(Concurring):
While I am of the view that Judge Connor’s opinion is controlling1 on the question of the continued validity of the law of the right of private individuals to arrest for a breach of the peace, I, nevertheless, concur with Judge Goolsby’s conclusion that the common law right of a citizen to arrest for breach of peace has not been abrogated by statute.
The earliest statute I have been able to locate dealing with the right of a private citizen to arrest without a warrant for a misdemeanor committed in his presence is Act No. 4731 of 1865 entitled, “An Act To Amend The Criminal Law.” That Act provided that “[u]pon view of a misdemeanor committed by a person of color, any person present may arrest the offender and take him before a Magistrate, to be dealt with as the case may require.” It should be noted that this right of warrantless arrest applied only to persons of color. In fact, the provision specifically required that in the case of a “misdemeanor committed by a white person toward a person of color,” complaint should be made to a magistrate who would *626cause the offender to be arrested. Act No. 4731, however, was repealed by Act No. 4802 of 1866. At that time the language of S.C.Code Ann. § 17-13-10, subsections (a) and (b) was enacted. Subsection (c) of § 17-13-10 was not enacted until 1898.
Judge Goolsby and Judge Connor have vastly divergent views of the effect of the enactment of subsection (c) on the continued viability of the common law right of warrantless arrests for breach of the peace in South Carolina. Michael S. Hindus, in his work Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878 (1980), states, “South Carolina’s mixture of common law, ancient English statutes, and state laws confounded laymen and lawyers alike [in the 1800s].” It is no wonder that residuals of that confusion continue today.
I agree with Judge Goolsby that the motivation for the enactment of subsection (c) was State v. Davis, 50 S.C. 405, 27 S.E. 905 (1897). I disagree with any suggestion that either the 1865, 1866 or 1898 statute indicates an intent by the legislature to annul the common law right of private individuals to arrest without a warrant for breach of the peace committed in their presence. The statutes do not explicitly repeal the common law right nor do they manifest an intent to take over the “entire field of operations” of the law of warrant-less arrests in South Carolina. See Branchville Motor Co. v. Adden, 158 S.C. 90, 95, 155 S.E. 277, 279 (1930). This conclusion is even more compelled when we consider the fact that in 1865 the Legislature made distinctions as to who could and who could not be arrested for misdemeanors without a warrant. Although the effect of the repeal of the 1865 statute is to blot it out retrospectively as if it never existed, Taylor v. Murphy, 293 S.C. 316, 360 S.E.2d 314 (1987), the repealed statute is evidence the Legislature has been aware of the status of the law of warrantless arrests for a misdemeanor since 1865 and could have dealt with the subject in a more specific manner had it wanted to. If a statute is susceptible of more than one construction; it is not to be construed as altering the common law further than the express language of the statute. Branchville Motor Co., 158 S.C. 90, 155 S.E. 277.
*627Further, the fact that the cases have not specifically dealt with the right of a warrantless arrest for breach of the peace2 for a very long time does not militate against recognition of the right. In State v. Carson, 274 S.C. 316, 262 S.E.2d 918 (1980), our Supreme Court recognized the offense of misprision of felony even though the offense had apparently lain dormant since 1712. See William S. McAninch and W. Gaston Fairey, The Criminal Law of South Carolina 40 (2d ed. 1989). The court reasoned that since the “General Assembly [had] neither enacted, modified nor repealed the common law offense of misprision of felony,” the offense was still viable. Carson, 274 S.C. at 319, 262 S.E.2d at 920. Likewise, as to the right of a private individual to arrest for breach of the peace, the Legislature has neither “enacted, modified nor repealed” such common law right and it remains the law of this state.
a perspective, the right of a private citizen to arrest for a breach of the peace without a warrant originated in the American colonies during a time when the citizens themselves were considered the keepers of the peace. W. Hardy Wickwar, Criminal Policy in South Carolina (1968). Pre-Revolutionary “codes required any bystander who witnessed a crime to arrest the party or parties thereto, and levied a fine against him if he did not.” Jack K. Williams, Vogues in Villainy: Crime and Retribution in Ante-Bellum South Carolina 63 (1959). See also Benjamin James, Digest the Laws of South Carolina (1822). In view of the availabilof our elaborate police organizations for keeping the peace the problems associated with making arrests, the practicality of continuing the right of private individuals to arrest should at least be reevaluated by the proper body. Nevertheless, it is not the function of this court to nullify that right. Page v. Winter, 240 S.C. 516, 126 S.E.2d 570 (1962).
As to the question of whether the crime of driving under the influence constitutes a breach of the peace, I have no hesitancy in finding that it does. Further, I know of no other activity that has a greater potential for threatening the public security *628and tranquility than does operating a vehicle on our public highways while intoxicated.
. I, of course, recognize that inasmuch as S.C.Code Ann. § 14-8-90(b) requires a concurrence of six judges "for reversal of the judgment below,” the conviction must stand.
. I agree with Judge Connor that the precedent of State v. Nall, 304 S.C. 332, 404 S.E.2d 202 (Ct.App.1991), is at least questionable.