Could Berkeley County's legislative delegation constitutionally approve future school bond issues under Act 229 of 1983?

Plain-English summary

Section 3 of Act 229 of 1983 required the Berkeley County Legislative Delegation to approve any future issuance of additional school bonds. The Attorney General concluded that this likely assigned legislators an executive role, contrary to the South Carolina Constitution's separation of powers clause. The opinion drew on decisions rejecting similar delegation approval powers over road bonds and school tax increases.

The AG distinguished the General Assembly's power to set the legal terms on which school districts incur debt from giving its individual members an approval role after a law has passed. It emphasized that only a court could declare the provision unconstitutional and that a statute remained valid until then.

Currency note

This opinion was issued in 2006. 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

What power did Act 229 give the delegation?
Section 3 required its approval for future Berkeley County school bond issues.

Why did the AG doubt the provision's constitutionality?
It viewed approval of individual bond issues as a function outside the delegation members' legislative duties, giving them a second governmental role.

Did the opinion strike down the approval requirement?
No. It expressly said only a court could make that ruling.

Background and statutory framework

The opinion quoted Article I, section 8's separation of governmental powers and Article X, section 15's authorization for school district debt on terms prescribed by law. It applied Bramlette, Gunter, and Knotts, each concerning legislative delegation participation in functions beyond passing legislation.

Citations and references

• Section 3 of Act 229 of 1983: Berkeley County school bond approval.
• Article I, section 8 and Article X, section 15 of the South Carolina Constitution.
• Bramlette v. Stringer, 186 S.C. 134, 195 S.E. 257 (1938); Gunter v. Blanton, 259 S.C. 436, 192 S.E.2d 473 (1972); Aiken County Board of Education v. Knotts, 274 S.C. 144, 262 S.E.2d 14 (1980).

Official title

Inquiring as to the constitutionality and enforceability of section 3 of Act 229 of 1983.

Requester

The Honorable Stephen T. Draffin, Code Commissioner and Director, SC Legislative Council.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-24-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/feb24-06-Draffin.pdf

Original opinion text

HENRY McMASTER
AllORNEY G ENERAL

February 24, 2006

The Honorable Stephen T. Draffin
Code Com.missioner and Director
South Carolina Legislative Council
P.O. Box 11489
Columbia, South Carolina 29211 -2 145

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Dear Mr. Draffin:
We received your letter requesting an opinion of this Office on behalf of Representatives Merrill, Hinson, Umphlett, and Dantzler. By your letter, you inquire as to the constitutionality and enforceability of section 3 of Act 229 of 1983. After review of this provision and the relevant constitutional law, we find this provision constitutionally suspect and likely to be ruled unconstitutional by a court of this State due to a violation of the separation of powers clause of the South Carolina Constitution. Law/Analysis Courts are hesitant to declare an act of the General Assembly unconstitutional and find every presumption in favor of the act's validity. Johnson v. Collins Entm't Co., Inc., 349 S.C. 613, 626, 564 S.E.2d 653, 660 (2002). "[N]o statute will be declared unconstitutional uriless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution. This general presumption of validity can be overcome only by a dear showing the act violates some provision of the constitution." Id. In addition, we note only a court can render a statute unconstitutional. See SULOp. S.C. Atty. Gen., June 23, 2004. Therefore, although we may comment on our opinion as to the constitutionality of a statute, the statute will remain valid until a court declares otherwise. Op. S.C. Atty. Gen., April 29, 2004. On several occasions, South Carolina courts dealt with the validity of statutes requiring legislative delegation approval under particular circumstances. In Bramlette v. Stringer, 186 S.C. 134, 195 S.E. 257 (1938), the South Carolina Supreme Court addressed the val idity of a statute allowing a county to issue bonds for the purpose of road construction. The provisions under the statute required a county legislative delegation to determine the amount and method of selling bonds. Id. at 141 , 195 S.E. at 261. In addition, the statute afforded the legislative delegation authority to designate the road to be constructed or improved. Id. at 142, 195 S.E. at 261. The Court determined these provisions under the statute were clear violations of the constitutional provision mandating a separation of powers. fd. at 150, 195 S.E. at 264.

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The Honorable Stephen T. Draffin
Page2
February 24, 2006

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In Gunter v. Blanton, 259 S.C. 436, 192 S.E.2d 473 (1972), the South Carolina Supreme Court considered the constitutionality of a statute, which required a county legislative delegation to approve or disapprove any tax increased adopted by the board of trustee's for the county school district. The Court acknowledged the Legislature has the power to impose taxes and it may delegate such power to the school district under Article X, section 5 of the South Carolina Constitution. Id. at 441, 192 S.E.2d at 474. However, by giving the county delegation the power to approve any tax increases, "constituted the County Legislative Delegation a committee of the Legislature to determine not only when a tax increase was proper but also to take such action with regard to the increase as that committee might deem proper." Id. at 441, 192 S.E.2d at 475. Therefore, the Court held: The Act does not and can not authorize the members of the delegation to participate in this determination as legislators, for they may exercise legislative power only as members of the General Assembly. To authorize them to participate as corporate authorities of the school district, as the Act attempts to do, clearly assigns to them a dual role in violation of the separation of powers clause of the Constitution. Id. Similarly, in Aiken County Board of Education v. Knotts, 274 S.C. 144, 262 S.E.2d 14 (1980), involved a constitutional challenge to a statute that required the approval of a county's legislative delegation for millage increases proposed by the county's school board. The Court, relying on Gunter, stated: As a general rule, the Legislature may not, consistently with the constitutional requirement here involved, undertake to both pass laws and execute them by setting its own members to the task of discharging such functions by virtue of their office as legislators. The Legislature may properly engage in the discharge of such functions to the extent only that their performance is reasonably incidental to the full and effective exercise of its legislative powers. As the functions of the Legislative Delegation in this instance are not incidental to or comprehended within the scope of legislative duties, the separation of powers doctrine as provided by Article I, section 8 has clearly been violated. Id. at 149-50, 262 S.E.2d at 17. Article I, section 8 of the South Carolina Constitution (1976), the separation of powers clause, provides: "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 Honorable Stephen T. Draffin
Page 3
February 24, 2006
Act 229 of 1983 generally allows levy of taxes for school purposes in Berkeley County for the fiscal year 1983-1984 and allows for the levy of an additional tax for the purpose of retiring school bonds issued prior to the effective date of the act. Act. No. 229, 1983 S.C. Acts 1269. Section 3 of this act provides as follows: "Notwithstanding any other provisions oflaw, the Berkeley Legislative Delegation shall approve the future issuance of any additional school bonds." Id.

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Article X, section 15 of the South Carolina Constitution (Supp. 2005) affords school districts the power to incur general obligation indebtedness, but provides they may do so "only in such manner and upon such terms and conditions as the General Assembly shall prescribe by law." Thus, although the South Carolina Constitution vests authority in the local school districts to issue school bonds, we recognize the General Assembly's authority to prescribe the terms and conditions under which a school board may issue such bonds. However, approval of the issuance of school bonds is neither incidental nor comprehended within the scope of the members of the Berkeley County Delegation's functions as members of the General Assembly. Thus, by giving such authority to the delegation constitutes an impermissible delegation of power to the members of the Berkeley County Legislative Delegation. Therefore, in accordance with Bramlette, Gunter, and Knotts, in our opinion, section 3 of Act 229 of 1983 assigns the members of the legislative delegation a dual role in violation of the separation of powers clause of the South Carolina Constitution. However, we again note only a court can definitively make the determination as to the constitutionality of this provision. Op. S.C. Atty. Gen., May 6, 2003.

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Very truly yours,

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Cy:tM. M(Jng
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Assistant Deputy Attorney General