When did Elgin have to file its liquor-permit referendum ordinance for a February town election?

Plain-English summary

In 2010, Elgin planned an alcohol-permit referendum at its February 2011 municipal general election. The town asked whether it had to meet a general election-law deadline in August or the more specific rule for an ordinance initiating a temporary-permit referendum. The South Carolina AG said the specific provision controlled: the ordinance had to reach the town election commission at least sixty days before the general election.

The AG did not say the general referendum statute never applied to towns with elections outside November. It expressly said that statute generally applied to municipal general elections, then found a conflict with the alcohol-permit provision's separate timeline. Its answer was limited to this particular kind of referendum.

Currency note

This opinion was issued in 2010. 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

Did a February municipal election escape the general referendum law entirely? A: No. The AG said municipal elections counted as general elections under the general law, regardless of the month.

Why did the sixty-day rule control this referendum?
A: The AG found the alcohol-permit statute's ordinance timeline more specific than the general referendum deadline and applied the specific rule where they conflicted.

Which filing started the timeline?
A: The opinion addressed the town's submission of its adopted referendum ordinance to the town election commission, as described in the request.

Was this a ruling on all local ballot questions?
A: No. It concerned an ordinance-initiated referendum about temporary alcohol permits under the provision cited in the opinion.

Background and statutory framework

Elgin proposed to authorize temporary permits through a referendum at its next municipal election. The special alcohol statute required submission of the ordinance to the election commission at least sixty days before that election. A general election statute set an August filing deadline for referendum questions. The AG read the two together and applied the specific law to this request while preserving the general law's application elsewhere.

Citations and references

The opinion discussed South Carolina Code sections 61-6-2010(C)(4) and 7-13-355 and a November 3, 1987 AG opinion about conflicting referendum deadlines.

Official title

Concerning the holding of a referendum by the Town of Elgin.

Requester

John F. Fantry, Jr., Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-28-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/fantry-j-j-jr-os-9118-9-28-10-holding-referendum-by-town-of-elgin1.pdf

Original opinion text

H BNRY McMASTER
kITORNEY GENERAL

September 28, 2010

John J. Fantry, Jr., Esquire
Fantry Law
17 5 Lanford Road
Blythewood, South Carolina 29016

Dear Mr. Fantry:
We understand you represent the Town of Elgin (the "Town") and would like to request an opinion of this Office on the Town's behalf concerning the holding of a referendum by the Town. According to your letter: The Council for Elgin has drafted, and plans to introduce, an Ordinance pursuant to§ 61-6-2010(C)(4) calling for a Referendum that would allow the Department of Revenue to issue temporary permits for the on-site sale for on-premise consumption of alcoholic liquors by the drink and the on-site sale of beer and wine for offpremise consumption. lt is anticipated that the Ordinance can be adopted by September 28. 2010, and the signed Ordinance and Referendum question can be delivered to the Town's Election Commission by September 30, 2010. § 61-6-201O(C)(4) ofthe Code provides "Upon receipt of a copy of the ordinance filed with the county or municipal election commission at least sixty days before the date of the next general election, the commission shall conduct the referendum in the manner provided in this section at that general election." As planned, the Ordinance will be received 123 days prior to the next general election. However, your letter indicates that you are concerned with the impact section 7-13-355 of the South Carolina Code may have on the deadline for filing a copy of the ordinance with the election commission.

REMBERT

c. D ENNIS Bun..DING • POST O FFICE Box 11549 • COLUMBIA, SC 29211-1 549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

John J. Pantry, Jr., Esquire
Page2
September 28, 2010

Law/Analysis

Section 61-6-2010 of the South Carolina Code (2009) governs the Department of Revenue's ability to issue temporary permits for the sale of alcoholic beverages. Subsection (C) of this provision contains a referendum requirement before a permit may be issued. This provision states: "A permit authorized by this section may be issued only in those counties or municipalities where a majority of the qualified electors voting in a referendum vote in favor of the issuance of the permit." S.C. Code Ann.§ 61-6-2010(C)(l). Section 61-6-2010(C) provides two mechanisms by which a referendum can be initiated, by petition or by ordinance of the governing body. We understand that the Town is initiating the referendum by ordinance. Section 61-6-2010( C)(4) states, with regard to referendums initiated by ordinance that "[u ]pon receipt of a copy of the ordinance filed with the county or municipal election commission at least sixty days before the date of the next general election, the commission shall conduct the referendum in the manner provided in this section at that general election." S.C. Code Ann.§ 61-6-2010(C)(4). In your letter, you informed us that the Town's next general election will be held on February 1, 2011. Thus, in accordance with section 61-6-2010(C)(4), we initially presume the Town must submit a copy of the ordinance to its election commission at least sixty days prior to February 1, 2011. However, you are concerned with how South Carolina's general election laws may impact the timing of when the ordinance must be submitted to the Town's election commission. In particular, we understand you are concerned with what impact section 7-13-355 of the South Carolina Code may have on the timing of the town's submission. Section 7-13-355 of the South Carolina Code (Supp. 2009), contained in South Carolina's general election laws, governs the timing of the submission of referendum questions to the appropriate election commission. This provision states: No question may be submitted to the qualified electors in a referendum held at the time of a general election unless the question is submitted to the appropriate election commission to be placed on the ballot no later than 12:00 noon on August fifteenth or, if August fifteenth falls on Saturday or Sunday, not later than 12:00 noon on the following business day. S.C. Code Ann. § 7-13-355. Accordingly, this provision indicates that referendum questions generally must be submitted to the election commission on the August fifteenth prior to the general election. Therefore, you question whether or not the Town should have submitted the referendum question to the Town election commission on August 15, 2010, despite the fact that its general election is not until February 1, 2011.

John J. Fantry, Jr., Esquire
Page3
September 28, 2010
In your letter, you argue that you do not believe that the Town is required to submit the ordinance to the Town election commission by August fifteenth. First, you believe that section 7-13355 is only applicable to those bodies holding general elections in November. You state that reading section 7-13-355 to apply to a Town with a general election scheduled outside of November would place "an unreasonable and arbitrary burden upon municipalities holding general elections on other dates, since those holding elections in November are only required to file 76 days in advance of the November election, while Elgin is required to file 169 days prior to the election." Second, you argue that sections 7-13-355 and 61-6-2010(C)(4) conflict with one another and that section 61-62010(C)(4) controls because it is the more specific of the two statutes. In our research, we did not find any court cases interpreting section 7-13-355 with regard to a municipality that does not conduct its general election in November. However, as you mentioned in your letter, in a 1987 opinion, this Office considered whether section 7-13-355 controlled with regard to a referendum for a change in the form of a municipality's government. Op. S.C. Atty. Gen., November 3, 1987. In that opinion, we determined that section 7-13-355 conflicted with section 5-5-20 of the South Carolina Code governing referendums for changes in forms ofmunicipal government. Id. We noted that section 5-5-20 provided that the governing body could conduct a special election no later than ninety days and no earlier than thirty days after the receipt of the petition or the city council's ordinance. Id. In regard to the relationship between section 7-13-355 and section 5-5-20, we stated: In the context of the factual situation that you have presented, these two statutes would conflict on their face. However, it clearly appears that it could not have been the legislative intent to require municipalities, who often hold their regularly scheduled elections in months other than November, to only be able to hold a referendum if the question is presented by September first. Id. We cited several treatises stating that if a conflict arises between two statutes, one dealing generally with a subject and the other dealing specifically with it, the specific statute controls. Id. (citing 73 Am.Jur.2d, Statutes§ 257 & 369). We concluded that section 5-5-20, which we found to be the special law governing home rule referendums, controls over the general law established under section 7-13-3 55. Id. However, we included a footnote stating as follows: "Section 7-13-3 55 would apply to a January election in that a 'general election' is defined by statute to be the regularly scheduled election for officers. See South Carolina Code of Laws, 1976, Section 7-1-20(1)." Id. In keeping with our comments in our 1987 opinion, we do not believe that a general election occurring at a time other than November would cause section 7-13-355 to be inapplicable. As we noted in that opinion, section 7-1-20( 1) ofthe South Carolina Code ( 1976) defines "general election" to mean "the election provided herein to be held for the election of officers to the regular terms of office provided by law, whether State, United States, county, municipal or of any other political

John J. Pantry, Jr., Esquire
Page4
September 28, 2010
subdivision of the State, and for voting on constitutional amendments proposed by the General Assembly ...." In this provision, the Legislature specifically contemplated that the term general election as used in title 7 includes municipal elections. Moreover, we believe the Legislature was aware that many municipalities hold their general elections outside of the month of November when it enacted section 7-13-355. Therefore, we believe the Legislature intended for section 7-13-355 to be applicable to municipalities despite the timing of their general elections. However, we agree with your assessment that sections 61-6-2010(C)(4) and 7-13-3 55 conflict with one another. Section 61-6-2010(C)(4) simply requires the ordinance be sent to the election commission sixty days prior to the general election. Whereas, section 7-13-355, as you point out, could require submission much sooner than sixty days prior to the general election. Our courts instruct as follows with regard to resolving conflicts in legislation. The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent whenever possible. Bankers Trust of South Carolina v. Bruce, 275 S.C. 35, 267 S.E.2d 424 (1980). A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. State v. Baker, 310 S.C. 510, 427 S.E.2d 670 (1993). Statutes in apparent conflict should, if reasonably possible, be construed to allow both to stand and to give effect to each. Chris J. Yahnis Coastal. Inc. v. Stroh Brewery Co., 295 S.C. 243, 368 S.E.2d 64 (1988). Generally, specific laws prevail over general laws, and later legislation takes precedence over earlier legislation. Lloyd v. Lloyd, 295 S.C. 55, 367 S.E.2d 153 (1988). I'On. L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 412-13, 526 S.E.2d 716, 719 (2000). Thus, it is our opinion that because section 61-6-2010(C)(4) provides for a specific time line for the submission of an ordinance to the Town's election commission in the context of the issuance of a temporary permit, this statute prevails over the conflicting deadline contained in the general law established by section 7-13-355. Conclusion We believe that section 7-13-355 generally applies to municipalities conducting referendums despite the fact that municipalities may hold their general elections at a time other than in November. However, when a municipality is conducting a referendum in conjunction with section 61-6-2010, we believe that the Legislature intended for the specific language in this provision to control over the general law in section 7-13-355. Therefore, it is our opinion that in accordance with section 616-2010(C)(4 ), the Town's ordinance calling for a referendum on the issuance of a temporary permit for the possession, sale, and consumption of alcoholic beverages must be submitted to its election

John J. Pantry, Jr., Esquire
Page 5
September 28, 2010
commission at least sixty days prior to the Town's general election.

Very truly yours,
Henry McMaster
Attorney General

REVIEWED AND APPROVED BY:

Deputy Attorney General