Colyer v. Thomas

Ness, Justice: The sole issue presented by this appeal is the necessity of a run-off election of the city council candidates for the Town of North Myrtle Beach. The trial court refused to compel a run-off election and we affirm. Act No. 283 of 1975, the Home Rule Act, was approved on June 25, 1975. Pursuant to Section 6 of the Act, the Town adopted the council-manager form of government on January 20, 1976. On March 9, 1976, a general election was conducted to elect a mayor and four councilmen. The candidates who received the highest number of votes were declared the winners, even though each only received a plurality of the ballots cast. The appellants, two unsuccessful city council candidates assert that the Home Rule Act requires a run-off election as no candidate received a majority of the votes. Article 7, Section 47-94 of the Home Rule Act [457] does call for a run-off election. The single question is the applicability of the Home Rule Act. Section 7 of the Act provides: “. . . until a form of government elected pursuant to Section 5 of this act becomes effective in a particular municipality, all provisions of Title 47 of the 1962 Code in effect immediately prior to its amendment by this act shall remain in full force and effect for that municipality.” Section 6 of the Act declares the effective date to be the beginning of the fiscal year following adoption of a specified form of government. The remaining two salient facts are stipulated: (1) the fiscal year of the Town of North Myrtle Beach begins on May 1; and, (2) the prior law pursuant to Title 47 of the Code authorizes election by plurality without run-off elections. The Home Rule Act became effective as to the Town of North Myrtle Beach on May 1, 1976. The disputed election (March 9, 1976) was held almost two months prior to the effective date of the Home Rule Act. The Act’s directive specifically applies Title 47 provisions to the Town’s election. Appellants further assert premature adoption of the Home Rule Act election procedures by the Town’s ordinance of January 20, 1976: “Now, Therefore, Be It Ordained by the Mayor and Town Council of the Town of North Myrtle Beach in council duly assembled this 16th day of December, 1975, that the Council-Manager form of government with a Mayor and four (4) councilmen to be elected at large as provided in Sections 47-80 through 47-89 of the Code of Laws of South Carolina is hereby adopted for the town of North Myrtle Beach to be effective on the 1st day of April, 1976, or as soon thereafter as prescribed by State Law.” Appellants’ argument is fatally defective in at least three particulars. First, the effective date specified in the ordinance, April 1, 1976, postdates the time of the election and predates [458] the beginning of the new fiscal year. Secondly, the ordinance recognizes the supremacy of State Law as to the effective date in case of a conflict. Finally, and foremost, appellants’ interpretation of the ordinance would blatantly contravene Section 7 of the Home Rule Act. “It is well settled that where there is a conflict between a State statute and city ordinance, as where an ordinance permits that which a statute prohibits, the ordinance is void, Law, et al. v. City of Spartanburg, 148 S. C. 229, 146 S. E. 12; McAbee v. Southern Ry. Co., 166 S. C. 166, 164 S. E. 444; City of Charleston v. Jenkins, 243 S. C. 205, 133 S. E. (2d) 242.” State v. Solomon, 245 S. C. 550, 575, 141 S. E. (2d) 818, 831 (1965), appeal dismissed, 382 U. S. 204, 86 S. Ct. 396, 15 L. Ed. (2d) 270. Appellants finally attempt to place some significance on the fact that the election could have been held after the effective date of the Home Rule Act. Even though this consideration would have no effect on the Town’s lack of authority to contravene the Act’s directives, appellants are foreclosed from contesting the timing of the election for the first time at the appellate stage of the proceedings. Affirmed. Littlejohn, Rhodes and Gregory, JJ., concur. Lewis, C. J., dissents