Could a South Carolina county ban all hunting from public roads and carrying loaded guns in vehicles there?

Plain-English summary

Chesterfield County considered an ordinance banning road hunting on all roads open to vehicles, banning loaded guns in vehicles on those roads, and setting a penalty of up to $200 or 30 days in jail. In August 2001, an assistant AG said those terms appeared to conflict with the state road-hunting statute. State law prohibited hunting from a public road in defined circumstances, including lack of permission to hunt adjacent land, and set a different fine range. The proposed county rule would reach conduct state law did not prohibit and alter the available punishment.

The opinion said a court would probably find the conflicting parts inconsistent with the South Carolina Constitution’s limit on local changes to criminal law. Only a court could declare the ordinance invalid. A county ordinance that avoided inconsistency with state law could coexist with the statute; the letter also pointed to a separate state offense concerning criminally negligent use of hunting weapons.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

County councils

The letter viewed the proposed ordinance as likely invalid where it broadened the state prohibition or changed its penalty. It left final constitutional judgment to a court and allowed that a consistent local ordinance could stand.

Hunters and enforcement officers

The opinion distinguished state road-hunting elements from the broader proposed county rule, including the state provision’s treatment of weapons in vehicles traveling on public roads.

Common questions

Could the county make every instance of road hunting a crime? A: The opinion said the proposed blanket ban would probably conflict with the narrower state prohibition then in force.

Could the county set its own lower maximum fine?
A: The letter said the proposed $200 maximum differed from the state fine range and likely conflicted with the constitutional limit on local criminal penalties.

Did the AG strike down the proposed ordinance?
A: No. The opinion said only a court could declare it invalid and described the likely result if the proposal were challenged.

Background and statutory framework

The opinion compared the proposal with § 50-11-760 as amended in 2001. It cited Connor v. Town of Hilton Head Island on local laws that prohibit conduct state law permits and Town of Hilton Head v. Fine Liquors on when local and state rules conflict. It also enclosed §50-1-85, a separate provision on criminally negligent use of hunting weapons.

Citations and references

• § 50-11-760: state road-hunting rule and penalty.
• §50-1-85: criminally negligent hunting-weapon use.
• Connor v. Town of Hilton Head Island and Town of Hilton Head v. Fine Liquors: local-state conflict principles.

Official title

“as to the constitutionality of the proposed ordinance and this type of regulation by a county governing body.”

Requester

C. Heath Ruffner, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-15-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01aug15ruffner.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

August 15, 2001

C. Heath Ruffner, Esquire
Chesterfield County Attorney
Post Office Drawer 1449
Cheraw, South Carolina 29520

Re: Proposed County Ordinance - Hunting From Public Roads
Dear Mr. Ruffner:
In a letter to this Office, you indicate that "[a] group of citizens has requested that Chesterfield County Council enact an ordinance concerning hunting from public roads." You have requested that this Office provide "an opinion as to the constitutionality of the proposed ordinance and this type of regulation by a county governing body." You have also enclosed a copy of the proposed ordinance which provides in pertinent part as follows:

Sec. I: Road Hunting is illegal in Chesterfield County on all roads where vehicular traffic is permitted. Sec. II: Transporting loaded weapons in vehicles is illegal on all roads in Chesterfield County where vehicular traffic is permitted. Sec. III: Violations as Misdemeanors: Any person convicted of refusing to comply with the provisions of these ordinances or violating any of the provisions of these ordinances shall be guilty of a misdemeanor and upon conviction shall be fined not more than two hundred ($200.00) dollars or imprisoned for not more than thirty (30) days for each offense ... In examining your questions, a number of statutory and constitutional provisions, as well as case law, concerning a local government's authority to enact ordinances must be reviewed. A county possesses police power to enact ordinances to further the health and welfare of its residents. See, S.C. Code Ann. § 4-9-30 and Art. VIII, Sec. 17 of the S.C. Constitution. In that regard, it is fundamental that a county ordinance is entitled to a presumption of constitutionality. See Rothchild v. Richland County Board of Adjustment, 309 S.C. 194, 420 S.E.2d 853, 856 (1992). With that

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Mr. Ruffner
Page2
August 15, 2001

presumption in mind, it should be noted that, while this Office may comment upon constitutional problems, only a court may declare an ordinance void as in conflict with the Constitution. In commenting on the specific proposed ordinance in this case, our review should begin with Art. VIII, § 14 of the S.C. Constitution which relates to local government and provides in pertinent part that: In enacting provisions required or authorized by this article, general law provisions applicable to the following matters shall not be set aside: ... criminal laws and the penalties and sanctions for the transgression thereof ...

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This Constitutional provision has been construed by our Supreme Court to provide that local governments may not enact ordinances that impose greater or lesser penalties than those established by state law, CityofNorth Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569 (1991), and they may not pro hi bit conduct that is not unlawful under State criminal laws governing the same subject. Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608 (1994). See also Diamonds v. Greenville County, 325 S.C. 154, 480 S.E.2d 718 (1997), and; Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272 (1996). It appears that our Legislature has addressed in State Law the subject matter addressed in the proposed ordinance. S.C. Code Ann.§ 50-11-760 is titled "[h]unting from certain public roads and railroad rights-of-way prohibited; exceptions; penalties" and, as amended by 2001 South Carolina Laws, Act 69 (effective July 18, 2001), states as follows:

(A) It is unlawful for a person to hunt from a public road or railroad right-of-way if the person does not have permission to hunt the land immediately adjacent to the public road or railroad right-of-way. (B) (1) For purposes of this section, "hunting" includes: (a) taking deer by occupying stands for that purpose; and (b) possessing, carrying, or having readily accessible: (i) a loaded centerfire rifle; or (ii) a shotgun loaded with shot size larger than number four. (2) For purposes of this section, "loaded" means a weapon within which any ammunition is contained. (3) For purposes ofthis section, the terms "possessing", "carrying", and "having readily accessible" do not include a centerfire rifle or shotgun which is contained in a: (a) closed compartment; (b) closed vehicle trunk; or a (c) vehicle traveling on a public road.

Mr. Ruffner
Page 3
August 15, 2001

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(C) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days. (D) In addition to any other penalties, the department must suspend the hunting privileges of a person convicted of violating this section for one year from the date of the conviction. It is further apparent that there may be some conflicts between the proposed ordinance and Section 50-11-760. The proposed ordinance would prohibit "Road Hunting" on all Chesterfield County roads "where vehicular traffic is permitted" while Section 50-11-760 prohibits the same conduct by only those without "permission to hunt the land immediately adjacent to the public road." The proposed ordinance would prohibit the carrying ofloaded weapons in vehicles on public roads whereas Section 50-11-760 does not. Further, the proposed ordinance provides for a punishment of "not more than two hundred ($200.00) dollars or imprisoned for not more than thirty (30) days for each offense" whereas Section 50-11-760 provides that a guilty party "must be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days." To the extent that the proposed ordinance makes illegal conduct which state law does not prohibit and alters the potential punishment for such conduct, it is my opinion that a court would probably hold the ordinance to be in violation of Art. VIII, § 14 of our Constitution. However, should the County choose to amend the provisions of the proposed ordinance such that it is not inconsistent or irreconcilable with state law, it appears that both could coexist. See ATTY. GEN. OP. (Dated September 1, 1988). Moreover, as the Court held in Town of Hilton Head v. Fine Liquors. Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990), in order for there to be a conflict between state statute and a local law, "both must contain either express or implied conditions which are inconsistent or irreconcilable with each other; mere differences in detail do not render them conflicting and if either is silent where the other speaks, there can be no conflict between them ... [w ]here no conflict exists, both laws stand." 397 S.E.2d at 664. It must be noted that, even though both local ordinance and state statute may address the same action, depending on the elements of each law, the constitutional prohibition of double jeopardy may be implicated if both are charged in the same case. See State v.Lewis, 321 S.C. 146, 467 S.E.2d 265 (Ct. App. 1996). I have enclosed a copy of the amended version of S.C. Code Ann. §50-11-760 for your review. I have also enclosed a copy of §50-1-85 which makes it a criminal violation "for any person to use a firearm or archery tackle while in preparation for, engaged in the act of, or returning from hunting in a criminally negligent manner." It appears that these statutes may be employed to address the citizens' concerns in your case. Further, I have enclosed previous opinions from this Office dated February 16, 1988, September 1, 1988 and October 18, 1995, which address similar concerns as those raised in your letter. I hope that these materials will prove useful to you. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked.

Mr. Ruffuer
Page 4
August 15, 2001

It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General

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