Thomas v. Cooper River Park

471 S.E.2d 170, 322 S.C. 32, 1996 S.C. LEXIS 89

• Court: Supreme Court of South Carolina
• Decided: May 20, 1996
• Docket: 24430
• Status: Published

Opinions

Moore, Justice:

This is a declaratory judgment action. The trial judge found unconstitutional legislation requiring appellant St. Andrew’s Public Service District (District) to submit its budget to the county’s legislative delegation for approval. He than substituted respondent County Council in place of the legislative delegation to provide budgetary oversight of District. District appeals contending the trial judge should have severed the offending provision thereby permitting District to function without direct budgetary oversight. We agree and reverse.

FACTS

Respondents commenced this action challenging the constitutionality of 1949 S.C. Act No. 443, § 5, which provides in pertinent part as follows:

[T]he County Auditor of Charleston County shall annually levy, and the County Treasurer of Charleston County shall collect, a tax of such number of mills on the dollar on all taxable property in the territorial limits of [District] as shall be fixed, determined and directed by a written resolution of the St. Andrew’s Public Service District Commission duly transmitted to the said County Auditor...; PROVIDED, HOWEVER, that no tax shall be levied by the County Auditor hereunder unless and until the resolution fixing, determining and directing the same shall have been approved in uniting by the Senator and a majority of the Members of the House of Representatives for Charleston County and for the purpose of consideration of the same the said commission shall present all such resolutions to the said Senator and Members of the House of Representatives together with the itemized budget of the district upon which the same is based.

(Emphasis added.) The trial judge held the proviso requiring the delegation’s involvement in the budgeting and taxing functions of District violated the separation of powers doctrine.¹ Rather than strike the proviso as unconstitutional, however, he found the approval function of the delegation should be transferred to County Council which has the statutory power under S.C. Code Ann. § 4-9-30(5) (1986) to make appropriations for special tax districts. The trial judge found it unnecessary to sever the proviso from the remainder of the Act once it was read to require approval by County Council rather than the legislative delegation.

ISSUE

Did the trial judge err in transferring the approval function to County Council rather than striking the approval requirement altogether?

DISCUSSION

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 the legislature would have passed it independent of that which conflicts with the constitution. Thayer v. South Carolina Tax Comm’n, 307 S.C. , 413 S.E. (2d) 810 (1992). Under this test, we have examined the entirety of the Act and its provisions creating District and conclude the legislature would have passed the Act independent of the provision requiring budgetary oversight by the legislative delegation. District is governed by an elected Commission which, by definition, is answerable to its electorate and therefore subject to electoral oversight. We find no reason to nullify the entire Act creating District rather than sever the delegation’s role of direct budgetary oversight.

Further, the trial judge’s attempt to preserve budgetary oversight by vesting this function in County Council under § 4-9-30(5) violates S.C. Code Ann. § 4-9-80 (1986). That section provides in pertinent part that the provisions of Chapter 9, Title 4, enacted pursuant to the Home Rule Amendment² in 1975,

shall not be construed to devolve any additional powers upon county councils with regard to public service districts ... which are in existence on the date one of the forms of [county government] becomes effective and such political subdivisions shall continue to perform their statutory functions prescribed in laws creating such districts....

Act 443, which created District in 1949, gives county government no authority to approve or disapprove District’s budget determinations. Under § 4-9-80, Home Rule legislation cannot be construed to give county government more power over a pre-Home Rule district than it is given in the original Act creating such a district. Therefore, although county government may exercise budgetary control over post-Home Rule districts under § 4-9-30(5), that power does not exist in relation to District, a public service district that predates Home Rule legislation.

We find no reason to deviate from our decisions in Tucker v. South Carolina Dept. of Highways and Public Transportation, 309 S.C. 395, 424 S.E. (2d) 468 (1992), and Gould v. Barton, 256 S.C. 175, 181 S.E. (2d) 662 (1971), wherein we found similar provisions requiring approval by the legislative delegation to be severable.³ Accordingly, we hold the offending provision of § 5 of Act No. 443 severable from the remainder of the Act.

Reversed.

Finney, C.J., and Waller and Burnett, JJ., concur. Toal, J., dissents in separate opinion.

1 It is well settled such a provision is unconstitutional under article I, § 8, of our State constitution. See Aiken County Bd. of Education v. Knotts, 274 S.C. 144, 262 S.E. (2d) 14 (1980); Gunter v. Blanton, 259 S.C. 436, 192 S.E. (2d) 473 (1972). This ruling is not contested on appeal.

2 S.C. Const. art. VIII.

3 The dissent complains we too strictly apply the rules of statutory construction in this ease. Determining legislative intent, however, is a judicial function whereas legislative decision-making is not. If the dissent disagrees with out conclusion to sever the offending provision, the only other judicial remedy is to strike as unconstitutional the entire Act creating District. There is no precedent for this Court to cure an Act’s unconstitutionality by rewriting the offending provision.