THE STATE OF SOUTH CAROLINA
In The Supreme Court
Rick W. Arnold, Donald
Corry, Richard M.
Lovelace, Jr., A. Palmer
Owings, Jr., Daryl Pitts,
William F. Sachs, Harold
L. Shokes, and William
of whom Rick W. Arnold,
Donald Corry, Richard
M. Lovelace, Jr., Daryl
Pitts, William F. Sachs,
Harold L. Shokes, and
Williams W. Enzor are
The Association of
Citadel Men, Hampton
J. Walker, Richard H.
MacMillan, J. Stannard
Hurteau, Stephen D.
Falkenbury, Rick M.
Crosby, William M.
Ogburn, Henry A.
Kennedy, Jr., and Robert
of whom The Association
of Citadel Men, J.
Stannard Hurteau, Rick
M. Crosby, William M.
Ogburn and Henry A.
Kennedy, Jr., are
and of whom Robert
Scarborough is Respondent/Appellant.
Donald Corry, Richard
M. Lovelace, Jr.,
William F. Sachs,
Harold L. Shokes, and
William W. Enzor, Appellants,
The Association of
Citadel Men, Hampton
J. Walker, Richard H.
Falkenbury, Rick M.
Crosby, William M.
Ogburn, Henry A.
Kennedy, Jr., Robert B.
Charles A. Laffitte, Jr., Defendants,
of whom Robert B.
Scarborough is the, Respondent.
Appeal from Richland County
Thomas J. Ervin, Circuit Court Judge
Opinion No. 25014
Heard June 23, 1999 - Filed November 15, 1999
REVERSED AND REMANDED
David C. Eckstrom and Elizabeth H. Campbell, of
Nexsen, Pruet, Jacobs & Pollard, LLP, of Columbia,
for appellants/respondents and appellants.
John S. Wilkerson, III, of Turner, Padget, Graham &
Laney, P.A., of Florence; and Steven W. Ouzts, of
Turner, Padget, Graham & Laney, P.A., of Columbia,
for respondents and defendants.
R. David Howser and Andrew E. Haselden, both of
Howser, Newman & Besley, L.L.C., of Columbia, for
respondent/appellant and respondent.
BURNETT, A.J.: These consolidated appeals concern the
Association of Citadel Men's (the Association's) 1996 election to select an
alumni member to the Citadel's Board of Visitors (at times, the Board).1 We
reverse and remand.
After various modifications over the past century, the Board of
Visitors is presently composed of eleven members, all of whom are graduates
of the Citadel.2 Seven members are elected by the General Assembly, three
association. Membership in the Association is voluntary. Pursuant to the
Association's Constitution and By-laws, all Citadel graduates, regardless of
membership in the Association, are entitled to vote for the alumni members
of the Board.
2 In addition, the Governor, Adjutant General, and State
Superintendent of Education are ex officio members. S.C. Code Ann. § 59-
members are elected by the Association, and one member is appointed by the
governor. S.C. Code Ann. § 59-121-10 (Supp. 1998). The term of office is six
years and begins on July 1st. § 59-121-20 (Supp. 1998).
In 1947, the General Assembly imposed an age restriction on
elected members of the Board. Act No. 108, 1947 S.C. Acts 144. Pursuant to
this Act, no elective member could be elected if the term of office extended
beyond the member's seventy-second birthday. In 1961, the statute was
amended to provide: " [n]o elective member shall be elected or reelected
either by the General Assembly or by the Association of Citadel Men to fill
any term of office the duration of which shall extend beyond the member's
seventy-fifth birthday."3 § 59-121-30 (1990). Effective June 13, 1997, the
statute was amended to read: " [h]owever, beginning with the elections for
members of the board occurring on or after July 1, 1997, the seventy-fifth
birthday limit no longer applies." § 59-121-30 (Supp. 1998).
In its Summer 1996 newsletter, the Association invited
nominations for one alumni seat on the Board for the term beginning July 1,
1997, and ending on June 30,2003. Nominations were accepted through
August 30, 1996. Three candidates were nominated: Donald Corry (Corry),
William F. Sachs (Sachs), and Robert B. Scarborough (Scarborough).
By memorandum dated October 2, 1996, the Association
President notified the Election Committee he had received an inquiry
concerning whether the candidates met the age qualification of § 59-121-30.
As a result, the President determined Scarborough was unqualified as he
would turn seventy-five one day before the expiration of the term. He
further determined the ballots had already been mailed to the Association
members. The President notified Scarborough; Scarborough replied the age
qualification was discriminatory and he would not withdraw his name from
3Act No. 260, 1961 S.C. Acts 446.
In response to the Association President's notice, the Election
Committee met and issued a resolution finding: 1) Scarborough not legally
qualified to be elected to the alumni Board seat; 2) the current election
invalid, and the Election Committee would establish new nominating
deadlines and voting dates; and 3) the ballots it had received would be
sequestered and remain uncounted.
All three candidates were displeased with the Election
Committee's resolution. On November 8, 1996, the Association's Board of
Directors met to consider the "appeals" of each of the candidates. Corry and
Sachs claimed the ballots should be counted and the winner between the two
remaining candidates declared. Scarborough argued the statutory age
qualification was discriminatory. The Board of Directors voted to instruct
the Election Committee to count the ballots and declare the winner among
the three candidates and for the Association President to certify the result to
the Secretary of State as required by statute.
The Election Committee canvassed the votes: Scarborough
received 2,518 votes, Sachs received 1,452 votes, and Corry received 480
votes. Due to the questions regarding the age qualification, the President
refused to certify the election results to the Secretary of State. 4
The Association's Board of Directors met again in January 1997.
The Board of Directors approved a resolution to be sent to the General
Assembly endorsing deletion of the age restriction from the statute. By Act
No. 144, 1997 S.C. Acts 757 (Act No. 144), the General Assembly deleted the
age restriction "beginning with the elections for members of the board
occurring on or after July 1, 1997. . .". The governor signed Act No. 144 into
law on June 13, 1997.
A. The Initial Action
One month before the governor signed Act. No. 144 into law,
eight Citadel alumni, including Corry and Sachs, brought this action against
and the November meeting of the Association's Board of Directors, a new
president took office.
the Association, the President of the Association, the Executive Director of
the Association, members of the Election Committee, and Scarborough. The
plaintiffs sought 1) a declaratory judgment that, due to his age, Scarborough
was not qualified to run for the Board seat, the filing period was closed, and
Corry and Sachs were the only qualified nominees; 2) a writ of mandamus
ordering the Association to proceed with the election for the term
commencing July 1, 1997; and 3) an injunction to require the Election
Committee to conduct the election with only Corry and Sachs' names on the
ballot. Scarborough counterclaimed, arguing the statutory age restriction
violated the equal protection provision of the United States Constitution.
The trial court conducted a hearing on June 18, 1997, and issued
its order on June 25, 1997, declining to issue the writ of mandamus. The
court, however, issued a declaratory judgment, holding the election invalid
since the Association President did not certify the results to the Secretary of
State as required by the statute. As part of its declaratory judgment, the
trial court ordered the Association to conduct an election ". . . open to all
candidates who are nominated in accordance with the usual procedures of
the Association, within 180 days. Based on its holding, the court concluded
it need not determine whether § 59-121-30 violated equal protection. Both
Appellants/Respondents (hereafter referred to as Corry and Sachs) and
Respondent/Appellant (hereafter referred to as Scarborough) appeal.
I. Is the age restriction in § 59-121-30 (1990) a violation of equal
II. Did the trial court err by refusing to issue a writ of
mandamus compelling the Association to proceed with the
election under the law as it existed in 1996?
Prior to its amendment in 1997, § 59-121-30 provided:
No elective member shall be elected or re-elected
either by the General Assembly or by the Association
of Citadel Men to fill any term of office the duration
of which shall extend beyond the member's seventy
The governor's appointee to the Board was not subject to the age restriction
in § 59-121-30.
Scarborough argues the age restriction in § 59-121-30, applicable
when he submitted his nomination in 1996, is a violation of the United
States Constitutional amendment guaranteeing equal protection. He
contends there is no rational basis for the age, classification because a) no
other state university has an age restriction for trustees and b) the
governor's appointee to the Board of Visitors is not subject to the age
Corry and Sachs assert, unlike trustees at other state
universities, the members of the Board of Visitors are eligible for
appointment as commissioned officers in the unorganized militia of South
Carolina. See S.C. Code Ann. § 25-1-520 (1989). Consequently, Corry and
Sachs contend there is a rational basis for the age restriction for members of
the Board of Visitors. See Spain v. Ball, 928 F.2d 61, 63 (2nd Cir.
1991)(statutory requirement limiting commissioned positions to individuals
under 35 years of age is rationally related to military's desire to ensure
"vigor and comparative youth in positions of responsibility in the services.");
U.S. v. Fallon, 407 F.2d 621 (7hCir. 1969)(Selective Service Act's
classification exempting individuals over age of 26 from registration is
reasonably related to maximize efficiency and minimize expense of raising
The Equal Protection Clause provides: "No State shall... deny to
any person within its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1. Equal protection requires "all persons be treated
alike under like circumstances and conditions, both in privileges conferred
and liabilities imposed." G.T.E. Sprint Communications Corp . v. Public
Service Comm'n, 288 S.C. 1742 18L 341 S.E.2d 126~ 129 (1986). Unless a
suspect class or fundamental right is involved, equal protection is satisfied if
1) the classification bears a reasonable relation to the legislative purpose
sought to be effected; 2) the members of the class are treated alike under
similar circumstances and conditions; and 3) the classification rests on some
reasonable basis. Skyscraper Corp. v. County of Newberry, 323 S.C. 412, 475
S.E.2d 764 (1996); Duke Power Co. v. S.C. Public Service Comm'n, 284 S.C.
81) 326 S.E.2d 395 (1985). A statute which classifies on the basis of age is
valid if it is rationally related to furthering a legitimate state interest.
Gregory v. Ashcroft, 501 U.S. 452, Ill S.Ct. 2395, 115 L.Ed.2d 410 (1991);
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49
L.Ed.2d 520 (1976).
We agree the potential appointment of a Board member as a
commissioned officer in the unorganized militia is a rational basis for the age
restriction of § 59-121-30 (1990). Gregory v. Ashcroft, supra (mandatory
retirement age of 70 for judges is rationally related to legitimate and
compelling state interest in maintaining judiciary fully capable of performing
demanding tasks); Massachusetts Bd. of Retirement v. Murgia, supra
(mandatory retirement age of 50 for uniformed police officers is rationally
related to government objective of protecting public by assuring physical
preparedness of police). Accordingly, the disparate treatment between
members of the Board and trustees at other state colleges and universities
does not violate equal protection.
However, since all members of the Board are eligible for
appointment to the unorganized militia, we conclude there is no rational
basis in imposing the age restriction on the elected members of the Board,
but not on the governor's appointee. Corry and Sachs suggest because the
General Assembly amended the composition of the Board to permit a
governor's appointee more than thirty years after the age restriction was
enacted,5 it was not aware of the age restriction or the disparity between the
governor's appointee and the elected members of the Board. See Chambers
Med. Tech. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1263 (4' Cir. 1995)(with
regard to equal protection, the issue is "whether there is no reasonable
conception that could justify the state's action and whether the legislative
actors were cognizant of this at the time they acted. . . ". citing Smith Setzer
& Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311) 1324 W Cir.
There is a basic presumption the General Assembly has
knowledge of previous legislation when later statutes are passed on a related
subject. Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993).
Accordingly, it is presumed the General Assembly knew of the age restriction
for the ten elective positions at the time it passed legislation allowing the
governor to appoint a member to the Board of Visitors. We conclude the
General Assembly was aware there was no reasonable basis to impose the
age restriction on the elected members of the Board, but not on the
governor's appointee. Because the age restriction is not applied to all
members of the Board, § 59-121-30 (1990) violates equal protection.
Skyscraper Corp. v. County of Newberry, supra (to pass constitutional
muster, members of the class must be treated alike under similar
circumstances and conditions). Therefore, Scarborough was a qualified
nominee for the 1996 election.
Corry and Sachs argue the trial court erred by failing to grant a
writ of mandamus compelling the Association to proceed with the election
under the law as it existed at the time the election process began in 1996.
In effect, Corry and Sachs argue, since Scarborough was unqualified due to
the age restriction of § 59-121-30 (1990), they were the only qualified
nominees at the close of the nomination period and only their names should
have appeared on the ballot.
Whether the trial court should have granted the writ of
mandamus ordering the Association to proceed with the election under the
law as it existed in 1996 is moot in light of our holding above. Since we
conclude the age restriction in § 59-121-30 (1990) was unconstitutional,
Scarborough was a qualified nominee and entitled to have his name on the
ballot. Mathis v. South Carolina State Highway Dep't, 260 S.C. 344, 346,
194 S.E.2d 713, 715 (1973)(11a case becomes moot when judgment, if
rendered, will have no practical legal effect upon existing controversy. This
is true when some event occurs making it impossible for [the] reviewing
Court to grant effectual relief."); 1A C.J.S. Actions § 39 (1985)(a cause of
action may be mooted by intervening events, such as changes in the law or
facts on which an action is based; this rule applies when the changes are
judicial, legislative, or administrative). Because of our ruling, the propriety
of including Scarborough's name on the ballot is no longer in actual
controversy and it is unnecessary for the Court to address whether the trial
court erred by denying the writ of mandamus. Byrd v. Irmo High School,
321 S.C. 426, 468 S.E.2d 861 (1996)(Court will not rule on moot and
academic questions or make an adjudication where there remains no actual
B. The Second Action
Following the trial court's ruling in the initial action, five of the
same Citadel alumni (including Corry and Sachs) filed a second action
against the same defendants alleging Act No. 144 violated South Carolina
Constitution Article 111, §17 because it did not relate to one subject and the
title of the bill did not reflect the substance of the Act.6 The trial court
concluded, inter alia, Act No. 144 was constitutional. Corry and Sachs
1. Did the trial court err by holding Act No. 144 did not violate
Article III, § 17 of the South Carolina Constitution because the
title of the Act reflected the deletion of the age restriction when
the Act was ratified and enrolled?
II. Did the trial court err by ruling Act No. 144 did not violate
Article III, § 17 of the South Carolina Constitution because it did
not relate to more than one subject?
This Court will decline to rule on constitutional questions unless
the determination is essential to the disposition of a case. Heyward v. S.C.
Tax Comm'n, 240 S.C. 347~ 126 S.E.2d 15 (1962); see also Sanders v.
Anderson County, 195 S.C. 171, 172, 10 S.E.2d 364 (1940)(" [t]he Court will
avoid, where possible, passing upon the constitutionality of an Act of the
Legislature. . .".). In light of our conclusion Scarborough was a qualified
nominee in 1996, it is unnecessary to address whether the passage of Act No.
Jr., who was nominated for the Board seat after the June 25, 1997 order of
the trial court.
144 violated the South Carolina Constitution.
This matter is hereby remanded to the Association's Election
Committee and/or Association President to take any remaining steps which
are necessary to declare the winner of the 1996 election and to certify the
results to the Secretary of State in compliance with § 59-121-10 (Supp. 1998).
REVERSED AND REMANDED.
Finney, CA, Toal, Moore and Waller, JJ., concur.