Clegg v. City of Spartanburg , 132 S.C. 182 ( 1925 )

The universal rule is that a municipality cannot by ordinance declare that to be a nuisance which is not so at common law nor by statute. McQuillin Mun. Ord. (1904 Ed.), § 441. It is conceded that the operation of a pool room is not a nuisance per se. It certainly has not been made so by statute, for the statute provides for the issuance of a license by the Clerk, a statutory officer, pro hac vice representing the State, for the operation outside of municipalities; and the case of Thomas v.Foster, 108 S.C. 98; 93 S.E., 397, is authority for the statement that the operation inside the municipality is less of a nuisance than outside. The case of Murphey v. California,225 U.S. 623; 32 S.Ct., 697; 56 L.Ed., 1229; 41 L.R.A. (N.S.), 153, I think, would be conclusive, but for this distinguishing circumstance. It wakes a memory ofScott v. Donald, 165 U.S. 58, 107; 17 S.Ct., 262, 265; 41 L.Ed., 632, 648, and Vance v. Vandercook, 170 U.S. 438;18 S.Ct., 674; 42 L.Ed., 1100.

MR. JUSTICE WATTS concurs.