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24696 - Weaver, et al. v. Recreational District, et al.

Davis Adv. Sh. No. 29
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Don Weaver and

Richland County

Council, Plaintiffs,

of whom

Richland County

Council is Appellant/Respondent,

v.

Recreation District,

Recreation Commission

of Richland County,

Harry Huntley, as

Auditor of Richland

County, Cornelia

Paskey, as Treasurer of

Richland County, Defendants,

of whom Recreation

District, 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

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DON WEAVER, et al. v. RECREATION DISTRICT, et al.

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

appellant/ respondent.

John S. Taylor, Jr. and David W. Robinson, II, both

of Robinson, McFadden & Moore, of Columbia, for

respondent,/appellant.

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.

FACTS

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


1 The Recreation Commission filed a cross-appeal of this order

contending Council was without standing, to challenge Act No. 3l7. We

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DON WEAVER, et al. v. RECREATION DISTRICT, et al.

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.

ISSUE

Does Act No. 317 of 1969 unconstitutionally permit taxation

without representation?

DISCUSSION

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

agree.

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.


disagree. We find Council has sufficient interest in the matter, and the

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).

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DON WEAVER, et al. v. RECREATION DISTRICT, et al.

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


2 We are unpersuaded by, Commission's contention that, in setting forth a

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).

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DON WEAVER, et al. v. RECREATION DISTRICT, et al.

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

tax year).

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

findings).

The judgment below is

AFFIRMED IN PART; REVERSED IN PART.

FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.


Most of these cases do not specifically address the precise issue presently

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

overruled.

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