Pickens County v. Pickens County Water & Sewer Authority , 312 S.C. 218 ( 1994 )

Moore, Justice:

This appeal is from an order declaring 1973 Act No. 757 unconstitutional under the home rule mandate of Article VIII, § 7, of the South Carolina Constitution. We affirm.

FACTS

Respondents-appellants (County) commenced this declaratory judgment action seeking a ruling that 1973 Act No. 757 is unconstitutional. Act No. 757 created the “Pickens County Water and Sewer Authority” (WSA) and empowered it with the authority to provide water and sewer service countywide wherever such service was not provided by a municipality. Act No. 757 also repealed 1971 Act No. 240 which had created the “Pickens County Water Authority.” The apparent intent of Act No. 757 was to consolidate water and sewer services in one authority. The trial judge declared Act No. 757 unconstitutional and ruled that Act No. 240 was revived.

ISSUES

1. Whether Act No. 757 violates home rule.

2. Whether Act No. 240 is revived.

DISCUSSION

Article VIII, § 7, of the South Carolina Constitution prohibits the enactment of legislation after March 7, 1973,¹ that affects a specific county. Knight v. Salisbury, 262 S.C. 565, 206 S.E. (2d) 875 (1974). This Court has recognized an exception to this prohibition for “transitional” legislation to implement a new form of government. Cooper River Park and Playground Comm’n v. City of No. Charleston, 273 S.C. 639, 259 S.E. (2d) 107 (1979). Appellants-respondents (WSA) contend Act No. 757 comes under the transitional legislation exception. We disagree.

This case is clearly controlled by Hamm v. Cromer, 305 S.C. 305, 408 S.E. (2d) 227 (1991), in which we held legislation creating a water and sewer authority in a specific county violated Article VIII, § 7, and did not qualify as transitional legislation because it did not implement a new form of county government. We hold the trial judge properly found Act No. 757 unconstitutional.

In its cross-appeal, County argues Act No. 240, which created the previous “Pickens County Water Authority,” should not be revived by the invalidity of Act No. 757 which purported to repeal it. County contends under the doctrine of desuetude Act No. 240 should be declared invalid because of disuse.

We find no support for County’s contention. Desuetude has never been applied in this situation. When an act repealing a prior act is held unconstitutional, the repealer is also invalidated absent specific legislative intent to the contrary. The prior act is revived by invalidation of the repealer. Wingfield v. S.C. Tax Comm’n, 147 S.C. 116, 144 S.E. 846 (1928); Barringer v. City Council, 41 S.C. 501,19 S.E. 745 (1894).

Affirmed.

Harwell, C.J., and Chandler, and Finney, JJ., concur. Toal, J., dissenting in separate opinion.

1 Act No. 757 was enacted June 26,1973.