Could Bamberg’s board of public works purchase and operate a golf course?

Plain-English summary

Bamberg's Board of Public Works asked whether it could buy, own, and operate a golf course or country club with a pool and meeting facilities. The Attorney General said an ordinary golf course purchase would generally fall outside a public works board's traditional scope and legislative purpose. But the AG left open a narrower route: a court could uphold a purchase if the property furthered the board's water or wastewater work and fit its legislative authorization.

The opinion distinguished a general public-purpose question from the board's own limited powers. Earlier AG opinions had recognized that a golf course could serve a public purpose, but that did not automatically empower this board to acquire one. The AG expressly had not reviewed Bamberg's enabling legislation or other authority, so the opinion did not finally decide whether this board's specific proposed purchase was authorized. It also noted that other legal requirements, including procurement procedures, would still apply.

Currency note

This opinion was issued in 2015. 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 AG approve Bamberg's golf course purchase?
A: No. It gave a conditional view and said it had not reviewed the board's enabling legislation.

Q: Could a golf course ever fit public works purposes?
A: The AG said a court could uphold a purchase that furthered water or wastewater work, such as an additional water source or wastewater discharge fields, if the board's legal authority allowed it.

Q: Was a general public benefit enough by itself?
A: No. The board also needed statutory or necessarily implied authority to act within its own limited purpose.

Background and statutory framework

The AG described a public works board as a statutory entity with only express or necessarily implied powers. It discussed earlier opinions on golf courses and municipal utilities, and suggested considering both permissible public purpose and the primary beneficiary. The proposed facility's particular connection to water and wastewater services, and the board's actual enabling law, were central to the conditional answer.

Citations and references

• The AG said a court would generally find that “the purchase of a golf course is not within the traditional scope and legislative purpose of a board of public works.”
• It added that if the purchase furthered the board's work and fit legislative authorization, a court could uphold it.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-13-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/10/Martin-W.-OS-9930-FINAL-Opinion-10-13-2015-00774183xD2C78.pdf

Original opinion text

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Alan Wilson
Attorney General

October 13. 2015

Mr. Will Martin. General Manager
Bamberg Board of Public Works

P.O. Box 1 1 80
Bamberg, SC 29003-0780
Dear Mr. Martin:

Attorney General Alan Wilson has referred your letter dated June 8, 2015 to the Opinions section for a response. The following is this Office's understanding of your question and our opinion based on that understanding.

Issue (as quoted from your letter):
"Can the Bamberg Board of Public Works purchase, own and operate a golf course or a "Country Club' which would include a golf course, pool and meeting facilities, etc.?'"

Law/Analysis:
The Florida Supreme Court used a two-part test to determine whether a municipality could issue bonds to purchase a golf course. See Citv of Bradentown v. Slate. 88 Fla. 381. 102 So. 556. 36 A.L.R. 1297

(1924). The test implemented was: (I) was the action a permissible public purpose; and (2) who was the primary beneficiary, jd. Thus, we would recommend beginning with that test.

First and foremost, does

the City of Bamberg's Board of Public Works have the authority to make such a purchase and does it comply with its public purpose?

Having a permissible public purpose is essential for two reasons: (I)

because an entity can only act within the scope of its authority; and (2) because an entity may only tax for a valid public purpose, id,

litis Office has previously opined that a golf course could be a valid public

purpose. Op. S.C. Att'v Gen.. 1984 WL 249909 (June 20. 1984) (citing Capen v. Citv of Portland. 228 P.

105, 35 A.L.R. 589 (Ore. 1924) etc.). This Office has also previously opined that in determining whether

a board of public works may form a separate corporation to build a golf course, that the board's enabling legislation must authorize the creation of another corporation and that the building of a golf course must be within the course of business of the board in order to proceed. Op. S.C. Att'v Gen.. 2007 WL 4686605 (December 1 7, 2007). However, your situation differs in that you are asking about purchasing an existing golf course.

As you are aware, a board of public works would be a creature of statute and thus only has that authority

expressly conferred or necessarily implied from its enabling legislation and other applicable law for it to effectively fulfill the duties with which it is charged. Op. S.C. Attv. Gen.. 2009 WL 276743 (January 7. 2009) (citing S.C. Coastal Conservation League v. South Carolina Dep't of Health & Envtl. Control. 363 S.C. 67. 610 S.E.2d 482 (2005)). This Office has previously noted in an opinion that our State Supreme Court has held that "[a| board of public works is not a separate corporation but a mere municipal agency through whose management and control the General Assembly has required that the municipality shall

operate and manage its waterworks." Op. S.C. Att'v Gen.. 2008 WL 2324818 (May 30. 2008) (quoting Sossamon v. Greater Gaffnev Metropolitan Utilities Area. 236 S.C. 173, I 13 S.E.2d 534 (I960) (citing

Rewbert C. Dennis Building

. Post Office Box 1 1 549

. Colombia, SC 292 11- 1549

• Telephone 803-734-3970

. Facsimile 803-253-6283

Mr. Will Martin
Page 2

October 13, 2015

City of Union v. Sartor. 91 S.C. 248, 74 S.E. 496; City of Spartanburg v. Blalock. 223 S.C. 252, 75 S.E.2d 361)). The 2008 opinion went on to state that:

An opinion of this Office dated May 5,

1966 determined that "a Board of
Commissioners of Public Works and the governing body of a municipality are separate and distinct bodies; that the Board of Commissioners is given the full control and management of the municipal waterworks system, including the power to fix rates and determine the fiscal policies in connection therewith..." Boards of commissioners of public works are unique, hybrid entities - the CPW is an agency of the City, but it is also a distinct entity created by the Legislature and endowed by the Legislature with a limited corporate purpose. Pursuant to S.C. Code Section 5-31-210, the CPW consists of three elected commissioners, who exercise the powers granted by Section 5-3 1-250, above.

Op. S.C. Att'v Gen.. 2008 WL 2324818 (May 30, 2008). Customarily, a municipal board of public works

would have the power to "purchase, build or contract for building any waterworks or electric light plant

authorized" pursuant to statute. S.C. Code § 5-31-250.' Any such municipal corporation is authorized to purchase a water supply to establish a sewer system. S.C. Code § 5-3 1-250. However, our Court has also noted that: While furnishing water by a city to its inhabitants is now, although not formerly, regarded as a proper municipal function, a city waterworks system has also been characterized as of a commercial nature. Green v. City of Rock Hill. 149 S.C. 234, 147 S.E. 346, 356. The Court there said: 'While in this state it is settled that the operation of water works by a

municipality is so far governmental in character as to absolve the corporation from liability sounding in tort ( Black v. Citv of Columbia. 19 S.C. 412, 45 Am.Rep., 785), there can be no doubt that in the fiscal aspect thereof the operation and maintenance of such utility partake largely of the nature of a commercial or business enterprise. Indeed, by the great weight of authority in other jurisdictions the commercial nature of the enterprise is so far held to be controlling as to require the conclusion that the operation of a water works system is a function undertaken by a municipality in its private or proprietary capacity.' 23 Article 8, Section 5 of the Constitution authorizes cities and towns to acquire and operate waterworks systems and to furnish water to 'individuals, firms and private corporations for a reasonable compensation.'

Sossamon v. Greater Gaffnev Metro. Utilities Area. 236 S.C. 173, 181, 113 S.E.2d 534, 538 (1960). While it our understanding your Board of Public Works was created to serve the municipality of Bamberg, we also understand your Board must operate, as quoted above, "in the fiscal aspect thereof the operation and maintenance of such utility partake largely of the nature of a commercial or business enterprise." Green v. Citv of Rock Hill. 149 S.C. 234, 147 S.E. 346, 356 (citing 19 R.C.L. 764, § 69; 5 McQuillin on Municipal Corporations (2d Ed.) § 1962).

For purposes of this opinion, we have not reviewed your Board's enabling legislation or other authority.

Mr. Will Martin
Page 3
October 13, 2015

Conclusion:

Under usual circumstances this Office believes a court would generally determine the

purchase of a golf course is not within the traditional scope and legislative purpose of a board of public works.

However, if the purchase of the golf course would further the board's work (i.e. additional

sources of water and wastewater discharge fields) and fits within the legislative authorization, then we believe a court would uphold the purchase as within the purview of the board."

This Office believes the

State and the political subdivisions thereof are becoming more acutely aware of the importance of having and maintaining an adequate water supply. Nevertheless, this Office is only issuing a legal opinion based on the current law at this time. Until a court or the Legislature specifically addresses the issues presented

in your letter, this is only an opinion on how this Office believes a court would interpret the law in the matter. Additionally, you may also petition the court for a declaratory judgment, as only a court of law can interpret statutes and make such determinations. S.C. Code § 15-53-20.

If it is later determined

otherwise or if you have any additional questions or issues, please let us know.

Sincerely,

Anita S. Fair

Assistant Attorney General
REVIEWED AND APPROVED BY:

£2
bert D. Cook

Solicitor General

: All other laws and regulations would need to be complied with, including any procurement policies or procedures.