In The Supreme Court
Don Weaver and
Council is Appellant/Respondent,
of Richland County,
Harry Huntley, as
Auditor of Richland
Paskey, as Treasurer of
Richland County, Defendants,
of whom Recreation
Commission of Richland
County is Respondent/Appellant.
Appeal From Richland County,
James E. Brogdon, Jr., Judge
Opinion No. 24696
Heard September 17, 1997 - Filed October 13, 1997
AFFIRMED IN PART; REVERSED IN PART
Dwight F. Drake, John E. Schmidt, III and Melissa
J. Copeland, all of Nelson, Mullins, Riley &
Scarborough, of Columbia, and Larry C. Smith of
the Richland County Attorney's Office, for
John S. Taylor, Jr. and David W. Robinson, II, both
of Robinson, McFadden & Moore, of Columbia, for
WALLER, A.J.: This case involves the constitutionality of Act
No. 317, 1969 Acts 382, the act which created the Richland County
Recreation Commission (Recreation Commission or District). The circuit court
upheld the constitutionality of the act. We reverse.
Act No. 317 authorizes the Recreation Commssion, in pertinent part:
[t]o levy upon all the taxable property in the District a tax of not
exceeding five mills per annum to meet the cost of operating, and
maintaining ... recreational facilities under its jurisdiction. Such tax
shall be levied by the county auditor and collected by the county
treasurer who shall keep it in a separate fund applicable solely to the
purpose for which it was levied.
Don Weaver (Plaintiff/Weaver) instituted this action challenging the
constitutionality of Act 317, contending it violated Article X, § 5 of the South
Carolina Constitution. The effect of the act, he claimed, was to permit
"taxation without representation," as the Commission is an appointed, rather
than elected, body. Appellant-Respondent, Richland County Council, filed a
motion to intervene, which was granted by an order of the circuit court on
September 11, 1995.1
contending Council was without standing, to challenge Act No. 3l7. We
On the merits, in an order dated December 9, 1996, the circuit court
found Act No. 317 to be a constitutional delegation of legislative authority
such that no taxation without representation had occurred. County Council
appeals this order.
Does Act No. 317 of 1969 unconstitutionally permit taxation
Council contends the delegation of authority to an appointed body to
levy up to 5 mills per year unconstitutionally permits taxation without
representation in violation of S.C. CONST. art. X, § 5 (1996 Supp.). We
Article X, § 5 provides, in pertinent part,
No tax ... shall be established, fixed, laid or levied, under any
pretext whatsoever, without the consent of the people or their
representatives lawfully assembled ....
In Crow v. McAlpine, 277 S.C. 240, 285 S.E.2d 355 (1981), this Court
was faced with a legisiative delegation of authority to an appointed board, the
Marlboro County Board of Education, to levy and collect all tax millage
necessary to meet the school district's operating budget. We found such a
delegation of authority violated Article X, § 5 as the legislative power to tax
may not be conferred on a purely appointive body but must he under the
supervisory control of elected bodies, stating:
The unlimited power of taxation attempted to be conferred by the
Act under consideration is itself a forcible reminder that the
power to fix and levy a tax should only be conferred upon a body
which stands as the direct representative of the people, to the
end that an abuse of power may be directly corrected by those
who must carry the burden of the tax.
matter is of such public concern, as to confer standing. Thompson v. S.C.
Comm'n on Alcohol and Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976).
277 S.C. at 244-245, 285 S.E.2d at 358. Accordingly, we held the act
unconstitutional stating, "the General Assembly may not, consistent with
Article X, Section 5, delegate the unrestricted power of taxation to an
appointive body." Id.
The same result was subsequently reached in Stone v. Traynham, 278
S.C. 407, 297 S.E.2d 420 (1982) in which we invalidated an amendment to
S.C. Code Ann. § 4-9-70, which purported to permit the Orangeburg County
Board of Education to establish school tax millages. There, we noted our
holding in Crow that "participation by an appointed board ... in the
budgeting process ... constituted taxation without representation." 278
S.C. at 408, 297 S.E.2d at 421 (emphasis supplied).
Most recently, in Bradley v. Cherokee School District No. One. ___ S.C.
___, 470 S.E.2d 570 (1996), we upheld an act authorizing the Cherokee
County School Board to conduct two referenda: one for issuance of general
obligation bonds, and the other to approve a 1% sales tax to pay off the debt
service on the bonds. The act was challenged on grounds it permitted the
Board to impose a tax throughout the county, when a portion of the residents
did not vote for the members of the school board. This Court upheld the act,
finding that "[t]he ultimate authority under the Act to impose the tax rests
with the Cherokee County voters," as the entire county electorate had voted
on issuance of the bonds and the sales tax. In Bradley we noted, however,
that "where the taxing, power is delegated to a body composed of persons not
assented to by the people nor subject to the supervisory control of a body
chosen by the people, the constitutional restriction against taxation without
representation is violated." ___ S.C. at ___, 470 S.E.2d at 571.
Here, Act No. 317 gives the Recreation Commission the complete
discretion to determine its annual budget, and to levy anywhere from one to
five mills taxes to meet its budget. We find such a delegation impermissible
under our holdings in Crow, Traynham, and Bradley2. Accordingly, insofar
maximum millage rate of 5 mills in this case, the Legislature itself has actually
levied the tax and the Commission is merely acting, in a ministerial capacity, in
assessing, and collecting the tax. We find the authority, cited by Commission in
support of this proposition inapplicable to the present case. See e.g., Morton Bliss
Co. v. Comptroller General, 4 S.C. 430 (1873); Lillard v. Melton, 103 S.C. 10,
87 S.E. 421 (1915); Evans v. Beattie, 137 S.C. 491, 135 S.E. 538 (1926), Southern
Railroad Co. v. Kay, 62 S.C. 28, 39 S.E. 785 (1901); Crawford v. Johnson, 177 S.C.
399, 181 S.E. 476 (1935); McLure v. McElroy, 211 S.C. 106, 44 S.E.2d 101 (1947).
as Act No. 317 permits such a delegation, it violates Article X, § 5 of the
South Carolina Constitution and may not stand.
We are cognizant, however, of the disruptive effect today's holding could
have on the financial operation of numerous special purpose districts, local
commissions and boards throughout this state. Accordingly, in order to give
the General Assembly an opportunity to address this problem, we hold this
decision shall be applied prospectively beginning December 31, 1999. Accord
Crow v. McAlpine, supra (ruling applied prospectively beginning the following
Council's remaining issue is affirmed pursuant to Rule 220(b)(SCACR)
and the following authorities: Dicks & Gillam, Inc. v. Cleland, 295 S.C.
124, 367 S.E.2d 430 (Ct.App.1988) (trial court's findings come to appellate
court with presumption of correctness; burden is on appellant to demonstrate
reversible error), Honea v. Honea, 292 S.C. 456, 357 S.E.2d 191 (Ct. App.
1987) (party cannot fail to offer sufficient proof at trial, then come to
appellate court complaining of the insufficiency of evidence to support
The judgment below is
AFFIRMED IN PART; REVERSED IN PART.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
before the Court or are simply, inapposite factually; others involve the
delegation of authority to an elected, rather than an appointed, official.
Accordingly, we do not find these cases controlling. To the extent any of
these cases may be viewed as inconsistent with our opinion today, they are