*1 by ting speculative Dr. Conradi as to the conclusion death; time of witness, Pinkston,
4. The on strange activity of the State’s homicide, evening angry were that remarks girlfriend by directed to Pinkston’s the deceased for yard; messing up the testimony concerning slamming The in the
5. car doors yard p.m.; victim’s about 10:00 testimony The three 6. uncontradicted witnesses appellant Columbia about time the gunshots heard; were testimony weapon by
7. The Judge Brown that the used yаrd neighbor’s appellant to fire at a snake had years been lost the Stewarts for several before the homicide; verify inability dug that the
8. witness bullet up neighbor’s yard one was the same from fired snake; appellant at the testimony 9. that the bullets taken from victim’s body matching dug up neighbor’s and the bullet from yard Ruger have fired from a .357 could been either Escoden, .38 Security 6 or a Manuel well as a as caliber. judg- I would reverse and with to entеr remand direction appellant. ment for McLEOD, Attorney Carolina ex relatione Daniel R. General
STATE South Carolina, McINNIS, Plaintiff, F. of the South v. David as State of Appropriations Review member of Committee of Chairman and the Joint Lake, Assembly; Jr., the South Carolina General Robert C. as Vice- Appropriations Review Committee Chairman and member the Joint Drummond, Assembly; and John J. Verne the South Carolina General Leventis, Smith, Lindsay, Setzler, P. John C. Tom Nikki G. Phil G. Harris, Mangum, Edwards, Jr., Hodges E. B. Patrick Charles T. W. Appropriations Matthews, Jr., Review John W. members Joint Assembly, Defendants. Committee of the South Carolina 633) (295 (2d) S. E. *2 Henderson, Columbia, Gen., Atty. Deputy Karen LeCraft plaintiff. for Jr., Columbia, Gen., Goolsby, Atty. Deputy C. Tolbert defendants.
August 31, 1982.
Per Curiam: action, jurisdiction Court, original in the of the
This brought Attorney on the by the General behalf of State under seq., et Declaratory Judgments Act, 15-53-10, § the Uniform Code South Carolina amended, Laws (1976), the to tеst of of constitutionality II, of Section 18 of Part and Sections 131 (State 144of Part I of Act No. of the Appropri- Acts of 1981 Bill). provides ations This Act the creation of the Joint Appropriation (JARC), composed Review Committee which is the of of six members of and six of the House Senate members all Representatives, It is substan- of whom are defendants. rewriting dating 1977. tial other resolutions from and acts duties, powers assigned it will responsibilities The quotations appear attack and from the under sections printed hereinafter. Attorney General that the
It is the basic contention of the Assembly upon to confer improperly attempted General has Constitution, is, JARC which allocated to the under essence, position Department. is, the Executive It powers, duties who form Defendants the committee reasonably incidential the full responsibilities are “... legislativе power, namely, effective exercise of a appropriation funds”, prohibited by sepa- which is not powers ration of doctrine. questions answer, Defendants submit two in their ei- which, favorably them,
ther of if decided would end the litigation. First, argued IV, it is § that Article 15 of the prohibits Constitution of South bringing Carolina of this by Attorney action against perma- General members of a nent committee of the Assembly General of South Carolina. Secondly, it is Complaint allege submitted that the fails to controversy ripe existence of an actual case or for decision. We questions address these discussing two separation- before of-powers constitutional issue.
I. IV, prescribes: § Article 15 of our Constitution The Governor shall take care that the laws be faithfully this-end, Attorney executed. To General Governor, represent power shall assist and but such proceed- shall not be construed or to authorize action ing against Assembly Supreme the General or Court. [Emphasis added.] against proceeding
We hold that this is not an action Assembly. III, provides: 1§ Article legislative power State shall be vested in ” branches, styled two distinct the one to be the “Senate Representatives,” and the other the “House and both together the “General the State South ” [Emphasis Carolina. added.] legislative ordinаry JARC is not a committee sense. Legislative usually created rules of the committees respective formality required by joint houses or rules. No *4 and, actuality, might by simple in committees be created motion, by Assembly designated House or the General and is permanent a members committee. Its must be Senators and Normally, legislative House committees members. have no authority may only report final to the authorities which significant duty report no created them. It is that JARC has to right. to own It is more like a its creator and acts in its board or a commission.
311 solely not to the nomenclature of JARC but We must look powers determine if its structure and to its functions also to in The mere that legislative are or executive nature. fact its members of or Senate does not must be the House members necessarily legislative make of it a committee. The members Assembly are as members of the General but as not sued entity by statutory right law. The created members an capacity legislators in to serve their is not members powers right It is their to exercise as members of a contested. permanent Assembly board created an act the General Assembly in contest. The of the General that is twenty-four forty-six House and the one-hundred Senate Complaint is in not contest. We hold that the members does against a cause of action the General not assert IV, inapplicable. § Article 15 that
II. approach question We next of whether there ais controversy Court. The ripe for decision At proceed torney General, petition in his Court to original jurisdiction, Complaint in that the he asserted strictly publici file are ... would “... involves matters that any special interest other juris in which no one citizen has general.” is common to in We havе than that which citizens involved, requir public where the interest is rule held that justiciable controversy ing is somewhat the existence Sanders, 61, 97 City (2d) v. 231 S. C. S. E. relaxed. Columbia (1957). 210 contest, heretofore, has without liti Attorney General using proceedings. in this Court similar
gated issues similar 75, 236 Edwards, (2d) E. 269S. C. S. rel. McLeod v. State ex 106, Martin, 274 ex McLeod v. S. C. rel. (1977), and State right bring it is true that his (2d) (1980). While S. E. cases, precedents directly these attacked was not action rulings persuasive for the conclusion our established right bring an Attorney General does have a action that ripe exist. controversy for decision does At and that General, by bringing this action in the name torney may, behalf, State, all its on their speaks for citizens charges adjudication the Court’s attention for bring to infringement separation-of-powers an area. there
III. by now Complaint: We reach the issue basic raised Does powers the exercise оf allocated to JARC as members of the Legislature serving (board commission) on a committee or infringe upon Department? Executive thinkWe that it does. I,
Article provides: § 8 of the Constitution of South Carolina Separation § 8. powers. of In State, government legislative, of this execu- tive, judicial powers government and be of the shall separate other, forever and from distinct each and no person persons exеrcising the of functions one of said departments shall assume or discharge the duties of other. separation
The powers of mandate is followed Articles III, V, IV and which delineate authority and functions of departments the three government. says: of III Article legislative power 1. The of this State shall be vested in... “General of the State of South Carolina.” Article IV states:
1. supreme authority executive state be shall Magistrate, styled vested in a Chief who shall be “The Governor State South Carolina.” specifies: Article V
1. judicial power judicial shall be vested in a unified system, Court, which Supreme shall include a a Circuit Court, and such jurisdiction other courts of uniform may provided be general for law. prime
One separation powers of the reasons desirability of spreading out the for the operation of government. prevents It the con- power few, prоvides centration of too hands of system of checks and legislative department balances. The laws; the makes the department executive carries the laws effect; judicial interprets into department de- clares the laws.
History litigation reveals that there much has been at national at level and state level which because conflicts power by of the usurpation arisen relative to the one
hаve government. forum for the There is no three branches disputes The cases of such than the courts. settlement other constitutionality depending legion upholding denying instances, dispute upon many In the facts. resolution *6 often, gray in area. This is simple. dispute More the the govern- complex true because there is tolerated in areas of necessity overlap authority ment of from time time of to some Edwards, supra. degrеe. some and encroachment to a limited Budget under attack was com- The and Control Board there members, posed Chairman of the of five two of whom were Ways and of the Senate and Means Committee of the House Committee, These members did not respectively. Finance compose majority held: of the board. We a repre composition Board does not statutory of The of the executive attempt usurp to the functions
sent an cooperative represents a apparently but department, department by making to the executive available effort of the chairman of expertise knowledge and special the of the in the fiscal affairs finance committees the two general. view the legislative process in We and the State on The Board as membership legislators of ex officio re which are cooperation with in matters the executive usurpation to their not legislators lated function as and department. The of the Su functions of the executive in preme expressed this view recently Court of Kansas 285, 547 (2d) Bennett, P. State ex rel. 219Kan. Schneider v. 786, 792, as follows: in does not all powers doctrine separation legislature of the members prevent
cases individual or commis- boards serving from on administrative еnactments. Individual legislative sioned created may serve on administra- legislature members where such service falls tive boards or commissions legisla- part on the of the cooperation in the realm of attempt usurp of the functions ture there is no government. of the department executive has, beyond duty Assembly question, The General necessary for money appropriate as operation agenciеs has government specify right appropri- condition under which spent. Assembly traditionally ated shall be This monies way Appropriations does of the annual Bill. In State bill, writing appropriations attempts it it can to best predict departments govern- the needs of the various of state inspiration ment. The for the creation JARC arose from the government years, fact that federal in recent after has appropriаtions approved, been bill had allocated substantial money by way sharing, departments sums of revenue etc. to government governmental Carolina of South and local en- agencies Accordingly, receiving spending tities. were appropriations only legislature not which the meant for them but, addition, to have substantial federal contributions. As result, the General effectively controlling not departmental programs аnd appropriations. department
Typically, spend legislature would all that the have, plus for it to procure by meant those amounts it could grants way application government. to the federal A Legislative report Audit Council the record shows *7 agenices supplementing various executive were their appropriations with grants state millions of in dollars of Assembly General always which the was not aware. The brоught all this obviously effect of about a result inconsistent duty right legislature with the and the to determine the agencies appropriations of program the undertaken. agency, by applying An receiving grants, for and for all purposes by indirection, intents and coming was programs policy determine matters which were province the Assembly. of General The net effect was that not, analysis, in determining the last expanded money by agеncies. JARC, amount of by total state exercising powers it, allocated to makes determinations be Assembly. that should those of the entire General This it do, through legislative process, surely undertakes not a itas could, through but the administration of appropriations department. which is function of the executive The desir- ability Assembly’s “getting of General a handle” on these appropriate matters understandable and but effort tо its through these control matters a composed committee constitutionally its impermissible. twelve of members Complaint Attorney In the amended as in being first cause of action attacks all unconstitutional
315 Section II all of Section 131 and 18 of Part Section Assembly the Acts of the General I of Act No. 178of Part sepa- InBill. 1981; Appropriations this is the annual State action, and Section all of Section 131 he attacks rate cause 18 of Part following portions of Section I and the of Part his attack argument, in he has abandoned In II. his brief addition, on Section entity. In the attack 18 as an on Section in continued has not been because the section 144is now moot in This leaves appropriation bill for 1982. subsequent constitutionality of the for our determination contest 131 as relates following portions of Section 18 and Section only those JARC; ruling therefore concerns powers our Complaint as follows: amended copied from the sections as general appropriations from exception of theWith through 9 of this provided for Sections and those fund government shall act, agency or institution of state no approval prior expend funds without receive and by the approval the concurrence such Governor and Appropriations Review Committee---- Joint shall be fund allocations requests for federal ... All his with the Governor to the committee furnished time, a statement Within a reasonable recommendations. will be furnished or non-concurrence of concurrence 18, Act No. 178of 4 of Section the committee [subsection 1981]. authorized, year for which funds
During the fiscal his recommenda- to the committee shall submit the Governor for: tions *8 pro- changes in federal proposed changes or
(1) Any pro- agency would affect state which grаm structure budgets; grams and funding proposed changes in the changes or Any
(2) to, changes in including, not limited but programs such consolidations, and alloca- levels, distribution funding tion; pro- requirements for continuation of agency
(3) State action. federal grams terminated Governor, within a the shall furnish to committee time, or noncon- a statement of concurrence reasonable the recommendations. * * * * * * currence with allocаtion, distribution, Any or consolidation federal any or among approved recipients state between or funds only by appropriations acts agencies authorized shall be Provided, however, Assembly. the passed by General shall, approval by the commit- after review and Governor reallocation, consolidation, receipt, re- tee authorize among or transfer federal funds or distribution 18, agenices 5 of Section Act between state [subsection No. 178 of 1981]. reviewing grant applications, the
When federal Gover- requirement desirability or nor shall for a determine the designation If single agency designation. state Governor, required, to with found be desirable or committee, designation make concurrence of the shall 18, No. 178 of 6 of Act Section 1981]. [subsection * * * * [*] [*] Governor, prior Committee, approval with procedure accordance with set forth Sections 5, may requirement waive the indirect cost recoveries or overhead cost reimbursements shall be re general turned funds if it revenue determines it agency in the best interests of State and the or seeking 18, grants institution 9 of Section [subsection of 1981]. Act No. 178 * * * * * * plan An shall annual statewide indirect cost allocation prepared by agency’s be Each state Governor’s office. department’s рroposal cost rate or institution’s indirect department be prepared by agency, shall institu- Governor and the tion shall be to the Joint submitted Review Committee federal prior to the submission being approved agency After agency’s approval. for the Committee, proposal by the shall be Governor and the forwarded to the the Governor’s office agency federal agency state from the and rate shall be issued 18, Governor’s of Section Act No. office 9A [subsection 178 of 1981].
317 deposited in * * * * * *All FederalFunds received shall be regula Treasury, if in with Federal State not conflict needed, tions, in withdrawn therefrom as the same provided manner as that for the disbursement of state If funds. it shall be determined that federal funds are not for, appropriately used in available or cannot be connec with, any part activity program tion all or for specifically appropriated in which state funds are funds, appropriated may Act to match Federal funds expended not be and shall be returned to the General Fund, except upon specific approval Budget written Appropria and Control after Board review the Joint 131, tions Review No. Committee____[Section Act 178 of 1981]. sections, reading authority
From a of these the broad upon appar- which the would confer JARC is sections, legislature, through ent. these has at- tempted delegate power expenditure to JARC to control constitutionally federal funds. These sections of state and they permit because would invalid the twelve Defendants to expenditures by by legis- control administration rather than have, effect, power. lation. JARC would in a veto powers assigned We hold that the to JARC sections quoted hereinabove are executive in nature and are not rea- any legislative duty. sonably performance incidental to the Edwards, supra, argument ruling that our should be controlling persuasive; degree is not of involvement involving alleged different. Each contest encroachment powers must be determined on its own facts. above, only sought
As indicated the relief relates now quoted agree those sections herein. We that the sections аre severable, may remaining portions such of the act ruling remain. The leave JARC in effect of our is to tact such activities not inconsistent with the as is authorized invalidation of under attack. the sections ruling
It point is not amiss to out that a that the work of Legislative legislative JARC is would be little comfort. Blanton, Gunter v. delegated. may not be 436, (1972). (2d) S. C. 192 E.S. Attorney has the summary,
In hold that the we bring against these twelve Defendants right this action members, committeе, capacity board or commission their declaratory judgment by way relief and hold that 18 of Part II portions those of Section proper. hold that We *10 I Act No. 178 of the 31 of Part portion and that of Section 1981, herein, quoted Acts of the General I, 8, they Article Section violate unconstitutional because Carolina. the Constitution South Joseph J., Acting Jus- R. Associate Moss, Gregory, tice, dissent. (dissenting): Justice
Gregory, my justiciable contrоversy In no respectfully dissent. view I therefore, I would dismiss this action. presented, Declaratory brought pursuant to the Uniform An action Act, §§ Carolina Code Ann. 15-53-10 Judgments South actual, justiciable (1976) must involve an through 15-53-140 Company Electric & Gas v. South controversy. South Carolina 193, Authority, (2d) E. Service 215 S. C. 54 S. Public Carolina controversy justiciable is a real and substantial (1949). “A 777 judicial ripe appropriate for deter- controversy is which dispute contingent, a mination, distinguished from this as Corp. Hanvey, v. character. Notios hypothetical or abstract Clyburn, S. C. 290 275,182 (1971).” Orrv. (2d) E. 55 256 S. C. S. 804, (1982). (2d) E. 807 S. to decide asking this Court a
Here, Attorney General legislation in ad- regarding question certain constitutional complaint his do so. Nowhere any real need to vance of pres- any problem allegation of fact which indicates there an legislation. implementation of ently with the associated declaratory judgment held that the While it has been liberally accomplish its construed to should be statute inexpensive affording speedy and purpose of intended settling legal deciding legal disputes and of method of rights relationships awaiting a violation without relationships, Williams rights or a disturbance of the Coatings Corporation & Chemical Furniture v. Southern 1, 576, uniformly Co., (2d) E. it is held 216 S. C. 56 S. Declaratory require Judgments Act does not
319 advisory opinion to the issues give purely Court to Sanders, City Columbia v. 231 C. S. sought to be raised. 61, (2d) E. 97 S. 210. McNair, 551, 553 150, 177 (2d) (1970). E.
Powers v. S. C. S. 255 counsel, record, briefs, arguments Upon review of the Thus, controversy parties. I justiciable I no between the find merely advisory this action as it seeks an would dismiss Employment Security Com Biter v. South Carolina opinion. mission, Booth v. 493, (1981); (2d) C. E. 60 276 S. S. Grissom, O’Shields v. 190, (1975); (2d) 265 S. C. 217 S. E. McLeod, 477,186 (1972). The (2d) 257 S. C. S. E. Declara tory Judgments advisory an properly Act is not invoked for Attorney if opinion for later use the Executive Legislative which Branch or the Branch reach the occasion Clyburn, supra. Orr v. might demand it.
I would dismiss. Justice,
Joseph Acting R. Associate concurs. Moss, *11 STATE, Respondent, PATTERSON, Jr., Appellant. v. Wardell (295 (2d) 264) S. E.