Martin v. Condon

Decision Date14 November 1995
Docket NumberNo. 24518,24518
CourtSouth Carolina Supreme Court
PartiesJimmy L. MARTIN, Sr., on behalf of himself and all others similarly situated, Appellant, v. Charles CONDON, in his official capacity as Attorney General of the State of South Carolina; Burnet R. Maybank, III, in his official capacity as Director of the Department of Revenue and Taxation of the State of South Carolina; The Department of Revenue and Taxation of the State of South Carolina; Barbara Ruth Morgan, in her official capacity as Second Circuit Solicitor and on behalf of all solicitors similarly situated; and Howard Sellers, in his official capacity as Sheriff of Aiken County and on behalf of all law enforcement officers similarly situated, Respondents. . Heard

Richard A. Harpootlian, Debra Y. Chapman, and James M. Griffin, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General Treva G. Ashworth, Senior Assistant Attorney General Nathan Kaminski, Jr., Assistant Deputy Attorney General Robert D. Cook, Assistant Attorney General Cameron B. Littlejohn, and Chief Counsel for Revenue Litigation Ronald W. Urban, Columbia, for respondents Dennis M. Gmerek, Langley, for respondent Sellers.

Condon, Maybank, Department of Revenue and Taxation, and Morgan.

MOORE, Justice:

This appeal is from an order finding the local option provisions of the Video Game Machines Act constitutional. We reverse.


Appellant commenced this declaratory judgment action challenging the constitutionality of S.C.Code Ann. §§ 12-21-2806 and -2808 (Supp.1995) of the Video Game Machines Act. Section 12-21-2806 provides for a referendum vote held on a county-by-county basis to determine the legality of non-machine cash payouts from coin-operated video game machines. As a result of the county referenda, these payouts became illegal in twelve of the forty-six counties in the State. Section 12-21-2808 allows for subsequent referenda to raise the same issue in 1998 and years thereafter. The trial judge found these statutes constitutional.


Are these statutes unconstitutional special legislation under article III, § 34?


Article III, § 34, of our State constitution requires that "where a general law can be made applicable, no special law shall be enacted." The trial judge held the local option laws in this case are not special laws in violation of article III, § 34, but qualify as general laws because they operate uniformly in each county by requiring a referendum vote. Appellant contends this ruling was error because the effect of the local option laws is to treat the same conduct differently in each county and the result is unconstitutional special legislation. We agree.

In determining whether an act of the legislature is unconstitutional special legislation, this Court will examine the practical operation of the act as well as its form. Elliott v. Sligh, 233 S.C. 161, 103 S.E.2d 923 (1958); Town of Forest Acres v. Town of Forest Lake, 226 S.C. 349, 85 S.E.2d 192 (1954). A local option law does not escape scrutiny as special legislation simply because it offers the same option to all counties. Under Thompson v. S.C. Comm'n on Alcohol and Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976), the inquiry is whether the effect of the local option law is unconstitutional special legislation. The legislation struck down in Thompson, as the legislation in this case, offered exactly the same option to every county in the State. In Thompson it was the practical effect of the local option that was determined to be unconstitutional under article III, § 34. 1 Accordingly, we find the trial judge erred in ruling that the local option laws in this case are not special legislation simply because they offer each county the same option.

What is the effect of § 12-21-2806

? 2

Gaming and betting are activities subject to statewide criminal laws. Under S.C.Code Ann. § 16-19-40 (1985), gaming or betting is unlawful. It is punishable by thirty days' imprisonment or a fine of $100; further, under the same section, keeping a place used for such a purpose is punishable by a one-year term of imprisonment or fine of $2,000. 3 Under S.C.Code Ann. § 16-19-60 (Supp.1995), 4 however, coin-operated nonpayout machines with a free play feature are exempted The local option law before us in this case, § 12-21-2806, allows the counties to opt out of the exemption provided in § 16-19-60 for these non-machine cash payouts. 5 In the counties that voted for the elimination of this exemption, the effect is to criminalize conduct that remains legal elsewhere under State law.

from § 16-19-40. Under this exemption, non-machine cash payouts are legal. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991).

Application of article III, § 34.

Article III, § 34, prohibits special legislation where the effect is to have different criminal laws in different counties. In State v. Hammond, 66 S.C. 219, 44 S.E. 797 (1903), we struck down as unconstitutional a law making it a misdemeanor to dam a stream in certain counties and not others. The special legislation at issue in Hammond was impermissible under article III, § 34, precisely because it involved penal sanctions. Ruggles v. Padgett, 240 S.C. 494, 126 S.E.2d 553 (1962).

In Thompson, supra, we considered the constitutionality of a local option allowing an alcohol treatment program as an alternative to criminal prosecution under the State law regarding public intoxication. We found the local option was unconstitutional special legislation since some local governments elected to participate and others did not, resulting in the disparate application of a statewide criminal law. Similarly, in Daniel v. Cruz, 268 S.C. 11, 231 S.E.2d 293 (1977), we struck down a local option allowing any county to opt out of a statewide law permitting fortune-telling because the effect of the local option law was to criminalize fortune-telling in some counties and not in others. 6

Further, special legislation is unconstitutional under article III, § 34, where another constitutional provision requires uniformity on that subject. See Thorne v. Seabrook, 264 S.C. 503, 216 S.E.2d 177 (1975) (special legislation enacting different procedure for returning property in Charleston County violates article III, § 34, in light of other constitutional provision requiring uniformity of property tax laws); see also State v. McIver, 270 S.C. 242, 241 S.E.2d 747 (1978) (special legislation regarding jury selection in Florence County violates article III, § 34, in light of other statute requiring uniformity); see generally Knight v. Salisbury, 262 S.C. 565, 206 S.E.2d 875 (1974) (the constitution is not to be construed item by item and its provisions must be harmonized).

Article VIII, § 14(5), of our constitution requires statewide uniformity of general law provisions regarding "criminal laws and the penalties and sanctions for the transgression thereof." 7 Accordingly, local governments may not criminalize conduct that is legal under a statewide criminal law. Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608 (1994) (municipality cannot criminalize nude dancing where relevant State law does not); see also City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569 (1991) (local government cannot impose different penalties for possession of marijuana than those established under State law). Here, the effect of § 12-21-2806 is to

criminalize in twelve counties conduct that is legal under a State criminal law. This effect conflicts with the constitutional requirement of uniformity in the area of State criminal laws and thus violates article III, § 34, as unconstitutional special legislation. 8


We hold § 12-21-2806 and § 12-21-2808 unconstitutional. In so doing, we express no opinion on the advantages or disadvantages of the video game machine industry. This Court must construe the constitution and laws of this State without concern for political or popular opinion. It is the legislature's responsibility to fashion laws that conform to our constitution or, in the alternative, seek the amendment of the constitution where the will of the people requires it. As it is, we are constrained to follow the constitution and hold this legislation invalid. Further, we note the narrowness of our holding today and emphasize that it does not impact all local option laws. Local options that do not infringe areas where uniformity is constitutionally required are not subject to the same analysis we apply here. See Westvaco Corp. v. South Carolina Dept. of Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995) (upholding local option sales tax as constitutional).


FINNEY, C.J., and Carol Connor, Acting Associate Justice, concur.

BURNETT, J., concurs in separate opinion.

TOAL, J., dissents in separate opinion.

BURNETT, Justice, concurring:

I concur with the majority's conclusion that S.C.Code Ann. §§ 12-21-2806 and -2808 (Supp.1995) are unconstitutional as violative of S.C.Const. article III, § 34. I write separately to express my disagreement with the majority's reliance on Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608 (1994).

South Carolina Constitution article VIII, § 14, provides:

In enacting provisions required or authorized by this article, general law provisions applicable to the following matters shall not be set aside:

(1) The freedoms guaranteed every person; (2) election and suffrage qualifications; (3) bonded indebtedness of governmental units; (4) the structure for and the administration of the State's judicial system; (5) criminal laws and the penalties and sanctions for the transgression thereof; and (6) the structure and the administration of any governmental service or function, responsibility for which rests with the State government or which requires statewide uniformity.


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