THE STATE OF SOUTH CAROLINA
In The Supreme Court
John T. Henry, Jr., Appellant,
Horry County, A Body
Politic; Linda Angus, as
Administrator; A. Joseph
McNutt, Jr.; as
Chairman of the Horry
County Council; Ray
Skidmore, Jr. John Kost,
Ray Brown, Chandler
Brigham, Chandler C.
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
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
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.
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
1. Were the Acts granting the County custody of the jail in 1959
2. If the Acts were constitutional, did the enactment of Home Rule
void the Acts as special legislation passed in conflict with the
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
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.
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
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
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.").
(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
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.
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
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,
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
Since the Acts granting custody of the jail to the County were
unconstitutional special legislation when passed in 1959, we REVERSE the
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.