Jackson v. City of Columbia

While concurring in the opinion of Mr. Justice Bonham, I wish to make a few observations.

With the greatest respect, of course, for that highly distinguished jurist, Mr. Chief Justice McIver, I never have been quite satisfied with the construction placed by him upon the "enabling statute," relating to the liability of municipal corporations, in the case of Dunn v. Town of Barnwell,43 S.C. 398, 21 S.E., 315, 49 Am. St. Rep., 843, decided in 1895. Therein he construed the Act of 1892 (21 St. at Large, p. 91), incorporated in the Revised Statutes of 1893 as Section 1582 (now Section 7345 of the Code). I think that great Judge paid, perhaps, a little too much attention to the title of the Act, and too little attention to the language of the Act itself.

At the session of the General Assembly of 1892, two Acts, relating to the liability of municipal corporations for damages to persons and property, were enacted, and both were approved by the Governor on the same day, December 24, 1892.

The first Act, No. 40 (21 St. at Large, p. 91), entitled, "An Act Providing for a Right of Action Against a Municipal Corporation for Damages Sustained by Reason of Defects in the Repair of Streets, Sidewalks and Bridges Within the Limits of Such Municipal Corporation," was the one construed in Dunn v. Town of Barnwell, supra.

In the Dunn case the Court evidently did not have its attention called to Act No. 46 of 1892 (21 St. at Large, p. 95), entitled, "An Act to Provide for and Regulate the Incorporation of Towns in This State of One Thousand or More Inhabitants." Section 31 of that Act contained practically word for word the provisions of Act No. 40 of 1892, construed in the Dunn case, as to the liability of municipal corporations for damages to persons and property. The title of Act No. 46 is much broader than the title to Act No. 40. If the attention of the Court had been called to Act No. 46, I venture to suggest that the construction of the statute given in the Dunn case would have been otherwise than that which the Court did give.

At the session of the General Assembly in 1901, there was enacted Act No. 377 (23 St. at Large, p. 648), entitled, "An Act to Provide for the Incorporation of Cities of More Than Five Thousand Inhabitants." Section 22 of that Act (page 657) contained almost the identical language set forth in Section 31 of Act No. 46 and in Act No. 40 of the year 1892, with one notable addition. That addition was a provision in the following language: "Provided, further, that said city shall be liable for all damages done to the property of any citizen thereof or property holder therein by any of the officers, agents or servants under and by virtue of any authority or orders of said City Council."

Evidently, it was the purpose of the Legislature, as to cities containing more than 5,000 population, to alter the effect of the decision in the Dunn case. Unfortunately, however, the last-mentioned provision was not incorporated in the Code of 1902, and it does not appear in any of the subsequent Codes. In the Code of 1902, and in the subsequent Codes, there has been carried only the provisions of Act No. 40 of 1892, construed in the Dunn case, and those provisions are the statutory law of the state to-day on the subject of the liability of municipal corporations for damages to persons and property.

The apparent conflicts in some of the decisions of our Court may be due to the fact that some of the Judges have at times had in mind the title of Act No. 46 of 1892 and the provisions of Section 31 of that Act (page 102) and the proviso in Section 22 of Act No. 377 of 1901.

Since the last proviso, above quoted, of Act No. 377 of 1901 is not incorporated in the Code, that provision is not now a part of the general statutory law of the state, and the Court cannot now give any effect thereto.

See City of Greenville v. Pridmore, 162 S.C. 52,160 S.E., 144; State v. Meares, Superintendent, 148 S.C. 118,145 S.E., 695.

That the law may be plain and the construction of our statutes consistent, and for the purpose of avoiding confusion, I think it better for the Court to follow the holding of Mr. Justice McIver in the Dunn case, which has been adhered to in many decisions thereafter, including, especially, the recent cases of Reeves v. City of Easley, 167 S.C. 231,166 S.E., 120 and Davis v. City of Greenville, 168 S.C. 476,167 S.E., 682. If the General Assembly in the future wishes to make a change in the law, it, of course, has the power to do so.

MR. JUSTICE STABLER concurs.