Opinion
14341
July 23, 1936.
Before DENNIS, J., Darlington, April, 1936. Affirmed.
Action by Mrs. Viola Warr and another against the County of Darlington. From an order sustaining defendant's demurrer and dismissing the complaint, plaintiffs appeal.
The order of Judge Dennis follows:
The defendants demurs to the complaint in this action on the ground that it does not state facts sufficient to constitute a cause of action, in that:
"1. There is no allegation in the complaint that the plaintiffs were hindered, prevented or obstructed in the exercise of any rights or privileges secured to them by the Constitution and laws of the United States or by the Constitution and laws of the State of South Carolina, nor does it appear that they were injured because of the exercise of any such rights.
"2. There is no allegation in the complaint that the defendant, its officers, agents, servants or representatives perpetrated, participated in, were connected with or in any manner responsible for the unlawful acts complained of, and that if section 1385 of the Code is susceptible of the construction placed thereon by the plaintiffs, it is unconstitutional, invalid, null and void for the reason that the liability of the County for damages from mob violence is limited by the Constitution of South Carolina to cases where death ensues."
Arguments of counsel for and against the motion have been heard.
It appears that the principles here involved have been decided adversely to the plaintiffs' contention, in the case of Brazzill v. Lancaster County, 132 S.C. 347, 128 S.E., 728, 729.
At common law, a county is not liable to anyone for injuries caused by mob violence within its borders. The plaintiffs rely upon the provisions of Section 1385 of the Code of Laws of South Carolina 1932, which provides: "In all cases where any dwelling house, building, or any property, real or personal, shall be destroyed in consequence of any mob or riot, it shall be lawful for the person or persons owning or interested in such property to bring suits against the county in which such property was situated and being, for the recovery of such damages as he or they may have sustained by reason of the destruction thereof; and the amount which shall be recovered in said action shall be paid in the manner provided by Section 1384 of this Code."
The section referred to is a part of an act entitled, "An Act to Provide for the Protection of Persons, Property and the Public Peace," approved March 1st, 1871 (14 Statutes at Large, 559) which "was designed to protect the political rights and liberties of the citizens of the State," and cannot be construed to contemplate or to protect against the acts and injuries described in the complaint. Brazzill v. Lancaster County, supra. The section of the Code relied on by the plaintiffs is Section 9 of the Act of 1871 and must be construed as a part of said Act and limited to the purposes thereof, disclosed by the preamble, which is as follows:
"Whereas threatenings, intimidations and violence are used in portions of this state against the peace of the same; and whereas the laws are set at defiance, and the officers of the law hindered, prevented and obstructed in the discharge of their duties; and whereas armed, disguised and lawless persons are threatening, maltreating and assassinating peaceable and defenseless citizens: therefore
"A statute must be construed in the light of the evil it seeks to remedy and in the light of the condition obtaining at the time the statute was passed." State ex rel. Daniel v. Kizer, 164 S.C. 383; 162 S.E., 444; 81 A.L.R., 722; Brazzill v. Lancaster County, supra.
When the statute in question is so construed, it is clearly inapplicable to the facts involved in this action.
I am also of the opinion that the demurrer should be sustained on the ground that if the statute were given the construction for which the plaintiffs contend, it would be repugnant to Section 6 of Article 6 of the Constitution of this State, "which limits the liability of counties in cases of mob violence to cases where death ensues to the party mobbed or lynched. * * * If the people of the state had designed to extend the remedy against the county for damages suffered by a citizen from acts of violence, they would have extended the constitutional provisions, to embrace such remedy, but no such remedy is given by the Constitution." Brazzill v. Lancaster County, supra.
It appears from the language here quoted that, in the Brazzill case, the Supreme Court applied the maxim expressio unius est excluso alterius, which I think is also clearly applicable to the case at bar. For the reasons above stated, it is ordered that defendant's demurrer to the complaint in this action is sustained, and that the complaint herein be, and hereby is, dismissed.
Mr. C.E. Gardner, for plaintiffs, cites: Liability of county for acts of mob or riots: 13 A.L.R., 753; 64 N.Y.S., 411; 23 A.L.R., 297; 44 A.L.R., 1137; 52 A.L.R., 562; 128 S.C. 541; 123 S.E., 648; 55 S.C. 45; 32 S.E., 764. Title of Act: 25 R.C.L., 1031; 53 S.C. 448; 31 S.E., 334; 37 A.L.R., 927; 144 U.S. 550; 36 L.Ed., 537; 10 S.E., 691; 37 A.L.R., 946; 56 L.Ed., 220. Construction of Statute: 182 S.E., 838; 13 A.L.R., 754; 6 R.C.L., 484; 70 S.C. 63; 54 S.C. 252. Liability limited to loss of life: 12 C.J., 707; 6 R.C.L., 1600; Ann. Cas., 1915-D, 436; 2 Strob., 560; 64 S.C. 407; 54 S.C. 253; 51 S.C. 54.
Messrs. Dargan Paulling, for respondent, cite: Protection of property: Sec. 1385, Code 1932; 132 S.C. 347; 128 S.E., 728. Construction of statute: 164 S.E., 383; 162 S.E., 444; 25 R.C.L., 1030; 2 Bail., 334; 53 S.C. 448; 31 S.E., 334; 144 U.S. 550; 36 L.Ed., 542.
July 23, 1936. The opinion of the Court was delivered by
Plaintiffs brought their action to recover damages for the destruction of their crop of tobacco by a "mob of disorderly and riotous persons," on the night of July 10, 1935. They predicate their action upon the provisions of Section 1385 of the Code of 1932. To the complaint the defendant interposed a demurrer, which was sustained by the Circuit Judge, Dennis, and the complaint was dismissed by his order.
From this order plaintiffs appeal.
We are of opinion that the order of Judge Dennis, sustaining the demurrer, correctly disposes of the issues involved. It is accordingly affirmed.
Let it be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate.