History Of Home Rule In South Carolina

Since its inception, the South Carolina Home Rule was recognized as a necessary limitation on state legislature’s ability to restrict the authority of municipal government, particularly fiscal authority. Prior to the SC Home Rule, the Senator, as a legislative delegate, controlled the county and oversaw the spending and allocation of every aspect of a county’s budget. The needs of counties and local governments were often overlooked as the state legislature looked at fiscal allocation through a broad lens, mostly restricting a local municipalities ability to address individual concerns within their municipalities. 

In 1957, Columbia Mayor Clarence J. Dreher addressed the disparity of fiscal authority between state and local governments in what would be known as the “Wiggins Report.” Dreher recognized the fiscal problems and sources of revenue between state and local governments were “interrelated, interwoven [and] overlapping.” Particularly, Dreher noted that a major issue in the fiscal problems of local government was due to “the extent to which the state controls the delicate relationship between itself and the local governments.” Dreher further concluded his position that a state’s success is reliant on the success of its local and municipal governments, stating “the state must accept its responsibilities and unless we have healthy, fiscally sound municipal governments in the state, the state itself cannot experience progress and sound government.” 

` Following Mayor Dreher’s comments in the Wiggins Report, the growing need for Constitutional reform to give county government structure and define its authority continued after the 1964 US Supreme Court ruling in Reynolds v. Sims. Reynolds expanded political boundaries for state senators beyond county lines. Thus, a senator and state legislature were no longer best suited for governing individual counties as districts could include multiple counties and parts of others. Due to the geographical positions of certain counties, a senator could be swayed to favor one county over another because of potential political gain and could be inclined to delegate for laws that would be unfavorable for one county, but favorable to another. Counties needed to have a way to govern themselves to avoid the consequences of potential bias within state legislature. 

The Supreme Court of South Carolina in Hosp. Ass’n of S.C., Inc. v. Cty. of Charleston further commented on the beginnings of the Home Rule in South Carolina and the important role it plays in “eliminat[ing] archaic provisions” of the Constitution by strengthening “proper safeguards for sound State, County, and local governments. 320 S.C. 219, 225, 464 S.E.2d 113, 117 (1995). The purpose for the hearings and conferences in the late 1960’s to early 1970’s, which is known as the “West Committee,” was to place control of management of county and municipal affairs in the hands of duly elected local officials. Hosp. Ass’n of S.C., 320 S.C. at 225, 464 S.E.2d at 117 (emphasis added). There was a unanimous decision by the Committee to recommend amendments to the Constitution in favor of the Home Rule. Id. 

In the 1972 general election, South Carolina voters voted for an amendment to the Constitution, Article VIII, which was then ratified in 1973. After its ratification, the Supreme Court of South Carolina weighed in on the effects Article VIII would have on enacted statutes in compliance with the new amendment to the Constitution. In Knight v. Salisbury, the South Carolina Supreme Court noted that “Article VIII reflects a serious effort upon the part of the electorate and the General Assembly to restore local government to the county level.” 262 S.C. 565, 569, 206 S.E.2d 875, 876 (1974). The Supreme Court held State Constitutional laws are not grants of power to the General Assembly, but rather restrictions on what would otherwise be their absolute power. Knight, 262 S.C. at 570, 206 S.E.2d at 877. Additionally, the Supreme Court distinguished the road to the implementation of the Home Rule began in the 1940’s with the County Council of Charleston County being established. Id. Following reapportionment, various other counties adopted similar governmental plans to the County Council of Charleston County and that it is “clearly intended that the home rule be given to the counties and that county government should function in the county seats rather than at the State Capitol.” Id. at 571. For counties to remain part of government, the power to function must exist at the county level. Id.  

Though Article VIII was newly implemented, the Supreme Court in Knight noted that analyzing Constitutional provisions must be harmoniously interpreted as a whole, and not “item by item.” Id. at 877.  Particularly, the individual sections of Article VIII and other Articles and provisions of the South Carolina Constitution. Section 1 states the “powers possessed by all counties, cities, towns, and other political subdivisions at the effective date of this Constitution shall continue until changed in a manner provided by law.” S.C. Const. Art. VIII, §1; see Knight, 262 S.C. at 569, 206 S.E.2d at 876. With this language, the framers intended to curtail legislative power of the General Assembly and disallow hinderance of Article VIII’s effectiveness. Id. Under Article VIII, Section 7, the General Assembly has the right to “provide general law for structure, organization, powers, duties, functions, and responsibilities of counties…” S.C. Const. Art. VIII, §7. This is congruent with the language set forth in §5-7-10, laying out the scope of the Home Rule. Similarly, Article VIII, Section 9 provides that the powers, duties, functions, and responsibilities of a municipality are established by general law. S.C. Const. Art. VIII, §9. It appears the drafters of Article VIII intended the General Assembly to retain its power to create general laws but are restricted from their ability to create “special purpose districts” within a county. Knight, 262 S.C. at 572, 206 S.E.2d at 878. 

This intention is made clear by the language used in Sections 7 and 10 of Article VIII stating, “No laws for a specific county [or municipality] shall be enacted and no county [or municipality] shall be exempted from the general laws or laws applicable to the selective alternative form of government.” See S.C. Const. Art. VIII, §7; see also S.C. Const. Art. VIII, §10. Although the General Assembly can still establish general law, there is a line between general law and those that are “special in form.” The Supreme Court of South Carolina held that although a law may be expressed in a general form, if the spirit and practical operation of the act is special, then it “violates a constitutional inhibition of special legislation as much as one special in form.” Timmons v. SC Tricentennial Comm’n, 254 S.C. 378, 398, 175 S.E.2d 805, 815 (1970) (citing Elliott v. Sligh, 233 S.C. 161, 103, S.E.2d 923 (1958)). Applying the reasoning of limiting the General Assembly to create special legislation to Article VIII, the Supreme Court in Knight stated if the General Assembly was able to create special purpose districts within a county, despite prohibition of laws for a specific county, then “a frightful conflict would exist between the power of the General Assembly and the power of the County government.” Knight, 262 S.C. at 572, 206 S.E.2d at 878. Thus, creating “enumerable special districts” would lead to commissions or agencies having the power to perform functions “intended to have been vested in the county government.” Id. at 572-73. Further, the court noted that this power would render Section 7 useless as the result would be “chaotic and the home rule intended by Section 7 would be frustrated in whole or in part since the result well be that the governing body in each county contemplated by the draftsmen of Section 7 would have little or no power left.” Id. Essentially, with the prohibition of laws for specific county or municipality, the draftsmen did not intend for the General Assembly to have a work around to continue to extend their power over local or county governments. 

As the Supreme Court stated in Knight, the Constitution should be read harmoniously as a whole, other sections and statutes indicate the intentions of the drafters to confer upon the municipalities the powers enumerated in the Constitution. Section 7 particularly states that the “powers, duties, and responsibilities granted local government subdivisions by this Constitution and by law shall include those fairly implied and not prohibited by this Constitution. S.C. Const. Art. VIII, §7 (emphasis added). Read in congruence with the Constitution, the intentions of the drafters are further stated in the language of Section 17 and within the provisions set forth in §5-7-10 of the Home Rule Statute. The language states the powers of a municipality and laws concerning local governments “shall be liberally construed in favor of the municipality and the specific mention of particular powers shall not be construed as limiting in any manner the general powers of such municipalities.” S.C. Const. Art. VIII, §17; S.C. Code Ann. §5-7-10 (emphasis added). The Supreme Court in Williams v. Town of Hilton Head Island, S.C., concluded and confirmed that “by enacting the Home Rule… the legislature intended to abolish Dillon’s Rule in South Carolina and restore autonomy to local government.” 311 S.C. 417, 422, 429 S.E.2d 802, 805 (1993) (emphasis added). Read in conjunction with the Constitution and the statutes therein, the Home Rule “bestow[s] upon municipalities the authority to enact regulations for government services deemed necessary, proper, for the security, general welfare and convenience of the municipality or preserving health, peace, order, and good government… so long as such regulations are not inconsistent with the Constitution or general laws of the state.” Williams, 311 S.C. at 422, 429 S.E.2d at 805; see also S.C. Code Ann. §5-7-30.  

Specifically, the powers conferred upon a municipality are the exercise of powers in relation to “roads, streets, markets, law enforcement, health, and order…” S.C. Code Ann. §5-7-30 (emphasis added). The Supreme Court of South Carolina recognized that Article VIII implies that “different local governments have different problems that require different solutions.” Hosp. Ass’n of S.C., 320 S.C. at 230. Following the reasoning of Justice Littlejohn in Knight, the Supreme Court held that enacting statutes within the Home Rule, such as §5-7-30, the General Assembly gave local governments the power to deal with these problems at the local level rather than at the State Capitol. Id; see Knight, 262 S.C. at 571. Particularly, the court in Hosp. Ass’n of S.C. recognized local governments are better suited for local issues and solutions of beach areas that “face problems such as beach erosion and tourism costs that many inland governments do not face.” Id at 230 n.10 (emphasis added). 

Beyond those powers implicated in Article VIII, the Home Rule includes statutes and regulations that speak to particular issues of a municipalities’ powers and those of the state. Amongst these powers and restrictions are those relating to streets, highways, road, and parking. As read in correspondence with §5-7-30, Art. VIII §17 of the South Carolina Constitution, and §5-7-10, the municipalities exercise of powers in relation to streets, roads, and parking shall be read in favor of the municipality and the specific mention of these powers shall not be construed as limiting on the general power of the municipality. See S.C. Code Ann. §5-7-30; see also S.C. Code Ann. §5-7-10; see also S.C. Const. Art. VIII §17 (stating all laws concerning local governments shall liberally be construed in their favor). The Department of Transportation (hereafter “Department”) is given discretionary power to approve or reject a municipalities ability to alter, or restrict state highways, municipal utilities, or parking, S.C. Code Ann. §5-7-840. The Department can approve the alteration or restrictions through the municipality applying for an encroachment permit. Id. Further, the Department is explicitly allowed to restrict or prohibit parking of vehicles on any highway the Department deems would unduly interfere with the free movement of traffic. S.C. Code Ann. §56-5-2540. Additionally, the rights of a municipality to establish on-street parking facilities has been reaffirmed and the facilities may be established and operated where the municipality sees fit. S.C. Code Ann. §5-29-30. Although the consent of the Department is required for a municipality to alter any highway system, the Department must receive consent and approval of proper municipality authorities for any work of state highways within a municipality. S.C. Code Ann. §57-5-820. The only explicit authority by the Department to work within a municipality, without its consent, is on a bridge and its approaches when the bridge or approach is functionally obsolete. Id. “Functionally obsolete” is defined as a narrow clearance or sharp roadway approach that would make passage difficult or hazardous. Id. 

The General Assembly enacted Act 89, S.40 to amend §57-5-840 to include the need for any municipality to have an encroachment permit approved by the Department to alter not only the highway system, but also any parking restrictions. SC Legis. 89 (2021), South Carolina Laws Act 89 (S.40). The previous version of §57-5-840 only required approval by the Department for use of the highway or right of way of a State highway for the use of city utilities. Although §5-29-30 still affirmatively gives municipalities the right to establish on street parking, the amended version includes the need for Department approval regarding any use or restrictions on municipal parking. Id. In addition to an amended reading of §57-5-840, Act 89 includes a new statute, §57-5-845, to make free public beach parking mandatory in beach communities. Id. 

Harmoniously reading and interpreting the statutes set forth in the Home Rule, the intentions of the drafters were to confer specific powers upon municipalities and limit those of the State. The State has the power to restrict operations of the municipality, however the ability to create parking and other actions pertaining to the maintenance and changing of any municipality roadway, highway, or street is explicitly left to the municipality to approve or deny. Although the State has the power to work within a municipalities highway system without consent when the structure is “functionally obsolete,” the alteration to the highway system was not a result of a functionally obsolete structure.  The explicit power to prohibit, restrict, or work without consent involves the necessity arising out of the existing structure being difficult, hazardous, or hindering the free movement of traffic. However, the State’s authority to work on the roadways does not include the creation of hazardous conditions or hindering the free movement of traffic, like the Department has done here. To do so would render the municipalities’ power to decide on these matters useless and have the opposite safety effect the State’s power was intended to achieve. The alterations made by the Department have already caused the rate of accidents on the connector to double. Read in favor of the municipality, these powers conferred should remain with the municipality because the municipality is better suited to promote the health, safety, and order of their municipality. 

The very nature of the introduction of this new Act 89, S.40 is exactly what the original drafters of the Home Rule intended to avoid. Controlling these local issues from the State Capitol instead of at the hands of duly elected local officials is the kind of overreach the Home Rule was implemented to deter. Though the power to create general laws remains with the General Assembly, the amendments and additions to the statutes provided in Act 89, S.40 are special legislation, applied only to beach communities, which the Home Rule and the Constitution of South Carolina prohibit. As the Supreme Court of South Carolina reasoned in Hosp. Ass’n of S.C., beach areas face many issues that the inland municipalities do not and these issues are best managed at the local level. For the General Assembly to grant powers that are explicitly held for a municipality is equivalent to the restriction of a municipality enacting regulations or ordinances that are inconsistent with the Constitution of South Carolina and the general laws of the state. With the holding in Reynolds v. Sims, creating problems because of reapportionment, local officials and governments foresaw the need for Constitutional reform to prevent political bias towards certain municipalities. The enactment of Act 89, S.40 is rooted in the bias towards beach communities and municipalities that is strictly for political gain. As the Supreme Court noted in Knight v. Salisbury, if the State has the power to create special legislation for a specific county or municipality, the effect of the Home Rule would have little to no power.   

The South Carolina Constitution and the Home Rule are interwoven to afford municipalities the powers to settle issues at the local level, where they are best suited. Local governments have the duty to preserve the general welfare, health, peace, order, and good government of the municipalities. With an increase in the number of accidents, the removal of emergency access to the mainland, and Department overreach into local issues, Act 89, S.40 does the exact opposite of promoting the duties conferred upon the local governments.