Martin v. Condon , 324 S.C. 183 ( 1996 )

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.

Article VIII, § 14 does not require statewide uniformity of general law provisions regarding “criminal laws and the penalties and sanctions for the transgression thereof.” Article VIII, § 14, in its preamble, provides that “general law provisions applicable to the following matters shall not be set aside.” (emphasis added). The plain meaning of this provision requires that local enactments “set aside” some existing provision of the general law before a constitutional violation occurs. Indisputably §§ 12-21-2806 and -2808, supra, effect a setting aside of the general criminal law and are constitutionally prohibited.

However, the majority’s reliance on Connor is misplaced. Connor held, inter alia, a municipal enactment prohibiting nude dancing violative of Article VIII, § 14, even though no State law prohibited nude dancing. In my opinion the Connor court erred. The court held that conduct which is not unlawful under State laws cannot be made unlawful by local enactment. As laudable as this may be, the court effectively provides that all conduct is lawful unless made unlawful by enactment of the General Assembly. Article VIII, § 14, does not yield to such an interpretation. Local government enactments which are not inconsistent with any State law do not “set aside” any criminal laws enacted by the State. See Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990) (in order to preempt an entire field, an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way).

I would overrule Connor insofar as it holds that local governments may not criminalize conduct that is not unlawful under statewide criminal law.