THE STATE OF
In The Supreme Court
Linda Angus, individually, and as class representative for all those similarly situated, Appellant/Respondent,
The City of
Myrtle Beach, Respondent/Appellant.
J. Michael Baxley, Circuit Court Judge
Opinion No. 25934
Heard June 10, 2004 - Filed January 31, 2005
AFFIRMED IN PART; REVERSED IN PART; REMANDED
L. Sidney Connor, IV, of Kelaher, Connell & Connor, P.C., and Natale Fata, both of Surfside Beach, for appellant/respondent.
James B. Van Osdell and Charles B. Jordan, Jr., both of Van Osdell, Lester, Howe & Jordan, of Myrtle Beach, for respondent/appellant.
JUSTICE MOORE: This action was brought by appellant/respondent Angus, a municipal taxpayer, challenging the property tax rollback millage rate adopted by respondent/appellant City of
As provided by § 6-1-320(A), in most years, a municipality may raise its general operating (GO) millage rate above that of the year before only by the amount the consumer price index rose the preceding year. In a year when a reassessment program is implemented, however, the “rollback millage,” rather than the previous year’s millage, is the base GO millage rate. Rollback millage is calculated under § 12-37-251(E).
Following a countywide reassessment in 1998,
Did the trial court err in determining that
Myrtle Beach’s method of calculating rollback millage was proper?
Angus contends that the circuit court erred in holding Myrtle Beach did not violate § 12-37-251(E) by adding two variables to the statutory formula for calculating rollback millage without holding a public hearing as required by § 6-1-320(C). We agree that § 12-37-251(E) and § 6-1-320(A) do not permit
As noted above, § 12-37-251(E) permits the use of three adjustments in calculating the rollback millage. Angus argues, and we agree, that application of the statutory maxim inclusio unius est exclusio alterius mandates that these variables and no others be used in calculating the rollback millage. The circuit court found this maxim inapplicable, reasoning that the variables used by
The fixing of a tax rate is a legislative function that must be given the greatest respect by the courts unless that function is exercised in an illegal manner. Simkins v. City of
We hold the trial court erred in upholding Myrtle Beach’s use of non-statutory variables to calculate rollback millage without the override vote required under § 6-1-320(C) and we remand for the trial court to determine the appropriate relief. We affirm
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TOAL, C.J., and Acting Justice Deadra L. Jefferson, concur. PLEICONES, J., dissenting in a separate opinion in which BURNETT, J., concurs.
JUSTICE PLEICONES: I respectfully dissent. I agree that
At the time
The use of non-statutory variables violated S.C. Code Ann. § 12-31-251(E) (2000). The reality of municipal budgeting is that it is an inexact science, relying as it must upon estimates and “best guesses.” As this Court recognized in Simkins v. City of Spartanburg, 269 S.C. 243, 237 S.E.2d 69 (1977), municipalities must rely upon imperfect and incomplete calendar year figures to meet their obligation to enact a fiscal year budget. Simkins held that a city “can proceed on the basis of past experience and the best available estimate of revenue….”
I would hold that while
BURNETT, J., concurs.
Section 6-1-320(A) provides:
Notwithstanding Section 12-37-251(E), a local governing body may increase the millage rate imposed for general operating purposes above the rate imposed for such purposes for the preceding tax year only to the extent of the increase in the consumer price index for the preceding calendar year. However, in the year in which a reassessment program is implemented, the rollback millage, as calculated pursuant to Section 12-37-251(E), must be used in lieu of the previous year’s millage rate.
Countywide reassessments and equalizations of real property are conducted every fifth year. S.C. Code Ann. §12-43-217 (2000). Municipalities and other taxing entities within a county use the county’s property valuations.
Section 12-37-251(E) provides:
Rollback millage is calculated by dividing the prior year property tax revenues by the adjusted total assessed value applicable in the year the values derived from a countywide equalization and reassessment program are implemented. This amount of assessed value must be adjusted by deducting assessments added for property or improvements not previously taxed, for new construction, and for renovation of existing structures.
Section 6-1-320(C) provides:
The millage rate limitation provided for in subsection (A) of this section may be overridden and the millage rate may be further increased by a positive majority vote of the appropriate governing body. The vote must be taken at a specially-called meeting held solely for the purpose of taking a vote to increase the millage rate. The governing body must provide public notice of the meeting notifying the public that the governing body is meeting to vote to override the limitation and increase the millage rate. Public comment must be received by the governing body prior to the override vote.
 Despite our recognition of this basis principle in Simkins, we excused an illegal tax rate in County of Lee v. Stevens, 277 S.C. 421, 289 S.E.2d 155 (1982). In that case, a county auditor challenged the county’s authority to set the tax rate before current property values were known. We held the modest deficit caused by the county’s error could be excused, but we prospectively ordered the tax rate to be based upon current property valuations. We found a prospective ruling necessary as a matter of “practicability and reasonableness” because of the various methods in use at the time by local governments statewide.
We view County of Lee v. Stevens as a narrow exception and decline to follow it here. The critical factor in that case was that there was no standard procedure in place to accomplish the statutory requirement at the local level; to strictly enforce that requirement would have caused havoc for local governments statewide. Here, there is no such special circumstance. We cannot condone a taxing entity’s illegal acts in fixing the tax rate simply because the resulting impact may be characterized as modest.
 A taxpayer, whose property tax bill was too high because a city or county made a minor error in calculating the millage rate in reliance upon advice from the Department of Revenue, is in a different position from a taxpayer who has been required to pay a disproportionate share of property taxes as the result of the taxing entity’s adoption of a patently unlawful ordinance. Thus, Angus and others affected by
 Countywide reassessments and equalizations of real property are conducted every fifth year. S.C. Code Ann. §12-43-217 (2000). Municipalities and other taxing entities within a county use the county’s property valuations.