THE STATE OF SOUTH CAROLINA

In The Supreme Court

Rick W. Arnold, Donald

Corry, Richard M.

Lovelace, Jr., A. Palmer

Owings, Jr., Daryl Pitts,

William F. Sachs, Harold

L. Shokes, and William

W. Enzor,

Plaintiffs,

of whom Rick W. Arnold,

Donald Corry, Richard

M. Lovelace, Jr., Daryl

Pitts, William F. Sachs,

Harold L. Shokes, and

Williams W. Enzor are

Appellants/Respondents,

v.

The Association of

Citadel Men, Hampton

J. Walker, Richard H.

MacMillan, J. Stannard

Hurteau, Stephen D.

Falkenbury, Rick M.

Crosby, William M.

Ogburn, Henry A.

Kennedy, Jr., and Robert

B. Scarborough,

of whom The Association

of Citadel Men, J.

Stannard Hurteau, Rick

M. Crosby, William M.

Ogburn and Henry A.

Kennedy, Jr., are

Respondents,

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and of whom Robert

Scarborough is Respondent/Appellant.

AND

Donald Corry, Richard

M. Lovelace, Jr.,

William F. Sachs,

Harold L. Shokes, and

William W. Enzor, Appellants,

v.

The Association of

Citadel Men, Hampton

J. Walker, Richard H.

MacMillan, J.

Stannard Hurteau,

Stephen D.

Falkenbury, Rick M.

Crosby, William M.

Ogburn, Henry A.

Kennedy, Jr., Robert B.

Scarborough, and

Charles A. Laffitte, Jr., Defendants,

of whom Robert B.

Scarborough is the, Respondent.

Appeal from Richland County

Thomas J. Ervin, Circuit Court Judge

Opinion No. 25014

Heard June 23, 1999 - Filed November 15, 1999

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REVERSED AND REMANDED

David C. Eckstrom and Elizabeth H. Campbell, of

Nexsen, Pruet, Jacobs & Pollard, LLP, of Columbia,

for appellants/respondents and appellants.

John S. Wilkerson, III, of Turner, Padget, Graham &

Laney, P.A., of Florence; and Steven W. Ouzts, of

Turner, Padget, Graham & Laney, P.A., of Columbia,

for respondents and defendants.

R. David Howser and Andrew E. Haselden, both of

Howser, Newman & Besley, L.L.C., of Columbia, for

respondent/appellant and respondent.

BURNETT, A.J.: These consolidated appeals concern the

Association of Citadel Men's (the Association's) 1996 election to select an

alumni member to the Citadel's Board of Visitors (at times, the Board).¹ We

reverse and remand.

STATUTORY BACKGROUND

After various modifications over the past century, the Board of

Visitors is presently composed of eleven members, all of whom are graduates

of the Citadel.² Seven members are elected by the General Assembly, three

association. Membership in the Association is voluntary. Pursuant to the

Association's Constitution and By-laws, all Citadel graduates, regardless of

membership in the Association, are entitled to vote for the alumni members

of the Board.

² In addition, the Governor, Adjutant General, and State

Superintendent of Education are ex officio members. S.C. Code Ann. § 59-

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members are elected by the Association, and one member is appointed by the

governor. S.C. Code Ann. § 59-121-10 (Supp. 1998). The term of office is six

years and begins on July 1st. § 59-121-20 (Supp. 1998).

In 1947, the General Assembly imposed an age restriction on

elected members of the Board. Act No. 108, 1947 S.C. Acts 144. Pursuant to

this Act, no elective member could be elected if the term of office extended

beyond the member's seventy-second birthday. In 1961, the statute was

amended to provide: " [n]o elective member shall be elected or reelected

either by the General Assembly or by the Association of Citadel Men to fill

any term of office the duration of which shall extend beyond the member's

seventy-fifth birthday."³ § 59-121-30 (1990). Effective June 13, 1997, the

statute was amended to read: " [h]owever, beginning with the elections for

members of the board occurring on or after July 1, 1997, the seventy-fifth

birthday limit no longer applies." § 59-121-30 (Supp. 1998).

FACTS

In its Summer 1996 newsletter, the Association invited

nominations for one alumni seat on the Board for the term beginning July 1,

1997, and ending on June 30,2003. Nominations were accepted through

August 30, 1996. Three candidates were nominated: Donald Corry (Corry),

William F. Sachs (Sachs), and Robert B. Scarborough (Scarborough).

By memorandum dated October 2, 1996, the Association

President notified the Election Committee he had received an inquiry

concerning whether the candidates met the age qualification of § 59-121-30.

As a result, the President determined Scarborough was unqualified as he

would turn seventy-five one day before the expiration of the term. He

further determined the ballots had already been mailed to the Association

members. The President notified Scarborough; Scarborough replied the age

qualification was discriminatory and he would not withdraw his name from

the ballot.

³Act No. 260, 1961 S.C. Acts 446.

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In response to the Association President's notice, the Election

Committee met and issued a resolution finding: 1) Scarborough not legally

qualified to be elected to the alumni Board seat; 2) the current election

invalid, and the Election Committee would establish new nominating

deadlines and voting dates; and 3) the ballots it had received would be

sequestered and remain uncounted.

All three candidates were displeased with the Election

Committee's resolution. On November 8, 1996, the Association's Board of

Directors met to consider the "appeals" of each of the candidates. Corry and

Sachs claimed the ballots should be counted and the winner between the two

remaining candidates declared. Scarborough argued the statutory age

qualification was discriminatory. The Board of Directors voted to instruct

the Election Committee to count the ballots and declare the winner among

the three candidates and for the Association President to certify the result to

the Secretary of State as required by statute.

The Election Committee canvassed the votes: Scarborough

received 2,518 votes, Sachs received 1,452 votes, and Corry received 480

votes. Due to the questions regarding the age qualification, the President

refused to certify the election results to the Secretary of State. ⁴

The Association's Board of Directors met again in January 1997.

The Board of Directors approved a resolution to be sent to the General

Assembly endorsing deletion of the age restriction from the statute. By Act

No. 144, 1997 S.C. Acts 757 (Act No. 144), the General Assembly deleted the

age restriction "beginning with the elections for members of the board

occurring on or after July 1, 1997. . .". The governor signed Act No. 144 into

law on June 13, 1997.

A. The Initial Action

One month before the governor signed Act. No. 144 into law,

eight Citadel alumni, including Corry and Sachs, brought this action against

and the November meeting of the Association's Board of Directors, a new

president took office.

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the Association, the President of the Association, the Executive Director of

the Association, members of the Election Committee, and Scarborough. The

plaintiffs sought 1) a declaratory judgment that, due to his age, Scarborough

was not qualified to run for the Board seat, the filing period was closed, and

Corry and Sachs were the only qualified nominees; 2) a writ of mandamus

ordering the Association to proceed with the election for the term

commencing July 1, 1997; and 3) an injunction to require the Election

Committee to conduct the election with only Corry and Sachs' names on the

ballot. Scarborough counterclaimed, arguing the statutory age restriction

violated the equal protection provision of the United States Constitution.

The trial court conducted a hearing on June 18, 1997, and issued

its order on June 25, 1997, declining to issue the writ of mandamus. The

court, however, issued a declaratory judgment, holding the election invalid

since the Association President did not certify the results to the Secretary of

State as required by the statute. As part of its declaratory judgment, the

trial court ordered the Association to conduct an election ". . . open to all

candidates who are nominated in accordance with the usual procedures of

the Association, within 180 days. Based on its holding, the court concluded

it need not determine whether § 59-121-30 violated equal protection. Both

Appellants/Respondents (hereafter referred to as Corry and Sachs) and

Respondent/Appellant (hereafter referred to as Scarborough) appeal.

ISSUES

I. Is the age restriction in § 59-121-30 (1990) a violation of equal

protection?

II. Did the trial court err by refusing to issue a writ of

mandamus compelling the Association to proceed with the

election under the law as it existed in 1996?

I.

Prior to its amendment in 1997, § 59-121-30 provided:

No elective member shall be elected or re-elected

either by the General Assembly or by the Association

of Citadel Men to fill any term of office the duration

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of which shall extend beyond the member's seventy

fifth birthday.

The governor's appointee to the Board was not subject to the age restriction

in § 59-121-30.

Scarborough argues the age restriction in § 59-121-30, applicable

when he submitted his nomination in 1996, is a violation of the United

States Constitutional amendment guaranteeing equal protection. He

contends there is no rational basis for the age, classification because a) no

other state university has an age restriction for trustees and b) the

governor's appointee to the Board of Visitors is not subject to the age

restriction.

Corry and Sachs assert, unlike trustees at other state

universities, the members of the Board of Visitors are eligible for

appointment as commissioned officers in the unorganized militia of South

Carolina. See S.C. Code Ann. § 25-1-520 (1989). Consequently, Corry and

Sachs contend there is a rational basis for the age restriction for members of

the Board of Visitors. See Spain v. Ball, 928 F.2d 61, 63 (2nd Cir.

1991)(statutory requirement limiting commissioned positions to individuals

under 35 years of age is rationally related to military's desire to ensure

"vigor and comparative youth in positions of responsibility in the services.");

U.S. v. Fallon, 407 F.2d 621 (7hCir. 1969)(Selective Service Act's

classification exempting individuals over age of 26 from registration is

reasonably related to maximize efficiency and minimize expense of raising

army).

The Equal Protection Clause provides: "No State shall... deny to

any person within its jurisdiction the equal protection of the laws." U.S.

Const. amend. XIV, § 1. Equal protection requires "all persons be treated

alike under like circumstances and conditions, both in privileges conferred

and liabilities imposed." G.T.E. Sprint Communications Corp . v. Public

Service Comm'n, 288 S.C. 1742 18L 341 S.E.2d 126~ 129 (1986). Unless a

suspect class or fundamental right is involved, equal protection is satisfied if

1) the classification bears a reasonable relation to the legislative purpose

sought to be effected; 2) the members of the class are treated alike under

similar circumstances and conditions; and 3) the classification rests on some

reasonable basis. Skyscraper Corp. v. County of Newberry, 323 S.C. 412, 475

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S.E.2d 764 (1996); Duke Power Co. v. S.C. Public Service Comm'n, 284 S.C.

81) 326 S.E.2d 395 (1985). A statute which classifies on the basis of age is

valid if it is rationally related to furthering a legitimate state interest.

Gregory v. Ashcroft, 501 U.S. 452, Ill S.Ct. 2395, 115 L.Ed.2d 410 (1991);

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49

L.Ed.2d 520 (1976).

We agree the potential appointment of a Board member as a

commissioned officer in the unorganized militia is a rational basis for the age

restriction of § 59-121-30 (1990). Gregory v. Ashcroft, supra (mandatory

retirement age of 70 for judges is rationally related to legitimate and

compelling state interest in maintaining judiciary fully capable of performing

demanding tasks); Massachusetts Bd. of Retirement v. Murgia, supra

(mandatory retirement age of 50 for uniformed police officers is rationally

related to government objective of protecting public by assuring physical

preparedness of police). Accordingly, the disparate treatment between

members of the Board and trustees at other state colleges and universities

does not violate equal protection.

However, since all members of the Board are eligible for

appointment to the unorganized militia, we conclude there is no rational

basis in imposing the age restriction on the elected members of the Board,

but not on the governor's appointee. Corry and Sachs suggest because the

General Assembly amended the composition of the Board to permit a

governor's appointee more than thirty years after the age restriction was

enacted,⁵ it was not aware of the age restriction or the disparity between the

governor's appointee and the elected members of the Board. See Chambers

Med. Tech. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1263 (4' Cir. 1995)(with

regard to equal protection, the issue is "whether there is no reasonable

conception that could justify the state's action and whether the legislative

actors were cognizant of this at the time they acted. . . ". citing Smith Setzer

& Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311) 1324 W Cir.

1994)).

There is a basic presumption the General Assembly has

knowledge of previous legislation when later statutes are passed on a related

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subject. Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993).

Accordingly, it is presumed the General Assembly knew of the age restriction

for the ten elective positions at the time it passed legislation allowing the

governor to appoint a member to the Board of Visitors. We conclude the

General Assembly was aware there was no reasonable basis to impose the

age restriction on the elected members of the Board, but not on the

governor's appointee. Because the age restriction is not applied to all

members of the Board, § 59-121-30 (1990) violates equal protection.

Skyscraper Corp. v. County of Newberry, supra (to pass constitutional

muster, members of the class must be treated alike under similar

circumstances and conditions). Therefore, Scarborough was a qualified

nominee for the 1996 election.

II.

Corry and Sachs argue the trial court erred by failing to grant a

writ of mandamus compelling the Association to proceed with the election

under the law as it existed at the time the election process began in 1996.

In effect, Corry and Sachs argue, since Scarborough was unqualified due to

the age restriction of § 59-121-30 (1990), they were the only qualified

nominees at the close of the nomination period and only their names should

have appeared on the ballot.

Whether the trial court should have granted the writ of

mandamus ordering the Association to proceed with the election under the

law as it existed in 1996 is moot in light of our holding above. Since we

conclude the age restriction in § 59-121-30 (1990) was unconstitutional,

Scarborough was a qualified nominee and entitled to have his name on the

ballot. Mathis v. South Carolina State Highway Dep't, 260 S.C. 344, 346,

194 S.E.2d 713, 715 (1973)(11a case becomes moot when judgment, if

rendered, will have no practical legal effect upon existing controversy. This

is true when some event occurs making it impossible for [the] reviewing

Court to grant effectual relief."); 1A C.J.S. Actions § 39 (1985)(a cause of

action may be mooted by intervening events, such as changes in the law or

facts on which an action is based; this rule applies when the changes are

judicial, legislative, or administrative). Because of our ruling, the propriety

of including Scarborough's name on the ballot is no longer in actual

controversy and it is unnecessary for the Court to address whether the trial

court erred by denying the writ of mandamus. Byrd v. Irmo High School,

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321 S.C. 426, 468 S.E.2d 861 (1996)(Court will not rule on moot and

academic questions or make an adjudication where there remains no actual

controversy).

B. The Second Action

Following the trial court's ruling in the initial action, five of the

same Citadel alumni (including Corry and Sachs) filed a second action

against the same defendants alleging Act No. 144 violated South Carolina

Constitution Article 111, §17 because it did not relate to one subject and the

title of the bill did not reflect the substance of the Act.⁶ The trial court

concluded, inter alia, Act No. 144 was constitutional. Corry and Sachs

appeal.

ISSUES

1. Did the trial court err by holding Act No. 144 did not violate

Article III, § 17 of the South Carolina Constitution because the

title of the Act reflected the deletion of the age restriction when

the Act was ratified and enrolled?

II. Did the trial court err by ruling Act No. 144 did not violate

Article III, § 17 of the South Carolina Constitution because it did

not relate to more than one subject?

DISCUSSION

This Court will decline to rule on constitutional questions unless

the determination is essential to the disposition of a case. Heyward v. S.C.

Tax Comm'n, 240 S.C. 347~ 126 S.E.2d 15 (1962); see also Sanders v.

Anderson County, 195 S.C. 171, 172, 10 S.E.2d 364 (1940)(" [t]he Court will

avoid, where possible, passing upon the constitutionality of an Act of the

Legislature. . .".). In light of our conclusion Scarborough was a qualified

nominee in 1996, it is unnecessary to address whether the passage of Act No.

Jr., who was nominated for the Board seat after the June 25, 1997 order of

the trial court.

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144 violated the South Carolina Constitution.

This matter is hereby remanded to the Association's Election

Committee and/or Association President to take any remaining steps which

are necessary to declare the winner of the 1996 election and to certify the

results to the Secretary of State in compliance with § 59-121-10 (Supp. 1998).

REVERSED AND REMANDED.

Finney, CA, Toal, Moore and Waller, JJ., concur.

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