Did South Carolina home rule invalidate the Reidville Area Fire District’s 1973 enabling act?

Plain-English summary

A state representative asked whether the law establishing the Reidville Area Fire District and its board was invalid under South Carolina's home rule amendments. Both the enabling act and the home rule act were ratified on the same day in 1973; the fire district act came earlier in the ratification sequence. In 2015, the Attorney General predicted that a court would uphold the fire district legislation.

The AG reasoned that the Legislature was unlikely to have enacted the local fire district law only to nullify it later that day. It read the enactments together, relying on the earlier ratification and the rule that home rule did not retroactively abolish all preexisting special legislation. The office emphasized that its conclusion was a prediction and that only a court could finally interpret the enactments.

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 consider the Reidville enabling act void under home rule?
A: No. It predicted a court would uphold the act establishing the district and board.

Q: Why did the order of ratification matter?
A: The fire district act was ratified before the home rule act on the same day, supporting the AG's reading that the later enactment was not intended to undo it immediately.

Q: Did the AG issue a binding court ruling on the district's validity?
A: No. It explained its predicted interpretation and said a court could settle the question through a declaratory judgment.

Background and statutory framework

The opinion reviewed the fire district's enabling act, the timing of the home rule amendments, and South Carolina decisions on local legislation. It applied rules favoring an interpretation that gave effect to both same-day enactments and avoided treating the fire district act as futile.

Citations and references

• The AG wrote that “a court will likely uphold the legislation creating the Reidville Area Fire District and Board.”

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-28-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/11/00785355.pdf

Original opinion text

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Alan Wilson

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Attorney General

October 28. 2015

The Honorable William M. "Bill" Chumley
House of Representatives, District No. 35
P.O. Box I 1 867

Columbia. SC 29201
Dear Representative Chumley:

Attorney General Alan Wilson has referred your letter dated September 13. 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):

I am writing to you on behalf ofthe Board of Fire Controlfor the Reidville Area Fire District (the "Board"), the governing body ofthe Reidville Area Fire District (the "District").

The District was created pursuant to Act No. 769 of 1 973 (the "Enabling Act"), a copy of which

is enclosed herewith. ' The provisions ofthe Enabling Act authorized the creation ofthe Board, provided certain powers and duties of the District, and established the District's ability to levy taxes. The Enabling Act was adopted on March 7. 1973.

On November 7. 1972. the voters ofSouth Carolina authorized the implementation ofcertain amendments to Article VIII ofthe Constitution ofSouth Carolina. 1895. which are generally referred to as the "Home Rule Amendments. " Thereafter the South Carolina General Assembly ratified and approved the Home Rule Amendments pursuant to Act No. 63 of 1973. which was also adopted on March 7. 1973 ("Act No. 63"). A copy ofAct No. 63 is also enclosed herewith.

According to the Journal of the House for Wednesday, March 7. 1973. excerpts of which are enclosed herewith, at noon of that day. the House attended the Senate Chamber whereupon it ratified both the Enabling Act and Act No. 63. The Enabling Act bears ratification number 105 (R. 105) and Act No. 63 bears ratification number 108 (R. 108). It is unequivocal that Act No. 63 authorizing the Home Rule Amendments was ratified after the Enabling Act (3 spots later). Section 10 ofthe Enabling Act provides that the "act shall take effect upon approval by the Governor. " which records indicate occurred on March 7. 1973. but no specific time can be confirmed; a copy the executed Enabling Act. as signed by Governor West, is also enclosed herewith. By its terms. Act No. 63 became effective immediately upon its ratification.

In Knight v. Salisbury. 262 S.C. 565 (1974). the South Carolina Supreme Court determined that the Lower Dorchester Recreation District ("Dorchester"), a new special purpose district created by Act No. 259 of 1973. and adopted on May 31. 1973. was unconstitutional under the Home Rule Amendments. 1 According to the Spartanburg County Elections Director and as required by the Enabling Act. a successful referendum was held on May 10. 1973 with 149 voting infavor ofthe establishment ofthe District and 7 opposed.

Prior to the Enabling Act. the legislature authorized the creation ofthe District pursuant to Act No. 727 of 1964. Act No. 727 also required a referendum on the establishment ofthe District. A referendum to establish the District was held on March 14. 1964. but such referendum failed with 1 52 voting infavor and 164 opposed.

Rembert C.Dennis Building

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Post Office Box 11549

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Columbia, SC 2921 1-1549

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Telephone 803-734-3970

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Facsimile 803-253-6283

The Honorable William M. "Bill" Chumley

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October 28, 2015

Specifically, the Court in Knight staled that "[t]he State Constitution, which until March 7, 1973 did not deny the plenary powers ofthe General Assembly in this area, has now been changed. Those plenary powers are now curtailed by the prohibition of special laws for a specific county. " We believe that the

heart of this issue is whether the Enabling Act was enacted before the Home Rule Amendments. Although the House and Senate Journals confirm that the Enabling Act received three readings, was assigned an act number, and was ratified before the Home Rule Amendments, if is ambiguous whether the Enabling

Act became effective before the Home Rule Amendments. Because of this ambiguity, we believe that the rules of statutory construction and, in particular, the last legislative enactment rule, require a presumption that the Enabling Act is constitutional. We believe that the creation of the District and the adoption of the Enabling Act is distinguishable from the creation of Dorchester. Whereas Dorchester was created two and half months after the Home Rule Amendments, the District was created on the same day as the Home Rule Amendments and ratified prior to the ratification of the Home Rule Amendments as noted above. The Court in Knight further states that "political subdivisions should continue to function as authorized on March 7, 1973, when Article VIII [the Home Rule Amendments] was ratified." Additionally, the Home

Rule Amendments (see Article VIII, Section I of the Constitution) explicitly provide that "ft]he powers possessed by all .. . political subdivisions at the effective date of this Constitution shall continue until

changed in a manner provided by law. "
Applying these rules to the Enabling Act, it appears the courts wouldpresume that the

Home Rule Amendments were enacted after the Enabling Act because it is not clear which law was effectivefirst, but the order ofarrangement unambiguously shows the Enabling Act to be the earlier act. Additionally, the courts will make presumptions infavor ofconstitutionality and where there is a clear path tofind an act constitutional and only an ambiguous argumentfor unconstitutionality, the courts are direct to rule infavor ofconstitutionality. With this information in mind. I would respectfully request your opinion as to whether your office believes that the Enabling Act is constitutional under the Home Rule Amendments?

Short Answer:
After reviewing your question, this Office agrees with your presumption that a court will likely conclude the Board of Fire Control for the Reidville Area Fire District and the Reidville Area Fire District's

enabling legislation is constitutional and thus sufficient.2
Law/Analysis:

Let us begin by examining the intent of the Legislature. As you are likely aware, the cardinal rule of statutory construction is to ascertain the intent of the Legislature and to accomplish that intent. Hawkins v. Bruno Yacht Sales. Inc.. 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003). The true aim and intention of the Legislature controls the literal meaning of a statute. Greenville Baseball v. Bearden. 200 S.C. 363, 20

S.E.2d 813 (1942). The historical background and circumstances at the time a statute was passed can be used to assist in interpreting a statute, jd. An entire statute's interpretation must be "practical, reasonable,

and fair" and consistent with the purpose, plan and reasoning behind its making. Id. at 816. Statutes are to be interpreted with a "sensible construction," and a "literal application of language which leads to absurd consequences should be avoided whenever a reasonable application can be given consistent with the legislative purpose." U.S. v. Rippetoe. 178 F.2d 735, 737 (4th Cir. 1950).

2 We are basing this conclusion on the information you provided to us.

Like a court, this Office

The Honorable William M. "Bill" Chumley
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October 28, 2015

looks at the plain meaning of the words, rather than analyzing statutes within the same subject matter when the meaning of the statute appears to be clear and unambiguous. Sloan v. SC Board of Physical

Therapy Exam.. 370 S.C. 452, 636 S.E.2d 598 (2006).

The dominant factor concerning statutory

construction is the intent of the Legislature, not the language used. Spartanburg Sanitary Sewer Dist. v. City of Spartanburg. 283 S.C. 67, 321 S.E.2d 258 (1984) (citing Abell v. Bell. 229 S.C. 1, 91 S.E.2d 548

(1956)).
Looking at the enabling act for Act No. 769, it states:
An Act To Provide For A Referendum As To The Creation Of The Reidville Area Fire District In Spartanburg County And To Provide For Its Creation

In The Event Of A Favorable Vote; To Provide For A Board Of Fire Control For The District; To Prescribe The Powers, Duties And Membership Of The Board; To Provide For Tax Levies; And To Provide Penalties For Certain

Violations.
SECTION 1. Referendum concerning fire districts. —The Spartanburg County Commissioners of Election shall conduct a referendum on the second Tuesday in

May. 1973. to ascertain the wishes of the qualified electors residing within the proposed Reidville Area Fire District on the question of whether or not they favor

the establishment of a rural fire district and favor the necessary tax levy. SECTION 3. District created if election favorable.—If a majority of those voting in the election vote in favor of the creation of the fire district, there is hereby established the Reidville Area Fire District in Spartanburg County ..."

SECTION 4. Board of Fire Control. —After the creation of the Reidville Area Fire District, there is established a board of fire control for the district, to be composed of three members. .."

Act No. 769, 1973 S.C. Acts 1520.

The Act clearly states that its purpose includes providing for the

creation of the Reidville Area Fire District and Board if there is a favorable vote. The Act includes the date for the referendum, which is approximately two months after the ratification date of this Act and Home Rule. id. While the referendum is a contingency to the establishment of the district, the authority to establish the district was granted pursuant to Act No. 769.

It appears the issue is the timing of the approval of the Governor on the effective date of Act No. 769. As you note in your letter, whereas the act creating the Reidville Fire District and Board is effective upon approval by the Governor, the Constitutional amendment [known as the Home Rule Act] was to be effective immediately on March 7, 1973. As given in the information with your letter, Act No. 769 was

signed by the Governor on March 7, 1973. It is our understanding the ambiguity is whether Act 769 was signed before or after the Home Rule amendments, as both were effective on March 7, 1973. Section 7 of Act No. 63 states that "[n]o laws for a specific county shall be enacted and no county shall be exempted from the general laws or law applicable to the selected alternative form of government." Act No. 63, 1973 S.C. Acts 69 § 7. However, reading the language of the amendment, it prohibited the enactment of specific laws for a county. Black's Law Dictionary defines enact as "1. To make into law by authoritative act; to pass... 2. (Of a statute) to provide ...." Black's Law Dictionary 567 (8th ed. 2004).

While

customarily one may think of approval by the Governor as an authoritative act, there is an argument to be

The Honorable William M. "Bill" Chum ley
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October 28, 20 1 5

made that Act No. 769 had already passed. Even if Act No. 769 had approval by the Governor, one could argue the District was still not effective until after the referendum, which was two more months away.

The beginning of the Article VIII amendment reads:
Section I . The powers possessed by all counties, cities, towns, and other political subdivisions at the effective date of this Constitution shall continue until changed in a manner provided by law. Act No. 63, 1973 S.C. Acts 68. Therefore, this leaves us with one of two conclusions. One is that the Legislature ratified a bill before they ratified another bill, on that same day that made the first bill ineffective. See Ratification Nos. 105, 108, as referenced in your letter. The other conclusion is that their intent was to ratify Act No. 769 before the Home Rule Act amendment, and did not intend for the effective date and time as signed by the Governor to make their action void.

As stated in a previous

opinion, "we will apply the principle that the Legislature did not intend to do a futile thing...." Op. S.C. Att'v Gen.. 2015 WL 6406146 (October 19, 2015) (citing Op. S.C. Att'v Gen.. 1984 WL 159859 (May 9,

1984); St. ex rel. McLeod v. Montgomery. 244 S.C. 308, 136 S.E.2d 778(1964)).

Moreover, we will

presume our Legislature did not intent to pass a bill that is impossible to execute. See, e.g.. In the Matter of Equitable Res.. Inc.. Dominion Res.. Inc.. Consol. Natural Gas Co.. & the Peoples Natural Gas Co.. Respondents.. 9322, 2007 WL 2173594, at *113 (MSNET Apr. 1 1, 2007). Furthermore, we agree with

your assertion that a court will likely find that Knight v. Salisbury would not apply to the enabling legislation of Act No. 769 because it was passed and ratified before The Home Rule Act amendment was ratified. However, as you mention in your letter, one could make the argument that where two statutes conflict, statutory interpretation often holds the latter in time trumps. See, e.g.. Feldman v. S.C. Tax Commission.

203 S.C. 49, 26 S.E.2d 22 (1943).

We agree that a court will likely find this does not apply in this

situation but instead would apply the principle that a former statute is "not to be considered repealed by a

later general statute unless there is a direct reference to the former statute or the intent of the legislature to repeal the earlier statute is implicit." Op. S.C. Att'v Gen.. 2002 WL 31728845 (October 21, 2002) (quoting Rhodes v. Smith. 273 S.C. 13, 254 S.E.2d 49 (1979)). Moreover, these statutes were ratified on

the same day by the same Legislature, which would imply they did not intend for the statutes to conflict. As this Office has previously stated:

The language of a statute must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Multi-Cinema. Ltd. v. S.C. Tax Commission. 292 S.C. 41 1, 357 S.E.2d 6 (1987). And where two statutes are

in apparent conflict, they should be construed, if reasonably possible, to give force and effect to each. Stone & Clamp. General Contractors v. Holmes. 217 S.C. 203,

60 S.E.2d 231 (1950). This rule applies with peculiar force to statutes passed during the same legislative session, and as to such statutes, they must not be construed as inconsistent if they can reasonably be construed otherwise. State ex rel. S.C. Tax Commission v. Brown. 1 54 S.C. 55, 151 S.E. 2 1 8 ( 1 930).

Op. S.C. Attv. Gen.. 1988 WL 485345 (December 1, 1988). As our Court has previously stated, "[t]he well known maxim applicable to statutes, 4quanda lex aliquid concedil, concedere videtur et Id, per quod devenitur ad illud'" or, as rendered by Chancellor Kent, 'whenever a power is given by a statute

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October 28. 2015

everything necessary to the making of it effectual or requisite to attain the end is implied,' is sufficient authority for this" would apply here. Glenn v. Cntv. Comm'rs of York. 6 S.C. 4 1 2, 428-29 ( 1 873). The Home Rule Act did not retroactively abolish the legislation already passed concerning local laws. As

our Court has staled, "[t]hc Home Rule Act. while preventing the General Assembly from enacting "special legislation" and voiding any "special legislation' which contradicts the general law. does not operate retroactively to abolish all "special legislation* which was in effect in South Carolina prior to the

enactment of the Home Rule Act." Graham v. Creel. 289 S.C. 165. 168. 345 S.E.2d 717. 719 (1986). Furthermore, this Office has previously opined that ""[our State] Supreme Court held that "[statutes of a specific nature are not to be considered repealed by a later general statute [grievance] unless there is a direct reference to the former statute or the intent of the legislature to repeal the earlier statute is implicit." Op. S.C. Atl'v Gen.. 1986 WL 289871 (July 3. 1986) (china Rhodes v. Smith. 273 S.C. 13,254 S.E.2d 49 (1979)). Furthermore, as you note, the South Carolina Supreme Court has consistently chosen to prefer a

constitutional interpretation over an unconstitutional one.

In State v. 192 Coin-Operated Video Game

Machines, the Court said ""[a] possible constitutional construction must prevail over an unconstitutional interpretation." State v. 192 Coin-Operated Video Game Machines. 338 S.C. 176, 196, 525 S.E.2d 872. 883 (2000) (citing Henderson v. Evans. 268 S.C. 1 27, 1 32, 232 S.E.2d 331(1 977)). Conclusion:

It is for all of the above reasons we are in agreement with the conclusions you reached in your letter and believe a court will likely uphold the legislation creating the Reidville Area Fire District and Board as opposed to finding the legislation is futile. However, 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 declarator) judgment, as only a court of law can interpret statutes and make such determinations. See S.C. Code § 15-53-20.

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:

,

th

Rdbert D. Cook
Solicitor General

If it is later determined