State ex rel. McLeod v. McInnis, 21787

• Decision Date: 31 August 1982
• Docket Number: No. 21787,21787
• Parties: STATE of South Carolina ex relatione Daniel R. McLEOD, Attorney General of the State of South Carolina, Plaintiff, v. David F. McINNIS, as Chairman and member of the Joint Appropriations Review Committee of the South Carolina General Assembly; Robert C. Lake, Jr., as Vice-Chairman and member of the Joint Appropriations Review Committee of the South Carolina General Assembly; and John Drummond, J. Verne Smith, Nikki G. Setzler, Phil P. Leventis, John C. Lindsay, Tom G. Mangum, T. W. Edwards, Jr., Patrick B. Harris, Charles E. Hodges and John W. Matthews, Jr., as members of the Joint Appropriations Review Committee of the South Carolina General Assembly, Defendants.
• Court: South Carolina Supreme Court

Page 633

295 S.E.2d 633

278 S.C. 307

STATE of South Carolina ex relatione Daniel R. McLEOD Attorney General of the State of South Carolina, Plaintiff, v. David F. McINNIS, as Chairman and member of the Joint Appropriations Review Committee of the South Carolina General Assembly; Robert C. Lake, Jr., as Vice-Chairman and member of the Joint Appropriations Review Committee of the South Carolina General Assembly; and John Drummond, J Verne Smith, Nikki G. Setzler, Phil P. Leventis, John C Lindsay, Tom G. Mangum, T. W. Edwards, Jr., Patrick B Harris, Charles E. Hodges and John W. Matthews, Jr., as members of the Joint Appropriations Review Committee of the South Carolina General Assembly, Defendants.

No. 21787.

Supreme Court of South Carolina.

Aug. 31, 1982.

Deputy Atty. Gen., Karen LeCraft Henderson, Columbia, for plaintiff.

Deputy Atty. Gen., C. Tolbert Goolsby, Jr., Columbia, for defendants.

PER CURIAM:

This action, in the original jurisdiction of the Court, was brought by the Attorney General on behalf of the State under the Uniform Declaratory Judgments Act, § 15-53-10, et seq., Code of Laws of South Carolina (1976), as amended, to test the constitutionality of Section 18 of Part II, and Sections 131 and 144 of Part I of Act No. 178 of the Acts of 1981 (State Appropriations Bill). This Act provides for the creation of the Joint Appropriation Review Committee (JARC), which is composed of six members of the Senate and six members of the House of Representatives, all of whom are defendants. It is a substantial rewriting of other resolutions and acts dating from 1977. The duties, powers and responsibilities assigned to it will appear from quotations of the sections under attack and printed hereinafter.

It is the basic contention of the Attorney General that the General Assembly has improperly attempted to confer upon JARC authority which is, under the Constitution, allocated to the Executive Department. It is, in essence, the position of the Defendants who form the committee that the powers, duties and responsibilities are "... reasonably incidental to the full and effective exercise of a legislative power, namely, the appropriation of funds", which is not prohibited by the separation of powers doctrine.

The Defendants submit two questions in their answer, either of which, if decided favorably to them, would end the litigation. First, it is argued that Article IV, § 15 of the Constitution of South Carolina prohibits the bringing of this action by the Attorney General against members of a permanent committee of the General Assembly of South Carolina. Secondly, it is submitted that the Complaint fails to allege the existence of an actual case or controversy ripe for decision. We address these two questions before discussing the separation-of-powers constitutional issue.

I.

Article IV, § 15 of our Constitution prescribes:

The Governor shall take care that the laws be faithfully executed. To this end, the Attorney General shall assist and represent the Governor, but such power shall not be construed to authorize any action or proceeding against the General Assembly or the Supreme Court. [Emphasis added.]

We hold that this is not an action or proceeding against the General Assembly. Article III, § 1 provides:

The legislative power of this State shall be vested in two distinct branches, the one to be styled the "Senate" and the other the "House of Representatives," and both together the "General Assembly of the State of South Carolina." [Emphasis added.]

JARC is not a legislative committee in the ordinary sense. Legislative committees are usually created by rules of the respective houses or by joint rules. No formality is required and, in actuality, committees might be created by simple motion, by House or the General Assembly and is designated a permanent committee. Its members must be Senators and House members. Normally, legislative committees have no final authority and may only report to the authorities which created them. It is significant that JARC has no duty to report to its creator and acts in its own right. It is more like a board or a commission.

We must look not solely to the nomenclature of JARC but also to its structure and powers to determine if its functions are legislative or executive in nature. The mere fact that its members must be members of the House or Senate does not necessarily make of it a legislative committee. The members are not sued as members of the General Assembly but as members of an entity created by statutory law. The right of the members to serve in their capacity as legislators is not contested. It is their right to exercise powers as members of a permanent board created by an act of the General Assembly that is in contest. The authority of the General Assembly or the one-hundred twenty-four House and the forty-six Senate members is not in contest. We hold that the Complaint does not assert a cause of action against the General Assembly and that Article IV, § 15 is inapplicable.

II.

We next approach the question of whether there is a controversy ripe for decision by this Court. The Attorney General, in his petition to the Court to proceed in the original jurisdiction, asserted that the Complaint he would file "... involves matters that are ... strictly publici juris in which no one citizen has any special interest other than that which is common to citizens in general." We have held that where the public interest is involved, the rule requiring the existence of a justiciable controversy is somewhat relaxed. City of Columbia v. Sanders, 231 S.C. 61, 97 S.E.2d 210 (1957).

The Attorney General has heretofore, without contest, litigated similar issues in this Court using similar proceedings. State ex rel. McLeod v. Edwards, 269 S.C. 75, 236 S.E.2d 406 (1977), and State ex rel. McLeod v. Martin, 274 S.C. 106, 262 S.E.2d 404 (1980). While it is true that his right to bring the action was not directly attacked in these cases, the precedents established and our rulings are persuasive for the conclusion that the Attorney General does have a right to bring an action and that a controversy ripe for decision does exist. The Attorney General, by bringing this action in the name of the State, speaks for all of its citizens and may, on their behalf, bring to the Court's attention for adjudication charges that there is an infringement in the separation-of-powers area.

III.

We now reach the basic issue raised by the Complaint: Does the exercise of powers allocated to JARC as members of the Legislature serving on a committee (board or commission) infringe upon the Executive Department? We think that it does.

Article I, § 8 of the Constitution of South Carolina provides:

§ 8. Separation of powers.

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 discharge the duties of any other.

The separation of powers mandate is followed by Articles III, IV and V, which delineate the authority and functions of the three departments of government. Article III says:

1. The legislative power of this State shall be vested in ... the "General Assembly of the State of South Carolina."

Article IV states:

1. The supreme executive authority of this State shall be vested in a Chief Magistrate, who shall be styled "The Governor of the State of South Carolina."

Article V specifies:

1. The judicial power shall be vested in a unified judicial system, which shall include a Supreme Court, a Circuit Court, and such other courts of uniform jurisdiction as may be provided for by general law.

One of the prime reasons for separation of powers is the desirability of spreading out the authority for the operation of the government. It prevents the concentration of power in the hands of too few, and provides a system of checks and balances. The legislative department makes the laws; the executive department carries the laws into effect; and the judicial department interprets and declares the laws.

History reveals that there has been much litigation at the national level and at the state level because of conflicts which have arisen relative to the usurpation of power by one of the three branches of government. There is no forum for the settlement of such disputes other than the courts. The cases are legion upholding and denying constitutionality depending upon the facts. In many instances, a resolution of the dispute is simple. More often, the dispute is in the gray area. This is true because there is tolerated in complex areas of government of necessity from time to time some overlap of authority and some encroachment to a limited degree. Edwards, supra. The Budget and Control Board there under attack was composed of five members, two of whom were Chairman of the Ways and Means Committee of the House and of the Senate Finance Committee, respectively. These members did not compose a majority of the board. We held:

The statutory composition of The Board does not represent an attempt to usurp the functions of the executive department, but apparently represents a cooperative effort by making available to the executive department the special knowledge and expertise of the chairman of the two finance committees in the fiscal affairs of the State and the legislative process in general. We view the ex officio membership of the legislators on The Board as cooperation with the executive in matters which are related to their function as legislators and not usurpation of the functions of the executive department. The Supreme Court of Kansas recently expressed this view in State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P. (2d) 786, 792, as follows:

The separation of powers doctrine does not in all cases prevent individual members of the legislature from serving on administrative boards or commissions created...