Did York County towns have to return road funds approved before the transportation committee dissolved?

Plain-English summary

A representative asked whether York County municipalities had to return gasoline-tax “C” funds after the county transportation committee was dissolved and county council demanded the money. The committee had approved and disbursed the funds before its dissolution. The Assistant AG relied on the presumption that public officers properly perform their duties and treated those approvals and disbursements as valid on the facts provided. The municipalities therefore did not have to return the funds.

The letter also recalled a prior office opinion that authority to expend C funds could not be shifted from the transportation committee to county council under the statute then in force. Because council lacked expenditure authority, the author said it also lacked authority to demand the municipalities return these funds.

Currency note

This opinion was issued in 1997. 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 dissolving the transportation committee undo its earlier payments? A: The author said no. He presumed valid the approvals and disbursements made while the committee was operational.

Q: Could county council demand that the municipalities repay those funds? A: The author concluded it could not, because the statutory expenditure authority remained with the transportation committee rather than council.

Q: What plan governed C fund spending at the time? A: The letter quoted the statute as requiring committee approval and use in furtherance of a countywide transportation plan adopted by that committee.

Background and statutory framework

The opinion discussed Tucker litigation over legislative delegations' role in allocating C funds, a subsequent amendment establishing county transportation committees, and recodification as § 12-28-2740. Its repayment conclusion depended on the committee's prior approval and disbursement as described in the request.

Citations and references

Statute discussed: § 12-28-2740. Cases discussed: Tucker v. South Carolina Department of Highways and Public Transportation; South Carolina National Bank v. Florence Sporting Goods. Inc.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-10-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97march10kirsh.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

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March 10, 1997

The Honorable Herbert Kirsh
Member, House of Representatives
532A Blatt Building
Columbia, South Carolina 29211
Re:

Informal Opinion

Dear Representative Kirsh:

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Attorney General Condon has forwarded your recent opinion request to me for reply. You inform this Office that the York County Legislative Delegation has dissolved the York County Transportation Committee, effective January I, 1997, and transferred the authority to expend "C" funds to the York County Council. Apparently, prior to dissolution, the York County Transportation Committee approved the expenditure of "C" funds by several municipalities in York County. The York County Council now demands that the municipalities return the "C" funds. You ask for an opinion as to whether the municipalities must return to the York County Council those "C" funds approved and disbursed by the York County Transportation Committee prior to its dissolution on January 1, 1997. 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 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,

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Representative Kirsh
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March 10, 1997
action by a legislative delegation pursuant to a complete law cannot qualify as action to enact legislation and is therefore constitutionally invalid.

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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 was upheld by the Court in Tucker v. South Carolina Department of Highways and Transportation, 314 S.C. 131, 442 S.E.2d 171 (1994) (Tucker II). Thereafter, § 12-27-400 was recodified as § 12-28-2740 (Supp. 1995). At the present time, 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 § 12-28-2740(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. It is well recognized that in the absence of any proof to the contrary, public officers are presumed to have properly discharged the duties of their offices and to have faithfully performed the duties which they are charged. South Carolina National Bank v. Florence Sporting Goods. Inc., 241 S.C. 110, 127 S.E.2d 199 (1962).

According to the facts presented in your opinion request, prior to its dissolution, the Transportation Committee approved and disbursed "C" funds to several municipalities in York County. Given the presumption of validity that attaches to the acts of public officers and the fact that the "C" funds were approved and disbursed while the Transportation Committee was an operational body, it must be presumed that the Transportation Committee's approval and disbursement of the "C" funds to the municipalities is valid. Consequently, since the actions of the Transportation Committee are presumed to be valid, the municipalities authorized by the Transportation Committee to expend the "C" funds need not return these funds. I take this opportunity to note that in an opinion to the Honorable Robert W. Hayes, Jr., dated December 18, 1996, this Office found:

Representative Kirsh
Page 3
March I 0, 1997

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According to the clear and unambiguous language of
the ["C" funds] 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 committee to the county council would be improper under § 12-28-2740. From the above stated conclusion, it logically follows that if the County Council does not have the authority to expend "C" funds, they do not have the authority to seek the return of these funds from the municipalities. 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 Very truly yours,

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Paul M. Koch
Assistant Attorney General