Could public workers and materials build a fence between private parcels to stop vehicle intrusion?

Plain-English summary

In January 2004, South Carolina’s Attorney General advised against using taxpayer-funded labor, equipment, and materials to erect a fence between two private parcels. On the facts presented, the fence’s main purpose was to stop vehicles entering one private tract. Although the requester said it could also keep traffic off public property, the fence did not border that public land. The AG said private parties appeared to be the primary beneficiaries and any public benefit remote or indirect.

The office concluded that the project would likely violate the public-purpose requirement. It qualified that view because it had only the limited facts in the request; a court, not the AG, could make binding factual findings.

Currency note

This opinion was issued in 2004. 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.

Historical summary

Local governments and public works officials

The opinion applied the public-purpose doctrine to the described use of government crews and materials. It looked at the project’s ultimate public benefit, who would chiefly benefit, whether the claimed benefit was speculative, and the probability that the public interest would be served.

Property owners

The AG did not rule that every project near private land was forbidden. Its concern was the described fence’s placement and primary benefit to private property, with no direct separation of private and public land.

Common questions

Did a possible benefit to nearby public land justify this fence?
The AG said not on the stated facts. The public benefit appeared indirect or remote because the fence separated two private tracts.

Did the opinion definitively decide whether the project was unconstitutional?
No. It predicted a likely violation and said a court would need to determine the facts and issue a binding decision.

What feature made the proposed spending suspect?
The office identified private owners as the apparent primary beneficiaries of a fence chiefly intended to keep vehicles off private property.

Background and statutory framework

A senator requested an advisory opinion about a publicly funded fence. The AG applied South Carolina’s public-purpose doctrine and court decisions assessing the intended benefit of public spending, then limited its conclusion to the facts supplied.

Citations and references

The opinion discussed Article X, Sections 5 and 11 of the South Carolina Constitution and the public-purpose test it attributed to Nichols v. South Carolina Research Authority.

Official title

Concerning the applicability of the public purpose doctrine. Specifically, questioning the propriety of the following actions under South Carolina law.

Requester

The Honorable Glenn F. McConnell, President Pro Tempore, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-7-2004-3/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan7mcconnell.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATTORNEY GENERAL

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January 7, 2004

The Honorable Glenn F. McConnell
President Pro Tempore
South Carolina Senate
Post Office Box 142
506 Gressette Senate Office Building
Columbia, South Carolina 29202
Dear Senator McConnell:
You have requested an advisory opinion from this Office on behalf of unnamed parties who brought to your attention a situation which concerns the applicability of the public purpose doctrine. You have specifically questioned the propriety of the following actions under South Carolina law:

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The issue is whether it is appropriate for taxpayer funds to be used for personnel, equipment and materials to erect a fence to prevent vehicular traffic from private property such that the fence is for the benefit of that private property. It is my understanding that the fence is an attempt to cure a problem of vehicular intrusion onto private property. The reason given for the fence is that it also prevents traffic from going onto public property. However, the fence does not separate the public and private property. Instead it separates two different private tracts of land.

Law/Analysis

This office has repeatedly recognized that public funds must be used for public and not private purposes. See, e.g., Opinion of the Attorney General dated October 8, 2003 citing decisions of the South Carolina Supreme Court in Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967); Haesloop v. Charleston, 123 S.C. 272, 115 S.E.2d 596 (1923). In anopiniondatedAugust29, 2003, we advised that, "[T]he Due Process Clause of the Constitution (federal and state) requires that public funds must be expended for a public purpose." Moreover, Article X, Section 5 of the State Constitution requires that taxes (public funds) be spent for public purposes. While each case must be decided on its own merits, the notion of what constitutes a public purpose has been described by our Supreme Court in Anderson v. Baehr, 265 S.C. 153, 217 S.E.2d 43 (1975) as follows:

&z.1B~~AUILDING • POST OFFICE Box 11549 • COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMIIE: 803-253-6283

The Honorable Glenn F. McConnell
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January 7, 2004

(a)s a general rule a public purpose has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity and contentment for all the inhabitants or residents, or at least a substantial part thereof ... Legislation (i.e., relative to the expenditure of funds) does not have to benefit all of the people in order to serve a public purpose.

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See also: WDW Properties v. City of Sumter, 342 S.C. 6, 535 S.E.2d 631 (2000); Nichols v. South Carolina Research Authority, 290 S.C. 415, 351 S.E.2d 155 (1986); Carll v. South Carolina Jobs-Economic Development Authority, 284 S.C. 438, 327 S.E.2d 331 (1985); Caldwell v. McMillan, 224 S.C. 150, 77 S.E.2d 798 (1953). An opinion of this office dated December 18, 2000 commented that the constitutional requirement of "public purpose ... was intended to prevent governmental bodies from depleting the public treasury by giving advantages to special interests or by engaging in non-public enterprises." Furthermore, Article X, Section 11 of the State Constitution provides that: (t)he credit of neither the State nor of any of its political subdivisions shall be pledged or loaned for the benefit of any individual, company, association, corporation, or any religious or private education institution except as permitted by Section 3, Article XI of this Constitution.

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This provision proscribes the expenditure of public funds "for the primary benefit ofprivate parties." State ex rel. McLeod v. Riley, 276 S.C. 323, 329, 278 S.E.2d 612 (1981). The term "credit" has been construed as any "pecuniary liability" or "pecuniary involvement". Elliott v. McNair, supra. In Nichols, the court established the following test to determine whether the "public purpose" requirement has been met:

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(t)he Court should first determine the ultimate goal or benefit to the public intended by the project. Second, the Court should analyze whether public or private parties will be the primary beneficiaries. Third, the speculative nature of the project must be considered. Fourth, the Court must analyze and balance the probability that the public interest will be ultimately served and to what degree. 318 S.E.2d at 163. In Bauerv. S.C. State Housing Authority, 271 S.C. 219, 256 S.E.2d 869 (1978), the Supreme Court warned that "(i)t is not sufficient that an undertaking bring about a remote or indirect public benefit to categorize it as a project within the sphere of public purpose." Applying this well-settled body of law to the facts provided to this Office regarding your written request, it would appear that the public purpose doctrine would preclude the public entity from building the fence in question. You state that the primary purpose of the fence is to prevent vehicular intrusion into a piece of private property, and the fence would separate two pieces of private property. You indicate the stated reason for the fence is to prevent vehicular intrusion onto

The Honorable Glenn F. McConnell
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January 7, 2004

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public property, but that the fence is not contiguous with such public property. It appears that the primary beneficiaries of the fence would be private parties, with only an indirect or remote public benefit. The use of public resources to build such a fence would likely violate the principles oflaw laid out in Nichols v. South Carolina Research Authority, supra, and Bauer v. S.C. State Housing Authority, supra. Accordingly, this Office advises against using public resources to erect the fence in question. We would note that the foregoing opinion is based upon the limited facts provided in your letter. Only a court of competent jurisdiction, and not this Office, can serve as a finder of fact and conclusively determine whether this action would violate the public purpose doctrine. See Op. S.C. Attn. Gen., dated June 30, 2003. We would advise that a declaratory judgement from the courts, based upon all of the relevant facts, would be the mechanism to provide a binding decision on whether this action is violative of the public purpose doctrine. Conclusion

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Based on the foregoing authorities as well as the limited facts provided in your request, this Office advises that building the fence in question would likely violate the well-settled constitutional principle that public resources must be used only for public and not private purposes.

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Robert D. Cook
Assistant Deputy Attorney General