Could York County transfer its C-fund transportation program from the committee to county council?

Plain-English summary

A senator asked whether York County could transfer responsibility for the gasoline-tax “C” fund program from its transportation committee to county council. In a 1996 informal opinion, an assistant attorney general said the law assigned approval of these expenditures and adoption of a countywide transportation plan to the county transportation committee. Under the statute then in force, county council could not take over that role.

The author also considered whether council members could serve on the committee instead. Earlier AG opinions treated council members as public officers and concluded that committee members would probably be public officers too. The author therefore said simultaneous service would most probably violate South Carolina's dual-office restriction. He distinguished an earlier opinion permitting county council to spend a county-created road maintenance fee: that opinion did not confer authority over state “C” funds.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the county council approve C-fund expenditures instead of the transportation committee?
A: The author said no. The statute then assigned the approval and countywide transportation plan to a committee appointed by the county legislative delegation.

Q: Could a council member sit on that committee to gain a role in the spending decisions?
A: The letter said simultaneous service would most probably violate the state constitution's dual-office prohibition. It relied on earlier AG opinions treating the committee position as a public office, although those opinions acknowledged some doubt.

Q: Did the earlier road-maintenance-fee opinion allow council to control C funds?
A: No. The earlier opinion concerned a county-created fee, which the author distinguished from the state gasoline-tax funds governed by the committee statute.

Background and statutory framework

The letter recounted two Tucker decisions. The first rejected a statute that let a county legislative delegation itself approve “C” fund spending; after amendment, the court upheld appointment of county transportation committees. The provision was later recodified as S.C. Code Ann. § 12-28-2740. The author read that statute as requiring committee approval and a countywide transportation plan, and he treated the attempted transfer to council as inconsistent with those requirements.

This was an informal opinion signed by an assistant attorney general, not a formal opinion personally reviewed by the Attorney General.

Citations and references

• Statute discussed: S.C. Code Ann. § 12-28-2740 (county transportation committee and “C” funds).

Official title

Concerning the legality of transferring responsibility for the “C” fund program in York County from the County Transportation Committee to the County Council.

Requester

The Honorable Robert W. Hayes, Jr., Senator, District No. 15

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-18-1996-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96dec18hayes.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

December 18, 1996

The Honorable Robert W. Hayes, Jr.
Senator, District No. 15
P. 0. Box 904
Rock Hill, South Carolina 29731
Re: Informal Opinion
Dear Senator Hayes:
By letter dated December 5, 1996, you seek an opinion concerning the legality of transferring the responsibility for the "C" fund program in York County from the County Transportation Committee to the County Council. LAW/ANALYSIS In Tucker v. South Carolina Department of Highways and Public Transportation, 309 S.C. 395, 424 S.E.2d 468 (1992) (Tucker I), the Supreme Court declared the provisions of S.C. Code Ann. § 12-27-400 which required that a county legislative delegation approve the expenditure of "C" funds and which allowed the delegation to contract for improvements were unconstitutional. The Court found these provisions unconstitutional because the legislative delegates may exercise legislative power only as members of the General Assembly enacting legislation. By constitutional mandate, the legislature may not undertake both to pass laws and to execute them by bestowing upon its own members functions that belong to other branches of government. In addition, action by a legislative delegation pursuant to a complete law cannot qualify as action to enact legislation and is therefore constitutionally invalid. The General Assembly subsequently amended § 12-27-400 to require that the county legislative delegation appoint a county transportation committee to oversee the expenditure of "C" funds. The constitutionality of the amended version of§ 12-27-400

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P!1ST OFFICE Box

115~9 • Cou.:~tBIA. S.C. :!9211- 1549 • TELEPHONE: 803-734-3970 •

FACSIMILE: 803-253-6283

The Honorable Robert W. Hayes, Jr.
Page 2
December 18, 1996
was upheld by the Court in Tucker v. South Carolina Department of Highways and Transportation, 314 S.C. 131, 442S.E.2d171 (1994) {Tucker II). Thereafter,§ 12-27-400 was recodified as § 12-28-2740 (Supp. 1995). The expenditure of the gasoline tax, commonly known as the "C" fund, among the various counties is governed by S.C. Code Ann. § 12-28-2740. According to § 12-282740(B) the funds expended must be approved by and used in furtherance of a countywide transportation plan adopted by a county transportation committee. The county transportation committee must be appointed by the county legislative delegation and must be made up of fair representation from municipalities and unincorporated areas of the county. In interpreting any statute, the primary purpose is to ascertain the intent of the Legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). The words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. Bzyant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899 (1988). The court must apply the clear and unambiguous terms of the statute according to their literal meaning. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991). According to the clear and unambiguous language of the statute, the "C" funds must be approved by and used in furtherance of a countywide transportation plan adopted by a county transportation committee. Accordingly: the transfer of the authority to expend "C" funds from the county transportation committe to the county council would be improper under § 12-28-2740. Since the county council is not permitted by statute to expend "C" funds, efforts may be made to appoint the county council as a whole or individual members of the county council to the county transportation committee. This Office has issued numerous opinions on the propriety of members of a co~ty council serving on a county transportation committee. Article XVII, Section IA of the state Constitution provides that "no person may hold two offices of honor or profit at the same time ...," with exceptions specified for officers in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public. For this provision to be contravened, a person concurrently must hold two public offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other such authority,

The Honorable Robert W. Hayes, Jr.
Page 3
December 18, 1996
establish the position, prescribe its tenure, duties or salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). This ·Office has advised on numerous occasions that members of county councils would be considered office holders for purposes of dual office holding. See, as examples of the numerous opinions, Ops. Att'y Gen. dated May 16, 1995, December 7, 1994, December 20, 1993, and May 15, 1989. Similarly, this Office has opined on several occasions concerning members of county transportation committees in the context of dual office holding. In an opinion dated May 16, 1995, it was concluded that while it is not entirely free from doubt, it appears that one who would serve on a County Transportation Committee would hold an office for dual office holding purposes. Thus, if a mayor or city or county council member were to serve simultaneously on a County Transportation Committee, that individual would most probably violate the dual office prohibitions of the state Constitution. Reference has been made to a January 23 , 1995 opinion of this Office addressing the Horry County Council's ability to collect and disperse a road maintenance fee. 1 This opinion.concluded that the separation of powers doctrine applicable at the State level does not apply to the political subdivisions of the State. Therefore, the constitutional difficulty present in Tucker (I), whereby a county legislative delegation would both enact laws and attempt to execute them, with respect to§ 12-27-41)0, would not be present in the situation in which the Horry County Council would adopt an ordinance requiring a road maintenance fee to be collected from vehicle owner and then direct (on an individual member basis) how the fees were to be expended.2

1

This opinion cites Brown v: County of Hony, 308 S.C. 180, 417 S.E.2d 565 (1992). In this case, the Court found that the fifteen-dollar road maintenance fee charged on motor vehicles in Horry County was a valid uniform service charge authorized under S.C. Code Ann. § 4-9-30. The Court determined that since the fee was specifically allocated for road maintenance, it was a service charge rather than a tax. 2

I have attached a copy of this opinion.

The Honorable Robert W . Hayes, Jr.
Page 4
December 18, 1996

Reliance on the January 23, 1995 opinion to support a transfer of the authority to expend "C" funds from a county transportation committee to a county council is misplaced. This opinion does not validate a county council's authority to expend "C" funds. It merely acknowledges that in this Office's opinion, a county council may expend a county initiated road maintenance fee without running afoul with the separation of powers doctrine. To summarize the foregoing, it is the opinion of this Office that a county council does not have the authority under§ 12-28-2740 to expend "C" funds . Furthermore, if a county council member were to serve simultaneously on the county transportation committee, that individual would most probably violate the dual office prohibitions of the state Constitution. Finally, the opinion of this Office dated January 23, 1995 is not applicable to the facts presented by your opinion request. This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain

;0;;.~urs,
Paul M. Koch
Assistant Attorney General