(dissenting):
*121I respectfully dissent and would reverse the judgment of the trial court as relates to both actual and punitive damages against both defendants, Officer Gregory Whitaker and the City of Charleston.
The search warrant under which Officer Whitaker proceeded to 37H Flood Street was valid, and I do not understand counsel for the plaintiffs to contend otherwise. That warrant authorized him to search not only the premises but also “... any person and their vehicles present during the execution of the warrant.” (Emphasis added.)
The warrant was procured because a reliable informant gave the officer reason to seek a warrant and search for cocaine.
Officer Whitaker and other male officers proceeded to search the premises downstairs and upstairs. They found no cocaine but found sandwich bags oftentimes used for dispensing cocaine products upstairs in a bedroom. Having found no cocaine at the places where cocaine would normally be concealed, Officer Whitaker proceeded to look for cocaine on the person of the three plaintiffs herein. Inasmuch as the plaintiffs are all female, he summoned female Officer Connolly who took the plaintiffs into a bathroom one at a time, had them disrobe, and searched them without invading any bodily cavity. The search of a body cavity is required by medical personnel. Officer Connolly used a flashlight and searched for drugs at those places on plaintiffs’ bodies which might conceal cocaine or other drugs.
It was the testimony of Chief of Police Reuben Greenberg that “.. . experience has shown me that a person might have it — I’ve seen people with items of narcotics or rings concealed in their ears, in their hair, under their armpits, around their waist, behind their butt, behind the toes of their feet with their socks on and their shoes. To simply go into their pockets would be insufficient. I would say the person hadn’t really been searched. * * * On some occasions they have even swallowed the particular items and passed it through their bowels or tried to retrieve it later through vomiting.”
The theory of the plaintiffs’ case is that Officer Whitaker directed female Officer Connolly to perform the search. She is not a party defendant, and the only reasonable inference to be drawn from the evidence is that she performed a strip search *122in a proper manner. The question then becomes: Was the action of Officer Whitaker reasonable under all of the circumstances of the case.
The Constitution of South Carolina, Article I, § 10, and the Constitution of the United States as set forth in the Fourth Amendment declare the rights of people to be secure in then-papers, houses and effects against unreasonable search and seizure.
Under all of the facts of this case, I would hold that the search was not unreasonable. In determining whether the actions of police officers are reasonable or unreasonable, we must take into consideration the magnitude of the problem with which police action is designed to deal. It is common knowledge that all governmental entities, including the United States government, are plagued by drug problems. The supply of drugs and the use thereof has multiplied much more rapidly than the capacity of the police, courts, and prisons to deal with it. It is inescapable that in the light of the multitude of search warrants that are issued and executed, occasionally for various reasons, nothing illegal will be found. Drug dealers are known to conceal drugs which may not be found and have been known to flush drugs down the commode or toss them out a window. Police officers know this. The fact that one might be the target of an unproductive search is one of the prices we pay for citizenship. Even so, searches must not be carried out in an unreasonable manner.
If the sandwich/cocaine baggies had been found in the kitchen, an explanation of their use might be more plausible, but sandwich bags would normally not be found in a bedroom upstairs.
There is nothing in the record before us to warrant the conclusion that either Officer Whitaker or the policy-making body for the City of Charleston acted with deliberate indifference to the rights of the plaintiffs. On the other hand, it is easily detected that both the City of Charleston and Officer Whitaker and his associates were attempting to deal with drug problems difficult to handle and escalating in difficulty constantly.
When Officer Whitaker did not find the drugs he had reason to believe were on the premises, he next sought to find them where the warrant permitted him to look — that is to search the persons. The warrant did not differentiate be*123tween search of clothing and strip searching. It authorized a search of persons.
While Officer Whitaker had substantial training to prepare him for his work, we must keep in mind that police officers make mistakes same as lawyers and judges. The officer must act promptly without the benefit of attorney and judge training. They are not lawyers or judges. They do not have, as do judges, the benefit of cool reflection, deliberation, and research in air-conditioned comfort where time is not of the essence. It would be folly to have required Officer Whitaker to go back to the magistrate and procure an additional warrant authorizing a strip search. In the interim, if drugs were in the area, they would have been destroyed.
When a search warrant is sought for illicit contraband drugs, the officer never knows in advance whether a strip search will or will not be desirable. The reasonableness of a strip search must be determined in the light of observations on the premises. Strip searches are not illegal per se.
There was involved discretionary action on the part of Officer Whitaker, and the fact that other officers might not have pursued the search in the same way is not controlling.
In the often quoted case of McCall v. Batson, 285 S.C. 243, 329 S.E. (2d) 741 (1985) abolishing sovereign immunity, this Court, speaking through Associate Justice (later Chief Justice) Ness, aptly said:
We hold the abrogation of the rule will not extend to legislative, judicial and executive acts by individuals acting in their official capacity. These discretionary activities cannot be controlled by threat of tort liability by members of the public who take issue with the decisions made by public officials. We expressly decline to allow tort liability for these discretionary acts. The exercise of discretion includes the right to be wrong.
I am impressed by the very able brief of Attorney Vinton D. Lide, appearing as a friend of the Court Amicus Curiae, filled on behalf of the South Carolina Law Enforcement Officers Association. I agree with the argument in that brief to the effect that Officer Whitaker, and in turn the City of Charleston, should be exonerated from liability because of qualified immunity. He argues:
*124In Bell v. Wolfish, 44 U.S. 520, 99 S.Ct. 1861, 60 L.Ed. (2d) 447 (1979), the Supreme Court upheld visible body-cavity searches and held that:
The test of unreasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against invasion of the personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it and the place in which it is conducted. See id. at 559,99 S.Ct. at 1884.
I would hold that the judge should have granted the motion for a directed verdict as to both defendants for both actual and punitive damages based solely on the evidence.
IN RE: PUNITIVE DAMAGES
As indicated herein, I am of the opinion that neither actual nor punitive damages should be allowed. The judge should have directed a verdict based on the evidence. As relates to punitive damages, there are additional reasons such should not be allowed. Briefly stated: The law simply prohibits punitive damages against the city. The trial judge correctly ruled as a matter of law that punitive damages could not be recovered under the South Carolina Tort Claims Act.
The Court charged the jury that it could award punitive damages under the 1983 cause of action. At the posttrial motion stage of the proceedings, both attorneys and the judge admitted that the case of City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed. (2d) 616 (1981) held that a City such as Charleston could not be liable for punitive damages under a 1983 claim. From that opinion I quote:
In sum, we find that considerations of history and policy do not support exposing a municipality to punitive damages for the bad-faith actions of its officials. Because absolute immunity from such damages obtained at common law and was undisturbed by the 42nd Congress, and because that immunity is compatible with both the pur*125poses of § 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Prior to McCall, supra, no damages whatsoever were permitted against governmental entities in South Carolina. After McCall, the Legislature dealt with the problem and sanctioned actions for actual damages against governmental entities but specifically declared the public policy of the state in § 15-78-120(b) as follows:
No award of damages under this chapter shall include punitive or exemplary damages or interest prior to judgment.
Here we have the unusual situation of the Court permitting a jury to award punitive damages against the City of Charleston when the General Assembly has said that such are not recoverable under our South Carolina Tort Claims Act, and the United States Supreme Court has said that punitive damages are not recoverable under a 1983 claim.
While recognizing that punitive damages are not recoverable under any theory involved in this proceeding, the judge explained his reasoning as stated from the bench as follows:
. . . And while it may be against public policy to have punitive damages, while it may be something that is not properly submitted to a jury under the City of Newport case, it is also a public policy for the state of South Carolina not to have to pay for trials twice, when they can avoid it. And so that is another public policy. That costs the state of South Carolina money, every time you have to try a case twice.
At that point a JNOV should have been granted at least as to punitive damages. A new trial was not mandated.
I disagree with that portion of the majority opinion which holds that the defendants waived any objection to the propriety of punitive damages by submitting a proposed punitive *126damages charge. At the time the request was submitted to the court, the judge had already indicated that he would allow the jury to award punitive damages. That which the defendants requested was in an effort to mitigate punitive damages and/or to persuade the jury to disallow.
WAIVER AND JURISDICTION
The majority opinion holds: “First, city waived any objection to the propriety of punitive damages against a municipality.” The ruling is made largely on the ground that Rule 51 of the South Carolina Rules of Civil Procedures requires counsel to object to charges made so as to assist the judge in correctly stating propositions of law. If objection is not made, an error is said to have been waived. Overlooked is the general proposition of law that governmental immunity, which involves a matter of public policy, may not be waived under South Carolina law.
In order to eliminate the jurisdictional issue, the majority opinion holds that jurisdiction may be waived. In doing so, it would overrule well established law declared in Lowry v. Commissioners of Sinking Fund, 25 S.C. 416, 1 S.E. 141 (1886); Hammarskold v. Bull, 9 Rich. 474 (1856); and Reed v. Medlin, 284 S.C. 585, 328 S.E. (2d) 115 (Ct. App. 1985). The opinion holds that sovereign immunity is an affirmative offense and must be pled. It overlooks the fact that at the time the pleadings were filed in this case and at the time the trial was held, Lowry was the law of this state. In that opinion, Justice Mclver said:
That a state cannot be sued in any of its courts without its expressed consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary.
In a dissenting opinion, Chief Justice Simpson agreed:
I do not deny the legal proposition that the state cannot be sued in the courts of this state, except by its own consent. This doctrine is too well settled and too firmly established to intimate even a doubt in reference thereto; and I fully concur in its correctness.
*127While this Court has authority to overrule its own decisions, Appellate Court Rule 217 contemplates that precedential rulings should not be overturned without giving interested litigants an opportunity to be heard. That rule reads as follows:
Permission of the appellate court shall not be required to argue against precedent in the brief. Oral argument against precedent shall not be permitted except upon leave of the appellate court in which the case is then pending, pursuant to motion in accordance with Rule 224 filed at least fifteen (15) days prior to oral argument.
No party to this proceeding at the trial level or at the appellate level has asked this Court to review the cases overruled by the majority opinion. In ruling on this crucial matter, I submit that due process has been denied both defendants.
The error attributable to the judge in allowing punitive damages is the fault of both counsel for the plaintiffs and counsel for the defendants. Counsel for the plaintiffs in the prayer for relief sought punitive damages thereby representing to the court that such were legal. Counsel for the defendants failed to object under Rule 51 and is similarly at fault. There is sufficient blame to go around.
I would hold that the circuit court lacked the power to hear and determine the issue of punitive damages sought pursuant to 42 U.S.C. § 1983, and the issue was not waived by counsel’s failure to object prior to submission of the case to the jury. At the post-verdict trial stage, counsel for the defendants in argument said: “And I don’t think there can be any waiver of public policy.” The judge took a contrary view.
Being a jurisdictional bar, sovereign immunity is not subject to waiver by the imposition of procedural requirements in litigation or by procedural defaults. 57 Am. Jur. (2d) Municipal, County, School, and State Tort Liability § 650 (1988). Accordingly, the failure to raise the issue at trial does not waive it. Id. See also GNOC Corp. v. Estate of John C. Rhyne, — S.C. —, 439 S.E. (2d) 274 (1994) (Davis Adv. Sh. No. 1 at 40) (the question of lack of subject matter jurisdiction may be raised at any time during the action, even on appeal, and cannot be waived or conferred by consent); Dove v. Gold Kist, Inc., — S.C. —, 442 S.E. (2d) 598 (1994) (Davis Adv. Sh. *128No. 7 at 30) (subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong; a court lacking subject matter jurisdiction has no authority to act regardless of the consent of the litigants); 57 Am. Jur. (2d) Municipal, County, School, and State Tort Liability § 649 (1988) (lack of subject matter jurisdiction to award punitive damages may be raised at any time in the proceedings, even for the first time on appeal).
There is abundant authority for holding that immunity may not be waived and that the objection may be raised for the first time on appeal' — -and I submit ex mero motu.
Rutherford alleges that the City has waived its immunity defense under the Maine Tort Claims Act by failing to plead the defense in its second answer and by failing to raise the issue at trial. In Faucher v. City of Auburn, 465 A. (2d) 1120, 1124 (Me. 1983), we recognized that the Maine Tort Claims Act is the statutory reformulation of the doctrine of sovereign immunity. We have previously concluded that sovereign immunity cannot be waived by imposition of procedural requirements or forfeited by procedural defaults. Drake v. Smith, 390 A. (2d) 541, 543 (Me. 1978); Turner v. Collins, 390 A. (2d) 537, 540 (Me. 1978). We find nothing in the Act that either expressly or impliedly shows a legislative intent to abrogate the holding of these cases. The City, therefore, did not waive its sovereign immunity defense by failing to plead the defense in its answer or at trial. State of New Mexico v. Apodaca, 105 N.M. 650 [735 P. 2d 1156 (Ct. App. 1987)] cert. denied.
... The claim of immunity may also be raised for the first time even upon appeal. Maes v. Old Lincoln County Memorial Commission. Hern v. Crist, 105 N.M. 645 [735 P. 2d 1151 (Ct. App. 1987)].
It is well established in North Carolina that the State is immune from suit unless and until it has expressly consented to be sued. Great Am. Ins. Co. v. Gold, Comm’r of Ins., 254 N.C. 168, 172-73, 118 S.E. (2d) 792, 795 (1961). It is for the General Assembly to determine when and under what circumstances the State may be sued, id., and even when legislative action is taken, statutes en*129acted in derogation of sovereign immunity must be strictly construed. Jones v. Pitt County Memorial Hospital, [104 N.C. App. 613, 410 S.E. (2d) 513] (Ct. App. of N.C. filed December 3,1991).
In examining that underlying judgment, as we must, we find that that portion of the judgment awarding prejudgment interest is void for lack of subject matter jurisdiction. Where relief is precluded by the defense of sovereign immunity, the court is said to be lacking subject matter jurisdiction to grant the relief sought. See Hutchins v. Mills, 363 So. (2d) 818, 821 (Fla. 1st DCA 1978), cert. denied, 368 So. (2d) 1368 (Fla. 1979). Because an award of prejudgment interest does not fall within the parameters of the waiver of sovereign immunity expressed in Section 768.28, Florida Statutes, the trial court was without jurisdiction to enter such an award. It then follows that the trial court’s denial of DOT’s first Rule 1.540 motion was patently incorrect. State of Florida v. Bailey (Dist. Ct. of App. of Florida, 1st Dist., filed August 28, 1992).
IN RE: GAMBLE v. STEVENSON REVIEW
The majority opinion holds:
Second, the punitive damage award against the City was not unduly excessive or against the weight of the evidence. The trial judge conducted a post-trial review pursuant to Gamble v. Stevenson, [305 S.C. 104, 406 S.E. (2d) 350 (1991)] and determined that the award was appropriate given the facts of the case. We affirm his findings as to punitive damages.
No mention is made relative to a review of the punitive damages award against Officer Whitaker.
The review by the trial court did not comply with the mandate of Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed. (2d) 1 (1991), nor with this Court’s requirement of Gamble. These cases provide for a “meaningful and adequate” review by the trial court and such a post-trial review is mandated.
While unnecessary under the view I take for a determination of the issues on appeal, I am of the opinion that the trial judge erred in failing to give a meaningful review to the puni*130tive damages award against both the police officer and the City as required by the case of Gamble, supra. The propriety of punitive damages in any case has in recent years been the subject of much debate. In Pacific Mutual Life Insurance Co., supra, the Supreme Court of the United States attempted to get a handle on the issue by requiring the trial judge to review the fairness of the award. Gamble grew out of this United States Supreme Court requirement. In a review of a punitive damage award, Gamble requires the Court to consider “defendants’ degree of culpability,” “ability to pay,” and “other factors.” At this stage of the proceeding, the trial judge and counsel had one more opportunity to see that justice was done as relates to punitive damages. At that point, all parties, including the court, were in agreement that punitive damages could not, as a matter of law, be awarded. In my view, the judge, under Gamble, should have set aside the punitive judgment award against the City and the officer.
An award against the city punishes persons who are not culpable — that is the taxpayers. While punitive damages are sometimes justified on various grounds, some of the courts refer to punitive damages as a “windfall.”
In a Gamble review, the judge must use his discretion and determine whether a punitive damage award is or is not fair. Among the things he is required to consider is the ability of a defendant to pay. There is nothing in the record relative to the ability of Police Officer Whitaker to respond to a punitive damage verdict. A Gamble review is not mentioned in the judge’s formal final order; from the bench his ruling relative thereto was as follows:
. . . Here again with regard to the Defendant’s ability to pay, there was not evidence of the Defendant’s ability to pay. To the extent the court is able to take into consideration the normal police officer’s pay, I would say that an award of $5,000 is not overly generous in light of the conduct that was alleged and proved. (Emphasis added.)
There is nothing in the record to serve as a basis for determining that three $5,000 awards are commensurate with the police officer’s ability to pay, and the judge made no inquiry relative thereto.
*131Unanswered are such questions as: (1) What property does the police officer own? (2) What is his salary? (3) Will a $15,000 verdict cause him to lose his job or declare bankruptcy? and (4) Will the payment of this verdict deprive his family of normal needs?
No meaningful review as contemplated by Gamble was provided. I would reverse.
If need be in order to reach the proper result in this case, I would adopt the reasoning of our Court in the case of Toyota of Florence, Inc. v. Lynch, et al., — S.C. —, —, 442 S.E. (2d) 611, 615 (1994) (although not condoning the procedural default, this Court overlooked the lack of a contemporaneous objection to an outrageous, vicious and inflammatory jury argument, and reversed and remanded a jury’s verdict); Galloway v. Galloway, 249 S.C. 157, 153 S.E. (2d) 326 (1967) (this Court held it may reach any issue affecting the rights of minors ex mero motu); State v. Keenan, 278 S.C. 361, 296 S.E. (2d) 676 (1982) (every court has the power and duty to decide all issues necessary to the determination of its own jurisdiction). In my view, counsel for both parties should have raised this issue of subject matter jurisdiction to the trial court, and, absent such action, the court should have raised the issue ex mero motu. This flagrant error on the part of the lawyers resulted in clear prejudice to the City, and consequently to the general public, in allowing an illegal recovery for which the public will have to foot the bill.
I would reverse the verdicts for actual and punitive damages against both defendants. Failing therein, I would hold that punitive damages were not properly recoverable in this proceeding.