*1 MARTIN, Sr., himself and Jimmy on behalf L. situated, Appellant, similarly all others Attorney capacity General CONDON, as in his official Charles Maybank, his Carolina; R. Burnet the State South Department of Revenue capacity Director of official Carolina; Department of of the State South Taxation Carolina; Barbara of South of the State Revenue and Taxation capacity Solici- Circuit Morgan, Second in her official Ruth situated; similarly of all solicitors and on behalf tor capacity Aiken Sellers, as Sheriff in his official Howard similarly officers County law enforcement of all and on behalf situated, Respondents.
No. 24518. Supreme of South Carolina. Court Nov. 1995.
Heard Nov. Decided 9, 1996.
Rehearing Denied Dec. 9, 1996. Rehearing Dec. Denying Order *2 A. Harpootlian, Richard Debra Y. Chapman, James M. Griffin, Columbia, for appellant.
Attorney Condon, Molony Deputy General Charles Attorney Ashworth, Attorney General Treva G. Senior Assistant Gener- Kaminski, Jr., al Nathan Assistant Deputy Attorney General Cook, Attorney Robert D. Assistant General Cameron B. Littlejohn, and Chief for Litigation Counsel Revenue Ronald Urban, Columbia, respondents Condon, Maybank, W. for De- Taxation, of Revenue partment and Morgan. Gmerek,
Dennis M. Langley, respondent Sellers. MOORE, Justice:
This is from an appeal finding option provi- order the local sions of the Video Machines Game Act constitutional. We reverse.
FACTS judgment action Appellant declaratory commenced this §§ Ann. 12-21- S.C.Code challenging Act. (Supp.1995) of the Video Game Machines -2808 vote held on a provides 12-21-2806 for a referendum Section of non-ma- county-by-county legality basis determine machines. game chine cash from video payouts coin-operated referenda, became payouts As a result of the these counties in the State. Section illegal forty-six twelve raise the same subsequent referenda to allows years judge thereafter. The trial found issue 1998 and these statutes constitutional.
ISSUE special legislation Are under these statutes unconstitutional III, § 34?
ANALYSIS *3 34, § of our constitution general applicable, special a law can made law “where be in option be The held the local laws judge shall enacted.” trial 34, § case not in violation of article special this are laws they uniformly in operate laws because qualify general but as Appellant con- county by requiring each a referendum vote. of the local this was because the ruling tends error effect differently in each is to treat the same conduct option laws legislation. is county special the result unconstitutional agree. We legislature an act of the is determining
In whether examine the this Court will special legislation, unconstitutional form. of the act as well its Elliott operation practical (1958); Town Forest 923 Sligh, S.C. Lake, Forest S.C. Acres Town of (1954). scrutiny special A not option escape law does to all option it offers the same legislation simply because on Alcohol and Thompson v. S.C. Comm’n counties. Under (1976), is Abuse, inquiry 229 S.E.2d Drug is unconstitutional option of the local law whether the effect in Thompson, The struck down legislation. legislation case, same exactly legislation in this offered as the every in the State. it was Thompson practical effect of the local that was determined unconstitutional under 34.1 Accordingly, we find the trial judge ruling erred that the local laws in are not special legislation case offer simply they because each county the same option. §
What is 12-21-2806?2 effect of Gaming betting subject are crimi- activities statewide § nal laws. Under Ann. gaming S.C.Code betting is It is punishable by thirty imprison- unlawful. days' $100; further, section, ment or a fine of under the same place keeping purpose punishable by used such a one-year imprisonment $2,000.3 term of or fine Under § however, S.C.Code Ann. 16-19-60 (Supp.1995),4 coin-operat- nonpayout ed machines with a play exempted free feature are from 16-19-40. this exemption, Under non-machine cash Blackmon, payouts are State v. legal. (1991).
S.E.2d 660 local option case, 12-21-2806, law before us allows counties to out opt exemption provided § 16-19-60 for these non-machine cash payouts.5 prece- 1. The dissent relies on statements hornbook law and jurisdictions from proposition dent other for the that a local necessarily produce it is a would unless a local result. This however, proposition insupportable, precedent under the of this construing Court the constitution of this State. The struck Thompson necessarily special application. down was not in its Hereafter, discussion, only for ease of we refer 12-21-2806 since § 12-21-2808 is the same substance. clearly 3. Section 16-19-40 is It is found in Title Offenses,” provides imprisonment entitled “Crimes and *4 conviction, upon or fine and it is classified as a Class C misdemeanor 16-1-100(C) § (Supp.1995). under provides 4. Section 16-19-60 as follows: Nothing §§ in coin-operated 16-19-40 or shall 16-19-50 extend to feature; nonpayout play provided, with nothing machines a free licensing, possession, herein shall operation any authorize money player. machine which disburses provides pertinent part: 5.Section
187 exemption, voted for the elimination counties that legal is to conduct that remains elsewhere effect criminalize under State law.
Application article 3b. 34, III, legislation where the special prohibits counties. have different criminal laws different effect Hammond, 219, (1903), 44 S.E. 797 In State v. a it a misdemean- making down as unconstitutional struck in certain counties and not others. or to dam a stream impermissible at was legislation issue Hammond special involved precisely penal because it under article 494, 126 Ruggles Padgett, 240 S.C. S.E.2d sanctions. (1962). supra, we considered the Thompson, an program local an alcohol treatment allowing law regard- under the State prosecution
alternative to local was uncon- ing public intoxication. We found the governments local legislation since some special stitutional not, resulting in the and others did participate elected Similarly, a statewide criminal law. disparate application of Cruz, we struck Daniel v. 268 S.C. S.E.2d county out of a allowing opt any down the effect of fortune-telling because permitting statewide law fortune-telling in some law was to criminalize counties and not others.6 under
Further,
is unconstitutional
re
provision
another constitutional
where
Seabrook,
subject.
Thorne v.
uniformity on that
See
quires
(1975) (special legislation enact
503, 216
S.E.2d
in Charleston
returning property
procedure
ing
by
Code
Section 16-19-60 of
payouts
The cash
authorized
any
only
relating
coin-operated
may
devices
be continued in
majority
county
after June
if
in South Carolina
qualified
voting
in a statewide referendum
electors
election vote in favor of
continued
the time of the
regulation and issuance of these licenses.
protection
equal
rested on
6. While the decision in Daniel
Cruz
special legislation,
prohibiting
as con-
grounds,
purpose of
the overall
dissent,
equal
guaran-
closely
protection
related to the
ceded
471, 229
at 721.
8. The dissent of the local VIII, by asserting § law in this case apply article does not because “primarily the Video Game Machines regulatory Act Act." however, question, § There is no real 16-19-40 is a criminal 3, supra. predating See footnote The dissent relies on cases part which was ratified as Rule Home Amendment argue gambling that alcohol and historically have been treated
CONCLUSION 12-21-2808 unconstitutional. hold We advantages on the doing, express opinion so *6 This industry. the video machine disadvantages game laws of this State must construe the constitution and Court is the popular opinion. or It political without concern our fashion laws that conform to legislature’s responsibility alternative, of the or, seek amendment in the the constitution is, will it. As it people requires the constitution where and hold this constrained to follow the constitution we are Further, note the narrowness of our invalid. we impact not holding today emphasize does infringe that do not areas where options laws. Local subject the are not uniformity constitutionally required Corp. See Westvaco v. South analysis apply here. same (1995) Revenue, Dept. Carolina 321 S.C. constitutional). sales tax (upholding REVERSED. Justice, Connor,
FINNEY, Associate C.J., Acting and Carol concur.
BURNETT, J., opinion. in separate concurs TOAL, J., opinion. in separate dissents Justice, BURNETT, concurring: Ann. conclusion that S.C.Code majority’s
I concur with unconstitutional (Supp.1995) -2808 are §§ 12-21-2806 and separately to § 34. I write article of S.C.Const. violative on majority’s reliance with my disagreement express Island, Hilton Head v. Town Connor (1994). VIII, § provides: Constitution Carolina South article, or authorized required enacting provisions following matters provisions applicable law not set aside: shall longer precedent where valid These cases are as local concerns.
uniformity of law is involved. a criminal (1) (2) every The freedoms guaranteed person; election and (3) suffrage qualifications; govern- bonded indebtedness of (4) units; mental structure and the administration of judicial system; State’s penal- laws and the thereof; ties and transgression sanctions for the governmental structure and the administration of any ser- function, or vice for which responsibility rests with the State government statewide uniformity. VIII, § require 14 does not uniformity statewide provisions regarding “criminal laws and penal- transgression ties sanctions for the thereof.” Article in its preamble, provides “general provi- applicable sions following matters shall not be set added). aside.” (emphasis plain meaning provision requires that local existing enactments “set aside” some provi- sion of the general law before constitutional violation occurs. supra, §§ Indisputably -2808, 12-21-2806 and setting effect a *7 general aside of the criminal law and constitutionally are prohibited.
However, Connor majority’s reliance on misplaced. alia, Connor inter held, a municipal enactment prohibiting VIII, nude of dancing § violative Article though even no my opinion the Connor State law prohibited nude dancing. court erred. The held court that conduct which not unlaw- ful under laws by State cannot be made unlawful local enact- be, ment. As laudable as this may the court effectively provides that conduct is lawful unless made unlawful by Assembly. enactment of the General does yield interpretation. not to such an Local government enact- ments which are not with any inconsistent State do law not See Town any “set aside” criminal laws enacted State. Hilton Ltd., Head v. Fine Liquors, Island of (1990) (in S.E.2d 662 field, order to preempt an entire an act legislative must make manifest intent other enact- may upon subject ment touch any way).
I would overrule Connor insofar as it holds that local governments may not criminalize conduct that is not unlawful under statewide
TOAL, Justice, dissenting: legislation
I True local like that respectfully option dissent. law, special legislation. not general issue here constitutes (Supp. §§ and -2808 finding S.C.Code Ann. 1995) Constitu- violate Article 34 of the South Carolina tion, majority ignores longstanding prece- South Carolina authority jurisdictions as from persuasive dent well as Moreover, it misconstrues the case throughout nation. I provisions upon law and constitutional relies. would affirm. years, legislatures have
For more than one hundred
state
of
option
relating
regulation
enacted local
statutes
fre-
surprisingly, such
gambling.
legislation
alcohol and
Not
quently
challenged
being
equal protec-
has been
violative
prohibitions on special
tion and of various states’ constitutional
See,
legislative powers.
e.g.,
Har-
legislation
delegation
(Alaska
State,
P.2d
App.1984) (challenge
rison v.
liquor
equal
law
law violated
option
grounds
on
State,
protection); Clark v.
172 Tenn.
113 S.W.2d
(1938)
(challenge
grounds
law on
liquor
ex
legislative powers);
unconstitutional
delegation
was
Harvey,
125 Fla.
170 So.
rel. McLeod
on
slot machines
(challenge
regarding
to local
legislative
grounds
delegation
that law was unconstitutional
nationwide
powers).
overwhelming weight
precedent
general
valid
law. See Norman
option legislation
finds local
(5th
ed.
Statutory
40.02
Singer,
J.
Sutherland
Construction
1993)
legislation
cases
that local
(summarizing
holding
law);
Eugene
The Law
McQuillan,
constitutes
cases hold-
Corporations
(summarizing
4.49
Municipal
law).
Suc-
that local
constitutes
ing
*8
by its own terms
cinctly put,
option legislation, which
“[l]ocal
adopted by
in
of the state where
is
only
parts
those
applies
action,
parts
if all
state are afforded
special
is not
the
local
§ 40.02.
adopt
Singer, supra,
it or not.”
option
the same
to
However,
local
laws constitute
option
some cases have found
in a
may take effect
special legislation
“legislation
because the
therefore,
inherently
not,
gener-
or
special
local manner and
(listing
cases
supra,
4.49
McQuillan,
al in its operation.”
This
legislation).
special
laws constitute
holding
Cleveland,
view is
In In re
unreasonable.
Similarly,
Express
Atkinson v. Southern
193 asserted, of and conditionally was the Texas was sustained. in Dollison was Supreme Court
Although the United States of Clause, purpose Protection the discussing Equal the federal Ill, the Protection parallels Equal 34 that of S.C.Const. art. Comm’n on Alcohol Thompson v. South Carolina Clause. See Abuse, 463, 471, 229 S.E.2d Drug& S.C. ours, to provisions, similar
(“Many have constitutional states provi- of these purpose The overall prohibiting special laws. guarantee equal protection closely sions is related constitutions.”). both
Furthermore, long has Supreme the Carolina Court South are concerning gambling alcohol and recognized questions that differing of resolution because condi- suited to local uniquely Clegg City Spartanburg, public sentiment. tions of 182, 128 the Court example, S.E. opera- the municipality prohibit the of a power addressed the upholding tables for hire. pool tion of billiards of to outlaw the maintenance right City Spartanburg of the limits, its the Court public pool of rooms within operation prescribe right, appropriate, when recognized the State’s territory the for different localities within different laws State: business, affecting expressly such interpret
To
a license
that
territory,
policy
an indication of the
to certain
limited
duly
the
or its
not be
State
might
prohibited
business
territory,
ignore
in other
agencies
constituted
that,
restric-
subject to constitutional
principle
fundamental
laws,
authority
legislates
tions
may
police power
exercise of the
large
at
for differ-
entirely
and inconsistent
laws
prescribe
State,
according
of
territory
within the
localities
ent
prevailing
particular
locality
circumstances
of
may
the State
particular
section
public sentiment
demand.
added);
City
accord
(emphasis
Id.
consideration for purposes Article 34. In other words, facially that a general law dispositive not whether it constitutes legislation. Although this is law, correct aas statement of majority misunderstands rule misapplies it in case. this
Virtually all the South applying Carolina cases this rule least, have concerned that facially, general, laws at were but that necessarily would have affected various counties differ- See, ently. e.g., City United States Fid. & Guar. Co. v. Columbia, (1969) 252 S.C. down (striking population-based only classification the effect of which was to City allow the of Columbia to charge higher business and professional cities); taxes license than other Elliott Sligh, (1958) 233 S.C. (striking S.E.2d 923 population- down based classification effect of which was only to make illegal in Richland and Charleston counties certain kinds of fire- works); Lake, Town Forest Acres v. Forest (1954) S.E.2d 192 down (striking population-based classifica- tion that had of making only effect certain law applicable classifications, Richland County). With population-based reason, local effect is inevitable. For a statute that treats municipalities differently simply on populations based their legisla- must be examined to determine whether the carefully contrast, is not tion contravenes produce inevitable that a true local law will nonuniform Accordingly, upheld results. such a law should be law. general VIII, § 14 our
Neither S.C.Const. art. nor decision Drug on Thompson South Carolina Commission Alcohol & Abuse, compels VIII, § 14 remotely upon does not even touch result.1 Article VIII, § “In provides: issue case. Article article, enacting provisions required authorized following matters general provisions applicable ... not be criminal laws and the penalties shall set aside: transgression (emphasis sanctions for the thereof----” added). This for the might applicable section but fact statute, here, like that is a a true words, contains other law issue *11 provisions.
Moreover, pen- are some although there incidental or operation attached to unlawful the video possession alties lawsuit, at issue in the Video Game machines games Act, (Supp. §§ 12-21-2770 to -2809 Machines S.C.Code Ann. regulatory 1995), Act primarily governing questions game machines. The licensing operation video of this scheme. S.C.Const. part regulatory statute is Addi- regulatory statutes. 14 does not concern art. VIII, § 14 if wonder help one cannot but tionally, why, of local analysis central is as believes, majority apparently as the VIII, § 14 is Article Thompson court made no mention it. to this case. not relevant Thompson, struck
Thompson
inapposite.
is also
differently
on
criminals
based
punished
a law that
down
crime
they
in
committed their
whether
Cruz,
S.C.
majority
Daniel v.
1. The
cites
-2808 are uncon-
support
position
its
that
12-21-2806 and
sections
case,
only the
special legislation.
concerned
Unlike
stitutional
Cruz
Nevertheless,
in
were similar
Equal
facts
Protection Clause.
Cruz
wrongly
my
present
opinion,
was
the facts of the
case.
Cruz
today, would
my dissent
I
To
it is inconsistent with
decided.
the extent
it.
overrule
in
participated
certain alcohol treatment
One
programs.
state
(as
statute,
amended
1975),
provided
S.C.Code
16-558
any person
public
found in a
at a
place
public gathering
or
in a
grossly intoxicated condition
of a
guilty
was
misdemeanor and
thirty
to either
fine or
in
subject
days
jail.
This statute
was.
However,
applied uniformly throughout
another
state.
granted immunity
statute
to violators of
16-558 if the
section
in
county or
which the
municipality
offense was committed
in
participate
elected
alcohol
certain
and intoxication
words,
program.
treatment
In other
the latter statute did not
any
the criminal
“change[]
municipality
or county;
rather,
grant[ed] immunity
prosecution
it
from
and directed]
any
or
municipality
county participating in the Alcohol
and Intoxication
Program
Treatment
refrain from enforcing
and,
the criminal law
of prosecution,
as such
lieu
encourage
voluntarily
Thompson,
undergo
violator
treatment.”
at
ORDER petition rehearing is denied. Further, deny motion of Carolina Association we South opportunity empha- to intervene. We take this of Counties ruling in this case is a narrow one. again size once that our law, local gov- there is relevant statewide Where consistent with its constitution- may regulate ernment conduct Moreover, authority. reject we conten- statutory al and power have General tion that we somehow limited government. It is power to local Assembly delegate police Assembly’s repeal discretion the General completely within allowing government law in favor of a statewide criminal regulate question. the conduct Department motion of Carolina Finally, deny the South It is axiomatic that Natural to intérvene. Resources 34(IX), laws found against special prohibition apply constitutional does not where another of our constitution Ruggles v. authorizes a provision specifically (1962). Padgett, to divide the Assembly the General empowers itself protection game. into zones for the