Knight v. Salisbury, 19842

• Decision Date: 17 June 1974
• Docket Number: No. 19842,19842
• Parties: Everett A. KNIGHT, Individually, and representing all other taxpayers and property owners within Lower Dorchester Recreation District, Respondent, v. Tommy J. SALISBURY et al., Appellants.
• Court: South Carolina Supreme Court

Page 875

206 S.E.2d 875

262 S.C. 565

Everett A. KNIGHT, Individually, and representing all other

taxpayers and property owners within Lower

Dorchester Recreation District, Respondent, v. Tommy J. SALISBURY et al., Appellants.

No. 19842.

Supreme Court of South Carolina.

June 17, 1974.

Asst. Atty. Gen. Karen L. Henderson, Columbia, for appellant, Atty. Gen. Daniel R. McLeod.

Sinkler, Gibbs, Simons & Guerard, Charleston, for appellants, members of the Lower Dorchester Recreation District Commn.

Furman, Jenkins & Buist, North Charleston and Robert McC. Figg, Jr., Columbia, for respondent.

LITTLEJOHN, Justice:

This action was instituted by the plaintiff, individually and representing the property owners and taxpayers of the Lower Dorchester Recreation District of Dorchester County, South Carolina, contesting the right of the defendants, constituting the Lower Dorchester Recreation District Commission, to issue general obligation bonds for recreational facilities within the said District, and challenging the constitutionality of Act No. 643 of the 1973 Session of the South Carolina General Assembly. The plaintiff also contests the constitutionality of Act No. 259 enacted at the 1973 Session of the South Carolina General Assembly, which created the Lower Dorchester Recreation District Commission.

The lower court held both statutes unconstitutional. The defendants, who are the Recreation District Commissioners and the Attorney General, have appealed.

At issue here is the power of the General Assembly to create a 'special purpose' district in Dorchester County whose function it is to provide recreational facilities for a portion of Dorchester County. By Act No. 259, which became effective upon its approval by the Governor on May 31, 1973, that portion of Dorchester County coterminous with School District No. 2 was constituted the Lower Dorcheser Recreation District (a body politic) and given the function of providing general public recreational facilities within the district.

The challenge here results from the provisions of new Article VIII of the State Constitution which became effective upon its ratification on March 7, 1973. It is to be noted that the challenged statutes were enacted subsequent to this date and the questions now presented relate to the power of the General Assembly to enact both statutes in light of the provisions found in Article VIII.

Article VIII reflects a serious effort upon the part of the electorate and the General Assembly to restore local government to the county level. Relevant sections, for the purposes of this case are as follows:

'Section 1. 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.'

'Section 7. 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.'

'Section 17. The provisions of this Constitution and all laws concerning local government shall be liberally construed in their favor. Powers, duties, and responsibilites granted local government subdivisions by this Constitution and by law shall include those fairly implied and not prohibited by this Constitution.'

The plaintiff contends that the provision of Section 7, which declares that there shall not be enacted 'laws for a specific county,' has done away with powers previously exercised by the General Assembly allowing it to create special purpose districts.

The defendants counter with two arguments, raising as many questions for this Court:

'1. Even though Section 7 might be construed to take away this plenary power, its provisions are inoperative until the General Assembly complies with the mandate imposed therein to provide 'by general law for the structure, organization, powers, etc. of counties.'

'2. The power of the General Assembly to 'carve out a district from the territory of the State for the accomplishment of some public purpose and levy taxes thereupon is inherent and not curtailed by the provisions of new Article VIII."

QUESTION 1.

It is, of course, a well settled rule of law that State Constitutions are not grants of power to the General Assembly but are restrictions upon what would otherwise be plenary power. Shelor v. Pace, 151 S.C. 99, 148 S.E. 726 (1929); Evans v. Beattie, 137 S.C. 496, 135 S.E. 538 (1926); cases collected, 6 South Carolina Digest Constitutional Law k26 (1952, Cum.Supp.1973).

A constitution is not to be construed item by item, but must be harmonized. Notwithstanding, it is apparent that where the Constitution has been amended, the provisions of the amendment control in the event of a conflict with preexisting provisions. Bray v. City Council of Florence, 62 S.C. 57, 39 S.E. 810 (1901).

Article VIII is a part of a draft of a new Constitution submitted by a special committee which was first established in 1966. While that committee did not have the benefit of the existing struggle over House reapportionment, it did, of course, have full knowledge of the reapportionment of the State Senate. The committee had this to say about Section 7 of Article VIII.

'Special county laws prohibited. The Committee recommends that all counties operate under the general county laws applying to the classes. This will prevent the passage of many local and special laws. Each county can be given the authority it needs by well-planned general and class laws. Of course, this restriction would demand that there be an active governing body in each county which would have general powers of local government similar to those now exercised by municipal councils.' Final Report of the Committee to Make a Study of the South Carolina Constitution of 1895, p. 87 (1969).

The quest for home rule at the county level and begun during the decade of the 1940's with Act No. 764 of the 1948 Acts of the General Assembly providing for establishment of the County Council of Charleston County. This body was given all of the powers that could be vested in it under the Constitution as then written. Following reapportionment many other counties adopted this plan and at this writing there are perhaps 18 counties whose governments are patterned after the fashion of the Charleston County Council Act. These changes were prompted by the feeling that Columbia should not be the seat of county government, and that the General Assembly should devote its full attention to rpoblems at the state level. It was against this background that Article VIII was written. It is clearly intended that home rule be given to the counties and that county government should function in the county seats rather than at the State Capitol. If the counties are to remain units of government, the power to function must exist at the county level. Quite obviously, the framers of Article VIII had this in mind.

It is argued that Section 7 is inoperative until the General Assembly obeys the mandate to enact general laws establishing the functions of the counties, and that meanwhile the General Assembly may function as it had prior to March 7, 1973. Accordingly, it is contended that since the General Assembly has not so far obeyed the mandate of Article VIII, the challenged Acts must be sustained. There are several reasons why such an argument cannot be accepted. In the first place, there is no method by which any court can mandamus the General Assembly to enact laws. Thus, there is no absolute assurance that the General Assembly will carry out the directive of Section 7 at any particular time. Accordingly, inactivity on the part of the General Assembly could permanently thwart and destroy Section 7. It is not reasonable to assume that the framers of Article VIII intended to give the General Assembly veto power over its effectiveness. Had they so intended, it would have been very easy to insert in Section 7 a provision to the effect that until the General Assembly acted in obedience to the directive, it might continue to function as it had in the past. No such language appears and no such intent can be reasonably inferred. Section 1 of Article VIII contains a contrary intention. It is there specifically provided '(t)he 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.' Had the framers of Article VIII intended to extend legislative power, Section 1 would have been drafted in such fashion as to provide that the powers of the General Assembly in this area would likewise continue until the directive of Section 7 had been implemented. Construed together, Section 1 and Section 7 simply mean that existing political subdivisions should continue to function as authorized by law on March 7, 1973, when Article VIII was ratified.

It is clear that Section 7 does away with the necessity for creation by the General Assembly of the special purpose district within an existing county. Section 7 specifically directs the General Assembly to provide by general law a means by which the counties themselves may tax different areas at different rates of taxation on the basis of the nature and level of governmental services provided. Accordingly, if, when established, the county government of Dorchester County feels a need to provide recreational facilities in a specific area of that county, it may do so and thereupon levy a tax to pay the cost thereof. There is a sound reason for curtailing the power of the General Assembly to create special...