صور الصفحة
النشر الإلكتروني

Again, the respondent contends that the present enactment is a lawful exercise of the police power inherent in the state as a sovereignty, the exercise looking to the protection of the property of all the citizens of the state. Perhaps no subject is more fraught with difficulty than is the proper limiting and defining of the police power of a sovereign state. Generally, courts refuse to attempt such definition, leaving each case to be decided as it arises. In our state, however, in the comparatively recent case of Stehmeyer v. City Council, 53 S. C. 259, 31 S. E. 322, where this power is discussed at length and numerous authorities are reviewed, the court with deference lays down the following: “The police power is that attribute of sovereignty in a state by which it clothes the legislature with power to regulate persons-natural and artificial-and property, in accordance with the provisions of the state constitution, in all matters relating to the public health, the public morals, and the public safety.” Again, in the case of Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989, it is said: “Whatever difference of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection, health and property of the citizens, and to the preservation of good order and the public morals."

In volume 22, page 938, of the American and English Encyclopedia of Law, the following proposition sustained by much authority is laid down: “In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see (1) that the enactment has for its object the prevention of some offense or manifest evil, or the preservation of the public health, safety, morals or general welfare; and (2) that there is some clear, real, substantial connection 452 between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do in some plain, appreciable, and appropriate manner tend toward the accomplishment of the object for which the power is exercised. The police power cannot be used as a cloak for the invasion of personal rights or private property, neither can it be exercised for private purposes, or for the exclusive benefit of particular individuals or classes." In other words, the exercise must have in view the good of the citizens of the sovereignty as a whole.

This brings us, then, to the question as to whether or not the legislation here under consideration has in view a public

purpose. The money secured from the imposition on the insurance companies is to “be held in trust, and used as a fund for the relief of any member of the fire department of such city or town who may be injured or disabled, and for the relief of, or the payment of gratuities to, the widow or those dependent upon any member of such fire department who may be killed, for the payment of necessary funeral expenses of any member of such fire department, and for the purchase of accident insurance upon the members of such fire departments," and in certain cases to be used for the payment of pensions. New York and Alabama and perhaps one or two other states, proceeding upon the theory that the prevention of conflagrations is a public duty which prior to the establishment of fire departments devolved upon the community, that in discharging these duties, the firemen sustain such relation to the public as to become, in the true sense, public servants, have sustained the position that such enactments are for public purposes : Trustees of Exempt Firemen's Benevolent Fund v. Roome, 93 N. Y. 313, 45 Am. Rep. 217; Phoenix Assur. Co. of London v. Fire Department of Montgomery, 117 Ala. 631, 23 South. 843, 42 L. R. A. 468. In each of these cases, however, the legislation was sustained on the ground that it provided conditions upon which foreign insurance companies would be permitted to carry on business in the state. The above reasoning as to the publicity of the purpose of 453 such enactments was considered and expressly repudiated by the Indiana court in the case of Henderson v. London & Lancashire Ins. Co., 135 Ind. 23, 41 Am. St. Rep. 410, 34 N. E. 565, 20 L. R. A. 827. A like view is maintained in Philadelphia Assn. v. Wood, 39 Pa. 73, where the court uses this language, at page 81: Of course there was a good motive for this. The relief of the disabled firemen is a purpose worthy of society. And firemen contribute much to save insurance companies from losses. And hence, it is inferred that insurance companies ought to contribute to the support of those who have been disabled in working for their benefit. But the same argument might be quite as effectually used as a reason for imposing a burden in favor of this society, upon those who obtain insurance, and much more upon those who do not insure at all. Therefore, since the chief characteristic of justice is its equality, the justice of this provision is very far from being apparent. An untrained and unthoughtful benevolence is very apt to be unjust to those interests which do not attract its special attention." Likewise, in Louisiana v. Merchants’ Ins. Co., 12 La. Ann. 802, the court says, at page 808: “But in the case before us there is no property improved or assessed; all is conjectural and arbitrary; one class of corporations is taxed an invariable sum for the benefit of another class; there is no possibility of ascertaining whether the tax is a quid pro quo; the fire companies are not compelled by the law to do anything for the insurance companies; a bounty is secured to the fire department by confiscating the money of the defendants, without providing that any service shall be rendered to the defendants by the fire departments; and even if this could, for a moment, be regarded as an assessment for benefits conferred, its inequality is glaring; every owner of buildings and other combustible property in New Orleans, who is either wholly or in part his own underwriter, is presumed to be benefited by the fire department in the same way as the insurance companies are. Why should the companies alone pay for this common benefit?”

454 The question is exceedingly close and difficult, and the authorities, as we have seen, are conflicting, but we are inclined to give adherence to the latter view. Especially where the benefits go to a Firemen's Benefit Association the public purpose seems to be lacking. Therefore, we hold that the act cannot be sustained on the ground that it is a police regulation, the important characteristic-publicity of purpose -being wanting.

It cannot be doubted that incidentally the public derives much benefit from fire departments of municipal corporations. Any organization that tends to enhance the value of property or the security of its possession, that gives work to unemployed persons in a given locality, or bridles powers hitherto unused, is certainly after a manner beneficial to the public at large. The wealth and welfare of a state lies in the well-being of its individual citizens. Thus, if a factory employing hundreds of hands and annually turning out thousands of dollars' worth of products is built, or a mine which yearly puts on the market hundreds of tons of mineral is opened up, the incidental benefit to the public is great, yet the highest legal tribunal of the country has held that public funds cannot be appropriated for such a purpose: Citizens S. & Loan Assn. v. Topeka, 20 Wall. 655, 22 L. ed. 455. A fire department is a municipal institution. Its organization and control is purely a matter of municipal concern. True, interest in the establishment of such agencies


would extend further than the municipal boundaries, but whether that interest could be manifested in action on the part of the General Assembly, otherwise than to encourage, seems a matter of doubt, the spirit of our law being that the legislature may invest municipal governments with power, leaving the exercise of it to their discretion and corporate needs.

In the present case the legislature has gone further than attempting to raise money for fire departments, municipal organizations, in that it seeks to raise a fund by taxation for what seems to us merely a benevolent purpose. The

money collected under the act of 1906 is not for the use of the fire department, but is to be paid to certain firemen's associations for benefits, gratuities and pensions. These associations are incorporated under the law, and their sole purpose is to take charge of the funds collected and disburse them in the manner provided for by the act. As was said in the cases above quoted from, such a purpose is certainly a worthy one. And it no doubt would be a source of much comfort to the members of the various departments and would have tendency to allure men to the vocation, but can this effect justify the seemingly arbitrary appropriation of the income of the insurance companies ?

It is argued that the fire company by its work saves the insurance company from loss, and therefore the insurance company should compensate them. Let us see what this argument would lead to. It is well known that all insurance companies regulate their rate by the risk and expense relative to the insurance of a certain piece of property. Therefore, the only reasonable view is that the insurance companies would, in the end, make the insured pay the gratuities to the associations. It is likewise well known that in all cities and towns there are numerous persons who do not carry insurance. Now, it cannot be denied that such persons are even more benefited by the fire departments than those who carry insurance, for their entire risk is intrusted to the efficiency of such departments. Under the enactment being considered the class of citizens who carry insurance must pay the whole of the imposition, while the latter get the benefits and have no burden to bear. On this reasoning the tax is not uniform.

That the fireman's work is a meritorious one, and that he deserves the highest regard of the community for the faithful performance of his duties, are facts that cannot be con


troverted. Yet his work is not altogether gratuitous. More and more is it the present day tendency to establish paid departments. In these the members are paid for their services. In the volunteer departments, too, the members 456 usually compensated in one way or another. There is also the fact that where it is made a permanent vocation, as is usually the ease in the paid departments, the individual assumes the responsibility of his own free will. That it is fraught with danger no one will deny, but it is not necessarily more dangerous than other callings in which numbers of men are employed daily. Can the engineer of a locomotive dashing across the country at the rate of from fifty to ninety miles an hour, or the miner working hundreds of feet below the surface of the earth, be said to be more secure than the fireman who answers the alarm bell? Can one be said to render a greater service to humanity than the other? We think not. Nor can it be said that the fireman's duty is more public than that of the engineer. There are numerous callings in a sense quasi public, but not of such nature as to justify the state in granting gratuities or pensions on the ground that the services are public.

ny speculation as to this subject, however, is estopped by the constitutional inhibition, article 3, section 32, which provides: "The General Assembly . . . . shall not grant pensions except for military and naval services." A pension has been defined to be an annuity from the government for services rendered in the past. That the pensions provided for by the act of 1906 fall within this rule is evident. The money is to be obtained by a governmental enactment, and is to be paid to superannuated or disabled firemen who in time past had been in active service.

We do not deem it necessary to continue the discussion further. In our opinion the act is clearly unconstitutional.

Therefore, it is the judgment of this court that the petition be granted and the prohibition issue as prayed for.

Messrs. Justice Jones and Woods concur on the ground that the statute violates article 3, section 32, of the constitution.

A Statute Requiring the Agents of Insurers, doing business in the city of New York, but not incorporated under the laws of New York, to pay a percentage upon the gross premiums received by them for insurance upon property in that city, to the "exempt firemen's benevolent fund," is not unconstitutional as granting an exclusive priv. ilege, or as giving money of the state to a private undertaking, or as a tax: Trustees of Exempt Firemen's Fund v. Roome, 93 N. Y. 313, 45 Am. Rep. 217. And in Firemen's Benevolent Assn. v. Lounsbury, 21

« السابقةمتابعة »