Could someone living outside Clarendon County sit on its hospital district board in 1995?

Official title

Concerning whether, pursuant to Act No. 595 of 1980 or any subsequent amendments thereto, a non-resident of Clarendon County, South Carolina, may serve on the Clarendon County Hospital District Board of Trustees.

Requester

The Honorable W. Jeffrey Young, Member, House of Representatives

Plain-English summary

A representative asked whether a person who did not reside in Clarendon County could serve on its hospital district board. The 1995 informal opinion answered no. The local act said board members “shall” be county residents, and the author treated that wording as mandatory. She also discussed the state constitutional qualified-elector requirement for public office and concluded that a trustee had to be qualified by Clarendon County residence to be an elector there. Residence meant domicile in the cited authorities; intent to retain or establish a permanent home was fact dependent. The letter said the county voter-registration board determined whether a particular person was a qualified elector.

Currency note

This opinion was issued in 1995. 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: Did the local act allow an out-of-county trustee? A: The letter said no; its residence requirement was mandatory.

Q: Was sleeping outside the county by itself conclusive of lost residence? A: No. The cited residency decision treated domicile as a mixed question of law and fact, with intent important.

Q: Who determined elector qualification for a particular person? A: The letter identified the county board of voter registration.

Background and statutory framework

The opinion read Act No. 595 of 1980 with the state constitution’s elector qualification and §7-5-120. It cited domicile decisions to explain why a specific person’s residence could require a factual determination.

Citations and references

• Act No. 595 of 1980, the local hospital district act interpreted in the letter.
• §7-5-120, cited on elector registration and county residence.
• Clarke v. McCown, discussed on domicile as a factual and legal question.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-12-1995-3/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/95june12young.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

June 12, 1995

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The Honorable W. Jeffrey Young
Member, House of Representatives
988 Heather Lane

• Sumter, South Carolina 29154
  RE: Informal Opinion
  Dear Representative Young:
  By your letter of May 24, 1995, to Attorney General Condon, you have sought an opinion as to whether, pursuant to Act No. 595 of 1980 or any subsequent amendments thereto, a non-resident of Clarendon County, South Carolina, may serve on the Clarendon County Hospital District Board of Trustees. Act No. 595of1980 provides in relevant part as to the Clarendon County Hospital District Board of Trustees: The Clarendon Hospital District shall be governed by a board of nine members to be known as the Clarendon Hospital District Board of Trustees. The members of the board shall be residents of the county, eight of whom shall be appointed by the governing body of the county. One of the appointed members shall be a licensed physician. The chief of the medical staff of the Clarendon Memorial Hospital shall be a member, ex officio, without voting privileges. The terms of members shall be for five years and until their successors are appointed and qualify. Vacancies shall be filled in the manner of the original appointment for the unexpired portion of the term only. The board shall elect a chairman, a vice-chairman, a secretary and such other officers as it deems necessary....

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POST OFFICE Box 1154'.'

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COLL'MBIA. S.C. 29211-1549

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TELEPHO:>E: 803-734-3970

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FACSL~!ILE: "'d-2.'iJ-628.<

The Honorable W. Jeffrey Young
Page 2
June 12, 1995
The plain language of the legislative act requires that the members of the Clarendon Hospital District Board of Trustees be residents of Clarendon County. Use of the term "shall" connotes mandatory compliance with the terms of the enactment. South Carolina Dep't of Highways and Public Transportation v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986). To conclude that a non-resident of Clarendon County could serve on this board would be to ignore the plain language of the legislative act and the meaning of the term "shall." Such a conclusion would be in accordance with the general law on the subject of residency and the qualification to hold public office. Article XVII, Section 1 of the South Carolina Constitution provides in relevant part that "[n]o person shall be elected or appointed to any office in this State unless he possess the qualifications of an elector." The phrase "qualified elector" means "registered elector," and no one who has not been

• registered to vote (and has thus met the requirements to be a qualified elector) can hold
  a public office, elected or appointed. Mew v. Charleston & Savannah Ry. Co., 55 S.C. 90, 32 S.E. 828 (1899); Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936). Article II, Section 4 of the state Constitution provides in relevant part that "[e]very citizen of the United States and of this State of the age of eighteen and upwards who is properly registered shall be entitled to vote in the precinct of his residence and not elsewhere." Qualifications to be met to be a registered elector are found in S.C. Code Ann. §7-5-120 and provide in part that (A) Every citizen of this State and the United States who applies for registration must be registered if he meets the following qualifications: (3) is a resident in the county and in the polling precinct in which the elector offers to vote.

Thus, the question becomes what constitutes residency in South Carolina. "Residence" for suffrage purposes means "domicile" in South Carolina. Phillips v. South Carolina Tax Commission, 195 S.C. 472, 12 S.E.2d 13 (1940); Clarke v. McCown, 107 S.C. 209, 92 S.E. 479 (1917). One's domicile is "the place where a person has his true, fixed and permanent home and principal establishment, to which he has, whenever he is absent, an intention of returning." O'Neill's Estate v. Tuomey Hospital, 254 S.C. 578, 583-584, 176 S.E.2d 527 (1970). An intention to remain permanently, or for an indefinite time, in a place is one of the essential elements of domicile. Barfield v. Coker & Co., 73 S.C. 181, 53 S.E. 170 (1906). Intent of the individual is probably the most important element in determining the residency of an individual. Ravenel v. Dekle,

The Honorable W. Jeffrey Young
Page 3
June 12, 1995
265 S.C. 364, 218 S.E.2d 521 (1974). Intent is primarily a question of fact, determined on a case by case basis. In Clarke v. Mccown, supra, the South Carolina Supreme Court considered the issue of residency in these terms:

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The residence of a person is a mixed question of law and fact; and the intention of that person with regard to the matter is deemed the controlling element of decision. His intention may be proved by his acts and declarations, and perhaps other circumstances; but when these, taken all together, are not inconsistent with the intention to retain an established residence, they are not sufficient in law to deprive him of his rights thereunder, for it will be presumed that he intends to continue a residence gained until the contrary is made to appear, because inestimable political and valuable personal rights depend upon it. .. That a man does not live or sleep or have his washing done at the place where he has gained a residence, or that his family lives elsewhere, or that he engages in employment elsewhere are facts not necessarily inconsistent with his intention to continue his residence at that place [.] Clarke v. McCown, 107 S.C. at 213-214. That an individual is a qualified elector of a particular county would be determined by that county's board of voter registration.

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Applying the foregoing to the question which you have raised, I am of the opinion that an individual must demonstrate that he is qualified, by virtue of his residence in Clarendon County, to be an elector of Clarendon County to be eligible to serve on the Clarendon Hospital District Board of Trustees. This letter is an informal opinion only. It has been written by a designated Senior 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. I trust that it is satisfactorily responsive to your inquiry and that you will advise if clarification or additional assistance should be needed.

The Honorable W. Jeffrey Young
Page 4
June 12, 1995
With kindest regards, I am
Sincerely,

YJ~r!J.I~
Patricia D. Petway
Senior Assistant Attorney General

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