Sojourner v. Town of St. George
| Decision Date | 29 June 2009 |
| Docket Number | No. 26680.,26680. |
| Citation | 679 S.E.2d 182,383 S.C. 171 |
| Parties | David SOJOURNER, Appellant, v. TOWN OF ST. GEORGE and the County of Dorchester, Respondents. |
| Court | South Carolina Supreme Court |
Frances I. Cantwell, of Charleston, for Appellant.
John G. Frampton, of Summerville; Margaret C. Pope, Gary T. Pope, and Belton T. Zeigler, all of Pope Zeigler, LLC, of Columbia; and Trudy H. Robertson, of Moore & Van Allen, PLLC, of Charleston, for Respondents.
In this case, Appellant David Sojourner (Sojourner) filed suit against Respondents Town of St. George ("Town") and County of Dorchester ("County") after the Town adopted an ordinance ("Ordinance") which authorized the sale of its sewer system to the County. Sojourner filed suit against Respondents1 alleging that pursuant to statute, the Town was required to hold an election approving the sale. The Master-In-Equity ruled that the statute requiring an election approving the sale was unconstitutional and that pursuant to provisions of the Home Rule Act, the Town was authorized to sell the sewer system pursuant to the Ordinance. Sojourner appealed the Master's decision. We affirm.
For many years, the Town has owned and operated a water system and sewer system within its corporate boundaries in compliance with applicable regulations. Likewise, the County has owned and operated a sewer collection and wastewater treatment system throughout the County, but outside the corporate limits of the Town. While the Town has been operating its water system and sewer system in full compliance with the applicable regulations, the Town will have to make substantial investments in the sewer system in the near future in order to meet increasing regulatory standards and maintenance needs. For this reason, on August 18, 2008, the Town council adopted the Ordinance approving an agreement2 for the conveyance and transfer of assets comprising the sewer system currently owned and operated by the Town to the County.
Sojourner resides and owns real property in the Town. He is also an elector and a taxpayer of the Town and County, as well as a customer of the water system and sewer system of the Town. On August 26, 2008, Sojourner filed an action contesting the validity of the Ordinance, contending it conflicted with State law, and seeking an injunction against its enforcement. In particular, Sojourner alleged that S.C.Code Ann. § 5-31-620 (2004) (the "Election Provision") requires that an election be held prior to acquiring or disposing of a public utility and that S.C.Code Ann. § 5-31-640 (2004) (the "Freeholder Provision") requires that twenty-five percent of the resident freeholders of the municipality petition the municipality before an election may be held. Sojourner argued that Respondents' agreement to sell was in violation of the law because there was no written petition from any residents, qualified registered electors, or freeholders within the Town submitted to the Town Council or to any other public authority in the Town or County requesting an election on this matter.
Respondents countered that the Freeholder Provision is unconstitutional because it restricts the voting rights of the Town's electors and their elected representatives in violation of the Equal Protection Clauses of the United States Constitution and the South Carolina Constitution. Respondents further argued that the Freeholder Provision is inextricably intertwined with the Election Provision, and that both sections are therefore unconstitutional and unenforceable.
On January 14, 2009, the Master-In-Equity issued an order in favor of Respondents. The Master declared The Freeholder Provision unconstitutional as violative of the Equal Protection Clause, declared the Election Provision unconstitutional because it was inextricably intertwined with the unlawful Freeholder Provision, and held that Respondents' agreement was valid pursuant to authority granted to local governments by the Home Rule Act of 1975.
Sojourner appealed the Master's decision and presents the following questions for this Court's review:
I. Did the Master err in declaring the Freeholder Provision unconstitutional on the grounds that it is an unlawful restriction on voting rights in violation of the Equal Protection Clause?
II. Did the Master err in declaring the Election Provision unconstitutional on the grounds that it is inextricably intertwined with the unconstitutional Freeholder Provision?
III. Did the Master err in holding that, in the absence of the Freeholder and Election Provisions, the Home Rule Act authorizes local governments to sell municipal utilities?
A "legislative act will not be declared unconstitutional unless its repugnance to the constitution is clear and beyond a reasonable doubt." Joytime Distribs. & Amusement Co., Inc. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999). Every presumption is made in favor of a statute's constitutionality. Gold v. South Carolina Bd. of Chiropractic Exam'rs, 271 S.C. 74, 78, 245 S.E.2d 117, 119 (1978). The scope of review should be limited in cases involving a constitutional challenge to a statute because all statutes are presumed constitutional and, if possible, will be construed to render them valid. Hendrix v. Taylor, 353 S.C. 542, 550, 579 S.E.2d 320, 324 (2003).
Sojourner argues that a compelling state interest justifies conditioning the sale of a municipally-owned sewer and water system on an election triggered by a freeholder-initiated petition and the Freeholder Provision is therefore constitutional. We disagree.
The right to vote is a fundamental right protected by heightened scrutiny under the Equal Protection Clause. State v. Thompson, 349 S.C. 346, 354, 563 S.E.2d 325, 329-30 (2002). Restrictions on the right to vote on grounds other than residence, age, and citizenship generally violate the Equal Protection Clause and cannot stand unless such restrictions promote a compelling state interest. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).
The Freeholder Provision provides:
Before any election shall be held under the provisions of this article at least twenty-five per cent of the resident freeholders of the city or town, as shown by its tax books, shall petition the city or town council that such election be ordered.
Section 5-31-640.
Sojourner argues the Freeholder Provision is justified by the compelling state interest in protecting the property rights of freeholders. In particular, Sojourner argues that maintenance and operation of sewer systems have an effect on property owners that is different from and greater than that on the general public.
We find that there is no compelling interest to support the Freeholder Provision. Municipal utilities, as with other matters that affect public health and safety of the entire community, have long been considered to be of general interest to the community. Hill v. Stone, 421 U.S. 289, 299, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975) (). Indeed, the legislative intent of the Municipal Utility Act, of which the Freeholder and Election Provisions are a part, is expressly dedicated for the benefit of all those who own, use, or occupy dwellings or commercial buildings and exercised in accordance with the police powers necessary to regulate the maintenance and preservation of the health of the inhabitants of the State. See S.C.Code Ann. § 5-31-2010 (2004). Moreover, in the Equal Protection context, the right to protect one's property is not a fundamental right. Thompson, 349 at 353, 563 S.E.2d at 329. In our view, Sojourner's argument that property owners are so much more affected by sewer system operations than other voters so as to create a compelling state interest in special statutory protection has no foundation in fact or in law and is therefore without merit. Accordingly, we hold that the Freeholder Provision is not supported by a compelling state interest and is therefore unconstitutional.
Sojourner argues that even if the Court finds that the Freeholder Provision is unconstitutional, it may be severed because it is not so intertwined with the Election Provision that the Election Provision may not be enforced. We disagree.
The test for severability is whether the constitutional portion of the statute remains complete in itself, wholly independent of that which is rejected, and is of such a character that it may fairly be presumed that the legislature would have passed it independent of that which conflicts with the constitution. Joytime Distribs. & Amusement Co., Inc., 338 S.C. at 648, 528 S.E.2d at 654.
The Election Provision provides:
Before such...
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