State ex rel. McLeod v. Edwards, 20463
| Decision Date | 12 July 1977 |
| Docket Number | No. 20463,20463 |
| Citation | 236 S.E.2d 406,269 S.C. 75 |
| Court | South Carolina Supreme Court |
| Parties | STATE of South Carolina ex rel. Daniel R. McLEOD, Attorney General, Plaintiff, v. James B. EDWARDS, Governor of the State of South Carolina, as ex officio Chairman and member of the State Budget and Control Board, Grady L. Patterson Jr., Treasurer of the State of South Carolina, Earle E. Morris, Jr., Comptroller General of the State of South Carolina, Rembert C. Dennis, Chairman of the Finance Committee of the South Carolina Senate and Tom G. Mangum, Chairman of the Ways and Means Committee of the South Carolina House of Representatives, as ex officio members of the State Budget and Control Board, Defendants. |
Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. C. Tolbert Goolsby, Jr., and Asst. Atty. Gen. Karen LeCraft Henderson, Columbia, for plaintiff.
Huger Sinkler, of Sinkler, Gibbs & Simons, Charleston, for defendants.
This action in the original jurisdiction of the Court involves an attack upon the constitutionality of the legislation creating the State Budget and Control Board (The Board).
The Board is comprised of the Governor, the State Treasurer, the Comptroller General, the Chairman of the Senate Finance Committee, and the Chairman of the Ways and Means Committee of the House, all ex officio members. Section 1-351, 1962 Code of Laws. It is an executive body dealing primarily with the fiscal affairs of the State government and, pursuant to Code Section 1-352, performs its functions through three divisions, to wit: the Finance Division, the Purchasing and Property Division, and the Division of Personnel Administration.
The constitutional attack is two-fold. First, it is argued that the inclusion on The Board of the Chairman of the Senate Finance Committee and the Chairman of the House Ways and Means Committee (members of the Legislative Branch of the government) violates the provisions of Article I, Section 8 of the South Carolina Constitution, which provides that: "In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or dscharge the duties of any other." Secondly, it is contended that membership of the two legislators on The Board usurps the executive powers of the government in violation of Article IV, Section 1, which states that "the supreme executive authority of this State shall be vested in . . . 'The Governor of the State of South Carolina.' "
We are convinced that established precedent requires rejection of the contention that inclusion of the two legislators on the membership of The Board violates the separation of powers provision. Harper v. Schooler, 258 S.C. 486, 189 S.E.2d 284 (1972); Mims v. McNair, 252 S.C. 64, 165 S.E.2d 355 (1969); Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967).
Each of the three above cited cases involved a constitutional challenge of particular bond issues.
In Elliott the court considered the membership of The Board in the light of the constitutional provisions against dual office holding and requiring separation of powers. The issues were summarized as follows:
The Act provides that no bond shall be issued by the County Board without the approval of the State Budget and Control Board of South Carolina. The Chairman of the Senate Finance Committee and the Chairman of the House Ways and Means Committee are members of the State Board. The appellant contends that the State Board, of whom the foregoing are members, is given powers which violate the provisions of Article II, Section 2, and Article I, Section 14, of the Constitution. The first of these sections forbids dual office holding and the second section requires separation of powers.
In answer to the stated contentions, the Elliott court held that the composition of The Board did not violate either the dual office holding or separation of powers provisions of the State Constitution. The fact, argued by petitioner, that the court discussed mainly the dual office holding attack in no way impinges upon the authority of Elliott to sustain the constitutionality of The Board against the contention that it violates the separation of powers doctrine. This is made clear by subsequent decisions of the court, particularly Mims v. McNair, supra.
In Mims, it was contended that the Act in question violated Article I, Section 14, now Article I, Section 8, of the Constitution because the composition of The Board included the Chairman of the Finance Committee and the Chairman of the Ways and Means Committee. The court rejected the foregoing contention solely upon the authority of the prior decision in Elliott. In doing so, the court stated:
It is further contended that the Bond Act violates the constitutional requirement for the separation of the legislative and executive functions as prescribed by Article I, Section 14, in that the two members of the State Board, which is the body authorized by the Bond Act to issue the bonds, are also members of the General Assembly, to wit: The Chairman of the Senate Finance Committee and the Chairman of the Ways and Means Committee. There is no merit in this contention. Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421.
Finally, as late as 1972, in the case of Harper v. Schooler, supra, 258 S.C. 486, 189 S.E.2d 284, this Court upheld the constitutionality of The Board against identical challenges as those presented in this case. The court's statement of the issues and its rulings thereon in Harper were as follows:
The Elliott case is likewise controlling adverse to the plaintiff's contention that the delegation of powers to the State Budget and Control Board violates the provisions of Article II, Section 5 and Article I, Section 14 of the South Carolina Constitution on the alleged grounds that dual office holding results and executive functions are devolved upon members of the General Assembly . . . .
If doubt existed before, certainly none could validly exist after Mims that this Court had construed the separation of powers clause as permitting membership of the two legislative members on The Board.
Subsequent to the decisions in Mims and Elliott, the General Assembly, by Joint Resolution, proposed a new Article I to the South Carolina Constitution, which sets forth in Section 8 thereof the precise words which formerly appeared in Section 14 of the previous Article I (). 56 Stat. 2684, Joint Resolution No. 1268, April 21, 1970. This Article was subsequently approved by the people.
Defendants correctly assert that this resubmission of the separation of powers clause, in the exact language it had previously existed, expressed the contentment of the General Assembly, not merely with the separation of powers principle as originally expressed, but with those words as then judicially construed by the Supreme Court of South Carolina.
It must be presumed that the General Assembly, in readopting the separation of powers clause in its previous form, were familiar with this court's holdings in Mims and Elliott and that the words of Section 8 of Article I had been construed to mean that the Chairman of the Senate Finance Committee and the Chairman of the House Ways and Means Committee could be lawfully included in the composition of...
To continue reading
Request your trial
-
State ex rel. Wallace v. Bone
...In his judgment, Judge Bailey recited that he found the decision of the Supreme Court of South Carolina in State ex rel. McLeod v. Edwards, 269 S.C. 75, 236 S.E.2d 406 (1977), to be very persuasive. He also cited State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976). A study......
-
Kobe v. Keck, 15-1419
...in this case, acted as "an executive body dealing primarily with the fiscal affairs of the State government." State ex rel. McLeod v. Edwards, 236 S.E.2d 406, 406-07 (S.C. 1977). However, the BCB was abolished effective July 1, 2015. See South Carolina Restructuring Act of 2014, S.C. Act No......
-
State ex rel. Condon v. Hodges
...342 S.C. 6, 535 S.E.2d 631 (2000) (action to determine constitutionality of certain bond authorizations); State ex rel. McLeod v. Edwards, 269 S.C. 75, 236 S.E.2d 406 (1977) (action attacking constitutionality of legislation which created State Budget and Control Board). See also State ex r......
-
Foundation v. S.C. Transp. Infrastructure Bank
...authority and some encroachment to a limited degree.” McInnis, 278 S.C. at 313, 295 S.E.2d at 636 (citing State ex rel. McLeod v. Edwards, 269 S.C. 75, 83, 236 S.E.2d 406, 409 (1977)). In South Carolina, this allowance of overlap between the branches is somewhat singular in the extensive in......