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THE STATE OF SOUTH CAROLINA

In The Supreme Court

John T. Henry, Jr., Appellant,

v.

Horry County, A Body

Politic; Linda Angus, as

Horry County

Administrator; A. Joseph

McNutt, Jr.; as

Chairman of the Horry

County Council; Ray

Skidmore, Jr. John Kost,

Ray Brown, Chandler

Brigham, Chandler C.

Prosser, Terry

Chambers, James R.

Frazier, Liz Gilland,

Ulysses DeWitt, Johnny

Shelly and Janice G.

Jordan, as Members of

the Horry County

Council; and Ralph

Vaught, as Director of

the Horry County

Detention Center, Respondents.

Appeal From Horry County

Edward B. Cottingham, Circuit Court Judge

Opinion No. 24911

Heard November 17, 1998 - Filed March 1, 1999

p.23

REVERSED

James P. Stevens, Jr., of Stevens Law Firm, P.C., of

Loris, for appellant.

Frances I. Cantwell and William B. Regan, of Regan

and Cantwell, of Charleston, for respondents.

Joseph M. McCulloch, Jr., of Columbia, for

respondents.

Stephanie P. McDonald and Sandra J. Senn, of

Charleston, for Amicus Curiae.

TOAL, A.J.: This case is an appeal from an order denying custody of the

Horry County Jail to the Horry County Sheriff. We find the Acts in question

were unconstitutional when passed as special legislation because they were in

direct conflict with the general law previously established in the state.

FACTUAL/PROCEDURAL BACKGROUND

Horry County has two law enforcement agencies: the Horry County Sheriff

and the Horry County Police Department. The Horry County Sheriff ("the

Sheriff') instituted a declaratory judgment action against Horry County, the

officials of Horry County Council, the Horry County Administrator, and the

director of the Horry County Detention Center ("the County"). In that action,

the Sheriff requested custody and control of the Horry County Detention Center

("the jail"). By order dated August 26, 1997, the trial court denied the Sheriff's

request for custody of the jail. The Sheriff appealed.

The issues before this Court on appeal are:1

this contention. To have standing, one must be a real party in interest. Glaze

v. Grooms, 324 S.C. 249, 478 S.E.2d 841 (1996). A "real party in interest" is one

p.24

1. Were the Acts granting the County custody of the jail in 1959

constitutional?

2. If the Acts were constitutional, did the enactment of Home Rule

void the Acts as special legislation passed in conflict with the

general law?

3. Did the lower court err in holding that in order to prevail in this

action, the Sheriff had to prove that either the entire local act 21

Statutes at Large 1959 or the Horry County Ordinance 5-81 was

invalid?

LAW/ANALYSIS

Since the 1800s, the Sheriff has been a constitutional officer in South

Carolina. See S.C. Const. art. V, § 24. By statute, for over 95 years, the general

law regarding custody of South Carolina county jails has been:

The sheriff shall have custody of the jail in his county and, if he

appoint a jailer to keep it, the sheriff shall be liable for such jailer

and the sheriff or jailer shall receive and safely keep in prison any

person delivered or committed to either of them, according to law.

S.C. Code. Ann. § 24-5-10 (1976) (emphasis added). In 1959, the General

Assembly passed Act 21, a statute creating the Horry County Police

Commission. Act 21 was codified as S.C. Code of Laws §§ 53-551 through 53-566

(1962). Sections 53-553 and 53-554 ("the Acts") devolved upon the Commission

the exclusive jurisdiction of the Horry County jail. See 21 Statutes at Large

action, as opposed to one who has a nominal or technical interest in the action.

Anchor Point, Inc. v. Shoals Sewer Co., 308 S.C. 4222 418 S.E.2d 546 (1992). The

Sheriff in this matter has a personal stake in the issue before the Court because

he has several statutory duties with regard to the prisoners of Horry County.

See S.C. Code Ann.§§ 23-17-20 through -80 (1976). Furthermore, the Sheriff has

an economic interest in the fees connected with the housing of prisoners.

p.25

1959; 1962 S.C. Code of Laws, Section 53-551, et seq.2

On March 18, 1976, Horry County adopted the council-administrator form

of local government. On April 16, 1981, the Horry County Council passed

Ordinance No. 5-81, which, inter alia, abolished the Horry County Police

Commission and devolved its functions upon the Horry County Council and/or

the Horry County Administrator. See Graham v. Creel, 289 S.C. 165,345 S.E.2d

717(1986).

Since 1905, the South Carolina Constitution has contained a restriction

on the General Assembly enacting "special" laws that affect one county as

opposed to "general" laws for the entire state.3 Prior to March 1973, an

exception to the restriction existed under S.C. Const. art. VII, § 11 for the

structure of county governments. However, this exception to the general

prohibition on special legislation had always been limited by the rule that such

special legislation, even where permitted, could not conflict with the general law

of the state. See Hurst v. Sumter County, 189 S.C. 376, 1 S.E.2d 238 (1939);

Craig v. Pickens, 189 S.C. 1641 200 S.E. 825 (1939).

On February 17, 1959, the General Assembly passed the Acts taking

custody of the jail away from the Sheriff. At that time, the constitutional

prohibition against special legislation in S.C. Const. art. III, § 34(9), did not

apply to every legislative act of the General Assembly concerning the structure

of county government. "[T]he General Assembly may provide such system of

township government as it shall think proper in any and all the Counties, and

may make special provisions for municipal government and for the protection of

chartered rights and powers of municipalities . . .". S.C. Const. art. VII , § 11.4

shall have exclusive jurisdiction of the jail . . . . (1959 (510 18).

Section 53-554. Employment of jailer and other personal.--The

commission shall employ the jailer, assistant jailer, secretary and all other

personnel necessary for the carrying out of the provisions of this article and for

the orderly process of law enforcement and the upkeep and maintenance of the

county jail. (1959 (510 18).

3 This provision reads: "In all other cases, where a general law can be made

applicable, no special law shall be enacted . . .", S.C. Const. art. III, § 34(9).

4 This constitutional provision was effectively repealed in 1973 by S.C

Const. art. VIII, § 7 (" . . . No laws for a specific county shall be enacted and no

p.26

In interpreting this grant of power prior to Home Rule, this Court said: "Article

7, Sec. 11, has been repeatedly construed by this Court to give the General

Assembly complete control over the government and other internal affairs of the

Counties of the State." Bynum v. Barron, 227 S.C. 339, 88 S.E.2d 67 (1955)

(citing Reese v. Hinnant, 187 S.C. 474, 198 S.E. 403 (1938)). Prior to the

enactment of Home Rule, this Court held "the prohibition against special

legislation does not apply in the case of special legislation . . . dealing with local

county government." Morris v. Scott, 258 S.C. 435, 441, 189 S.E.2d 28, 31 (1972)

(citing Gaud v. Walker, 214 S.C. 451, 53 S.E.2d 316 (1949)). Under S.C. Const.

art. VII § 11, there is no question that in 1959 the General Assembly could pass

special laws for the structure of county government.

However, in 1935, the people of South Carolina added a significant

amendment to S.C. Const. art. III, § 34 that revealed the nature of the art. VII,

§ 11 exception. Prior to that amendment, the section read: "The General

Assembly of this State shall not enact local or special laws concerning any of the

following subjects or for any of the following purposes, to wit: . . . (9) In all other

cases, where a general law can be made applicable, no special law shall be

enacted." Subsection (9) was amended in 1935 to include the phrase:

Provided, That the General Assembly may enact local or special

laws fixing the amount and manner of compensation to be paid to

the County Officers of the several counties of the State, and may

provide that the fees collected by any such officer, or officers, shall

be paid into the treasury of the respective counties.

Prior to this amendment, the general law gave the duty to collect delinquent

taxes to the sheriffs of the counties. Under the general law, the, General

Assembly could not permissibly pass special legislation to take away such fees

from the Sheriff. Such action would have been unconstitutional as recognized

by Hurst v. Sumter County, 189 S.C. 376, 1 S.E.2d 238 (1939). In Craig v.

Pickens, 189 S.C. 164) 200 S.E. 825 (1939), the Court upheld a statute that took

away the sheriffs power to collect the delinquent taxes under the general law

and gave this power to a delinquent tax collector. This special law was allowed

by the specific provisions of the 1935 amendment to art. III. Furthermore, the

case noted that "there is no statewide statute in South Carolina governing the

salary of a sheriff." Craig v. Pickens County, 189 S.C. 164, 167, 200 S.E. 825, 826

selected alternative form of government.").

p.27

(1939). This amendment and subsequent case law is significant because it

reveals the General Assembly did not believe that it had the power to enact a

special law taking the fees and taxes away from the county officers in contrast

to the general law without a specific constitutional amendment providing such

power.

There is no dispute that the General Assembly could enact special laws

pursuant to art. VII, § 11 to construct and arrange county governments. As

recognized by the cases following the 1935 amendment to art. III, § 34, this

power was limited in its scope so as to not conflict with the general law of the

state. The Sheriff contends that in 1959 the General Assembly violated the

Constitution because there was a general law giving custody of the county jail

to the sheriff of each county at the time the legislature passed the special

legislation giving the Horry County jail to the Horry County Police Commission.

We agree with the Sheriff that the Acts taking the custody of the Horry County

jail away from the Sheriff were unconstitutional when passed as special

legislation because they were in direct conflict with the general law.

The Acts in this case are special legislation passed in conflict with the

general law of the state. A general law is one that applies to the entire State.

Town of Hilton Head Island v. Morris, 324 S.C. 30, 484 S.E.2d 104, 107 (1997).

Justice Gregory recognized in his Roton v. Sparks concurrence that the general

law in South Carolina is S.C. Code Ann. § 24-5-10 (1976) that gives custody

of the jail to the county sheriff. Roton v. Sparks, 270 S.C. 637, 640, 244 S.E.2d 214,

216 (1978) (J. Gregory, concurring) ("the general law of this State . . . provides:

The sheriff shall have custody of the jail in his county.").5 The general law, both

currently and in 1959 when the General Assembly passed the Acts, has been

that the sheriff of each county has the right to possession of the county jail.

In Graham v. Creel, 289 S.C. 165, 345 S.E.2d 717 (1986), this Court upheld

the validity of Section 53-551 of 21 Statutes at Large 1959 that created the

Horry County Police Commission as permissible special legislation passed prior

to Home Rule. The Police Commission's validity was upheld against the

argument that the passage of the constitutional amendment authorizing Home

Rule repealed such special legislation. The General Assembly passed the Acts

270 S.C. 637~ 244 S.E.2d 214 (1978), is not dispositive of the issue before this

Court. Roton dealt with a county ordinance and not an act by the General Assembly.

p.28

in the current case as part of the same legislation ruled upon in Graham. The court held:

Since § 53-551 S.C. Code Ann. (1962) was not in conflict with the

general law, it remained in full force and effect until the Horry

County Council enacted Ordinance 5-81 on April 16,1981. On that

date, the functions of the Horry County Police Commission devolved

upon the Horry County Council and/or the Horry County

Administrator.

Graham v. Creel, 289 S.C. 165, 168-69, 345 S.E.2d 717, 719 (emphasis added).

This Court found in Graham that the creation of the Horry County Police

Commission in 1959 was within the power of the General Assembly under S.C.

Const. art. VII § 11. The Graham holding, however, did not address the Acts

before the Court in this case and, by its own language, limited that decision to

the issue of the validity of § 53-551 of 21 Statutes at Large 1959. See Graham,

supra.

The Acts in question granting the custody of the jail to the County were

unconstitutional when passed because they were special legislation in direct

conflict with general law already established in the state by statute. The

Graham decision found that it was permissible to set up the Horry County Police

Commission. That opinion recognized that a police commission was not in direct

conflict with a general law of the state. Graham did not address the transfer of

the custody of the jail to the County. The direct conflict between the general

statute granting custody of the jail to the Sheriff and the special legislation

granting the jail to the County requires a finding that the special legislation was

unconstitutional under S.C. Const. art. 111, § 34(9).

We are aware that the Sheriff has not had custody of the Horry County jail

since the Acts were passed in 1959. Mindful of the profound ramifications our

decision may have on the public safety, we delay the effectiveness of this opinion

until July 1, 1999, so that the General Assembly will have an opportunity to

examine this case and other laws similarly situated to the Acts. This delay

allows the legislature time to make any necessary adjustments in light of this

decision.

CONCLUSION

Since the Acts granting custody of the jail to the County were

unconstitutional special legislation when passed in 1959, we REVERSE the

p.29

order of the trial judge and grant the Sheriff s request for relief. Recognizing

that this ruling will impact a settled system of jail management in Horry County

that has existed for 40 years, we deem it appropriate to structure our ruling in

such a way as to allow our General Assembly, the County government, and the

citizens of Horry County some time to deal with the impact of our decision. It

is therefore ordered that this decision shall become effective on July 1, 1999.6

FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.

special legislation in direct conflict with the general law of the state, the other

issues in this case need not be addressed.