County Attorney Alan Berry reads the order.
Judge Paul Burch’s orders from 1992 and 2010 were served on the Dillon County Council at their meeting on Wednesday.
Only three of the current council members had been previously served with the order—Chairman T.F. “Buzzy” Finklea, Jr., Vice-Chairman Harold Moody, and Councilman Stevie Grice. Moody was on council when the 2010 order was issued, but none of the members of council were there when the 1992 order was issued. Finklea and Grice were on the council in May 2017 when Judge Burch came to the council to offer some comments about the order, and they along with Moody and the rest of council at that time were served the order by then Sheriff Major Hulon. (Note: This meeting can be viewed on The Dillon Herald’s channel on YouTube by going directly to the link: https://youtu.be/ knBINAPiR6Q or by searching Dillon County Council 5 24 17.)
Chief Deputy Jamie Hamilton serving the orders.
Both orders clearly state that they pertain not only to the councils at the time the orders were issued, but to all future councils.
County Attorney Alan Berry reviewed what was served. Berry asked Chairman T.F. “Buzzy” Finklea how he wanted him to proceed. Finklea said he wanted him to explain exactly what the order is to the council.
The 1992 order dealt with hauling dirt and doing work on private property. A suit was brought by some citizens and businesses against the council at that time to prevent this from happening. Berry read the order part of the document (which appears in its entirety in today’s issue).
The 2010 order refers to the 1992 order. The County Council brought an action to determine if their E-911 roadway policy violated this previous order. The judge found that it did and said that the policy was void. It also discusses with work at cemeteries and dealings with county employees. The order also references S.C. Code of Laws 4-9-660. It defines what an emergency is and what defines an abandoned cemetery. Berry read S.C. Code of Laws 4-9-660. (The 2010 order also appears in today’s issue along with S.C. Code of Laws 4-9-660.)
After Berry concluded, Finklea asked the council if they had any questions they would like to ask Berry about the orders.
Campbell asked Berry to clarify the difference between a conversation with a county employee and directing a county employee. Campbell said there is a misconception of council members not being able to have a conversation with county employees. He said there is a difference between having a conversation with a county employee and directing a county employee.
Berry said it would be hard for him to make a determination about that without knowing what the conversation was about and the facts related to the conversation. Berry stated that what he would think is that dealing with employees is having conversations about county matters. Berry said the judge may disagree with that, but this is his interpretation.
Campbell said there’s a misconception about county employees speaking to council. “That’s foolish,” Campbell said. He said they have just as much right and that he understood that they can’t direct them and that he understands what the law says referencing 4-9-660. He asked how he could ask a question if he couldn’t have a conversation.
Berry said that the order says that the inquiry or investigation must be approved by the entire council so in other words he has to be given authority to do this.
So there’s no county employee that can come to a county council member and have a conversation, Campbell asked. “They shouldn’t,” said Berry. “Not about county business.”
“I sat down with the judge and that’s not what he explained to me, but I think he should come and explain it,” Campbell said.
“Okay,” Berry replied. Berry asked for other questions. There were none.
The video of this council meeting can be watched on YouTube at the following link:
https://youtu.be/Xupr-DCWygc or by searching Dillon County Council Meeting 3 23 2022.
1992 Order
SOUTH CAROLINA
COUNTY OF DILLON
IN THE COURT OF
COMMON PLEAS
CASE NO: 91-CP-17-274
B.P. GORDON, EARL CARTER, DILLON
WOODWORKS, INC., AND E&B BACKHOE, INC.,
Plaintiffs.
Vs.
MACIO WILLIAMSON, E. HORACE ARNETTE, TOM ROLAND, CHESTER TAYLOR, FLOYD GRIFFIN, KROMER STEPHENS, JAMES PEE WEE WEBSTER, Dillon County Councilmen, and C.H. FOWLER, Dillon County Administrator,
Defendants.
ORDER
This matter comes before the Court for trial on May 6, 1992, upon the Complaint of the Plaintiffs wherein they seek the Order of this Court restraining and enjoining the Defendants from providing certain labor, services and materials to and performing certain private work on private property in Dillon County. The Complaint basically alleges that the County has been constructing and maintaining private driveways, hauling dirt to private property and performing other work on private property in the County at public expense, that such services, material and labor do not serve a public purpose, and therefore, that the providing of such material, services and labor to private individuals on private property and at public expense constitutes a violation of Article 1, Section 3, and Article 10, Sections 5 and 8, of the South Carolina Constitution, and further constitutes a violation of the Fifth and Fourteenth Amendments to the United States Constitution.
The Defendants duly filed and Answer wherein they admitted that county equipment and personnel have been used on private property for the construction and maintenance of driveways but otherwise denied that county equipment, material and employees were involved with any other work on private property.
Upon the call of the case for trial, the Plaintiffs presented several witnesses, one of whom was a named Defendant and member of the Dillon County Council. The clear and uncontroverted testimony was that county equipment, materials, and personnel were being used to construct and/or maintain private driveways in Dillon County. There also was testimony and evidence that County equipment, materials and personnel were used in the hauling and placing of dirt on private property other than private driveways. There was further evidence that County equipment and personnel were used to haul dirt to and place it on the highway right-of-way adjacent to private property for the apparent purpose of allowing the adjacent property owner to, at his own expense, move the dirt onto this property and use it for his own private purposes. The testimony indicated that these practices were continuing up to approximately on week prior to the date of this trial.
Upon conclusion of testimony by the Plaintiffs and the Defendant County Council member, the Plaintiffs moved for Summary Judgment/ Directed Verdict based upon that testimony as well as upon the admission contained in the Defendants’ Answer that equipment and employees had been used on private property for the construction and maintenance of driveways. Counsel for the Plaintiffs indicated that he had approximately eight other witnesses whose testimony would also be cumulative in nature.
Based upon the testimony and evidence presented as well as the admission contained in the Answer of the Defendants, the Court makes the followings findings of fact and law:
• That the County of Dillon, by and through its elected County Council members and County employees, has been providing, at public expense, County employees equipment and material to private property owners, and more specifically, the County has hauled dirt at public expense to private property and dumped it thereon for the use of the private property owners. Further, the County has constructed and maintained private driveways, avenues and lanes with county equipment, personnel and material, and the County has provided dirt to private landowners by hauling it to and dumping it on the highway right-of-way adjacent to the landowner’s property so that the landowner could move the dirt onto his private property at his own expense.
• The Court finds that the foregoing practices by the County are blatantly illegal. The Fifth and Fourteenth Amendments to the United States Constitution clearly state that no person shall be deprived of property without due process of law. Additionally, Article 1, Section 3 of the South Carolina Constitution likewise prohibits Dillon County from depriving any person of property without due process of law. This has been construed to mean that no tax funds can be used for other than a public purpose. It is this Court’s finding that the spending of tax revenues for the purpose of maintaining and providing equipment, labor and material to private property owners in the construction and maintenance of private driveways and the dumping and leveling of dirt on private property is clear violation of the Fifth and Fourteenth Amendments to the United States Constitution.
• It is the further finding of the Court that Article 10, Section 3 of the South Carolina Constitution (which requires that tax funds shall be levied only in pursuance of a law which distinctly states the object of the tax, and that they shall be expended only for the purpose stated) clearly prohibits the use of tax funds for private purposes such as the construction and maintenance of private driveways and avenues and the hauling of and providing of dirt to private property and the leveling of same at public expense for the benefit of the private property owner. Likewise, Article 10, Section 6 of the South Carolina Constitution provides that counties are authorized to levy taxes solely for the purposes of building and repairing public roads, building and bridges, and for other public purposes clearly stated in the South Carolina Constitution.
• The South Carolina Supreme Court has defined a public purpose as one which has for its objective the promotion of the public health, safety, morals and general welfare, security, prosperity and contentment of all of the inhabitants or residents or at least a substantial part thereof. Anderson vs. Baehr (1975) 265 S.C. 153. The public purpose was further defined in that case as being such that “…it is not sufficient that an undertaking bring about a remote or indirect public benefit to characterize it as a project within the sphere of public purpose.” Our Supreme Court has also further defined public purpose in the case of Caldwell vs. McMillan (1953) 224 S.C. 150. There the Court stated “In general, a public purpose has for it objective of the public health, morals, general welfare, security, prosperity and contentment of all the inhabitants or residents within a given political division, so that whatever is necessary for the preservation of the public health and safety is a public purpose, and if an object is beneficial to the inhabitants and directly connected with the local government, it will be considered a public purpose; but in order to sustain a public purpose the advantage accruing to the public must be direct, not merely indirect or remote.” Ninety-eight years ago, the South Carolina Supreme Court prohibited any officers of the State (which includes county officials) from applying public funds to any purpose not authorized by law. Butler vs. Ellerbe, 44 S.C. 256 (1894) Further, the United States Supreme Court long ago held that the power of the state (or county) to tax and to expend tax monies for private benefits was unconstitutional. “To lay with one hand, the power of the government on the property of the citizens, and with the other to bestow it upon favored individuals…is none the less a robbery because it is done under forms of law…” Savings and Loan Association vs. Topeka 22 L. ED. 455, 20 U.S. (Wall) 655. The use of tax funds to provide county personnel, equipment and materials to private property owners for the purpose of constructing and maintaining private road and driveways and to haul dirt to private property and to level it for the private property owner, again all at public expense, constitutes a clear violation of the Constitutional provisions cited hereinabove, and such practices must stop immediately. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the practices set for hereinabove are clear and direct violations of the South Carolina Constitution and the United States Constitution, all as specified hereinabove.
IT IS FURTHER ORDERED that Dillon County, its duly elected public officials, and its employees, agents and servants, are permanently restrained and enjoined from hauling dirt to and dumping and/or leveling dirt on private property, at public expense.
IT IS FURTHER ORDERED that Dillon County, its duly elected public officials, employees, agents and servants, are hereby permanently restrained and enjoined from constructing, scraping, leveling or otherwise maintaining driveways located on private property within the County.
IT IS FURTHER ORDERED that Dillon County, is duly elected public officials, employees, agents and servants, are hereby permanently restrained and enjoined from constructing, leveling, scraping or otherwise maintaining private roadways and avenues located in Dillon County.
IT IS FURTHER ORDERED that in the event of a natural disaster or emergency, the Defendants may provide such material, labor and services are necessary to maintain the public health and safety. This contemplates the use of public equipment, personnel and material on private property in the event of a hurricane, tornado, massive explosion or some other kind of natural or man-made disaster which creates conditions threatening the public health and safety.
IT IS FURTHER ORDERED that nothing contained herein shall be construed so as to preclude the dedication on public record by private landowners of roadways and avenues within the County as county roadways should private property owners wish to cede such roadways and avenues to the County and should the County wish to accept such avenues and roadways into the county road system. Such dedication, however, must be duly and properly recorded in the records of the Clerk of Court for Dillon County and should be of a permanent nature.
IT IS FURTHER ORDERED that the injunction contained herein is of a permanent nature and shall apply to all future duly elected County Council members, employees, public officials, agents and servants of the County, as well as to the County itself.
AND IT IS SO ORDERED
Paul M. Burch
Circuit Court Judge
Dillon, South Carolina
July 8th, 1992
TH CAROLINA
COUNTY OF DILLON
IN THE COURT OF COMMON PLEAS
2010-CP-17-187
Dillon County, a body politic and corporate, by and through its corporate, by and through its members of County Council: James Pee Wee Webster, Andrew Graves, Bobby Moody, Harold Moody, Archie Scott, Aaron Gandy and Macio Williamson and through its Administrator, David Mobley,
Plaintiffs
v.
John Doe, a citizen of Dillon County,
Defendant.
2010 ORDER
This matter was instituted by the Plaintiff as a Declaratory Judgment Action to determine the validity of a County Policy dealing with E-911 roadways and seeking to determine if this Policy violates an Order issued by the Court in 1992 in Civil Action 91-CP-17-274. The Defendant filed an Answer and Counterclaim wherein the Defendant seeks to hold the Plaintiff in contempt of court violating the 1992 court Order and further seeking to enjoin Dillon County Council members from violating Section 4-9-660 of the Code of Laws of South Carolina. The Defendant abandoned the prayer for attorney fees and Mandamus.
Prior to the call of the case, the matter was discussed in Chambers with the Attorney for the Plaintiff and the Attorney for the Defendant both present. Both the Plaintiff and the Defendant have asked the Court to review the 2004 County Policy dealing with E-911 roads and driveways. Plaintiff’s Attorney stated that if the County’s E-911 Roadways Policy is found not to be in compliance with the law and with the 1992 Order, the County would consent to an Order of the Court holding Dillon County in contempt of Court for violation of the 1992 Order and would further consent to an injunction prohibiting Council members from violation Section 4-9-660 of the South Carolina Code. Defendants Attorney stated that Dillon County had violated the 1992 Order without regard to the ruling on the 2004 E-911 Policy. Since the Court finds that the 2004 E-911 Policy violates the Order of 1992 there is no need to determine if other violations exist. There was also a discussion concerning the maintenance of abandoned cemeteries by Dillon County. The Court is informed that Dillon County, pursuant to Code Section 6-1-35, has a policy that provides for the use of County equipment and personnel to preserve and protect such cemeteries. Council members vote in public session to place abandoned cemeteries on a list of cemeteries to be maintained by the County. The Court is informed that there are certain cemeteries on this list that are still active and presently are being used for the burial of bodies. The Court is also informed that there is some ambiguity in the Courts use of the term “emergency” in the 1992 Order. The Court will address these mattes in this Order. Based upon the information presented, the Court makes the following findings of fact:
1. That the Dillon County Policy regarding E-911 Roadways violates the Order Dated July 8, 1992.
2. That Dillon County has violated the Order of the Court dated July 8, 1992.
3. That the use of County equipment and personnel on cemeteries that are still used for the burial of bodies is improper.
4. That the term “emergency” as used in the Court’s Order of July 8, 1992, is intended to mean those emergencies that have been declared to be emergencies by some governmental entity such as the President or the Governor or some executive agency having the authority to declare emergencies.
5. That the Dillon County Council Members, or at least some of them, have violated Section 4-9-660 of the South Carolina Code of Laws in that they have given instruction to County employees. That this practice has continued over a long period of time and has lead to the practice of using County personnel and County equipment on private property.
Based upon the foregoing findings of fact, it is
ORDERED:
1. That the County Policy dealing with E-911 Roadways violates the Order of the Court dated July 8, 1992 and is therefore void.
2. That Dillon County is held in Contempt of Court for violating the Order of the Court dated July 8, 1992. With the consent of the Defendant the Court will impose no punishment on any of the Plaintiffs for this violation. However the Court issues this stern warning that any further violation of the Order will lead to severe fines and perhaps jail time for those who are guilty of such violation.
3. That the Dillon County Council members are jointly and severally enjoined from dealing directly with county employees who are subject to the direction and supervision of the Dillon County Administrator and they are ordered to comply with Section 4-9-660 of the South Carolina Code of Laws. Council Members shall deal with County Employees only through the Administrator except for the purposes of inquires and investigations. These inquiries and investigations must be approved by a majority of Council in advance of the inquiry or investigation. County employee personnel issues shall be handled through the County Administrator and in accordance with the County’s established personnel policies. Any violation of this Section 4-9-660 of the South Carolina Code of Laws and of this provision of this Order may lead to severe fine or jail time for those Council Members who violate this provision.
4. That the term “emergency” as used in the Order dated July 8, 1992, is intended to mean only those emergencies that have been so declared by the President of the United States, the Governor of South Carolina or by a public governmental entity or agency having the authority to declare emergencies.
5. That Dillon County is enjoined from using county personnel and county equipment for the preservation and protection of cemeteries until and unless said cemeteries have been abandoned. The Court notes that “abandon” as defined in Black’s Law Dictionary is defined as “To give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in.” The Court finds that a cemetery that is still being used for burials or one which has been so used for a period of less than ten (10) years cannot be defined “abandoned.” Dillon County is therefore enjoined from using county personnel and or county equipment for the purpose of maintaining any cemetery which has been used for the burial of human bodies within the prior ten (10) year period.
6. The Court has issued an oral warning at the time this matter was presented. It is further ordered that a copy of the transcript of the hearing be attached to this Order for the purpose of expressing the Court’s disapproval of the actions of Dillon County and should be used by any future Judge who may hear a contempt charge.
7. That the Order of July 8, 1992 remains in full force and effect.
AND IT IS SO ORDERED.
Honorable Paul M. Burch
Circuit Judge for the Fourth Judicial Circuit
Date: June 1, 2010
WE CONSENT: Daniel H. Shine, Attorney for Plaintiff/ Charles E. Curry, Attorney for Defendant
S.C. Code Of Laws 4-9-660
Except for the purposes of inquiries and investigations, the council shall deal with county officers and employees who are subject to the direction and supervision of the county administrator solely through the administrator, and neither the council nor its members shall give orders or instructions to any such officers or employees.
HISTORY: 1962 Code Section 14-3745; 1975 (59) 692.
