The opinion of the court was delivered by
Mr. Justice Pope.This action, wherein the city council sought to recover the sum of $1,157.10, with interest, from Doris Werner, the defendant, as the expense incurred by the former, under the provisions of the law of this State, in filling up the lot of the latter, in the city of Charleston, because said lot, in its unimproved condition, endangered the public health, came on for trial at the spring term, 1895, of the Court of Common Pleas for Charleston County, in this State, before his honor, Judge Watts, and a jury. After the plaintiff closed its testimony, on defendant’s motion, the Circuit Judge granted an order, in various forms, for non-suit, on the ground “that the words, ‘lot or grounds,’ in the *324statute are to be construed as vacant” lots or grounds, and that in estimating the value of said “lots or grounds, the buildings and the improvements thereon cannot be taken into consideration, and that the testimony introduced by the plaintiff shows that the value of said lots and grounds, independent of the buildings and improvements thereon, does not exceed the sum of $2,000, whereas the costs of the filling is admitted to be $1,157.10.” It might be added to these words, such amount, $1,157.10, being more than, one-half of the value of such lot or grounds, independent of the buildings and improvements thereon, as required by the statute, to enable plaintiff to recover. Plaintiff appeals from such order for nonsuit, and defendant gives notice, in the event plaintiff appeals, she will rely upon two other grounds to support the nonsuit: first, that the notice to Mrs. Werner and the proceedings had thereunder had reference to a lot described in said notice, and not the lot described in the complaint; second, that it appears, in the testimony introduced by the plaintiff, that the estimated cost submitted to the city council of Charleston by the authorized officers for that purpose exceeded one-half of the value of the lot at the time this notice was issued, and it appears in the testimony that the value of the lot has not increased from that time.
This action has been before this court once before on appeal. It is reported in 38 S. C., 488. In that judgment all the nice questions of constitutional law raised in the pleadings are disposed of. Besides, Judge McGowan, as the organ of the court, took pains to point out the distinction between the present action and those cases where the right of taxation, local or general, were considered, holding that the city of Charleston was proceeding, in this instance, under the police power of the State. It seems that the very last point in Judge McGowan’s opinion escaped the vigilant eye of the Circuit Judge, Judge Watts, if we may judge from the observation he let fall, in granting a non-suit, when he said the North Carolina case (City of Raleigh *325v. Peace, 14 S. E. Reporter) controlled him, for that latter case was confined exclusively to a discussion of the law regulating local taxation. It may be' that this very failure to grasp the law, as laid down in the previous decision of this court, wherein it was decided, as before stated, that this exercise of power by the city council was not referable to its taxing power, but was to its police power, in promoting the health of the city, is what led the Circuit Judge to make the ruling he did, and of which the appellant now complains. The act of 1830, under which the city council claims to act in the premises, we do not think warrants the construction placed upon its terms by the Circuit Judge. The terms of the act (7 Stat. at Large, 144,) speaks of “a.ny lots or grounds within the city of Charleston belonging to any person or persons,” “the owners of such lots or grounds,” “said lots or grounds.” It nowhere refers to any portion of any lot or grounds, or that the value of the same shall not include the buildings thereon. We take it that the legislature meant what they said, any lot or grounds within the city of Charleston, and not what they did not say, any part of a lot or ground within said city, exclusive of the buildings thereon. All that the amendatory act of 1893 (18 Stat. at Large, 287,) did was to supply the power to the city council, in those cases where the estimated expenses exceeded one-half of the value of the lot or grounds, to sell said lot or grounds to reimburse the city for the money expended in their improvement, so as not to affect the public health. The testimony at the trial was, that the defendant bought and held this lot under a title for the whole, in the same plight as to the buildings thereon as they now exist; that she had not claimed their tenure under any other source of title. The whole parcel of land was her lot, her grounds. By what power the court could view it in any light than as a whole we cannot see, except that an irregular part thereof needed filling up, while the remaining irregular part thereof did not need filling up, in order to protect the public health. If the lot or grounds were to *326be considered as one whole, where was there any authority in the act in question to disregard the buildings on such lot in reaching its value? We cannot see. It follows, therefore, that a new trial must be had, unless the matters embraced in the notice of the defendant should prevent such a result.
After a careful consideration of the papers in evidence, we do not see that any other lot than that set out in the complaint was referred to in any notices served upon Mrs. Werner, the defendant. The truth is, she owned but one lot, and every map referred to a needed improvement by filling up so many cubic yards on her lot. We followed the ingenious and able argument of her counsel very closely, when it was delivered at the bar of the court, and we have reflected upon it since, but we are unable to agree with him. So, too, as to his second proposition, if we could agree that the act of the legislature contemplated that only so much or that part of a lot which was filled up should respond to the reimbursement of the city for the costs of such filling, we would agree to his view of the testimony, but we cannot. The whole lot was valued at from $4,000 to $5,000, in the testimony offered at trial, and the amount sued for is only a little more than one-fourth of that value.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to that court for a new trial.