Sojourner v. Town of St. George ( 2009 )

Justice PLEICONES,

dissenting:

I respectfully dissent. Assuming that S.C.Code § 5-31-640 fails to meet constitutional muster and must be struck down in its entirety,³ I would uphold § 5-31-620 and its election requirement. This election provision not only requires an election before a municipality may sell, convey, or dispose of a sewer system but also before such a system can be constructed or purchased. As such, it effectuates the requirement found in S.C. Const, art. VIII, § 16, titled “Acquisition and operation of public utility systems,” of a majority vote of the electors in a political subdivision before a municipality may acquire or operate a utility, including sewer systems. In my view, the legislature would not have intended to deny municipalities and their electors the ability to exercise their constitutional right to “acquire [a utility] by initial construction or purchase,” a right they can exercise only through an election held pursuant to § 5-31-620. I would therefore hold that § 5-31-620, the Election Provision, survives the striking of § 5-31-640, the Freeholder Provision.

3 . Compare Millsap v. Quinn, 785 S.W.2d 82 (Mo.1990)(term freeholder struck from state constitutional provision leaving the rest intact); State v. Liggett & Myers Tobacco Co., 171 S.C. 511, 172 S.E. 857 (1933)(court will strike words and even add others or change ordinary meanings in order to uphold statute against constitutional challenge).