City of Myrtle Beach v. Richardson
| Citation | 311 S.E.2d 922,280 S.C. 167 |
| Decision Date | 19 January 1984 |
| Docket Number | No. 22034,22034 |
| Court | South Carolina Supreme Court |
| Parties | The CITY OF MYRTLE BEACH; The City of North Myrtle Beach; The City of Surfside; as bodies politic and representing a class of citizens and taxpayers of Horry County, South Carolina, Appellants, v. Julian RICHARDSON, Bob Childs, Dick Elliott, Lacy Hucks, W.G. Hucks, Jr., Jimmy Johnson, Ernest Johnson, Jr., Arthur Marlow, and Braxton Watson, as Members of Horry County Council, Respondents. Cheffo JOLLY, W. Daily Strickland, Harold R. Elvington, Carl Elliott, James E. Hayes, Robert B. Battle, A.L. Causey, Rafe Grainger, Arthur Hayes, W.E. Grantham, Eugene Strickland, Ollie Strickland, Ellis Hammond, Edward F. Hammond, Gene A. Hammond, Anderson Hammond, taxpayers of Horry County, South Carolina, Appellants, v. Julian RICHARDSON, Bob Childs, Dick Elliott, Lacy Hucks, W.G. Hucks, Jr., Jimmy Johnson, Ernest Johnson, Jr., Arthur Marlow, and Braxton Watson, as Members of Horry County Council, Respondents. |
James B. Van Osdell, of Van Osdell, Lester, Stewart & McCutchen, Myrtle Beach, for appellants.
John P. Henry, of Thompson, Henry & Lovelace, Conway, for respondents.
In March 1979, Horry County Council adopted a resolution establishing a fire protection system under the terms of Sections 4-19-10 and 4-19-20, Code of Laws of South Carolina, 1976 (). Thereafter, two actions were commenced to contest the validity of this Act. The first case was brought by the cities of Myrtle Beach, North Myrtle Beach and Surfside as plaintiffs, and the second by a number of taxpayers. The actions were consolidated for trial, resulting in a judgment upholding the statute in question and the validity of the actions of County Council in creating the fire protection district. The cities and the taxpayers have appealed.
At the outset, the challenge to the standing of the cities to maintain their action was overruled by the trial court. We reverse this determination, concluding that their suit should have been dismissed. The issue here concerns the creation of a fire protection district to secure citizens outside the limits of the cities. Under no circumstances could the cities have a governmental right to interfere with the creation of such districts. The action by the cities is accordingly dismissed, leaving for determination those issues arising under the action by the taxpayers.
This appeal turns upon a single question: was 1974 Act 1167 repealed by implication through the subsequent adoption of 1975 Act 283, popularly known as the Home Rule Act and codified as Sections 4-9-10, et seq., Code? The trial court correctly approached this issue by noting that implied repeal of statutes is not favored and any reasonable construction will be adopted to avoid such a result.
In construing the two statutes, however, the trial court overlooked a fundamental conflict, which precludes any reconciliation of their provisions. We find a clear repugnancy between these two enactments, and thus we cannot escape a repeal by implication. In our view, this conclusion is reached directly from comparison of the statutes in their express terms, making it unnecessary to determine whether or not the Home Rule Act is a general or comprehensive scheme impliedly intended to override previous similar enactments.
Act 1167 authorizes the governing body of each county to establish fire protection systems for areas within the county not offered such service by existing special purpose districts or municipalities. There is a substantial dispute in this record as to the existence and nature of fire protection service already offered by the plaintiff cities to the areas encompassed by the 1979 Horry County plan. In resolving this appeal, we do not express any view of these factual issues.
Act 1167 clearly grants all authority in this matter to the governing body of the given county. The power to designate "service areas" is set forth in Section 2(b) of the Act, Section 4-19-10(b), Code, and is subject only to procedural limitations imposed by Section 2-A of the Act, Section 4-19-20, Code, which we quote in full--
Prior to the imposition of ad valorem taxes upon any service area, the governing body shall have complied with the following requirements of this section.
(1) The governing body shall, by resolution duly adopted, order a public hearing to be held for the purpose of making a determination as to the area to be included in the service area to be taxed.
(2) Notice of the foregoing action shall be published once a week for three successive weeks in a newspaper of general circulation in the county, and such notice shall state:
(i) The time of the public hearing, which shall be not less than sixteen days following the first publication of the notice;
(ii) The place of the hearing; and
(iii) The area included in the service area to be taxed, including a brief description of the boundary lines.
(3) Such hearing shall be conducted publicly and both proponents and opponents of the proposed action shall be given full opportunity to be heard.
(4) Following the hearing the governing body shall, by resolution, make a finding as to whether the service area shall be established as a taxing district.
(5) The governing body shall thereupon cause notice of its action to be published once a week for two successive weeks in a newspaper of general circulation within the county which shall state the results of its action.
(6) Any person affected by the action of the governing body may, by action de novo instituted in the court of common pleas for such county, within twenty days following the last publication of the notice prescribed by paragraph (5) above, but not afterwards, challenge the action of the governing body.
The record reveals that Horry County Council did comply with the requirements of Section 4-19-20, Code. Subsequent to a public hearing the County Council did by resolution find that the service area would be "established as a taxing district" as directed by Section 4-19-20(4), Code. In describing the new service area, the resolution interchangeably employs the terms "taxing district" and "special district."
Were it not for the provisions of 1975 Act 283, one could hardly sympathize with any complaint in this case. Particularly would this be so in light of Section 4-19-20(6) Code, which bars challenge to the action of the governing body made more than twenty days after the last publication of the resolution. In this instance, the plaintiffs had until the latter part of April 1979, to bring their actions. The suit by the plaintiff cities was not commenced until February 1980, and that of the taxpayers until May 1980. The trial court determined that the actions were barred under § 4-19-20(6), Code, a holding premised upon his rejection of the plaintiff's argument that 1974 Act 1167 had been repealed.
This Court has said many things about the scope of the Home Rule Act, not always speaking with a single voice, to be sure. See Infinger v. Edwards, 268 S.C. 375, 234 S.E.2d 214; Torgerson v. Craver, 267 S.C. 558, 230 S.E.2d 228; Duncan v. County of York, 267 S.E. 327, 228 S.E.2d 92. There can be no disagreement, however, as to the plain meaning of the following emphasized excerpt from the fifth enabling clause of Section 2 of the Act, codified as Section 4-9-30(5), Code, by its terms, each county government is empowered:
to assess property and levy ad valorem property taxes and uniform service charges, including the power to tax different areas at different rates related to the nature and level...
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