Gaud v. Walker

Decision Date29 April 1949
Docket NumberNo. I6209.,I6209.
Citation53 S.E.2d 316
PartiesGAUD. v. WALKER et al.
CourtSouth Carolina Supreme Court

[COPYRIGHT MAERIAL OMITTTED]

[COPYRIGHT MAERIAL OMITTTED]

Original action by Henry T. Gaud against William W. Walker and others, to have act providing for a system of municipal government for Charleston County declared unconstitutional.

Petition granted in part and refused in part.

Stoney & Crosland, of Charleston, for petitioner.

Robert McC. Figg, Jr. and Lionel K. Legge, both of Charleston, for respondents.

OXNER, Justice.

Petitioner, a taxpayer and qualified elector of Charleston County, seeks in this action, brought by permission in the original jurisdiction of this Court, to have declared invalid, as being in conflict with various provisions of the Constitution of South Carolina, Act No. 764 of the 1948 Acts of the General Assembly, April 9, 1948, 45 St. at L. 1873, entitled: "An Act to provide for a system of municipal government in and 'for Charleston County under either of two alternative plans; to create, under either of said plans, a County Council for said county, and to prescribe its duties, powers and functions; and to provide for the holding of an election to determine which, if either, of said plans shall become effective."

The Act provided for the holding of a special election in Charleston County in September, 1948, at which the qualified electors of that county should determine, by a majority vote, whether the system of county government designated as Plan A or that designated as Plan B, or neither, should become effective. This election was duly held and resulted in the adoption of Plan A. Thereafter, in accordance with the terms of the Act, a County Council of seven members was elected in the general election held in November, 1948. The members so elected qualified on January 4, 1949 and entered upon the performance of their duties. They are the respondents in this action.

Plan A provides for a system of municipal government for Charleston County to be administered by a County Council therein created, consisting of seven members. Charleston County is divided into five geo graphical areas for purposes of representation on said Council. Three members are elected by the qualified electors of the City of Charleston and one by the qualified electors of each of the other four areas. The term of office is for a period of four years. The Council is required to select one of its number as Chairman, who serves ex officio as County Supervisor. Regular meetings are to be held and a record kept of all proceedings. Any ordinance relating to the levying of taxes, the appropriation of money, or the incurring of bonded indebtedness is required to be read at three regular meetings of the Council. Each ordinance or resolution must be published in full in a newspaper at least five days before becoming effective.

Among other powers vested in the County Council, it is authorized: (a) To exercise the power of eminent domain; (b) to make appropriations and levy taxes for any purpose specified in Article 10, Section 6 of the Constitution; (c) to allocate and disburse all funds accruing to Charleston County from whatever source derived; (d) to "provide within the County special services such as refuse or garbage collection and disposal facilities, and to collect service charges from the persons benefited which are at least sufficient to cover the expenses of providing such services"; (e) to "incur indebtedness in anticipation of the collection of taxes which have been levied"; (f) to issue general obligation county bonds for any of the purposes enumerated in Article 10, Section 6 of the Constitution, but the question of issuing such bonds must be submitted to the qualified electors of the County; (g) to "regulate, control and provide for the construction, maintenance, operation and use of public streets, roads, bridges, sidewalks, drains,. Court Houses, jails, buildings, prison farms, and other public improvements and facilities"; (h) to "prescribe methods of accounting for County officers and departments"; (i) to "enact reasonable ordinances and promulgate reasonable regulations for the preservation or promotion of public health, safety, welfare and morals within the County, and to prescribe penalties for violations thereof not exceeding a fine of One Hundred ($100.00) Dollarsor imprisonment for thirty days"; (j) to "supervise and regulate the various departments of the County, except that the duties and functions now provided by law for the offices of the Auditor, Treasurer, Sheriff, Clerk of Court, Probate Judge, Master, Register of Mesne Conveyance, Coroner and Superintendent of Education shall not be altered, and the power of such officers to designate the personnel made available to them shall not be infringed"; (k) to "make provision for the conduct of County affairs; to provide for the appointment of a County Manager to serve as the chief administrative officer for local affairs, carry out the policies and directions of the County Council, direct and coordinate all administrative activities, direct the development of a budget for submission to the County Council, and control the expenditure of appropriated funds; to create such other agencies and departments as may be deemed advisable, and to prescribe their duties and functions; and to alter or transfer the duties and functions of existing offices, agencies or departments"; (l) to "establish policies affecting the selection, appointment, compensation, dismissal and other matters in the control of the administrative employees of the County government"; (m) to "exercise all the powers vested by law in the County Board of Commissioners"; (n) to "exercise all the powers vested by Act 681 of the Acts of the General Assembly of South Carolina of 1942 (the County Planning Act) in the County Board of Commissioners"; (o) to "exercise all the powers vested by law in the Sanitary and Drainage Commission for Charleston County"; (p) to "exercise all the powers vested by law in the County Police Commission for Charleston County"; (q) to "exercise all the powers vested by Sub-section 3 (b) and Sub-sections 4 through 11, inclusive, of Section 4077 of the Code of 1942, in the 'Charleston County Public Welfare Board"; and (r) to "exercise all the powers vested by law in the Charleston County Board of Highway Beautification".

It is further provided that nothing contained in Plan A "shall be construed to abridge or affect the powers of any mu nicipality or incorporated township or political subdivision within the County".

We have not mentioned certain relatively unimportant powers vested in the County Council which in other counties are generally exercised by the supervisor or board of county commissioners. The foregoing synopsis of Plan A includes all that is necessary for a proper understanding of the questions to be determined.

Plan B, which was rejected at the election held pursuant to the terms of the Act, also provided for the creation of a County Council but the powers and duties vested in it under the terms of this plan were not so far reaching and in the main were of an administrative nature. Under Plan B, the Council was not empowered to make appropriations, levy taxes or issue bonds, and was given no police power except as to the control of motor vehicular traffic.

We approach the consideration of the various constitutional grounds upon which this legislation is challenged with the following well settled principles in mind: "The supreme legislative power of the State is vested in the General Assembly; the provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution; a statute will, if possible, be construed so as to render it valid; every presumption will be made in favor of the constitutionality of a legislative enactment; and a statute will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution." Moseley et al. v. Welch et al., 209 S.C. 19, 39 S.E.2d 133, 137.

The major questions to be determined relate to petitioner's contention that Plan A involves in several particulars an invalid delegation of legislative power. Before discussing this phase of the matter, it may not be amiss to call attention to the plenary power of the Legislature, in the absence of constitutional restrictions, to provide for municipal government. In Lillard v. Melton et al, 103 S.C. 10, 87 S.E. 421, 428, the Court quoted with approval the following: "A 'municipal corporation, in the exercise of all its duties, including those most strictly local or internal, is but a department of the state. The Legislature may give it all the powers such a being is capable of receiving, making it a miniature state within its locality; or it may strip it of every power, leaving it a corporation in name only; and it may create and recreate these changes as often as it chooses, or it may itself exercise di-rectly within the locality any or all the powers usually committed to a municipality. * * * The people are the recognized source of all authority, state and municipal; and to this authority it must come at last.'" As stated in 11 Am.Jur., Constitutional Law, Section 223, page 934: "It is a well settled rule, supported with practical unanimity by the authorities, that the general doctrine prohibiting the delegation of legislative authority has no application to the vesting in political subdivisions of powers to govern matters which are local in scope."

Although "the county, as a unit of government, is older in point of time than either the state or the town", 20 C. J.S., Counties, § 2, page 757, and "had its origin in England, preceding the organization of the kingdom itself", 14 Am.Jur., page 185, its attributes and functions differ widely...

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