AGO 98-65.

• Case Date: April 28, 1998
• Court: South Carolina

South Carolina Attorney General Opinions 1998. AGO 98-65. 254April 28, 1998 OPINION NO. 98-65William M. Roth, Chief of PoliceLexington Police Department 111 Maiden Lane Lexington, South Carolina 29072 Re: Informal OpinionDear Chief Roth: You have asked for an opinion regarding the legality of a proposed Ordinance being considered by the Town of Lexington. Such Ordinance provides as follows:

[i]t shall be unlawful for any person in the Town to wilfully and knowingly fail or refuse to stop when signaled, hailed or commended to stop by a police officer of the Town or to wilfully disobey any other lawful order of a police officer of the Town when such order is issued in conjunction with the officer's official duties.

Law / Analysis We start with the proposition that an Ordinance of a municipality will be presumed valid in the same way that a statute of the General Assembly is entitled to a presumption of correctness. As this Office stated in an opinion, dated May 23, 1995,

[a]ny municipal ordinance adopted pursuant to Section 5-7-30 [of the Code] is presumed to be valid. Town of Scranton v. Willoughby, ___ S.C. ___, 412 S.E.2d 424 (1991). Within the limits of a municipality, an ordinance has the same local force as does a statute. McCormick v. Cola. Elec. St. Ry. Light and Power Co., 85 S.C. 455, 67 S.E. 562

255 (1910). Any ordinance must be demonstrated to be unconstitutional beyond all reasonable doubt. Southern Bell Tel. and Tel. Co. v. City of Spartanburg, 285 S.C. 495, 331 S.E.2d 333 (1985). The presumption of validity applies to legislation relating to a city or a town's police powers. Town of Hilton Head v. Fine Liquors, Ltd., 302 S.E. 550, 397 S.E. 662 (1990).

Only recently, our Supreme Court, in Williams v. Town of Hilton Head Island, ___ S.C. ___, 429 S.E.2d 802 (1993), reaffirmed the considerable degree of autonomy that municipalities now enjoy. The Court held in Williams that the so-called "Dillon's Rule", long-recognized by our Court in previous cases to limit substantially the power of municipalities to specific statutory authorization or fair implications therefrom was, in keeping with the Home Rule amendments and their implementing statutory authority, no longer valid. Recognizing that Home Rule meant just that, the Court left no doubt as to the intent of the General Assembly:

This Court concludes that by enacting the Home Rule Act, S.C. Code Ann. Sec. 5-7-10 et seq. (1976), the legislature intended to abolish the application of Dillon's Rule in South Carolina and restore autonomy to local government. We are persuaded that, taken together, Article VIII and Section 5-7-30, bestow upon municipalities the authority to enact regulations for government services, deemed necessary and proper for the security, general welfare and convenience of the municipality or for preserving health, peace, order and good government, obviating the requirement for further specific statutory authorization so long [as] ... such regulations are not inconsistent with the Constitution and general law of the state. (emphasis added).

This same standard was enunciated by the Court recently in Hospitality Assoc. v. Town of Hilton Head, ___ S.C. ___, 464 S.E.2d 113 (1995). There, the Court said the following: 256

[d]etermining if a local ordinance is valid is essentially a two-step process. The first step is ascertain whether the county or municipality that enacted the ordinance had the power to do so. If no such power existed, the ordinance is invalid and the inquiry ends. However, if the local government had the power to enact the ordinance, the next step is to ascertain whether the ordinance is inconsistent with the Constitution or general law of this State. For the reasons discussed below, we hold that (1) the local governments had the power to enact the ordinances, and (2) the ordinances are not inconsistent with either the Constitution or general law of this state.

Moreover, "[w]hile this Office advises whenever it may identify a constitutional infirmity, it is solely within the province of the courts of this state to actually declare an enactment or ordinance unconstitutional or unenforceable for other reasons." Applying the foregoing authority, it is clear that the Town would possess the power to adopt the Ordinance which you have enclosed. S.C. Code Ann. Sec. 5-7-110 provides as follows:

[a]ny municipality may appoint or elect as many police officers, regular or special, as may be necessary for the proper law enforcement in such municipality and fix their salaries and prescribe their duties.

Police officers shall be vested with all the powers and duties conferred by law upon constables, in addition to the special duties imposed upon them by the municipality. (emphasis added).

With respect to this statute, we have previously noted that Section 5-7-110 gives municipalities "broad authority" with respect to a municipal police department. Op. Atty. Gen., April 2, 1996 (Informal Opinion). Moreover, as the Court stated in the Williams case, "... Article VIII and Section 5-7-30 [taken together] ... bestow upon municipalities the authority to enact regulations for government services deemed necessary and proper for the security, general welfare and convenience of the municipality or for preserving health, peace, order and good government, obviating the requirement for further specific statutory authorization so long [as] ... such regulations are not inconsistent with the Constitution and general law of the state." 257Thus, readily acknowledging that the proposed ordinance is within the Town's authority to adopt, the real issue is whether it conflicts with the general law of the State or is not constitutionally valid. Again, we must emphasize the presumption of validity, referenced above. Such Ordinance would thus be binding and enforceable, if adopted, unless and until set aside by a Court. The question of constitutionality must be divided into two parts of analysis --- first, that...