Could an appointed committee approve Berkeley County school tax increases under South Carolina's constitution?

Plain-English summary

The Legislative Council asked about a proposed appointed committee that would approve increases in school property tax millage proposed by Berkeley County's board of education. The Attorney General concluded the proposal was constitutionally suspect because final taxing authority would rest with appointees who were not directly accountable to voters. It predicted a court would likely find a violation of Article X, Section 5.

The opinion emphasized that an enacted statute would be presumed valid until a court ruled otherwise. Its conclusion addressed proposed legislation, not an existing committee's actions.

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 made the committee proposal constitutionally suspect?
The AG said its appointed members would hold the final approval power over tax increases without voter approval or elected-body supervision.

Did the opinion invalidate any law?
No. It evaluated a proposal and said only a court could declare an enacted law invalid.

Background and statutory framework

Article X, Section 5 was the opinion's constitutional basis. The AG compared cases on delegation of taxing power, including Weaver v. Recreation District, which had invalidated taxing discretion granted to an appointed commission.

Citations and references

• Article X, Section 5 of the South Carolina Constitution: delegation of taxing power.
• Weaver v. Recreation District, 328 S.C. 83, 492 S.E.2d 79 (1997): appointed body's tax authority.

Official title

Requesting as to the constitutionality of the proposed legislation; “a special tax review committee appointed by various local elected entities to approve any increases in ad valorem tax millage proposed by the Berkley County Board of Education for the School District of Berkley County.” Request made on behalf of Rep. Shirley Hinson who wishes to introduce the legislation.

Requester

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

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-12-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/jan12-06-Draffin.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
A1TORNEY GENERAL

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January 12, 2006

The Honorable Stephen T. Draffin
Code Commissioner and Director
South Carolina Legislative Council
P.O. Box 11489
Columbia, SC 29211-2145
Dear Mr. Draffin:
We received your letter requesting an opinion as to the constitutionality of the proposed legislation attached to your request. We understand your request is made on behalf of Representative Shirley Hinson, who wishes to introduce the legislation. As you described the proposed legislation, it would establish "a special tax review committee appointed by various local elected entities to approve any increases in ad valorem tax millage proposed by the Berkeley County Board of Education for the School District of Berkeley County." After our review of the proposed legislation and the applicable statutory and case law, in our opinion, the proposed legislation is constitutionally suspect. Such legislation, in our view, authorizes taxation without representation in violation of Article X, Section 5 of the South Carolina Constitution. Law/Analysis We begin our analysis by noting, if enacted the legislation in question would be entitled to a strong presumption of validity. As we recently stated in an opinion of this Office dated May 2, 2005, any statute enacted by the General Assembly carries with it a heavy presumption of constitutionality. As we have often stated, any act of the General Assembly is presumed valid as enacted unless and until a court declares it invalid. Our Supreme Court has often recognized that the powers of the General Assembly are plenary, unlike those of the federal Congress whose powers are enumerated. State ex rel. Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 231, 233 (1956). Accordingly, any act of the General Assembly must be presumed valid and constitutional. An act will not be considered void unless its

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Mr. Draffin
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January 12, 2006
unconstitutionality is clear beyond any reasonable doubt. Thomas v. Madden, 186 S.C. 290, 195 S.E. 539 (1937); Townsend v. Richland Co., 190 S.C. 270, 2 S.E.2d 779 (1939).

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Moreover, only a court and not this Office, may strike down an act of the General Assembly as inequitable or unconstitutional. While this Office may comment upon what we deem an apparent constitutional defect, we may not declare the Act void. Put another way, a duly enacted statute "must continue to be followed until a court declares otherwise." Op. S.C. Atty. Gen., June 11, 1997. Article X, Section 5 of the South Carolina Constitution (Supp. 2005) provides, in pertinent part: "No tax, subsidy or charge shall be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people or their representatives lawfully assembled." In Crow v. McAlpine, 277 S.C. 240, 244, 285 S.E.2d 355, 358 (1981), our Supreme Court interpreted this provision of the Constitution as an implied limitation upon the power of the General Assembly to delegate the taxing power. Where the power is delegated to a body composed of persons not assented to by the people nor subject to the supervisory control of a body chosen by the people, this constitutional restriction is violated.

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The plaintiffs in that case brought a declaratory judgment action challenging the constitutionality of a statute authorizing a county board of education appointed by the governor to levy and collect taxes to fund the school district's operating budget. The Supreme Court remarked ifthe taxing power is abused by those who are not "directly responsible to the people," this abuse of power may not be "directly corrected by those who must carry the burden of the tax." Id. at 244-45, 285 S.E.2d at 358. Thus, the Court in finding the statute unconstitutional, held "the General Assembly may not, consistent with Article X, Section 5, delegate the unrestricted power of taxation to an appointive body." Id. at 245, 285 S.E.2d at 358. Bradleyv. Cherokee School District No. One of Cherokee County, 322 S.C. 181, 184, 470 S.E.2d 570, 571 (1996), also dealt with a constitutional challenge of a statute under Article 10, Section 5 of the South Carolina Constitution. In that case, the plaintiffs argued the Cherokee County School District No. One School Bond-Property Tax Relief Act, authorizing the Cherokee County School Board to impose a sales tax throughout Cherokee County, constituted taxation without representation. Id. Citing Crow, the Supreme Court in Bradley stated: "Delegation of the taxing power should be kept with supervisory control always vested in elective bodies." However, because the electors of Cherokee County approved the imposition of the state tax by referendum, the Supreme Court disagreed with the plaintiffs' position. Id. The Court found the act did not give the School Board "unlimited power of taxation." Id. at 185, S.E.2d at 572. "The ultimate power to

Mr. Draffin
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January 12, 2006

impose sales tax rest with the electors of the entire county ... "giving "the residents ... a voice and a vote in the imposition of the tax .... " Id.

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In Weaver v. Recreation District, 328 S.C. 83, 492 S.E.2d 79 (1997), the Supreme Court considered the constitutionality of a statute authorizing a recreation district's commission, consisting of appointed members, to levy a tax not exceeding five mills on all taxable property within the district. Relying on Crow and Bradley, the Supreme Court determined the statute "gives the Recreation Commission the complete discretion to determine its annual budget, and to levy anywhere from one to five mills taxes to meet its budget." Id. at 87, 492 S.E.2d at 81. Accordingly, the Supreme Court held the statute unconstitutional as it violated Article X, Section 5 of the South Carolina Constitution. Id. at 87, 492 S.E.2d at 82.

As we emphasized above, a statute is presumed constitutional and only a court could make a determination relating to its unconstitutionality. Op. S.C. Atty. Gen., May 2, 2005. However, in our opinion, we find the proposed legislation unconstitutional. Under the proposed legislation, the special tax review committee (the "committee") is an appointed body, not subject to the approval or supervisory control of the people. If the Berkeley County Board of Education (the "Board") is required to gain the approval of the committee, its role would be that of simply making a recommendation as to the millage rate with the ultimate authority to levy the tax vested in the committee. Thus, until such approval is obtained, the tax proposed by the Board would not be a valid tax. Because a tax cannot be levied by the Board without approval, the supervisory control of the taxing power vested in the Board would be delegated to an appointed body, and unlike in Bradley, the residents would not have a voice and vote in the imposition of the tax. Accordingly, in our opinion and under the case law cited above, if the proposed statute were subject to a constitutional challenge it likely would be found to violate Article X, Section 5 of the South Carolina Constitution. Very truly yours,

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CydneyMlng
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Assistant Deputy Attorney General