*1 The that taxes or as- dedication and fact acceptance. special on the as private sessments were levied and collected land with circum- be considered connection other property stances as that there has not been a dedica- tending show tion and acceptance.”
The fact that taxes on respondent paid prop- disputed thus be considered as evidence to an intent erty may contrary to dedicate the to the street public. does not reveal the evidence
Even the preponderance use, lot to intent to dedicate the the public necessary strict, much cogent, convincing proof. less the required Absent threshold Tyler Guerry, finding supra. dedication, issue of ac- it us to reach the unnecessary appellant. ceptance
Affirmed. J.,C. Littlejohn, Gregory,
Lewis, Rhodes concur. JJ., STATE, GRAVES, Appellant, v. Johnny Respondent. 584)
(237 S. E. *2 McLeod, Gen., Coleman, R. C. Dep. Daniel Atty. Joseph Gen., Gen., Wilson, Asst. Atty. and Richard P. Atty. Columbia, Appellant, for DeWitt,
Franklin R. of Conway, Respondent, *3 12, 1977. September
Gregory, Justice. cir- an order of the from
This is an the State appeal by and sentence conviction cuit court reversing respondent’s the influence in the for under court driving magistrate’s of the 1976 56-5-2930 intoxicants violation of Section We affirm. Code Laws of South Carolina. 5:00 arrested at was respondent approximately M., Patrolman
A. November 1975 by Highway I. for influence intoxi- Strickland and traffic tick- by cants was summoned service of a uniform et trial to before Allen Flowers appear M. Magistrate on November Counsel 1975. was retained subsequently and held on November jury trial trial, At Patrolman Strickland testified that at approxi- M., mately 1, 1975, 5:00 A. November he was called to go to Pink House on one-half mile Highway about east Marion, There, South City Carolina. across the from House, the Pink highway he Pontiac, saw 1972 with engine running the transmission in oc- gear, by who was cupied respondent over the leaning steering was wheel asked Patrolman by Strick- asleep. Respondent car, to car land out of his at time the started get mov- and had Patrolman F. O. Buffkin stopped ing also in at the was attendance scene. Patrolman Strickland observed odor alcohol about the strong respondent as as some him well physical impairment under ar- placed rest.
Patrolman Strickland testified on cross examination that Buffkin Patrolman assisted and that he did not although car, see he was of respondent driving re- opinion was control the car. spondent Respondent guilty found jury sentenced a fine of or serve pay thirty days. $100.00 *4 filed, of Notice intention to was appeal the mat- duly ter came before the circuit court on 1976. In February 9, 1976, an order dated the circuit February court set aside conviction and sentence after respondent’s that finding it was error for the to have refused to re- magistrate grant a directed motion for verdict at close of the spondent’s case. The for the State’s basis circuit court’s was ruling “the officerdid not see (now arresting appellant respondent)
commit offense for which was that of driv- he charge,” under the influence intoxicants. ing The whether essential this is question presented by appeal or 1, 1975, not the actions November respondent’s on by Strickland, testified to Patrolman constitute un- der the influence of intoxicants within the of Sec- meaning 56-5-2930, tion Code in of Laws. statute pertinent * * * is person “It is unlawful for who part provides: any narcotic drugs, under influence of intoxicating liquors, barbiturates, other sub- any or herbs or paraldehydes drugs, natural, character, like or whether synthetic stance added). drive State” any (emphasis nature, is penal Because Section 56-5-2930 we its the rule must approach interpretation by invoking strict statutory construction and resolve un- any or State and favor of the certainty against ambiguity McCord, S. C. S. E. (2d) respondent. 654 (1972). the 1976 Cole and 56-1-10(1) 56-5-400
Sections is in who drives or as: define “Every person Laws driver vehicle”; 56-1-10 and Section of a control actual physical drives or is who as: “Every person operator defines (2) motor vehicle a upon high- control actual physical over or steering is control or exercising way also vehicle.” Section 56-9-20(10) a motor by towed being in actual who is physical as: “Every defines operator an or not licensed as whether control of motor the laws of this State.” Section chauffeur operator “drive any person 56-5-2930 makes it offense penal while intoxicated con- vehicle within this State” an dition. Act is a of the Regu-
Section 56-5-2930 Uniform portion Traffic on a substantial adoption lating Highways name that approved the uniform act same Uniform the National Conference of Commissioners
361 Laws, 1926, obso- as revised 1930 as [withdrawn 1943], lete in This uniform act has served as the basis for the states, motor vehicle codes of numerous most which have that is simlar to Section adopted provision 56-5-2930.
Section 56-5-2930 is modeled after Article V 18 Section of the Act in 1930, Uniform as which approved revised reads as follows:
It shall .unlawful and as in sub- punishable provided division of this (b) section for who is an habitual any person user of narcotic or any is the in- drugs fluence of or narcotic intoxicating liquor drugs to drive any vehicle within upon any this state. highway South Carolina the
Although adopted phrase “drive any this state” from the Uniform Act approved 1930, as revised several states adopted this provision with amendments also the prohibit of an “operation” automobile while in an intoxicated condition. While choos- to define both “driver” and the ing “operator”, 1949 General 1949, Act 281 466, Assembly proscribed only driving intoxicated, motor vehicle while not and did proscribe operating. material, these terms is
The distinction between for it is “drive”, used in held that the word statutes generally kind, denotes movement of vehicle in some usually direction, has a mean whereas the word broader “operate” so include of the but as to not motion ing only that, also acts of the engage machinery alone or in set in will motion motive sequence, power State, v. vehicle. Ga. Flournoy App. Commonwealth, S. E. (2d) Gallagher (1962), Va. E. 139 S. (1964).
This distinction well noted in an anno- extensive tation at 47 A. L. R. 571: statutes motor vehicle prohibiting “driving” a Although while under influence those intoxcating liquor in a similar vehicle while motor prohibiting exist of protecting condition same general purpose *6 of con- the the hazard vehicles the users of from highways alcohol, certain unler influence of trolled the by persons the two is recognized. distinction between terms nevertheless terms, the construc- the is stricter Of two given tion, it has that to be in numerous cases been held and intoxicated, of the defendant a vehicle while guilty the in the in must have had vehicle motion at time question. in a few the term been given While cases has construction, a similar limited been more has “operatng” construed in other cases include the liberally en- starting the mechanical or or electrical agencies gine manipulating aof vehicle (footnotes omitted). Vehicles that: is 60 C. S. Motor
It also stated at § vehicles, the word As in connection with motor used in di- of the vehicle some “drive” denotes movement usually rection, may the motion— “operate” and word also import automobile; the have a some- “operate” may the but word not limited may what broader meaning, necessarily itself, the is, the that it movement in meaning a state of motion produced by be limited to the not may It not car. include may only motion mechanism acts which vehicle, engage but also machinery will set in which, or motion sequence, the vehicle alone Thus, a the vehicle. considered the motive power when, in the he intentionally a vehicle to operate electrical mechanical or act or makes use of does any set in motion alone or will sequence agency of that vehicle (footnotes omitted). motive power Automobiles and Highway See also: Am. (2d) Jur. ; 256; 1389; L. A. L. 42 A. R. 1498 49 R. § Traffic 37-39; 1356; 13A and Phrases A. L. R. Words “Drive” pp. 44-46; and Phrases 29A Words “Driving” 13A Words pp. 396-400; and Nicolls v. Com- “Operate” pp. and Phrases 184 S. E. monwealth, Va. (2d) (1971) (de- fendant found at the wheel car steering parked asleep with the motor the transmission running gear be convicted of intoxicated). motor vehicle while operating
In the case of State v. 248 S. C. 150 E. Sheppard, S. Court stated that the (1966) conduct pro- scribed Section 56-5-2930 is “the of a motor operation one iswho under the influence of intoxicating liquor drugs,” and act of a motor “(t)he operating vehicle with is the impaired faculties the off- gravamen ense.” 248 S. C. at 150 E.S. at In Sheppard we used the terms “driving” and “operating” synonymously, but the issue before Court in that case involved clearly not operating, we in- driving, two terms employed their common and terchangeably only informal sense. *7 In Truesdale v. South Carolina Highway Dept., 221, 213 S. C. S. E. we were (1975) presented with the of whether or not the be- question “while phrase in used Section 15-77-230 ing operated” limited the effect that to of statute those cases only where the motor vehicle in motion. In that holding motion was an not automobile, essential element of an we operating recognized the intended the distinction by General its choice Assembly of the word instead “operate” of “drive.”
Section 56-5-400 defines “driver” as “Every person drives is in or actual control of a vehicle . . . .” physical It would seem clear the that statute two distinct defi provides “driver,” nitions of “being actual phy can sical control” describe the same if activity we treat only the “or control” as actual useless phrase physical bag a construction would run counter to the Such gage. principle that be so word, “a statute should construed that no clause, sentence, or shall rendered part or provision surplusage, . . . .” C. Statutes S. superfluous Savannah § Shuman, Bank Co. Savannah 344, & Trust 250 S. C. of 864 (1967). 157 S. E.
In its form Section 56-5-2930 proscribes present the the of vehicle only any conduct “driving It of intoxicants. while the influence State” “driver” a motor vehicle while does not prohibit being both in a condition and thus it not similar does proscribe an in actual control of automobile being driving physical while a motor intoxicated. The statute prohibits that vehicle while intoxicated the extent only driving includes necessity operating. 56- now that within the Section meaning
We hold to be 5-2930, the vehicle the “drive” word requires the This in motion to offense. requirement constitute or evidence. be met either direct circumstantial by record vehicle began indicates respondent’s to move was asked by arresting after respondent car, of his but movement was get officer out not and is incidental to officer’s instructions the type by movement statute: proscribed occur without might A mere movement or, driver, If a fact any person. aby act affirmative driver, control of the beyond is moved some power accident, an or action positive it is not such affirmative by as will constitute on driver the part State v. statute. Taft, meaning vehicle within 152, E. (2d) (1958). 102 S. W. Va. on November actions 1975 con *8 Although respondent’s control”, v. “in actual physical People stituted both being Chamberlain, 235, Ill. 282 N. E. (3d) (2d) App. Commonwealth, Nicolls v. and supra, “operating”, (1972), intoxicated, con while his actions did not a motor vehicle 56-5-2930, within the of Section stitute “driving” meaning no direct or showing by since there was circumstantial evi had his dence that vehicle motion while respondent placed intoxicants. influence of under such as re- conduct Assembly General may bring of Section 56-5-2930 spondent’s prohibition “or to the statute so to simply adding phrase operate” make it unlawful for “to or operate drive any any vehicle within this under the influence in- State” while toxicants.
Affirmed.
Lewis, C. J., Rhodes, and J., concur.
Littlejohn dissent. Ness, JJ., Ness, : (dissenting) Justice
Not to the subscribing narrow technical definition of I “driving” adopted by dissent. majority, itWhile is true that courts in other jurisdictions some have the terms a distinguished “operating” latter, motor narrower definition to according other courts have construed the terms as being synonymous. 1, Michael, See State v. 141 W. Va. E.S. (2d) Sullivan, 381, v. State 146 Me. 82 A. (1955); 629. (2d) stated in 60 As C. S. Motor Vehicles : § ‘drive,’ as to “The motor applied words ‘operate’ since, vehicles, be synonymous, according popular motor vehicle is same as to acceptance, operate drive it . . .” Court, in an indictment brought
This considering 46-343, statute’s Section Code of the present predecessor, inter the terms and “driving” used v. 248 S. C. 150 S. E. Sheppard, changeably. the exact of the statute Although language (1966). within this it unlawful “to drive State” made condition, intoxicated stated: in an Court while vehicle with fac- impaired “The act of motor operating . of the offense . .” State Sheppard, is the ulties gravamen at at 150 S. E. 248 C. (Emphasis added). S. *9 should this Court I reason why no perceive compelling of the two the common sense now abandon interpretation narrow, construction. technical terms favor of Moreover, between if a is to be drawn even distinction the conduct motor “operating” falls within the definition of “driving.” respondent arguably and 56-1- The term “driver” is defined Sections 56-5-400 of the 1976 Code of Laws as: “Every person a vehicle.” or is actual control physical (Em- drives The officer in this case testified phasis added). arresting car. in control of the was his respondent opinion, asked to out of Furthermore, get when respondent forward and had to car, stopped to move began on the scene. another patrolman cuts construction of statute strained majority’s i.e., behind the the social provision, ap- purpose against renders whose intoxication them un- persons prehension of here started his fit to a motor vehicle. Respondent operate car in The fact that his level put gear. automobile him to out before he caused accelerated pass of intoxication should not his to actual motion remove conduct the vehicle intended to be the statute. from that proscribed reverse, the basis that I would on “driv- alternative, in the even if are a distinc- synonymous, ing” inwas of his respondent physical tion control recognized, and was therefore “driver” Code defini- the term. tion of J., concurs.
Littlejohn,