Duncan v. York County, 20270
| Decision Date | 11 August 1976 |
| Docket Number | No. 20270,20270 |
| Citation | 267 S.C. 327,228 S.E.2d 92 |
| Court | South Carolina Supreme Court |
| Parties | Dorothy B. DUNCAN, Individually and representing all other taxpayers and property owners within the County of York, Petitioner, v. The COUNTY OF YORK et al., Respondents. |
John C. Hayes of Hayes, Brunson & Gatlin, Rock Hill, for petitioner.
Melvin B. McKeown, II, of Spratt, McKeown & Spratt, York, for respondents.
We are called upon in the original jurisdiction of this Court to construe New Article VIII of the South Carolina Constitution, ratified March 7, 1973. More specifically, we are asked to determine whether Act No. 283 (or parts thereof) of the 1975 Acts of the General Assembly ( § 14--3701 Et eq., Code of Laws of South Carolina, 1975 Supp.) and Act No. 448 of the 1975 Acts, and Act No. 467 of the 1976 Acts, are repugnant to this constitutional provision. These acts relate to local government, often referred to as 'home rule.'
Under the Constitution of 1895 (effective prior to 1973), there was nothing to prevent the legislature from enacting many local laws, such as the County Appropriations Act or County Supply Bill. This it did, and for all practical purposes the county government was controlled by the Acts of the General Assembly. Insofar as local legislation was concerned, this meant, of course, that the county delegation to the General Assembly was the governing body of the respective counties. Although the local acts were approved by the entire General Assembly, it is common knowledge that only legislative delegations from the counties affected concerned themselves with local bills. If the clerk of court wishes to seek a raise in salary, he would pursue the legislative delegation in the State Capitol. If the register of mesne conveyance wishes to seek an increase in the recording fee of a deed, he did likewise.
Over the years, this system of operating county government became sufficiently undesirable that many local governing boards were created even before Article VIII was ratified.
A review of the Acts of the General Assembly over the years shows that far more local bills than state-wide bills were enacted. In addition to being state legislators, members of the Senate and of the House were effectually the county legislature and governing board.
Until 1967, each of the forty-six South Carolina counties had one senator; each county had at least one house member, and two counties had as many as eleven, allocated upon the population of the respective counties. There was in existence in each county a well-defined, county-oriented legislative delegation (composed of one senator and one or more house members), which represented all the people of the entire county, and its members were answerable to the electorate of that county.
As a result of the reapportionment decisions of the Supreme Court of the United States, South Carolina was forced to abandon the one county-one senator concept. Reapportionment of the Senate was required, such that each of the forty-six senators now represents approximately the same number of people. This resulted in the abolition of forty-six senatorial districts (one for each county) and in the creation of sixteen senatorial districts, such that most senators now represent more than one county, and some as many as five counties. In some instances, several senators represent several counties forming one senatorial district.
In 1974 the House of Representatives was reapportioned, also, such that today each house member has a separate house district. With rare exceptions, house members do not represent an entire county and, in some instances, a house member's district is comprised of portions of more than one county.
It is thus seen that the complexion of the legislative delegation has changed such that there is no longer a county-oriented legislative delegation elected by the voters of an entire county and answerable to the people thereof, as was the case prior to 1967.
The demise of the delegation as it formerly existed, and the inconvenience of persons having to go to the State House and to the State Legislature in Columbia to seek laws of purely local nature, brought about a clamor for what is commonly referred to as 'home rule.'
It is in this setting that the committee, which proposed a revised constitution, made its recommendations, resulting in the approval of New Article VIII by the people in November 1972, and its ratification by the General Assembly in March of 1973.
New Article VIII in the Constitution is entitled, 'Local Government.' It concerns (1) county government, and (2) municipal government. Relative portions affecting counties are as follows:
' § 1. Powers of political subdivisions continued.--The powers possessed by all counties, cities, towns, and other political subdivisions at the effective date of this. Constitution shall continue until changed in a manner provided by law.
' § 7. Organization, powers, duties, etc., of counties; special laws prohibited.--The General Assembly shall provide by general law for the structure, organization, powers, duties, functions, and the responsibilities of counties, including the power to tax different areas at different rates of taxation related to the nature and level of governmental services provided. Alternate forms of government, not to exceed five, shall be established. No laws for a specific county shall be enacted and no county shall be exempted from the general laws or laws applicable to the selected alternative form of government.
The General Assembly is a creature of the Constitution. Ours is not a grant of authority to the General Assembly; it is a limitation on the General Assembly. The legislature, under its plenary powers, may enact any law not specifically, or by implication, prohibited. It must enact those laws mandated in the Constitution itself.
From a reading of § 7 above, it is clear that there is imposed upon the legislature certain duties. It is required to provide for the (1) structure, (2) organization, (3) duties, (4) functions, and (5) responsibilities of the counties, and in so doing is required to include a grant to the counties of (6) 'the power to tax different areas at different rates of taxation related to the nature and level of governmental services provided.' It is further required to provide at least two, but not more than five, alternate forms of county government.
It should be noted that the legislature has, under its plenary powers, substantial discretion in several pertinent areas. In establishing the classifications of the counties to use the alternative forms, no guidelines are given. Presumably the classifications might be based on population, or other criteria. There is no requirement that the General Assembly permit the people of the respective counties to choose the form of government under which they shall operate. There is no requirement that the county governing board be elected from defined single-member districts. Section 7 does not mandate the number of persons to compose the governing boards, nor designate the length of terms. The alternate forms may be changed from time to time by general law.
The exercise of discretion in these areas is, however, subject to limitations. The forms of government must be provided 'by general law.' In order to assure that counties within the same classification be treated similarly, and in order to assure the mandate for 'home rule,' § 7 limits the powers of the General Assembly by providing: 'NO LAWS FOR A SPECIFIC COUNTY SHALL BE ENACTED AND NO COUNTY SHALL BE EXEMPTED FROM THE GENERAL LAW OR LAWS APPLICABLE TO THE SELECTED ALTERNATIVE FORM OF GOVERNMENT.' (emphasis added)
This is consistent with §§ 8 and 10 of the same Article, which relate to municipalities, and is a part of the overall plan to relieve the General Assembly of operating local governments:
In an effort to comply with the constitutional mandate, the legislature, in 1975, enacted into law Act No. 283. It is a general law designed to implement § 7 of Article VIII by establishing five alternate forms of county government. The alternate forms are referred to as Form 1 (Council); Form 2 (Council-Supervisor); Form 3 (Council-Administrator); Form 4 (Council-Manager); and Form 5 (Board of Commissioners). Section 14--3702. The Act authorizes a referendum at the instigation of the General Assembly, the local governing body, or a petition of the electorate, to allow the people to select which of the five forms their county will operate under; it also permits a referendum so that the voters may determine whether the county governing body is selected from 'at large' or from 'single member' districts.
Section 14--3703 of Act No. 283 enumerates the powers delegated to the governing bodies created by Forms 1, 2, 3 and 4. All of the powers will not be enumerated herein. The vast extent of the authority conferred upon these four forms of government is typified by the...
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