The Union times. [volume] (Union, S.C.) 1894-1918, 1897-04-09
DIVIDED ON A. HOG Case.
Question at Issue Was the Power
of Darlington to Exclude Them.
WARD VIOLATED THE ORDINANCE
Under the Law the Authorities Have
the Power to Exclude Rooters From
Cities and Towns.

The town OF Darlington, in this
State, has for several years had an or
dinance providing that 'it shall be un-
lawful for any person or persons to
keep any hog or hogs on any premises
within the corporate limits of the town;
anS any person or persons SO doing
sh q be punished by fine of not less
s&Ap dollars or Imprisonment not
exf eding thirty days, or both, at
the discretion of tho said board of
health.
Mr.. Ward owns q residence on Pearl
street, one of the principal residence
streets of the town of Darlington where
he resides, and owns about six acres,
his enclosure embracing about two
acres. MIR. Ward kept a hog within his
enclosure, the hog being in his lot, not
confined in q pen. There was no re-
port against Mr.. Ward for keeping his
premises in an uncleanly condition,
which appeared to the health officer,
who examined same, to be clean and in
proper general condition.
He was charged with keeping the hog
on the premises in violation of ordi-
nance Mr.. Ward admitted keeping the
hog on the premises, but denied the
power of the council to pass and enforce
the ordinance in question.
Mayor Dargan differed with him, and
imposed fine of $50.
An appeal was taken to the Circuit
Court by Boyd e. Brown, for appel
liant, and Messrs. Woods q Mcfarland
represented the city.
In trial of the case Judge Buchanan
decided against the hog spending his
summers in the town
The case was appealed to the Su-
preme Court and that august tribunal
has been unable to agree, for there was
an equally divided court us to whether
he could be permitted to luxuriate in
the city of Darlington or not. But
under the rules, when the court is
divided the judgement of the lower
court holds, and it is thus that the
Darlington hog will in future have to
do his grunting outside of the corporate
limits.
Justice Jones says that he is unable
to agree to the opinion by Mr.. Justice
Pope, as one sustained by authority
and sound reason. viz: that in order
that the police power may be used by
either the Legislative or municipal
corporation there must appear affirma-
lively that its use is reasonable. The
six page opinion concludes by saying:
eff we had the power, can the Court
say upon the evidence that the Circuit
Judge erred in finding in effect that
the ordinance was reasonable and nee
essary The presumptions are all in
favor of the reasonnbleness of the ordi-
nance. The burden of showing that
the ordinance Is not reasonable is upon
him who asserts it. What evidence was
before the Court to show the ordinance
to be unreasonable, sufficient to over
ride the implied fact of reasonableness
and necessity, issuing from the enact
ment of an ordinance on the recon-
mendation of the board of health
charged with the duty of preserving the
public health Is the power of town
council to preserve the public health to
be measured by the size of Mr.. Wards
lot I? Does the cleanly condition IN
which he keeps his premises relate in
any way to the question whether the
keeping of hogs within the limits of
Darlington is or may become preju-
dicial to the health of the people of the
town?
There are two dissenting opinions,
one by Chief Justice McIver, and an
other by Mr.. Justice Pope. After on
extended legal discussion on the issues,
Mr.. Pope says: "As we before re-
legitimate species of property. and
therefore, in order to forbid their pres
ence in the town of Darlington, in the
lot of corporator as it's owner, some
thing more must be done than was done
in this case to justify the denial of the
defendant of his right to have his prop
erty on his premises freed from this
ordinance. lido not feel that law such
as the police power needs any more dis
cussion at my hands. 1t is too we'll un-
derstood to justify any extended notice
of its general effect"
Mr.. Chief Justice McIver concurs in
the opinion of Mr.. Justice Pope, but
adds few words indicating the differ
ence between this case and that of the
town of Summerville vs.. PRESLEY.
There was nothing, he held, to show
that the keeping of the hog in the two
acre lot was detrimental to health, and
to the contrary the health officer re.
ported the place in good condition, and
aside from this Justice McIver holds
that it is clear to him that the council
had no power to pass such ordinance as
that in question.