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State v. City of Cape May et al.

heights, was sustained as a reasonable exercise of the police power, under statutes conferring the right of regulation of the use of the streets. State v. Janesville St. Ry. Co. (1894), 57 N. W. Rep. 590. It must, at this day, be conceded that municipal authorities having the regulation of the use of streets have the power to pass all ordinances to reasonably guard and secure ordinary public safety and convenience, whether in relation to the construction of the road or its equipment. Ordinances to regulate street railways, when reasonable, are valid. State v. Madison St. R.

Co., 72 Wis. 612; State v. Hilbert, 72 Wis. 184. What can be more reasonable and necessary for the protection of the ordinary travel and use of a street than that an electric car, capable of being driven at a high rate of speed, should have attached guards of some kind or other against accident and injury. The test is whether it is reasonably designed to guard some public or private right from threatened injury from the operation of these cars. Tied. Lim. 597-599. Upon reason and authority, this ordinance is justified as an exercise of reasonable municipal or police power in behalf of the protection of the public engaged in ordinary business or travel upon the streets of the city. The precise kind of fender is not regulated by this ordinance, but it is neither uncertain nor unreasonable because of this. The term "fender" is well defined and readily understood as a guard and protection against danger, and it is left to the prosecutor using a reasonable discretion, and without trick or evasion, to supply a proper and reasonable device to satisfy the plain meaning of the ordinance. The object of the ordinance can be easily effectuated; nor is there anything in the ordinance to prevent the prosecutor, from time to time, from changing a fender once adopted to one more suitable and one more effectual in subserving the purpose of the ordinance. But a bona fide reasonable observance of this ordinance is required by reason of its being a legal exer

State v. Sloan, Mayor, and another.

cise of the power of municipal control, and it is not an invasion of the franchise of the prosecutor, nor an interference with the operation of its street railway or its business. It is a regulation at the same time reasonable, necessary, and salutary, and entirely within the power of municipal control, vested in the city council of the city, and the procedings thereof in the adoption of this ordinance, and the ordinance also, must be affirmed, with costs.

NOTE.-See note to Grand Av. Ry. Co. v. People's Ry. Co., post.

STATE

EX REL. COLUMBIA ELECTRIC STREET RAILWAY, LIGHT & POWER COMPANY v. W. McB. SLOAN, MAYOR,

AND ANOTHER.

South Carolina Supreme Court, Nov. 25, 1896.

ELECTRIC STREET RAILWAY.-MUNICIPAL CONTROL.

Under a statute giving the municipal authorities of a city power to make all such ordinances relative to streets as they may think proper and necessary, held, that the authorities had power to require that electric street cars should not be run without conductors. This in view of the facts (1) that the company in question succeeded to the rights and duties of another company whose license to use the streets was given subject to amendment or alteration by the municipal authorities; and (2) that when applying for leave to change from horse to electric power, the company caused an ordinance to be drafted, which was enacted by the common council, declaring that the permission was given subject to the reserved right to regulate the manner of operating the railway.

APPEAL by defendant from order of Richmond County Common Pleas, Circuit Court, granting writ of prohibition. The following exceptions were taken by the defendants:

"The respondents above named except to the judgment and order of Judge TOWNSEND granting the writ of prohibi

State v. Sloan, Mayor, and another.

tion in the above-entitled proceeding, of date August 5, 1895, upon the following grounds: (1) Because his honor erred in ordering that the writ of prohibition do issue, and in holding that the city council of Columbia had no authority delegated to it by the Legislature of the State of South Carolina to regulate the petitioner's domestic affairs in such manner as it has undertaken to do by the ordinance in question. (2) Because his honor erred in not holding that the Legislature of the State of South Carolina had delegated authority to the city council of the city of Columbia to pass the ordinance making it unlawful for street cars to be run in the streets of the city of Columbia without a conductor, and to impose a fine of not more than forty dollars for a violation thereof. (3) Because his honor erred in not holding that the ordinance in question was a necessary and proper exercise of the police power of the city of Columbia, under the charter granted to said city by the Legislature of the State of South Carolina, to make 'All such ordinances, rules and regulations relative to the streets and markets of said city as they may think proper and necessary, and to establish such by-laws not inconsistent with the laws of the land as may tend to preserve the quiet, peace, safety and good order of the inhabitants thereof.' (4) Because his honor erred in not holding that the franchise granted to the petitioner to operate an electric street railway in the city of Columbia was subordinate to the right of the city, under its charter, to make reasonable rules and regulations for the operation of said electric street railway, and erred in not holding that the ordinance requiring a conductor as well as a motorman was a reasonable regulation. (5) Because his honor erred in not holding that the petitioner could, under its charter, construct or acquire an electric street railway through and upon the streets of the city of Columbia only with the consent of city council, and erred in not holding that the city council of Columbia, in giving its consent, had the right to attach

State v. Sloan, Mayor, and another.

thereto any reasonable rules and regulations for the operation of said road, and had also the right, when giving its consent, to reserve the power, after the building of said road, to make such further rules and regulations for the operation thereof as in their judgment the public safety and welfare might demand, and erred in not holding that the ordinance making it unlawful for electric cars to be run without conductors in the streets of the city of Columbia was a regulation authorized to be made under the reservations which were attached to the city's consent for the occupation of its streets for the purposes of said electric road. (6) Because, if his honor's order was intended, or can be construed, as authorizing the writ of prohibition to restrain the enforcement of any part of the ordinance, other than so much thereof as makes it unlawful for electric cars to be run in the streets of the city of Columbia without conductors, then he further erred. therein upon the grounds above mentioned, and also upon the further ground that the validity of the remainder of said ordinance was not at issue before him, and no question was made or raised at the hearing in regard thereto.” John P. Thomas, Jr., for appellants.

John T. Sloan and W. H. Lyles, for respondent.

GARY, J.: The petitioner herein made application to his honor, Judge D. A. TOWNSEND, for a writ of prohibition to restrain and prohibit the mayor and chief of police aforesaid from enforcing an ordinance of said city making it unlawful for the said company to operate its electric street cars upon the streets of Columbia unless the same were in the charge of conductors. The said ordinance provides that a violation thereof shall be punishable by a fine. not exceeding $40. After trial for a violation of said ordinance, the petitioner company was sentenced to pay a fine of $10; hence the application for the writ of prohibition. The petitioner alleged, as grounds for the writ, that the ordinance aforesaid was ultra vires, null and void, and that the

State v. Sloan, Mayor, and another.

The

mayor did not have jurisdiction in the premises. application was heard and decided by his honor, Judge TOWNSEND, upon the petition, answer of the mayor and chief of police, and exhibits set out in the case. His honor, Judge TOWNSEND, granted an order allowing the writ to be issued, from which order the mayor and chief of police have appealed to this court upon exceptions which will be set out in the report of the case.

There seems to be no dispute as to the facts, and the question is, therefore, one of law, to wit, whether the ordinance was ultra vires, and the mayor without jurisdiction to impose the fine. It is alleged in the answer, "that, in the judgment of the city council of the city of Columbia, the passage of the said ordinance was necesary for the safety and protection of the inhabitants of the city of Columbia; that the operation of electric cars in charge of motormen, without conductors, in the streets of the city of Columbia, is dangerous to the lives of its citizens; and that the ordinance in question is a necessary and proper exercise of the police power of the city of Columbia, and its enforcement is necessary for the safety of the inhabitants of the city, and for the proper regulation of traffic upon the streets of said city." It is contended that the Legislature conferred upon the city of Columbia power to make said ordinance by the act of 1871 (14 St. at Large, 569), section 10 of which provides:

And the said mayor and aldermen shall have, and they are hereby vested with full and ample power from time to time, under their common seal, to make all such ordinances, rules and regulations relative to the streets and markets of said city as they may think proper and necessary, and to establish such by-laws not inconsistent with the laws of the land as may tend to preserve the quiet, peace, safety and good order of the inhabitants 'hereof; and the said mayor and aldermen, or the said mayor alone, may fine, and impose fines and penalties, for violations thereof, which may be recovered in a summary manner, to the extent of forty dollars, before them in council, or before him alone, subject to the right of appeal as herein before provided.

The Columbia Street Railway Company was, prior to

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