THE STATE OF
In The Supreme Court
South Carolina State Ports Authority, Petitioner,
Opinion No. 26132�
Heard September 20, 2005 - Filed April 3, 2006
C. Mitchell Brown and Kevin A. Hall, both of Nelson Mullins Riley & Scarborough, LLP, of
Columbia, for Petitioner.
A. Camden Lewis, Keith M. Babcock and Brady T. Thomas, all of Lewis, Babcock & Hawkins, of Columbia; and Marvin C. Jones, of Bogoslow Jones Stephens & Duffie, PA, of Walterboro, for Respondent.
JUSTICE BURNETT:� This case was filed in the original
jurisdiction of the Court, pursuant to Rule 229(a), SCACR. �The South Carolina State Ports Authority (SCSPA) seeks a declaratory judgment determining whether it has the exclusive authority to develop a port or terminal on the
After several years of rejecting the idea of building a public
marine terminal in County, the SCSPA informed County in early 2004 of its interest in 1,776 acres of land located along the
On January 7, 2005, Council adopted Resolution #05-01, which
authorized County to enter into development and management agreements with South Atlantic International Terminal, LLC (SAIT), a private company. �Under Resolution #05-01, County would own the land and the public marine terminal.� SAIT would assist County in developing and managing County�s terminal, and SAIT would serve as Port Developer/Manager for County.� On the same day, County had a first reading of
On January 18, 2005, the SCSPA�s board of directors unanimously approved a resolution to undertake efforts to acquire the Proposed Site, including commencing a condemnation action.� The board also approved the step of commencing this lawsuit.� On the same day, the SCSPA requested permission, as required by S.C. Code Ann. � 28-2-70 (1991), from GDOT to enter the Proposed Site in anticipation of condemning the land.� The SCSPA commenced this action in the Court�s original jurisdiction on January 19, 2005, seeking declaratory judgments and injunctive relief.�
I. Does the SCSPA�s Enabling Act preempt County from developing a county-owned public marine terminal on the Savannah River? II. If County is not preempted, does County have the power and authority to create a county-owned public marine terminal? III. If County has the power and authority to create a county-owned public marine terminal, is that power consistent with the Constitution or the general law of the Stat
Determining whether a local ordinance is valid is essentially a
two-step process. Bugsy�s, Inc. v. City of Myrtle Beach, 340 S.C. 87, 93, 530 S.E.2d 890, 893 (2000). The first step is to ascertain whether the county had the power to enact the ordinance.� If the state has preempted a particular area of legislation, then the ordinance is invalid.� If no such power existed, the ordinance is invalid and the inquiry ends.� However, if the county had the power to enact the ordinance, then the Court ascertains whether the ordinance is inconsistent with the Constitution or general law of this state.�
The SCSPA argues the General Assembly has preempted the field of developing and constructing harbors and seaports, including terminals, on the Savannah River, through its Enabling Act, S.C. Code Ann. �� 54-3-110 through -1050 (1992 & Supp. 2004). We disagree.��������������
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.� Town of
The following provisions of the SCSPA�s Enabling Act are at issue:
Through the [SCSPA], the State may engage in promoting, developing, constructing, equipping, maintaining, and operating the harbors or seaports within the State.
S.C. Code Ann. � 54-3-110.
The [SCSPA] is created as an instrumentality of the State for the accomplishment of the following general purposes:. . .(8)To promote, develop, construct, equip, maintain and operate a harbor or harbors within this State on the Savannah River, and in furtherance thereof have all of the powers, purposes and authority given by law to the [SCSPA] in reference to the harbors and seaports of Charleston, Georgetown and Port Royal [see � 54-3-410]; and (9) In general to do and perform any act or function which may tend to or be useful toward the development and improvement of such harbors and seaports of this State and to the increase of water-borne commerce, foreign and domestic, through such harbors and seaports.
Id. � 54-3-130.
[F]or the acquiring of property necessary for the development of a harbor or harbors within this State on the
Savannah River, the [SCSPA] may purchase them by negotiation or may condemn them. The power of eminent domain shall apply not only to all property of private persons or corporations but also as to propertyalready devoted to public use. Id. � 54-3-150.
A.����� Express Preemption
Express preemption occurs when the General Assembly declares in express terms its intention to preclude local action in a given area.� See e.g. Wrenn Bail Bond Service, Inc., 335 S.C. at 28, 515 S.E.2d at 522. �See also
B.����� Implied Field Preemption
Under implied preemption, an ordinance is preempted when
the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity. �See Denene, Inc., 352 S.C. at 213, 574 S.E.2d at 199 (�[i]t would have been unnecessary for the legislature to refer to municipalities� authority to regulate the hours of operation of retail sales of beer and wine if the General Assembly intended to occupy the entire field�); McAbee v. Southern Ry. Co., 166 S.C. 166, 166, 164 S.E. 444, 445 (1932) (�the question [of] whether a conflict exists [between a statute and an ordinance] depends upon whether the state has occupied the whole field of prohibitory legislation with respect to the subject. If such is the case it is held that a conflict exists.�). �See also
The SCSPA contends that the specific provisions in S.C. Code Ann. �� 54-3-130 and -150 manifest a legislative intent to occupy the field.� The SCSPA, relying on Barnhill, 333 S.C. at 486-87, 511 S.E.2d at 363-64, asserts that the statutory purpose of acquiring property and developing ports within the State on the
In construing statutory language, the statute must be read as a
whole and sections which are a part of the same general statutory law must be construed together and each one given effect.� TNS Mills, Inc. v.
Several other factors demonstrate the General Assembly did not intend to occupy the field of port or terminal development.� For example, S.C. Code Ann. � 54-3-410 gives the SCSPA the authority to supervise terminals in
Moreover, S.C. Code Ann. �� 54-5-10 through -110 (1992) allows cities with a population in excess of 50,000 and which are located on a navigable stream to develop port and terminal utilities.� Also, municipalities, including counties, are authorized to construct terminals pursuant to S.C. Code Ann. �� 6-21-5 through -570 (2004).� These provisions further reveal the absence of a legislative intent to place exclusive authority to develop a port or terminal in the SCSPA.
The presence of non-SCSPA-owned terminals in the state further indicates the field is not occupied.� If the General Assembly had manifested an intent to preempt the field, then the SCSPA would be the sole developer of ports and terminals, and other entities, private and public alike, would be prohibited from such facilities.�
The SCSPA argues that its grant of jurisdiction to oversee harbors within the state is a manifestation of a legislative intent to preempt the field. �See S.C. Code Ann. � 54-3-120 (�The jurisdiction of the Authority in any of said harbors or seaports within the State shall extend over the waters and shores of such harbors or seaports�.�).� This argument is unpersuasive because the statutory provision does not deal with port or terminal development within the State, but rather specifies the extent of the SCSPA�s authority.�
The SCSPA also argues that the field of port and terminal development is occupied because the management of
C.����� Implied Conflict Preemption
Conflict preemption occurs when the ordinance hinders the accomplishment of the statute�s purpose or when the ordinance conflicts with the statute such that compliance with both is impossible.� See Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 530, 476 S.E.2d 477, 480 (1996) (�To determine whether the ordinance has been preempted by Federal or State law, we must determine whether there is a conflict between the ordinance and the statutes and whether the ordinance creates any obstacle to the fulfillment of Federal or State objectives.�); 192 Coin-Operated Video Game Machines, 338 S.C. at 186, 525 S.E.2d at 877 (describing federal law conflict preemption); 56 Am.Jur.2d Municipal Corporations � 392 (�[i]mplied conflict preemption occurs when an ordinance prohibits an act permitted by a statute, or permits an act prohibited by a statute�); 5 McQuillin Municipal Corporations �15.18.
The SCSPA contends that County�s efforts to condemn the Proposed Site and develop a terminal on the site are in direct conflict with the specific provisions in the SCSPA�s Enabling Act and serve to complicate and burden the SCSPA in accomplishing one of its express purposes.� Specifically, the SCSPA argues that County�s efforts conflict with S.C. Code Ann. �� 54-3-130(8), -140(4), and -150.� In our opinion, the General Assembly has not preempted the field.� The statutory provisions do not manifest an intent that other public entities are prohibited from developing ports and terminals or from exercising their eminent domain powers for such development.� Compliance with both is possible and County�s efforts do not conflict with the SCSPA�s Enabling Act.�
II.����� County�s Power and Authority
The SCSPA contends that County does not have the power and
authority to develop and operate a terminal on the
County�s Resolution provides:
[T]here is hereby established a public marine terminal for and of
Port Developer/Manager to provide assistance to the County in the form of turnkey development and management services. . . .� Jasper County on the Terminal Property to be named the South Atlantic International Terminal. . .[T]here is hereby appointed. . .South Atlantic International Terminal, LLC as
County�s Ordinance provides: �To adopt a Loan Agreement between the County and South Atlantic International Terminal, LLC and to authorize the borrowing of money as provided therein.�� The Resolution and Ordinance both find that:
a public marine terminal will serve the best interests of the citizens of
Jasper County to (i) provide transportation facilities, (ii) remedy a shortage of marine cargo loading, unloading, and transshipment capacity in Jasper County, the State of South Carolina and the Lowcountry region, (iii) foster development of commerce in Jasper County, (iv) meet Jasper County�s unrealized potential as a regional transportation nexus, and (v) reduce local unemployment.
Article VIII of the South Carolina Constitution �mandates �home
rule� for local governments� and requires �all laws concerning local government [to] be liberally construed in their favor.� S.C. Const. art. VIII, � 17; see also Quality Towing Inc. v. City of Myrtle Beach, 340 S.C. 29, 37, 530 S.E.2d 369, 373 (2000).� County contends that under S.C. Code Ann. � 4-9-25 (Supp. 2004), its Resolution, Ordinance, and proposed terminal are valid because the terminal will promote the general welfare of the county and enhance the county�s economy.� Section 4-9-25, especially when read in conjunction with Article VIII�s mandatory liberal construction, authorizes County to pass a resolution and enact an ordinance promoting the general welfare of County�s residents by building and maintaining a public marine terminal on the
III.��� Validity of Ordinance
The SCSPA argues that County�s Resolution and Ordinance are inconsistent with the Constitution and general law of this state.� We disagree, but find the SCSPA�s eminent domain power is superior to County�s power.
Where an ordinance is not preempted by state law, the ordinance is valid if there is no conflict with State law.� Bugsy�s Inc., 340 S.C. at 95, 530 S.E.2d at 894.� A conflict between a state statute and a county ordinance exists when �both contain either express or implied conditions which are inconsistent with each other. . . . If either is silent where the other speaks, there can be no conflict between them.� Where no conflict exists, both laws stand.� �Fine Liquors, 302 S.C. at 553, 397 S.E.2d at 664.�
First, the SCSPA contends that County�s Resolution and Ordinance conflict with Article VIII, � 14 of the South Carolina Constitution.� Section 14 prohibits local governments from �set[ting] aside�the structure and the administration of any governmental service or function, responsibility for which rests with the State government or which requires statewide uniformity.�� County�s Ordinance and Resolution do not �set aside� the structure or administration of developing ports or terminals because as previously explained, that function does not rest exclusively with the state government and does not require statewide uniformity.� Cf. Town of
Second, the SCSPA argues that County�s Resolution and Ordinance are inconsistent with the S.C. Code Ann. �� 54-3-110 through -140.� We conclude the statutory provisions and the ordinance are consistent because the provisions are silent on the issue of
whether public entities may develop a terminal on the
Third, the SCSPA argues that County�s Resolution and Ordinance are inconsistent with the general law of the state because the SCSPA claims to have a superior eminent domain power with regard to developing a port or terminal and thus a superior development power.� The SCSPA argues that � 54-3-150 gives it a �super� power of condemnation, so that even if County had the power to condemn the Proposed Site and develop a terminal, the SCSPA would have an overriding authority to condemn the previously condemned land and hence has a superior right to develop a port or terminal.� We conclude the statutory provision and the ordinance are consistent because the provision is silent on the issue of whether the SCSPA can prevent other entities from port or terminal development.
Yet, we address the issue of priority of eminent domain rights between the SCSPA and County because there are ripening seeds of a controversy.� See Sunset Cay v. City of
We conclude County is not preempted from the field of port
and terminal development on the
TOAL, C.J., MOORE, and WALLER, JJ., concur.� Acting Justice John C. Few concurring in part and dissenting in part in a separate opinion.
Acting Justice Few:� I agree that
The County ordinance interferes with and hinders the Ports Authority�s efforts to acquire the Proposed Site.� The Ports Authority has unanimously adopted a resolution to undertake efforts to acquire, and if necessary condemn, the Proposed Site.� Pursuant to that resolution, the Ports Authority has exercised its responsibility to have the property appraised as required in South Carolina Code � 28-2-70, and it has initiated this lawsuit.�
In addition, there are specific ways in which
The County�s ordinance also poses potential problems of interstate relations because the ordinance seeks to condemn property owned by the State of
The first potential problem of interstate relations pointed out by the Ports Authority is that an ongoing dispute between two governmental entities in
Next, the Ports Authority points out that
Even more importantly, the Ports Authority points out that the ongoing litigation between the County and Georgia is a significant obstacle to the efforts of South Carolina to negotiate a compact with the State of Georgia on all issues regarding the Savannah River, from its headwaters in the Northwestern corner of our State, to the coast, including, but certainly not limited to, the development and operation of a port.� The Ports Authority has publicly stated that it wants to try to negotiate a resolution of these issues with
Finally, the existence of the
Turning to the applicable law, the federal courts, and this Court, have recognized three separate ways in which federal law preempts state or local law.�
Two of the purposes of the Ports Authority�s enabling act are to allow the Ports Authority to purchase or condemn land for the construction and operation of port and shipping facilities, and to manage interstate relations with
The next question is whether or not it is appropriate for this Court to use its injunctive power.� I believe that it is.�
The majority makes clear that the Ports Authority�s condemnation power is superior to that of
This course of action has numerous obvious advantages over immediate litigation, including the possibility of avoiding litigation altogether.� In addition, it is consistent with sound public policy, and is contemplated by statutory provisions regarding condemnation.� See, e.g., South Carolina Code � 28-2-70.
As explained above, however, the existence of the action by
 �County disputes this fact and asserts that the SCSPA did not contact or inform County of the SCSPA�s intent to condemn the Proposed Site prior to this case.
 �The parties disagree over whether County has proposed to build a marine terminal or a port on the
 �County previously attempted to condemn the same land for construction of a terminal.�
 �See also Denene, Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (no preemption where ordinance affected the hours of operation of beer and wine retailers when Department of Revenue had authority to regulate operation of retailers of beer, ale, porter and/or wine); Barnhill v. City of North Myrtle Beach, 333 S.C. 482, 511 S.E.2d 361 (1999) (finding preemption of regulating watercraft on navigable waters where statute required local laws to be identical to statute); Wrenn Bail Bond Service, Inc. v. City of Hanahan, 335 S.C. 26, 28, 515 S.E.2d 521, 522 (1999) (finding preemption of the field of professional licensing for bail bondsmen through a statute providing, �[no] license may be issued to a professional bondsman or runner except as provided in this chapter�);� Hospitality Ass�n of South Carolina, Inc., 320 S.C. at 228 n.9, 464 S.E.2d at 119 n.9 (no preemption of field of local sales taxation because of absence of legislative intent); AmVets Post 100 v. Richland County Council, 280 S.C. 317, 313 S.E.2d 293 (1984) (no preemption of the regulation of bingo but rather that the statute contemplated further regulation by counties and municipalities).
 Other courts have recognized the three federal law preemption categories when considering whether a state law preempts a local law.� See Phantom of Clearwater, Inc. v.
� Section 54-3-410 provides:
The [SCSPA] shall have general supervision on the
port of Charleston of all wharves, warehouses and terminal facilities of all transmitting and transporting corporations and of all wharves, warehouses and terminal facilities of persons engaged in business of public warehousemen or wharfingers . . . .
� The SCSPA admits that S.C. Code Ann. � 54-5-10 provides a
statutory exception but argues that we should apply the statutory construction maxim expressio unius est exclusion alterius or �to express one thing implies the exclusion of the other, or the alternative.�� Riverwoods, LLC v.
 �Non-SCSPA owned terminals have existed since the SCSPA�s creation. See History of the South Carolina Ports Authority 88, 101, 128, 134 (R.L. Bryan Co., 1991).� Other private terminals in
� S.C. Code Ann. � 54-3-140 provides in pertinent part:
In order to enable it to carry out the purposes of this chapter, the [SCSPA]:�(4) May acquire, construct, maintain, equip and operate wharves, docks, ships, piers, quays, elevators, compresses, refrigeration storage plants, warehouses and other structures and any and all facilities needful for the convenient use of the same in the aid of commerce�.
� Further, if County develops a terminal on the Savannah River, this terminal would be under the SCSPA�s general supervision pursuant to S.C. Code Ann. �� 54-3-130, -410.
� Section 4-9-25 provides:
All counties of the State . . . have authority to enact regulations, resolutions, and ordinances, not inconsistent with the Constitution and general law of this State, including the exercise of these powers. . . respecting any subject as appears to them necessary and proper for the security, general welfare, and convenience of counties. . . .The powers of a county must be liberally construed in favor of the county and the specific mention of particular powers may not be construed as limiting in any manner the general powers of counties.
 See footnote 3.
 While the purpose to �manage interstate relations� is not explicitly stated in the enabling act, it is clearly implied.� With regard to ports, the State acts through the Ports Authority.� See generally South Carolina Code � 54-3-110.� In some sections specifically, such as in section 54-3-130(8), and generally in others, the Ports Authority is given the responsibility of developing port facilities on the