that even if a portion with which defendant was not concerned of the ordinance would be held unconstitutional, that this would not affect the other portion of the ordinance which was before the Court.
"Fifth. Because his Honor erred in ordering that the judgment of the police court be set aside and the defendant discharged; whereas, his Honor should have affirmed said judgment."
The majority of the Court are of the opinion that the State has the right of appeal in this case. The authorities settle that the State has the right of appeal from an order quashing an indictment. State v. Young, 30 S.C. 399,9 S.E., 355; State v. Bouknight, 55 S.C. 357,338 S.E., 451. In State v. Long, 66 S.C. 398,44 S.E., 960, this Court entertained an appeal in behalf of the State on question raised in a manner similar to this case, treating it in substance as a motion to quash the indictment, or as a demurrer to the indictment. It is true, that the right of the State to appeal was not questioned in that case, but neither is such question made by counsel in this case.
We will now pass upon these grounds of appeal in their order.
First. We do not regard this ordinance unconstitutional and void, the section in question reading as follows: "No person or persons shall fire any squibs, crackers or other *Page 43 fireworks within the city, except at times of public rejoicing, and at such times and places as the mayor may under his hand permit it; or shall burn any chips, shavings or other combustible matter, in any street, lane, alley, or open or enclosed lot, within the city (coopers excepted, who shall be permitted to make fires below the curtain line with the consent of the proprietors of the lots where they carry on their work respectively): or shall fire any gun, pistol or other firearm within the limits of the city, unless it be on occasion of some military parade, and then by the order of some officer having the command; or shall raise or fly any kite or other like paper, in any part of the city, under penalty of ten dollars, or imprisonment not exceeding thirty days, for each and every offense."
An inspection of the section shows that the city council was acting in the course of its duty under the police power when it placed upon its statute book the section in question. It does not prohibit Mr. Johnson, the accused, from possessing a shotgun on his own premises. All it does is to prevent his firing such gun within the city limits, and this is clearly within the power of such city council. 22 Am. E. Ency. of Law, 916, 918; act of the legislature of this State, ratified on August 13th, 1783, where it is held: "That the city of Charleston shall be vested with full power and authority to make and establish by-laws, rules and ordinances respecting the harbor, streets, regulating of seamen or disorderly people, negroes, and in general every other by-law or regulation that shall appear to them requisite and necessary for the security, welfare and convenience of said city, or preserving the peace, order and good government within the same."
The defendant seems to lay great stress upon the fact that such portion of this ordinance as gives the coopers in said city the right to make fires below the curtain line where they carry on their work respectively, discriminates in favor of the coopers and against all other persons, thereby rendering the act unconstitutional. But such is not the *Page 44 case, for it does not interfere with the rights of any citizens, as cooper who may wish to adopt that business in the use of firearms in their business. Even if this ordinance did discriminate against other citizens in favor of coopers, as complained of, all persons, without regard to any business or calling, are prevented from firing guns in the city, which is perfectly constitutional and within the exercise of the police power of the city. It is well known that part of an act is constitutional, even where another part of the same act may be held unconstitutional, as is well said in Penniman's case: "That statutes that are constitutional in part only will be upheld, so far as they are not in conflict with the Constitution; provided, the allowed and prohibited are severable." Citing Packet v. Keokuk, 95 U.S. 80. This ground of appeal is sustained.
Second. It seems that his Honor did err in referring to the exercise of the police power of the city, by stating that it was an afterthought in said city council in providing that the firing of guns or other firearms was an absolute prohibition — the having such gun, etc. There was no absolute prohibition against the possession of said firearms, it was only the firing of the same that was prohibited, and could not be held, therefore, as an afterthought. This ground of appeal is sustained.
The third and fourth grounds of appeal are sustained, in accordance with our views hereinbefore expressed.
As to the fifth ground of appeal, it appears almost of necessity that the Circuit Judge's judgment is erroneous and must be overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed.
MR. JUSTICE WOODS concurs in the result.