Hodges v. Rainey

BURNETT, Justice

(concurring in part, dissenting in part):

I concur with Parts III and IV of the majority’s opinion. I disagree, however, with Parts I and II. In my opinion, the Governor does not have discretionary authority to remove a member of the Board of Directors of Santee Cooper.

Relying on the statutory construction maxim “expressio unius est exclusio alterius,” the majority concludes because Santee Cooper was not included in the list of exclusions noted in § l-3-240(C), the General Assembly intended the Gover*96nor’s discretionary removal power to apply to the Board of Santee Cooper. The majority’s application of the maxim improperly effects an implied repeal of Santee Cooper’s enabling legislation.1

When Santee Cooper was created in 1934, the General Assembly enacted specific provisions for the removal of Santee Cooper’s Board members. Section 58-31-20 (1976) specifically provides: “[mjembers of the board of directors [of Santee Cooper] may be removed for cause by the advisory board or a majority thereof.” (Italic added). The advisory board is composed of five members, one of whom is the governor. § 58-31-20.

As recognized by the majority, the law does not favor the implied repeal of a statute. Butler v. Unisun Ins., 323 S.C. 402, 475 S.E.2d 758 (1996). Nonetheless, the majority concludes § 1-3-240(B) and § 58-31-20 are not in conflict; § 58-31-20 simply acts as a “safety net” allowing the advisory board to remove the governor’s appointee if he commits some type of malfeasance.

As I read § l-3-240(B) and § 58-31-20, the two statutes are irreconcilable and cannot be reasonably harmonized. Allowing the Governor complete and sole discretion to remove a Board member without cause usurps the advisory board’s authority to remove a Board member for cause. Simply put, if the advisory board, of which the Governor is a member, fails to remove a Board member for cause, the Governor can effectively veto the action and remove the member at his own discretion. Contrary to the majority’s assertion, § l-3-240(B) impliedly repeals the advisory board’s removal power.

Because § 1-3-240(B) and § 58-31-20 are clearly in conflict, the latter, as the specific act, controls, even though it was passed before § 1-3-240(B). Atlas Food Systems and Services, Inc. v. Crane Nat’l Vendors, 319 S.C. 556, 462 S.E.2d 858 (1995); see Norman J. Singer, Sutherland Statutory Con*97struction § 51.05 at 174 (5th ed. 1992) (“[w]here one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, ... ”).

Furthermore, the cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 476 S.E.2d 690 (1996). When it passed the Restructuring Act, the General Assembly amended the removal provisions of administrative agencies, specifically stating removal is subject to § l-3-240(B). See § 24-1-40 (Supp.1999) (director of Department of Corrections is subject to removal from office as provided in § 1-3-240); § 44-9-30 (Supp.1999) (governing board of State Department of Mental Health may be removed by Governor pursuant to § 1-3-240); § 44-49-20 (Supp.1999) (director of Department of Alcohol and Other Drug Abuse Services is subject to removal by Governor pursuant to § 1-3-240); § 48-4-30 (Supp.1999) (Governor may remove any board member of the Department of Natural Resources pursuant to § 1-3-240); § 51-1-10 (Supp.1999) (director of Parks, Recreation and Tourism is subject to removal by the Governor pursuant to § 1-3-240). The legislature’s failure to amend § 58-31-20 indicates a conscious decision by the General Assembly to exclude the Santee Cooper Board from the Governor’s removal power in § l-3-240(B).

In my opinion, § 1-3-240 does not authorize the Governor to remove a member of the Santee Cooper Board at his sole discretion. Accordingly, I would vacate Executive Order 99-62 which removes Rainey from the Board. Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 (1997) (under South Carolina law, the Governor may not remove from office unless the power to do so is conferred upon him by the Constitution or statute).

FINNEY, C.J., concurs.

. Expressio unius est exclusio alterius is a rule of statutory construction; it is not a rule of substantive law. Accordingly, the maxim "should be used with care.” Norman J. Singer, Sutherland Statutory Construction § 47.25 at 234 (5«> ed. 1992).