*1 KNIGHT, Everett A. Individually, representing all other tax- payers property owners within Lower Dorchester Recreation District, Respondent, Tommy SALISBURY, al., J. Appel- et lants.
(206 (2d) 875) S. E. Henderson, Karren Gen., Asst. A tty. Colum- LeCraft bia, McLeod, Daniel R. Appellant, General, as Attorney *2 Guerard, Charleston,
Messrs. Sinkler Gibbs Simons & the Lower Appellants, members Dorchester Recrea- Commission, tion District
'567 Jr., Columbia, Messrs. Robert McC. Figg, Fur- man, Buist, Jenkins Charleston, & North Respondent, *3 Guerard, Charleston,
Messrs. Sinkler Gibbs Simons & the members Lower Dorchester Recrea- Appellants, Commission, District tion Reply. 17, 1974.
June
Littlejohn, Justice: individually the plaintiff, was instituted
This action of the and taxpayers owners and representing property of Dorchester District Recreation Lower Dorchester defend- of the Carolina, the right contesting South County, District Recreation ants, Lower Dorchester constituting recrea- bonds for Commission, issue obligation District, and challenging facilities within the said tional Act No. 643 of the 1973 Session constitutionality con- The also Assembly. South General plaintiff Carolina enacted at the 1973 of Act No. 259 constitutionality tests which Assembly, Session of the South Carolina General District Dorchester Recreation Commis- created the Lower sion. held statutes unconstitutional.
The lower court both defendants, District Commissioners who are Recreation General, have Attorney appealed.
At here is issue the power in Dorchester County district purpose” create “special for a it is to recreational facilities whose function be- Dorchester Act No. which County. By portion on May its the Governor effective approval by came 31, 1973, coterminous County Dorchester portion Dor- constituted the Lower District No. was School *4 chester District body Recreation (a politic) facilities function of providing general public within the district. of new here results from the provisions
The challenge effec- which became of the Constitution VIII State noted It is to be on March tive its ratification upon to this enacted statutes were subsequent that the challenged relate to and the now presented date questions of the enact both statutes light Assembly the General found in Article VIII. provisions Article VIII reflects serious a effort part electorate and bhe General to restore local Assembly gov- ernment to the sections, level. Relevant for the pur- of this case are poses as follows:
“Section 1. The counties, cities, all powers possessed by towns, and other political subdivisions at the date effective of this Constitution shall continue until in a man- changed ner provided law.” by
“Section 7. The General shall Assembly provide by gen- eral law for structure, duties, organization, powers, functions, and the counties, responsibilities including tax different areas at different rates of taxation related to the nature and level of pro- vided. Alternate forms of five, not to government, exceed shall be established. No laws shall be specific county enacted and no shall be from the exempted general laws or laws applicable the selected alternative form of government.”
“Section 17. The of this provisions Constitution and all laws local concerning shall be government con- liberally strued in their Powers, duties, favor. and responsibilities granted local government subdivisions this by Constitution law by shall include those fairly and not implied pro- hibited this Constitution.” contends that the of Section plaintiff provision
which declares there shall be not enacted “laws specific county,” has done away powers previously exercised the General create it to allowing spe- cial districts.
The defendants counter with two arguments, raising for this many Court: questions
“1. Even construed Section 7 to take though might this away its are until plenary power, provisions inoperative with the mandate complies imposed structure, therein to law for the ‘by organi- zation, etc. of counties.’ powers,
570 to ‘carve out a
“2. The of the General for the district from of the State territory accomplish- is ment of some taxes public thereupon not of inherent and curtailed new provisions ” VIH.’ I.
QUESTION
course,
is,
It
of
well settled rule of law
Con
that State
stitutions are not
of
the General Assembly
grants
but are restrictions
what would otherwise be
plenary
Pace,
;
v.
99,
Shelor
E.
power.
151 S. C.
148 S.
726 (1929)
Beattie,
;
Evans
496,
v.
137 S. C.
A but constitution is not to be construed item by must be harmonized. it is that Notwithstanding, apparent amended, where the been of Constitution has the provisions the amendment in the control event of a conflict with pre- Florence, existing provisions. Bray Council City of S. E. C. 39 S. 810 (1901). new of a draft of a Constitution
Article VIII a part established was first committee which by special submitted of the benefit did not have While that committee did, it over House reapportionment, existing struggle course, have full knowledge reapportionment had about Section say The committee this to State Senate. of Article VIII. recom- The Committee county laws
“Special prohibited. county the general all counties under operate mends that the passage laws classes. This will prevent applying be local and laws. Each can many laws. and class it authority well-planned needs by general an course, there Of this restriction would demand have in each which would active governing body now those similar to local government powers councils.” Final Com- Report exercised by municipal Make a of the South Carolina Constitution mittee to Study 87 (1969). p. *6 for home rule at the quest level had begun the decade of the during 1940’s with Act 764 of the No. 1948 Acts of the General for establish- Assembly providing ment of the County Council of Charleston This County. was body all of the given that could be vested in powers it under the Constitution as then written. Following reappor- tionment other many counties this adopted and at this plan there are writing 18 counties perhaps whose governments are after the patterned fashion of the Charleston County Council Act. These were changes prompted by feeling that Columbia should not be the seat of county government, and that the General should devote its full Assembly atten- tion to at the problems state level. It was this back- against that ground Article VIII was written. It is intended clearly that home rule be to the counties and that county government should function in the seats rather than at the State If the Capitol. counties are to remain units of government, the function must exist at the county level. Quite obviously, framers of Article VIII had this in mind.
It is that Section 7 is until argued the Gen- inoperative eral the mandate Assembly obeys to enact laws es- counties, functions of the tablishing that meanwhile the General function as it had to March Assembly may prior 7, 1973. is it contended since Accordingly, the General VIII, has not so far Assembly obeyed the mandate of Article Acts must be sustained. There challenged are several reasons such an why In cannot argument accepted.
first is there no method which can place, court man- any Thus, damus the General to enact laws. there Assembly no absolute assurance that the General will Assembly carry out the directive of Section 7 at time. Accord- any particular on the could ingly, inactivity the General part Assembly thwart permanently Section 7. It is not rea- destroy sonable to assume that the framers of Article intended VIII veto over its give Assembly effective- intended, ness. Had so it would have been they very easy effect that until the insert in Section 7 a to the provision directive, it in obedience to the acted in the No such continue to function as it had past. might in- can be reasonably and no such intent appears language in- 1 of Article VIII contains contrary ferred. Section It is there powers tention. specifically provided “[t]he counties, cities, all and other towns possessed by political shall at effective date this Constitution subdivisions Had continue until in a manner law.” changed provided the framers of Article VIII intended to extend legislative fashion been drafted Section would have power, that the of the General powers *7 of Sec- this area would likewise continue until the directive 1 tion been Construed Section together, 7 had implemented. and 7 mean subdivi- existing Section that simply political on sions should continue to function authorized lawby 7, 1973, March when VIII was ratified. necessity It is that 7 does with the away clear for creation of the by special the General Assembly purpose an 7 district within existing county. specifically a directs the General law Assembly by general provide may which counties themselves tax different means the at different of taxation the basis of the nature areas rates on and level Accordingly, provided. if, established, county when the of Dorchester government a feels need to recreational in a County facilities area of that it do so and specific county, may thereupon for a tax to the cost thereof. There is a sound reason pay Assembly the of the General to create power spe- curtailing If, the despite cial districts within county. prohibi- purpose may for a county, Assembly tion of laws specific dis- into special continue carve a county purpose given between the tricts, a conflict would exist power frightful of the county govern- General Assembly power be carved into enumerable special ment. Each could county be established might or other districts. Commission agencies function each, each power perform with
573 intended to been have vested in the Such government. a result be could well and home choatic rule intended Section 7 would in or frustrated whole since the part result could well be that the in each governing body the draftsmen contemplated by of Section 7 have little would or no left. To power out of such point results potential a theory its rejection. compels
QUESTION plenary to act any area unless a constitutional has sus- prohibited by provision tained the creation district in South special purpose X, Carolina. Section 5 of Article which provides counties, etc., corporate authorities be vested may collect taxes for the has been held not county, to limit And, their at in the the late power. least opinion Oxner, VII, 11 distinguished of Article Justice which authorized the General to make special pro- vision for was the sustain- municipal government, basis of certain ing classes districts within special purpose lying Hawkins, counties. Cf. Mills Mill S. C.
S. E. (2d) (1957).
The district been hos- has employed other pitals, Whether were purposes. they *8 sustained as a of “the inherent General part power Assembly” VII, or authorized Section 11 of Article is is clear that unimportant. It Section 7 to an end sought put this at least it relates practice, insofar as pur- special districts within a The pose effect of 7 county. upon the of the authority coun- Assembly to group ties into here, is special purpose district not at issue nor is it to consider it. necessary Section 7 laws for prohibits spe- cific county.
What is the Act here but a law for challenged special Dorchester Section 7 does not the function County? destroy of the district in a On the special county. contrary, purpose in it effect to create county special empowers governments
574 on the to tax them the districts by giving Historically provided.
basis in Carolina districts South of special purpose vast majority in sewer services or water created in order were counties to the This is given the county. areas within is no there Accordingly, of Article VIII. 16 by Section of dis- create this type state laws to a need for special longer Constitution, until March 1973 which trict. State in of the General did not deny plenary powers are area, been Those plenary powers this has now changed. for a laws specific curtailed special now prohibition relates to taxation) is Article X It true that county. (which with rewritten, must be harmonized has been but it not yet of the electorate latest Article VIII which is the expression subject. will constitutional on this as to its provisions other X, any is Article but it is true of This not true of only in Thus the the Constitution. provision preexisting power must laws under 11 of Article VII enact is as in conflict with Article VIII. It way argued give being Robertson, decisions, Doran v. that under our specifically counties could E. E. (2d) (1943), S. S. or X establish water 6 of Article not of Section by reason noted, em- VIII, expressly as already sewer systems. these obviously, in act these areas. Quite counties to powers of Section conflicting provisions must exist despite powers 6 of Article X. the challenged legis- that refusal to uphold
It is argued This simply in will create a vacuum government. lation con- may units only not case. (but existing) Existing Assem- until the General under Section 1 tinue to function under the mandate of Section acts bly working are already committees The special legislative 7. Once mandate obedience to the mandate, this problems acts keeping obviously, government these will vanish. Quite may that it in such a way level function at the will *9 ef- services heretofore all necessary governmental provide fected district created through by General Assembly.
We have not entire of the adopted order trial judge verbatim, but we have concluded that he properly disposed of all issues and have in large measure utilized his reason- and his ing in language of the issues submitted to disposing this Court. His order the defendants from enjoining issuing bonds general No. de- obligation pursuant Act and both Act No. claring 643 and Act of the No. 259 Acts 1973 unconstitutional is hereby Affirmed.
Moss, C. and concur in result. J., Lewis, J.
Bussey and Brailsford, JJ., dissent.
Lewis, : (concurring) Justice
I concur in the result of opinion Little- Justice john, but it on reach different grounds. VIII,
New Article that the General requires structure, law for the or- by general shall duties, functions, ganization, powers, and the responsibili- counties, ties of to tax different areas including at different rates of taxation related to the nature and level of governmental is, This provided. provision clear of its import language, immediately operative imposes present duty so as to Assembly, make applicable law which it general directs shall enacted. facilities,
Recreational could be public purpose, provided Dorchester in the Lower Dorchester County area under the law authorized and in Article required VIII, Section 7. The the mandate language em- broad to include certainly sufficiently the authority counties to local and pro- accomplish improvements facilities, services, vide including of their area the means of tax- benefiting only parts through at different rates ing persons property parts *10 local and level of such improvements related to the nature and services. VIII, 7, we Section and with which
One effect of Article concerned, functions are here is to the enlarge only simply counties, them to of so as make it for possible provide to heretofore been those services which have provided public of the expedient special the General Assembly through districts, county- the vice purpose thereby avoiding brief, As in wide for local benefit. stated levy respondent’s tax “the to the is clear with that the county, purpose the related to different areas at different rates of taxation in- is level nature and of provided,” the to ad- tended be governmental authority provide the date minister such services in local areas after effective VIII, of the new Article and that special in- in each district, a board or commission different vehicle which to be cumbersome no the longer stance. be they can provided.
Therefore, Lower Dorchester the acts the creating issuance general Recreation District and the authorizing III, 34, Sub- bonds contravene obligation law IX, of a special division which the enactment prohibits “where a can made applicable.” law Moss, C. concurs. J.,
Bussey, : (dissenting) Justice erroneous, convinced below was Being judgment Littlejohn dissent. The Mr. I must opinion Justice state, not, view, does or deal with my answer squarely raised in briefs of serious questions appellants. below, affirm- and the Essentially judgment opinion same, rest two basic or as holdings, ing premises follows: amended, Constitution, 7 of Article 8 for an established authority
provides government and issue bonds to for recreational facili- levy taxes ties, thus Section 6 Article 10 by implication repealing Constitution, which as construed heretofore prevents from authorized taxes being pur- further, and that poses the said Section by implication, curtailed the established and long plenary recognized of the General create districts. special purpose
2. That the acts under attack both “laws legislative were specific county” violation Section Article 8. I that, most submit under settled respectfully well princi- *11 of ples law, constitutional of neither the on which premises the below rests are sound. The first judgment elementary here proposition, is that favors applicable, every presumption the of enactments and it is not constitutionality legislative the of province the court to declare unconstitutional unless the thereof so as leave invalidity clearly to appears no for room reasonable doubt that such enactment violates the Constitution. cases See numerous collected in West’s South Carolina Law, Constitutional Digest, 48- Key
In the it is construing Constitution the the duty court of. harmonize, to as far as possible, any conflicts in the apparent Constitution so as to to give effect all nu- provisions. See merous cases collected in West’s South Carolina Digest, Law, Constitutional Key 15. is
Repeal,
not favored in the
and to
implication,
law
about
the
bring
repeal by
two
or
implication
acts
provisions
must be
and
directly antagonistic
and there must
repugnant
be such a positive
to
no other rea-
repugnancy as
admit of
Florence,
sonable construction.
v.
Council
Bray
City
62
of
57,
810;
S.
247;
C.
39 S. E.
State Alexander,
14 Rich.
Hood,
State v.
488,
181 S. C.
Article Section 6 of the Constitution provides that “The pertinent part shall have not Assembly * * * to authorize or a tax any to issue bonds for for any educational purpose except purposes, roads, to build and public of to repair building bridges, and officers, maintain prisoners, jurors, support County pay and expenses and court for litigation, quarantine to and to pay ordinary County purposes, support paupers, is clear it indebtedness.” Under past quoted provision taxes or issue that counties cannot constitutionally levy Talbert, 225 bonds Leonard v. for recreational purposes. 559, E. S. C. 83 S. (2d) amended, Constitution, 8,
Article 16 of now Section certain now provides may operate a county acquire which have under utilities been heretofore impermissible 10, 6, Article but said Section provisions Article 8 does not right purport give or facilities acquire operate purposes. 8, Article Section 7 the General contemplates counties “the different areas to tax providing at rates of different taxation related to the nature and level implied provided.” holding and the curtailment of repeal create plenary power lan- districts solely upon quoted predicated I is directly antago- but find therein which nothing guage, nistic of Article or provisions repugnant *12 6, or intent to curtail the plenary which evinces any power with to special purpose respect har- view, In it is a matter my simple districts. perfectly Article with monize the the language provisions quoted 10, enable needed to obviously was
The language quoted utilities expressly pro- counties to and acquire operate 8, Article in 16 of one obvious vided for rate allow counties to a being higher language one of the utilities county by of tax in the area of a served 16, taxation in those and lesser rate of named in Section If contra served any utility. areas of the not 10, the framers of of Article Section 6 to the provisions with 8 had intended the counties vested amended Article such intent could for recreational facilities to tax fa- been effect by including have readily 579 cilities the other facilities among 8, mentioned Section 16 which counties are now authorized expressly The acquire. from quoted Section 7 of Article language 8 readily easily harmonized with Article 6 same to mean construing that counties shall simply have the to tax different areas at different rates taxation relative to the varying constitutionally permis- sible governmental services Such a construction provided. does no violence to the or quoted language other any pro- visions of the Constitution.
Under settled I think it clear that the principles quite leg- islative acts here under attack are not “laws for a specific but are county” rather laws relation to a different having political sub-division which to lie only incidentally happens within the borders of one “Constitutional limita- county. tions upon to sub-divi- legislative power respect sions of the are State sub-divisions applicable only named in the of the Con- respective inhibitory provisions District, stitution.” Ashmore v. Greater Greenville Sewer 211 77,C. Cass, S. S. E. 88. See also Evatte v. (2d) S. C. E. 638; Milliken, 59 S. (2d) Berry S. C. 518, 109 S. E. 354. It is obvious that the (2d) legislation here deals with a sub-division of state other than a and hence the acts under attack are not “laws for specific violation of county” Section 7 of Article 8 the Constitution. of Mr. opinion Lewis which would affirm the Justice below,
result of the basis, but a different was judgment written to the dis- subsequently preparation foregoing sent. The that Dorchester recre- holding can County ational facilities in the recreation district under the general *13 law authorized and 8, 7, Article has required Section by basic, rest erroneous, and I submit that premise said section 10, 6, by Article implication repealed which as heretofore construed this Court expressly pro- a county from authorizing
hibits taxes for purposes. then it 10, 6, had indeed been repealed, If Article inbe violation under attack would the Acts might IX, but, in the absence 34, Subdivision before us. issue is no such presently of such repeal, lower court. I would reverse judgment concurs. J., Brailsford, Carolina, WILSON, South Appellant, D. STATE
Ernest Respondent (2d) 872) (206 S. E. Haskell, Columbia, Appellant. R. Esq.,
Sam Gen., H. McLeod, Emmet R. Atty. Messrs. Daniel Gen., Colum- Savitz, Asst. Attys. T. Clair and Stephen bia, Respondent. 1, 1974.
July
Moss, Chief Justice: herein, indicted Wilson, was D. the appellant Ernest of rape for the crimes Richland County the Grand Jury of General Term of the Court At the 1971 and burglary.