S 1378 Session 111 (1995-1996)
S 1378 General Bill, By S. Boan, M.T. Rose and J.V. Smith
A Bill to amend Sections of the Code of Laws of South Carolina, 1976, relating
to, among other things, the powers, duties, and responsibilities of the
Secretary of State, so as to devolve these powers, duties, and
responsibilities on specified state agencies, departments, and public
officials.-short title
04/23/96 Senate Introduced and read first time SJ-14
04/23/96 Senate Referred to Committee on Judiciary SJ-14
A BILL
TO AMEND SECTIONS 1-1-110, AS AMENDED, 1-1-120,
1-1-1210, AS AMENDED, 1-3-215, 1-3-420, 1-5-30, 1-7-110,
1-9-30, 1-11-140, AS AMENDED, 1-19-230, 1-23-100, 2-1-50,
2-5-60, 2-7-80, AS AMENDED, 2-7-240, 2-11-10, AS
AMENDED, 2-13-140, 2-13-190, AS AMENDED, 2-13-240, AS
AMENDED, 2-17-17, 3-1-150, 3-3-210, AS AMENDED, 3-3-220,
3-3-340, 3-5-10, 3-5-30, 3-5-40, AS AMENDED, 3-5-310, 3-5-320,
AS AMENDED, 3-5-330, AS AMENDED, 4-3-330, 4-3-360,
4-3-370, 4-3-410, 4-3-460, 4-3-490, 4-5-150, 4-5-190, AS
AMENDED, 4-5-200, AS AMENDED, 4-7-110, 4-8-100, AS
AMENDED, 4-9-10, 4-11-30, 4-11-290, 5-1-10, 5-1-30, AS
AMENDED, 5-1-40, 5-1-50, 5-1-70, 5-1-80, 5-1-100, 5-3-90, AS
AMENDED, 5-3-280, 5-5-30, 6-11-1620, 6-11-1630, 6-11-1640,
6-13-20, 6-13-120, 6-16-50, 6-16-70, 6-19-40, 6-23-50, 6-25-50,
6-25-70, 7-9-10, 7-9-80, 7-9-100, AS AMENDED, 7-13-70, AS
AMENDED, 7-13-180, 7-13-320, 7-17-290, 7-17-300, 7-17-310,
7-17-320, 7-17-330, 7-17-340, 7-19-70, 7-19-80, 7-19-90, 7-19-100,
7-19-110, 7-19-120, 8-3-40, 8-3-140, 8-3-150, 8-11-20, 8-11-92,
8-11-94, 11-15-20, 11-25-260, 11-31-10, 12-6-5520, 12-8-540,
12-8-550, 12-20-30, 12-20-40, 12-28-1505, 12-49-90, AS
AMENDED, 12-54-125, 13-7-145, 13-12-15, AS AMENDED,
14-5-110, 14-11-20, AS AMENDED, 14-17-340, 15-9-245, AS
AMENDED, 15-9-250, 15-9-280, AS AMENDED, 15-9-430, AS
AMENDED, 15-9-440, 15-9-460, 15-63-200, 15-63-210, 15-78-30,
AS AMENDED, 15-78-70, AS AMENDED, 15-78-120, AS
AMENDED, 16-17-40, 17-13-80, AS AMENDED, 22-1-20,
23-7-30, 25-1-330, 26-1-10, 26-1-20, 26-1-30, 26-1-40, 26-1-70,
26-1-95, 27-15-30, 27-15-40, 27-16-30, 27-16-140, 27-19-10,
27-19-20, 27-19-30, 27-19-50, 27-19-60, 27-19-70, 27-19-80,
27-19-90, 27-19-100, 27-19-210, 27-19-310, 27-19-320, 27-19-330,
27-19-340, 27-19-360, 27-19-370, 27-19-390, 27-40-130, 30-7-10,
31-1-110, 31-3-340, AS AMENDED, 31-3-370, AS AMENDED,
31-10-30, 31-13-30, AS AMENDED, 33-1-200, 33-1-210, AS
AMENDED, 33-1-220, AS AMENDED, 33-1-230, 33-1-240,
33-1-250, 33-1-260, 33-1-270, 33-1-280, 33-1-290, 33-1-300,
33-2-101, 33-2-103, 33-4-101, AS AMENDED, 33-4-102, AS
AMENDED, 33-4-103, 33-5-102, 33-5-103, 33-6-102, 33-6-310,
33-10-102, 33-10-106, 33-10-107, 33-10-108, 33-11-104,
33-11-105, 33-11-107, 33-11-108, 33-14-101, 33-14-103,
33-14-104, 33-14-200, AS AMENDED, 33-14-210, 33-14-220, AS
AMENDED, 33-14-230, 33-14-330, 33-15-101, AS AMENDED,
33-15-103, AS AMENDED, 33-15-104, 33-15-106, 33-15-108,
33-15-109, 33-15-200, 33-15-300, AS AMENDED, 33-15-310, AS
AMENDED, 33-15-320, 33-15-330, AS AMENDED, 33-19-109,
33-19-420, 33-19-500, 33-19-520, 33-19-700, 33-31-120,
33-31-121, 33-31-122, 33-31-123, 33-31-124, 33-31-125,
33-31-126, 33-31-127, 33-31-128, 33-31-129, 33-31-130,
33-31-140, 33-31-201, 33-31-203, 33-31-401, 33-31-402,
33-31-403, 33-31-502, 33-31-503, 33-31-505, 33-31-704,
33-31-1001, 33-31-1002, 33-31-1005, 33-31-1006, 33-31-1007,
33-31-1102, 33-31-1104, 33-31-1106, 33-31-1401, 33-31-1403,
33-31-1404, 33-31-1405, 33-31-1420, 33-31-1421, 33-31-1422,
33-31-1423, 33-31-1433, 33-31-1501, 33-31-1503, 33-31-1504,
33-31-1506, 33-31-1508, 33-31-1509, 33-31-1515, 33-31-1520,
33-31-1530, 33-31-1531, 33-31-1532, 33-31-1601, 33-31-1701,
33-31-1706, 33-31-1707, 33-35-30, 33-35-40, 33-35-50, AS
AMENDED, 33-35-60, 33-35-70, 33-35-120, 33-35-130,
33-35-140, 33-37-210, 33-37-260, AS AMENDED, 33-37-270,
33-39-210, 33-39-260, 33-39-270, 33-41-1110, 33-41-1160, AS
AMENDED, 33-41-1170, 33-41-1180, 33-41-1190, 33-41-1200,
33-41-1210, 33-42-20, 33-42-40, 33-42-45, 33-42-210, 33-42-220,
33-42-230, 33-42-240, 33-42-250, 33-42-260, 33-42-280,
33-42-290, 33-42-310, 33-42-320, 33-42-440, 33-42-1620, AS
AMENDED, 33-42-1630, 33-42-1640, 33-42-1650, 33-42-1660,
33-42-1670, 33-42-2040, 33-43-103, 33-43-104, 33-43-105,
33-43-201, 33-43-203, 33-43-204, 33-43-205, 33-43-206,
33-43-405, 33-43-901.1, 33-43-901.2, 33-43-901.3, 33-43-901.4,
33-43-906, 33-43-1002, AS AMENDED, 33-43-1003, 33-43-1005,
33-43-1006, 33-43-1007, 33-43-1008, 33-43-1105, 33-43-1202,
33-43-1304, 33-43-1401, 33-43-1402, 33-45-40, 33-45-50,
33-45-140, 33-45-145, 33-45-200, 33-46-90, 33-46-230, 33-46-240,
33-46-600, 33-46-610, 33-46-620, 33-46-630, 33-46-650,
33-46-700, 33-46-740, 33-46-750, 33-46-770, 33-46,810,
33-46-830, 33-47-90, 33-49-80, 33-49-90, 33-49-100, 33-49-110,
33-49-230, 33-49-240, 33-49-810, 33-49-820, 33-49-830,
33-49-840, 33-49-1010, 33-49-1050, 33-49-1060, 33-49-1080,
33-49-1220, 33-49-1240, 33-49-1320, 33-53-10, 33-56-20,
33-56-30, 33-56-40, 33-56-50, 33-56-60, 33-56-70, 33-56-80,
33-56-90, 33-56-100, 33-56-110, 33-56-120, 33-56-130, 33-56-140,
33-56-150, 33-56-160, 33-56-190, 34-1-70, 34-3-810, 34-3-820,
34-9-60, 34-9-70, 34-27-40, 34-28-100, 34-28-130, 34-28-200,
34-28-220, 34-28-270, 34-28-800, 34-29-110, 35-1-20, AS
AMENDED, 35-1-30, 35-1-320, 35-1-485, 36-9-401, AS
AMENDED, 36-9-403, AS AMENDED, 36-9-404, AS
AMENDED, 36-9-405, AS AMENDED, 36-9-406, AS
AMENDED, 36-9-407, AS AMENDED, 37-1-203, 37-6-405,
37-6-406, 37-6-502, AS AMENDED, 38-3-80, AS AMENDED,
38-5-110, AS AMENDED, 38-25-510, AS AMENDED, 38-87-110,
AS AMENDED, 39-3-160, 39-3-170, 39-15-420, 39-15-430,
39-15-440, 39-15-450, 39-15-490, 39-15-1105, AS AMENDED,
39-15-1115, 39-15-1190, 39-19-20, 39-57-50, AS AMENDED,
39-57-55, 39-61-70, 39-73-10, 39-73-330, 40-1-110, 40-11-30,
40-11-120, 40-22-40, 40-22-50, 40-22-90, 40-33-270, 40-59-20, AS
AMENDED, 40-59-110, AS AMENDED, 40-73-20, AS
AMENDED, 40-77-50, 40-77-130, 41-25-20, 41-25-35, 41-25-110,
AS AMENDED, 41-29-130, 41-43-40, AS AMENDED, 42-7-200,
AS AMENDED, 44-7-1830, 44-7-2030, 44-7-2120, 44-7-2153,
44-7-2154, 44-61-70, AS AMENDED, 44-61-150, 44-79-80,
46-5-10, AS AMENDED, 46-13-60, AS AMENDED, 46-15-30,
46-17-260, 46-19-20, 46-33-40, 46-39-30, 46-39-40, 46-39-130,
46-39-150, 46-39-160, 46-39-170, 48-4-30, 48-9-620, AS
AMENDED, 48-9-630, AS AMENDED, 48-9-650, AS
AMENDED, 48-9-850, AS AMENDED, 48-9-1040, AS
AMENDED, 48-27-20, 48-27-220, 48-37-30, 48-43-40, AS
AMENDED, 49-7-120, 49-19-320, 49-19-2540, 49-19-2580,
49-19-2610, 49-27-70, AS AMENDED, 49-27-80, AS AMENDED,
50-3-140, AS AMENDED, 50-3-315, AS AMENDED, 50-3-320,
AS AMENDED, 50-19-2240, AS AMENDED, 50-19-2640,
51-11-40, AS AMENDED, 51-13-750, 51-15-520, 53-1-160,
54-3-170, 55-5-180, AS AMENDED, 55-11-210, 56-21-70,
57-1-325, 57-1-340, 57-5-180, AS AMENDED, 57-5-1410,
57-15-10, 57-21-20, 58-11-260, 58-15-10, 58-15-30, 58-15-40,
58-15-70, 58-15-80, 58-15-90, 58-15-100, 58-15-120, 58-15-130,
58-15-160, 58-15-170, 58-15-200, 58-17-340, 58-17-430,
58-17-620, 58-17-630, 58-17-660, 58-31-20, 58-31-50, AS
AMENDED, 58-31-340, 59-3-10, 59-5-10, 59-11-30, 59-13-10,
59-27-30, 59-49-90, 59-103-120, 59-115-100, 59-117-20, AS
AMENDED, 59-121-10, AS AMENDED, 59-121-20, AS
AMENDED, 59-123-50, AS AMENDED, 59-125-30, AS
AMENDED, 59-125-50, 59-130-10, AS AMENDED, 59-133-10,
AS AMENDED, 59-135-10, AS AMENDED, 59-136-110,
61-3-220, AS AMENDED, 61-5-170, AS AMENDED, 61-9-1240,
61-11-260, AND 62-5-620, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO, AMONG OTHER THINGS,
THE POWERS, DUTIES, AND RESPONSIBILITIES OF THE
SECRETARY OF STATE, SO AS TO DEVOLVE THESE
POWERS, DUTIES, AND RESPONSIBILITIES ON SPECIFIED
STATE AGENCIES, DEPARTMENTS, AND PUBLIC
OFFICIALS; AND TO REPEAL SECTIONS 1-5-10, 1-5-20,
8-21-110, 12-4-40, 23-29-50, 23-29-60, 23-29-70, 23-29-80,
30-11-10, 30-11-20, 30-11-30, 30-11-40, 30-11-50, 47-9-260,
47-9-270, 47-9-280, 47-9-310, 47-9-320, 47-9-330, 47-9-340,
47-9-380, 47-9-390, AND 47-9-400 RELATING TO, AMONG
OTHER THINGS, CERTAIN POWERS, DUTIES, AND
RESPONSIBILITIES OF THE SECRETARY OF STATE, AND
PROVIDE FOR A TRANSITION OF THE DEVOLUTION OF
THE POWERS, DUTIES, AND RESPONSIBILITIES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 1-1-110 of the 1976 Code, as last
amended by Section 2, Act 181 of 1993, is further amended to read:
"Section 1-1-110. The executive department of this State is
hereby declared to consist of the following officers, that is to say:
The Governor and Lieutenant Governor, the Secretary of
State, the State Treasurer, the Attorney General and the
solicitors, the Adjutant General, the Comptroller General, the State
Superintendent of Education, the Commissioner of Agriculture and
the Director of the Department of Insurance."
SECTION 2. Section 1-1-120 of the 1976 Code is amended to
read:
"Section 1-1-120. In case any vacancy shall occur in the
office of Secretary of State, State Treasurer, Comptroller
General, Attorney General or Adjutant General, such vacancy shall
be filled by election by the General Assembly, a majority of the
votes cast being necessary to a choice. If such vacancy occur during
the recess of the General Assembly, the Governor shall fill the
vacancy by appointment until an election by the General Assembly
at the session next ensuing such vacancy."
SECTION 3. Section 1-1-1210 of the 1976 Code, as last
amended by Section 9, Part II, Act 189 of 1989, is further amended
to read:
"Section 1-1-1210. The annual salaries of the state
officers listed below are:
Governor $98,000
Lieutenant Governor 43,000
Secretary of State85,000
State Treasurer 85,000
Attorney General 85,000
Comptroller General 85,000
Superintendent of Education 85,000
Adjutant General 85,000
Commissioner of Agriculture 85,000
These salaries must be increased by two percent on July 1, 1991,
and on July first of each succeeding year through July 1, 1994.
A state officer whose salary is provided in this section may not
receive compensation for ex officio service on any state board,
committee, or commission."
SECTION 4. Section 1-3-215 of the 1976 Code, as added by
Acts 181 and 183 of 1993, is amended to read:
"Section 1-3-215. (A) Appointments by the Governor
requiring the advice and consent of the Senate must be transmitted
to the Senate and must contain at a minimum the following
information:
(1) the title of the office to which the individual is being
appointed;
(2) the designation of any special seat, discipline, interest
group or other designated entity that the individual is representing
or is chosen from;
(3) the full legal name of the individual being appointed;
(4) the current street or mailing address and telephone
number;
(5) the county, counties, district or other geographic area or
political subdivision being represented;
(6) the name of the individual being replaced if the
appointment is not an initial appointment; and
(7) the commencement and ending date of the term of office.
(B) When an appointment has been confirmed by the Senate,
evidence of such confirmation shall be transmitted to the
Secretary of State Governor by the Clerk of the
Senate and the Secretary of State Governor must
thereafter obtain the necessary oath and evidence of bond if
required. The taking of the oath of office and filing of any
requisite bond shall fully vest the person appointed with the full
rights, privileges and powers of the office. The notice of
confirmation transmitted by the Senate shall be conclusive as to the
validity of an appointment and the issuance of a commission by the
Secretary of State Governor after obtaining the
requisite documentation is a ministerial act."
SECTION 5. Section 1-3-420 of the 1976 Code is amended to
read:
"Section 1-3-420. The Governor, when in his opinion the
facts warrant, shall, by proclamation, declare that, because of
unlawful assemblage, violence or threats of violence, a danger exists
to the person or property of any citizen and that the peace and
tranquility of the State, or any political subdivision thereof, or any
particular area of the State designated by him, is threatened, and
because thereof an emergency, with reference to such threats and
danger, exists.
The Governor, upon the issuance of a proclamation as provided
for in this section, shall forthwith file such proclamation in the
office of the Secretary of State Adjutant General,
which proclamation shall be effective upon issuance and remain in
full force and effect until revoked by the Governor."
SECTION 6. Section 1-5-30 of the 1976 Code is amended to
read:
"Section 1-5-30. The Secretary of State
Lieutenant Governor shall, during the absence of the
Governor from Columbia, be placed in charge of the records and
papers in the executive chamber. He shall keep in Columbia all the
books, records and papers belonging thereto."
SECTION 7. Section 1-7-110 of the 1976 Code is amended to
read:
"Section 1-7-110. He shall, when required by the
Secretary of State, State Treasurer, Adjutant General,
Comptroller General, or any other state officer or the Public Service
Commission, consult and advise with them, respectively, on
questions of law relating to their official business."
SECTION 8. Section 1-9-30 of the 1976 Code is amended to
read:
"Section 1-9-30. In the event that the Governor, for any
of the reasons specified in the Constitution, is not able to exercise
the powers and discharge the duties of his office, or is unavailable,
and in the event the Lieutenant Governor, President pro tempore of
the Senate, and the Speaker of the House of Representatives be for
any of the reasons specified in the Constitution not able to exercise
the powers and discharge the duties of the office of Governor, or be
unavailable, the Secretary of State, State Treasurer or
Attorney General shall, in the order named, if the preceding named
officers be unavailable, exercise the powers and discharge the duties
of the office of Governor until a new Governor is elected and
qualifies, or until a preceding named officer becomes available;
provided, however, that no emergency interim successor to the
aforementioned offices may serve as Governor."
SECTION 9. Section 1-11-140 of the 1976 Code, as last
amended by Section 87, Part II, Act 145 of 1995, is further
amended to read:
"Section 1-11-140. (A) The State Budget and Control
Board, through the Office of Insurance Services, is authorized to
provide insurance for the State, its departments, agencies,
institutions, commissions, boards, and the personnel employed by
the State in its departments, agencies, institutions, commissions, and
boards so as to protect the State against tort liability and to protect
these personnel against tort liability arising in the course of their
employment. The insurance also may be provided for physicians or
dentists employed by the State, its departments, agencies,
institutions, commissions, or boards against any tort liability arising
out of the rendering of any professional services as a physician or
dentist for which no fee is charged or professional services
rendered of any type whatsoever so long as any fees received are
directly payable to the employer of a covered physician or dentist,
or to any practice plan authorized by the employer whether or not
the practice plan is incorporated and registered with the
Secretary of State Department of Commerce;
provided, any insurance coverage provided by the Budget and
Control Board may be on the basis of claims made or upon
occurrences. The insurance also may be provided for students of
high schools, South Carolina Technical Schools, or state-supported
colleges and universities while these students are engaged in work
study, distributive education, or apprentice programs on the
premises of private companies. Premiums for the insurance must be
paid from appropriations to or funds collected by the various
entities, except that in the case of the above-referenced students in
which case the premiums must be paid from fees paid by students
participating in these training programs. The board has the
exclusive control over the investigation, settlement, and defense of
claims against the various entities and personnel for whom it
provided insurance coverage and may promulgate regulations in
connection therewith.
(B) Any political subdivision of the State including, without
limitations, municipalities, counties, and school districts, may
procure the insurance for itself and for its employees in the same
manner provided for the procurement of this insurance for the State,
its entities, and its employees.
(C) The procurement of tort liability insurance in the manner
provided is the exclusive means for the procurement of this
insurance.
(D) The State Budget and Control Board, through the Office of
Insurance Services, also is authorized to offer insurance to
governmental hospitals and any subsidiary of or other entity
affiliated with the hospital currently existing or as may be
established; and chartered, nonprofit, eleemosynary hospitals and
any subsidiary of or other entity affiliated with the hospital
currently existing or as may be established in this State so as to
protect these hospitals against tort liability. Notwithstanding any
other provision of this section, the procurement of tort liability
insurance by a hospital and any subsidiary of or other entity
affiliated with the hospital currently existing or as may be
established supported wholly or partially by public funds
contributed by the State or any of its political subdivisions in the
manner herein provided is not the exclusive means by which the
hospital may procure tort liability insurance.
(E) The State Budget and Control Board, through the Office of
Insurance Services, is authorized to provide insurance for duly
appointed members of the boards and employees of health system
agencies, and for members of the State Health Coordinating Council
which are created pursuant to Public Law 93-641.
(F) The board, through the Office of Insurance Services, is
further authorized to provide insurance as prescribed in Sections
10-7-10 through 10-7-40, 59-67-710, and 59-67-790.
(G) Documentary or other material prepared by or for the Office
of Insurance Services in providing any insurance coverage
authorized by this section or any other provision of law which is
contained in any claim file is subject to disclosure to the extent
required by the Freedom of Information Act only after the claim is
settled or finally concluded by a court of competent
jurisdiction."
SECTION 10. Section 1-19-230 of the 1976 Code is amended to
read:
"Section 1-19-230. Each reorganization plan which shall
take effect under this chapter shall be filed with the Secretary of
State Governor immediately after it shall stand
approved by the General Assembly and shall be printed in the Acts
and Joint Resolutions of the session at which it was
approved."
SECTION 11. Section 1-23-100 of the 1976 Code is amended to
read:
"Section 1-23-100. This article shall not apply to
Executive Orders, proclamations or documents issued by the
Governor's Office. However, Governor's Executive Orders, having
general applicability and legal effect shall be transmitted by the
Secretary of State Governor to the Legislative
Council to be published in a separate section of the State Register
for information purposes only. Such orders shall not be subject to
General Assembly approval."
SECTION 12. Section 2-1-50 of the 1976 Code is amended to
read:
"Section 2-1-50. The clerk of the House of
Representatives shall within ten days from the adjournment of the
General Assembly sine die send the names of all persons elected or
appointed by the General Assembly during the session to the
Secretary of State Governor, together with the
action of the General Assembly with reference thereto, and the
Secretary of State Governor shall keep them for
public inspection."
SECTION 13. Section 2-5-60 of the 1976 Code is amended to
read:
"Section 2-5-60. Each designation of an emergency
interim successor shall become effective when the legislator or
presiding officer making the designation files with the Secretary
of State Governor the successor's name, address and
rank in order of succession. The removal of an emergency interim
successor or change in order of succession shall become effective
when the legislator or presiding officer so acting files this
information with the Secretary of State Governor.
All such data shall be open to public inspection. The Secretary
of State Governor shall inform the Governor,
the State Office of Civil Defense, the clerk of the House concerned
and all emergency interim successors, of all such designations,
removals and changes in order of succession. The clerk of each
House shall enter all information regarding emergency interim
successors for the House in its public journal at the beginning of
each legislative session and shall enter all changes in membership
or order of succession as soon as possible after their
occurrence."
SECTION 14. Section 2-7-80 of the 1976 Code, as last amended
by Section 1, Act 194 of 1987, is further amended to read:
"Section 2-7-80. The clerks of the two houses of the
General Assembly are directed to have printed all statewide acts
after their approval by the Governor and to place upon the desk of
each member of the General Assembly, not later than two weeks
after the approval date, a copy of such acts and to mail copies to
the house of those members who request such services and, after
sine die adjournment each year, to mail a copy of all acts not
placed on the members' desks during the session to the home
address of each member of the General Assembly. In addition, three
copies must be mailed to each clerk of court in the State, to the
head of each state department and institution, to the Chief Justice
and associate justices of the Supreme Court, to the Chief Judge and
associate judges of the Court of Appeals, and each judge of the
judicial circuits. Likewise, printed copies of local acts approved by
the Governor must be furnished to the members of the legislative
delegation from the county involved. The Secretary of State
Legislative Council shall notify the respective clerks
immediately upon receipt of all acts available to them for
proofreading. Copies of printed statewide acts of the General
Assembly must be supplied to the county clerks of court and county
boards of commissioners."
SECTION 15. Section 2-7-240 of the 1976 Code is amended to
read:
"Section 2-7-240. No act or joint resolution lodged in the
Secretary of State's Legislative Council's office
over fifteen days shall be corrected as hereinabove provided for in
this article."
SECTION 16. Section 2-11-10 of the 1976 Code, as last
amended by Act 157 of 1989, is further amended to read:
"Section 2-11-10. There is hereby created a Legislative
Council of the General Assembly of South Carolina, the
membership of which shall be composed of the President of the
Senate, the Speaker of the House of Representatives, the
Secretary of State, Attorney General, the chairman of
the Judiciary Committee of the Senate or his designee, and the
chairman of the Judiciary Committee of the House of
Representatives."
SECTION 17. Section 2-13-140 of the 1976 Code is amended to
read:
"Section 2-13-140. The Code Commissioner and the
Legislative Council shall have access to State papers and documents
in the custody of the Secretary of State or other custodians
of the State laws and archives. The Attorney General and his office,
the South Carolina Archives Department and other State agencies
and State officers shall on request of the Commissioner and Council
cooperate in the codifying of the general statutory law."
SECTION 18. 2-13-190 of the 1976 Code, as last amended by
Act 181 of 1993, is further amended to read:
"Section 2-13-190. Within five days after receiving such
page proofs corrected from the Code Commissioner, the Office of
Legislative Printing and Information Technology Resources
(LPITR) shall print the same and shall deliver as many copies to
the Code Commissioner as the commissioner may order. The Code
Commissioner on receipt of such copies shall send a copy to each
of the following officers: The Governor, Supreme Court Justices,
Clerk of the Supreme Court, Court of Appeals Judges, Clerk of the
Court of Appeals, circuit judges, circuit solicitors, county judges,
county solicitors, clerk of the court of each county, judge of probate
of each county, Attorney General, Secretary of State,
Comptroller General, Adjutant General, State Treasurer, Chief Bank
Examiner, Department of the Revenue and Taxation, Director of the
Department of Transportation, State Health Officer, Director of the
Department of Natural Resources, Chairman of the Public Service
Commission, Commissioner of Agriculture, Director of the
Department of Insurance, State Budget and Control Board, State
Superintendent of Education, State Librarian, Clerk of the House of
Representatives, Clerk of the Senate, Director of the South Carolina
Archives Department, and the members of the General Assembly.
Any magistrate may obtain a copy of advance sheets of statutes by
sending his name, address, and term to the Code
Commissioner."
SECTION 19. Section 2-13-240 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 2-13-240. (a) Sets of the Code of Laws of
South Carolina, 1976, shall be distributed by the Legislative
Council as follows: Governor, three; Lieutenant Governor, two;
Secretary of State, three; Treasurer, one; Attorney General,
fifty; Adjutant General, one; Comptroller General, two;
Superintendent of Education, two; Commissioner of Agriculture,
two; each member of the General Assembly, one; office of the
Speaker of the House of Representatives, one; Clerk of the Senate,
one; Clerk of the House of Representatives, one; each committee
room of the General Assembly, one; each member of the
Legislative Council, one; Code Commissioner, one; Legislative
Council, ten; Supreme Court, fourteen; Court Administration Office,
five; each circuit court judge, one; each circuit court solicitor, one;
each family court judge, one; each county court judge, one; College
of Charleston, one; The Citadel, two; Clemson University, three;
Francis Marion College, one; Lander College, one; Medical
University of South Carolina, two; South Carolina State College,
two; University of South Carolina, four; each regional campus of
the University of South Carolina, one; University of South Carolina
Law School, forty-six; Winthrop College, two; each technical
college or center, one; each county governing body, one; each
county clerk of court and register of mesne conveyances where such
offices are separate, one; each county auditor, one; each county
coroner, one; each county magistrate, one; each county master in
equity, one; each county probate judge, one; each county public
library, one; each county sheriff, one; each public defender, one;
each county superintendent of education, one; each county treasurer,
one; Library of Congress, three; United States Supreme Court, one;
each member of Congress from South Carolina, one; each state
library which furnishes this State a free set of its Code of Laws,
one; Division of Aeronautics of the Department of Commerce, one;
Department of Alcohol and other Drug Abuse Services, one;
Department of Archives and History, one; Board of Bank Control,
one; Commissioner of Banking, one; Budget and Control Board
(Auditor, six; General Services Division, six; Personnel Division,
one; Research and Statistical Services Division, one; Retirement
System, one); Children's Bureau, one; Department of Consumer
Affairs, one; Department of Corrections, two; Criminal Justice
Academy, one; Department of Commerce, five; Employment
Security Commission, two; Ethics Commission, one; Forestry
Commission, one; Department of Health and Environmental
Control, five; Department of Transportation, five; Department of
Public Safety, five; Human Affairs Commission, one; Workers'
Compensation Commission, seven; Department of Insurance, two;
Department of Juvenile Justice and Aftercare, one; Department of
Labor, Licensing and Regulation, two; South Carolina Law
Enforcement Division, four; Legislative Audit Council, one; State
Library, three; Department of Mental Health, three; Department of
Disabilities and Special Needs, five; Ports Authority, one;
Department of Probation, Parole and Pardon, two; Public Service
Commission, three; Reorganization Commission, one; Department
of Social Services, two; Department of Revenue and Taxation, six;
Board for Technical and Comprehensive Education, one; Veterans'
Affairs Division of the Governor's office, one; Vocational
Rehabilitation, one; Department of Natural Resources, four.
(b) If any technical college or center offers a course in paralegal
practice such college or center shall be allowed two additional sets
of the Code.
(c) All remaining copies of the Code may be sold or distributed
in the best interest of the State as may be determined by the
Legislative Council.
(d) The provisions of Sections 8-15-30 and 8-15-40 of the 1976
Code shall not apply to members of the General Assembly,
members of the Legislative Council and the Code
Commissioner."
SECTION 20. Section 2-17-17 of the 1976 Code, as added by
Section 54, Part II, Act 164 of 1993, is amended to read:
"Section 2-17-17. A department director, constitutional
officer, agency director, state board or commission, or governing
body of any other entity of state government whose department,
office, agency, board, commission, or entity employs or contracts
with a lobbyist, as defined in Section 2-17-10, who is not a
full-time employee of the state, from funds appropriated in the
annual general appropriations act, must retain and use a portion of
these funds to provide in a timely fashion copies of the disclosure
statements and reports filed by the lobbyist with the Secretary of
State or State Ethics Commission by mail to the home address
of each member of the board, commission, or governing body,
authority or official of such department, agency, or entity."
SECTION 21. Section 3-1-150 of the 1976 Code is amended to
read:
"Section 3-1-150. Whenever a duly authorized official or
agent of the United States, acting pursuant to authority conferred by
the Congress, notifies the Budget and Control Board or any other
State official, department or agency, that the United States desires
or is willing to relinquish to the State the jurisdiction, or a portion
thereof, held by the United States over the lands designated in such
notice, the Budget and Control Board may, in its discretion, accept
such relinquishment. Such acceptance may be made by sending a
notice of acceptance to the official or agent designated by the
United States to receive such notice of acceptance. The Budget and
Control Board shall send a signed copy of the notice of acceptance,
together with the notice of relinquishment received from the United
States, to the Secretary of State Governor, who
shall maintain a permanent file of the notices.
Upon the sending of the notice of acceptance to the designated
official or agent of the United States, the State shall immediately
have such jurisdiction over the lands designated in the notice of
relinquishment as the notice shall specify.
The provisions of this section shall apply to the relinquishment of
jurisdiction acquired by the United States under the provisions of
Sections 3-1-110 and 3-1-120."
SECTION 22. Section 3-3-210 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 3-3-210. Subject to the rights of the South
Carolina Department of Natural Resources or its successors to lease
and subject to the rights of the people of the State to gather oysters
and other shellfish on any of the lands hereinafter described, there
has been granted to the United States all of the marshlands, sand
banks, shores, edges and lands uncovered by water at low tide
which are included within the outside boundaries of the premises
hereinafter described or which are contiguous and adjacent to such
boundaries, to wit:
(1) All that plantation or tract of land containing a body of
marshland, in all seven thousand five hundred and sixty-eight
(7,568) acres, situate in and around Bull Bay, in the county of
Charleston, embracing those islands known as White Banks, being
the premises granted to Richard T. Morrison, September 1, 1860,
by grants recorded in book Q No. 6, pages 218 and 219, in the
office of the Secretary of State Governor, plats of
which tracts are also recorded in volume 57, page 429 and page
430, in the office of the Secretary of State
Governor;
(2) All those fifteen islands, together containing sixteen
thousand nine hundred and ninety-two (16,992) acres, situate near
Bull Bay in Charleston County, which islands as a group bound east
on the Atlantic Ocean, to the west partly on Bull Bay, to the
northward on creeks and marshes, names unknown, and to the
southward on Raccoon Keys, being the islands granted to John
Bowman, August 1, 1791, by grant recorded in grant book No. 5,
page 205, in the office of the Secretary of State
Governor aforesaid, and subsequently conveyed to
H. P. Jackson by deed recorded in book Y-20, page 216, in the
R.M.C. office for Charleston County aforesaid, a plat of
which islands is recorded in plat book 1, page 205, in the office of
the Secretary of State Governor aforesaid
and also in plat book B, page 136, in the R.M.C. office
aforesaid;
(3) All that tract of land, marsh and sandbank, known as the
Casinas, containing three hundred and sixty (360) acres, more or
less, near Cape Romain in Charleston County, being the tract
granted to John Lee, William Lee and Charles E. Lee, August 3,
1840, by grant recorded in grant book O No. 6, page 485, in the
office of the Secretary of State aforesaid Governor,
and subsequently conveyed to Henry P. Jackson, by deed recorded
in book Y-20, page 214, in the R.M.C. office aforesaid, a
plat of which tract is recorded in volume 42, page 68, in the office
of the Secretary of State aforesaid Governor and in
book B, page 133, in the R.M.C. office aforesaid;
(4) All that tract of land known as Cape Romain and Bird
Bank containing nine hundred and seventy (970) acres, situated in
Charleston County, being the premises granted to John Lee,
William Lee and Charles E. Lee, by grant recorded in grant book O
No. 6, page 486, in the office of the Secretary of State
aforesaid Governor and subsequently conveyed to H. P.
Jackson by deed recorded in book Y-20, page 215, in the R.M.C.
office aforesaid, a plat of which is recorded in plat book B,
page 131, in the R.M.C. office aforesaid;
(5) All that tract of land containing five thousand five
hundred and sixty (5,560) acres on an island known as Big and
Little Raccoon Keys, situate in Charleston County, which island
bounds eastward on Cape Romain Inlet, southward on the Atlantic
Ocean and westward on Bull Bay, being the island granted to John
Vinyard, October 7, 1816, by grant recorded in volume 61, page
86, in the office of the Secretary of State aforesaid
Governor, and subsequently conveyed to H. P. Jackson by
deed recorded in book Y-20, page 213, in the R.M.C. office
aforesaid; and
(6) All that tract of land and marshland containing one
thousand and forty (1,040) acres, more or less, situate in Christ
Church Parish in Charleston County, bounded on the north and
northeast by Palmetto Creek, to the north and northwest by lands
late of the estate of Whitesides, C. B. Northrop, Hodge and Kelly,
south and southwest by lands late of Moses Whitesides, Esq., south
and southeast by a creek known as No Man's Friend Creek, being
the tract granted to C. B. Northrop, July 2, 1855, by grant recorded
in book Q No. 6, page 67, in the office of the Secretary of
State Governor and subsequently conveyed to H. P.
Jackson by deed recorded in book Y-20, page 217, in the R.M.C.
office aforesaid, a plat of which tract is recorded in State
record volume 43, page 270, and also in book B, page 132, in the
R.M.C. office aforesaid.
Jurisdiction; migratory bird refuge.-Subject to the rights of the
South Carolina Department of Natural Resources as provided above
the United States shall have exclusive jurisdiction on the lands so
granted for the purpose of carrying out the provisions of the act of
Congress approved February 18, 1929, known as the `Migratory
Bird Conservation Act' and all acts hereafter amendatory thereof,
and for the purpose of the preservation and conservation of all
migratory birds which are or hereafter may be under the jurisdiction
of the United States.
Service of process.-Nothing contained in said grant shall be
construed to exclude or prevent any process, civil or criminal,
issuing from the courts of this State from being served or executed
within the limits of said grant.
Reverter when no longer used for game refuge.-The lands so
granted shall revert to the State in the event the United States shall
cease to use said lands for the purpose of a migratory bird refuge.
Consent to conveyance of part of such lands.-The consent of the
State has also been given to the conveyance by the United States or
its duly authorized agency, to I. W. Limbaker of tract `A,' as
shown on plat of the Intercoastal Waterway, Winyah
Bay-Charleston, Canal Prism and Spoil Disposal Areas, prepared by
the United States engineer office, Charleston, South Carolina,
February 6, 1939, and on file in the United States engineer office
aforesaid in file No. 42-4, said tract `A' having been a
portion of the lands granted the United States as aforesaid,
in exchange for the conveyance by I. W. Limbaker to the United
States or its duly authorized department, or tract `B,' as shown on
said plat, the granting clause of said conveyance from I. W.
Limbaker reading as follows:
`That the said deeded land shall revert to the State of South
Carolina in the event the United States of America ceases to use the
said lands for the purpose of a migratory bird refuge.' And it is
hereby specifically declared that said tract `A' shall not revert to the
State on account of said conveyance, but having been conveyed to
I. W. Limbaker as so authorized, shall be freed of the provision for
reversion contained in the cession of said property to the United
States."
SECTION 23. Section 3-3-220 of the 1976 Code is amended to
read:
"Section 3-3-220. Certain marshlands next adjacent to
Castle or Fort Pinckney, not previously ceded to the United States,
and consisting of fifty acres of marshlands, more or less, were
granted to the United States in 1898 for the purpose of erecting,
constructing and maintaining a home or sanatorium for disabled
officers, soldiers and sailors of the Army and Navy of the United
States.
Land tax exempt. Such lands shall so long as they shall be used
for the purpose aforesaid be exonerated and discharged from
all taxes, assessments and other charges which may be imposed
under the authority of this State.
Plat to be made and filed. The proper officers of the United
States in charge of such institution were required to cause to be
executed a plat of the lands which were acquired for such purpose
and file it in the office of the Secretary of State
Governor of this State."
SECTION 24. Section 3-3-340 of the 1976 Code is amended to
read:
"Section 3-3-340. Other lands that have been ceded to the
United States are:
(1) Fort Moultrie, on Sullivan's Island, Charleston County.
In addition to the lands mentioned in Section 3-3-240, all the lands
originally reserved for Fort Moultrie, on Sullivan's Island, in
Charleston County, not in excess of five acres, with all the forts,
fortifications and buildings thereon, together with the canal leading
from the cove on the back of the fort nearly up to the same, as
delineated on the plan of Charleston Harbor by Col. Senf in the
Secretary of State's Governor's office at Columbia;
(2) Fort Johnson, Charleston County. The high lands and
part of the marsh belonging to Fort Johnson not in excess of
twenty acres, as delineated on said plan of Charleston Harbor,
including the present site of Fort Johnson;
(3) Fort Pinckney, Charleston County. The land on which
Fort Pinckney is built and three acres around the same in Charleston
County;
(4) Sandbank on southeast point of Charleston. A portion of
the sandbank marked `C' on the southeasternmost point of
Charleston, as delineated on said plan of Charleston Harbor, not
exceeding two acres;
(5) Ten acres on Blythe's Point, Sampit River, in Georgetown
County. A lot, not exceeding four acres, for a battery or fort and
necessary buildings on Dr. Blythe's point of land at the mouth of
Sampit River, Georgetown County, and a quantity of land, not
exceeding six acres, on Dr. Blythe's said point of land at the mouth
of Sampit River, adjoining and in addition to such four acres; and
for the same purposes;
(6) Mustard Island and seven acres on St. Helena Island,
Beaufort County. Mustard Island, opposite Parris Island, in
Beaufort River, and a tract of land on St. Helena Island, opposite
Mustard Island, not exceeding seven acres in Beaufort County;
(7) Five acres in Beaufort, Beaufort County. Five acres of
the public lands near the town of Beaufort, including the site of
Fort Lyttleton in Beaufort County, for the purpose of erecting a
fort;
(8) Site at Mount Pleasant, Charleston County. A site for a
lighthouse in or near Mount Pleasant in Charleston Harbor, not
exceeding one acre;
(9) Site at White Point, in Charleston County. A site for a
beacon light at White Point, in the city of Charleston, as heretofore
designated by the city council of Charleston;
(10) Site at Fort Point in Georgetown County. A site, not
exceeding twenty acres, for a lighthouse on Fort Point, near
Georgetown in Georgetown County;
(11) Shore line of Sullivan's Island for jetty for Charleston
Harbor. A quantity of land on Sullivan's Island in Charleston
Harbor, not exceeding three hundred feet in length and two hundred
feet in breadth, for the shore line of a jetty erected for the
improvement and deepening of the bar of Charleston Harbor,
described and located as follows: Starting from the magistral of the
northeast salient angle of Fort Moultrie, thence running south two
degrees, seven and one-half minutes (2° 7 1 /2 ' ) east,
eight hundred and forty-six (846) feet, to a point near high-water
line on the south shore of Sullivan's Island; thence north eighty-six
degrees, thirty-five and one-half minutes (86° 35 1 /2 ' )
east, two thousand eight hundred (2,800) feet, to a point near the
same high-water line; thence north seventy-seven degrees,
thirty-eight and one-half minutes (77° 38 1 /2 ' ) east, two
thousand one hundred and ninety and one-half (2,190 1 /2 et, to a
point on the high-water line of said shore which is the southwest
angle of the tract hereby conveyed; thence north seventy-seven
degrees, thirty-eight and one-half minutes (77° 38 1 /2 ' )
east, along said water line three hundred (300) feet; thence north
twelve degrees, twenty-one and one-half minutes (12° 21 1
/2 ' ) west, two hundred (200) feet; thence south seventy-seven
degrees, thirty-eight and one-half minutes (77° 38 1 /2 ' )
west, three hundred (300) feet; thence south twelve degrees,
twenty-one and one-half minutes (12° 21 1 /2 ' ) east, two
hundred (200) feet, to the high-water line at the before-mentioned
southwest angle of the tract herein conveyed; together with the
accretion on the three hundred (300) feet of water front of said
tract;
(12) Shore line on Morris Island for jetty for Charleston
Harbor. A quantity of land on Morris Island in Charleston Harbor
sufficient for the erection of a shore line of a jetty for the
improvement and deepening of the bar of Charleston Harbor, not
exceeding fifteen hundred feet in length, measured on the
high-water line, and two hundred feet in breadth, as located and
selected from the land formerly owned by the State at the north end
of Morris Island, together with the accretion on the water front of
such land so granted, for the purposes aforesaid. And also such
other quantity of land on Morris Island as may be needed for the
shore line of the jetty aforesaid, belonging or formerly belonging to
any person other than the State if and when such land has been
conveyed by the owner thereof to the United States; provided a
plat of all such lands be made and be deposited in the office of the
Secretary of State Governor under the supervision
and direction of the proper officer of the United States in charge of
the jetties;
(13) Lands connecting Winyah Bay and Santee River. Such
lands as may be required for the purpose of connecting Winyah Bay
and Santee River in Georgetown County so as to facilitate
commerce;
(14) Tracts in Charleston, Beaufort and Georgetown Counties
for quarantine purposes. The right, title and interest of this State to,
and the jurisdiction of this State over, the following described tracts
of land and land covered by water, situated in the counties of
Charleston, Beaufort and Georgetown, granted and ceded to the
United States for the purposes of quarantine, to wit:
(a) A Tract of Land on James' Island and Buildings.-A tract
of land on James' Island, Charleston Harbor, lying and being upon
the easterly, southerly and westerly sides of the land belonging to
the United State Government and known as the Fort Johnson
Reservation, being ninety acres, more or less, and including the
marshland and tide flats east and south of said Fort Johnson
Reservation to low-water line and the buildings then on said
ninety-acre tract;
(b) Quarantine Station at Georgetown.-The quarantine
station at Georgetown, on South Island, entrance to Georgetown
Harbor, consisting of five acres of land, more or less, a residence
and outbuildings;
(c) Quarantine Station at Buzzard's Island, Beaufort
County.-The quarantine station on Buzzard's Island, at the entrance
of St. Helena Sound, consisting of ten acres, more or less, officers'
quarters, two hospital buildings and quarters for crew;
(d) Quarantine Station at Parris Island, Beaufort
County.-The quarantine station on Parris Island, Port Royal Sound,
consisting of fifteen acres, more or less, an officer's residence, two
hospitals and outbuildings; and
(15) Portion of Laurel Street in Columbia. That portion of
Laurel Street in the city of Columbia that was being used on April
19 1943 for a recreational center by the United States."
SECTION 25. Section 3-5-10 of the 1976 Code is amended to
read:
"Section 3-5-10. For the purpose of aiding in the
construction and maintenance by the United States of the projects
approved by Congress by the River and Harbor Act approved
August 26, 1937 for the construction of the intracoastal waterway
from the Cape Fear River, North Carolina, to the Savannah River,
Georgia (Rivers and Harbors Committee Document No. 6, 75th
Congress, first session), of the Ashley River, South Carolina,
project (House Document No. 449, 74th Congress, second session)
and of the Shipyard River, South Carolina, project (Rivers and
Harbors Committee Document No. 38, 75th Congress, first session)
and any changes, modifications or extensions thereto and any
tributaries thereof, the Governor and the Secretary of State
may issue to the United States of America a grant or grants of a
perpetual right and easement to enter upon, excavate, cut away and
remove any and all of the land, including submerged lands,
composing a part of the prism required for the channels, anchorage
areas and turning basin, and their slopes and berms, as may be
required at any time for construction and maintenance of said
intracoastal waterway from Winyah Bay, South Carolina, to the
State boundary line in the Savannah River and any changes,
modifications or extensions thereto and any tributaries thereof and
for said Ashley River and Shipyard River projects and to maintain
the portions so excavated and the channels, anchorage areas and
turning basin thereby created as a part of the navigable waters of
the United States and a further perpetual right and easement to enter
upon, occupy and use any portion of the land, including submerged
land, composing a part of the spoil disposal area not so cut away
and converted into public navigable waters as aforesaid, for the
deposit of dredged material and for such other purposes as may be
needful in the construction, maintenance and improvement of said
intracoastal waterway and any changes, modifications or extensions
thereto and any tributaries thereof and of the Ashley River and
Shipyard River projects, in so far as such lands, including
submerged lands, are subject to grant by the State, such grant to
issue upon a certificate showing the location and description of such
rights of way and spoil disposal areas furnished to the Governor by
the Secretary of the Army, any authorized officer of the Corps of
Engineers of the United States Army or any other authorized
official exercising control over the construction or maintenance of
such projects."
SECTION 26. Section 3-5-30 of the 1976 Code is amended to
read:
"Section 3-5-30. The Governor and Secretary of
State may issue to the United States of America a grant or
grants within such limits as above specified of a perpetual right and
easement to enter upon, excavate, cut away and remove any and all
of the land raised above water as mentioned in Section 3-5-20,
including submerged land, composing a part of the prism required
for the channels, anchorage areas and turning basin, their slopes and
berms, as may be required at any time for the construction and
maintenance of said intracoastal waterway from Winyah Bay, South
Carolina, to the State boundary line in the Savannah River and any
changes, modifications or extensions thereto and any tributaries
thereof and for the Ashley River and Shipyard River projects and
to maintain the portions so excavated and the channels, anchorage
areas and turning basin thereby created as a part of the navigable
waters of the United States and a further perpetual right and
easement to enter upon, occupy and use any portion of such land,
including submerged land, composing a part of the spoil disposal
areas not so cut away and converted into public navigable waters, as
aforesaid, for the deposit of dredged material and for such other
purposes as may be needful in the construction, maintenance and
improvement of such intracoastal waterway and any changes,
modifications or extensions thereto and any tributaries thereof and
the Ashley River and Shipyard River projects, the grant or grants to
issue upon a certificate furnished to the Governor by some
authorized official of the United States as provided in Section
3-5-10."
SECTION 27. Section 3-5-40 of the 1976 Code, as last amended
by Act 181 of 1993, is further amended to read:
"Section 3-5-40. If the title to any part of the lands,
including submerged lands, property or property rights, required by
the United States Government for the construction and maintenance
of the aforesaid intracoastal waterway from Winyah Bay, South
Carolina, to the State boundary line in the Savannah River and any
changes, modifications or extensions thereto and any tributaries
thereof, and the Ashley River and Shipyard River projects shall be
in any private person, firm or corporation, telephone or telegraph
company or other public service corporation or shall have been
donated or condemned for public or public service purposes by any
political subdivision of this State or any public service corporation,
the South Carolina Department of Health and Environmental
Control may, acting for and in behalf of the State, secure the above
described rights of way and spoil disposal areas for such
intracoastal waterway and all its tributaries and for the Ashley River
and Shipyard River projects upon, across and through such lands,
including submerged lands, or any part thereof, including oyster
beds, telephone and telegraph lines, railroad lines, property of other
public service corporations and other property and property rights,
by purchase, donation or otherwise, through agreement with the
owner when possible. And when any such easement or property is
thus acquired the Governor and the Secretary of State shall
execute a deed for it to the United States."
SECTION 28. Section 3-5-310 of the 1976 Code is amended to
read:
"Section 3-5-310. For the purpose of aiding in the
construction of the proposed inland waterway by the United States
from the North Carolina-South Carolina State line at Little River to
Winyah Bay the Governor and the Secretary of State may
issue to the United States of America a grant to the land located
within said inland waterway right of way of a width of one
thousand feet when the land does not exceed eight feet in elevation
above mean low water, with increased widths approximately in
proportion to the quantity of excavation required as the elevation of
the land increases until a maximum of one thousand seven hundred
and fifty feet is reached when the ground elevation is thirty feet or
more above mean low water, in so far as such land is subject to
grant by the State, such grant to issue upon a certificate showing
the location and description of such right of way furnished to the
Governor by the Secretary of the Army or by an authorized officer
of the Corps of Engineers of the United States Army or by any
other authorized official exercising control over the construction of
said waterway. Whenever in the construction of such inland
waterway within this State lands theretofore submerged shall be
raised above the water by the deposit of excavated material, the
lands so formed shall become the property of the United States if
within the limits of such inland waterway right of way and the
Governor and the Secretary of State may issue to the United
States of America a grant to the land so formed within such limits
as above specified, the grant to issue upon a certificate furnished to
the Governor by some authorized official of the United States as
above provided."
SECTION 29. Section 3-5-320 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 3-5-320. If the title to any part of the lands
required by the United States Government for the construction of
the aforesaid inland waterway from the North Carolina-South
Carolina State line at Little River to Winyah Bay shall be in any
private person, company, firm or corporation, railroad company,
canal company, telephone or telegraph company or other public
service corporation or shall have been donated or condemned for
any such use by any political subdivision of this State, the
Department of Health and Environmental Control may, acting for
and in behalf of the State, secure a right of way of the width
aforesaid for such inland waterway upon, across and through such
lands or any part thereof by purchase, donation or otherwise,
through agreement with the owner when possible, and when any
such property is thus acquired the Governor and the Secretary of
State shall execute a deed for it to the United States."
SECTION 30. Section 3-5-330 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 3-5-330. If for any reason the Department of
Health and Environmental Control is unable to secure the
right-of-way upon, across, or through the property by voluntary
agreement with the owner, the Department of Health and
Environmental Control acting for the State, may condemn the
right-of-way. The Governor and the Secretary of State shall
promptly execute a deed for the condemned property to the United
States."
SECTION 31. Section 4-3-330 of the 1976 Code is amended to
read:
"Section 4-3-330. Kershaw County is bounded on the
southeast by Lee and Sumter Counties from which it is divided by a
line beginning at Spivey's Ferry on Lynch's River and extending
along the Lee County line to the point where the line between Lee
County and Sumter County meets the line of Kershaw County;
thence in a southwest direction along the Sumter County line to the
Wateree River; on the southwest by Richland County, from which it
is divided by a line beginning at the Wateree River, opposite to the
last-mentioned point, and running S. 66° W. or by Raglin's
Creek to Speer's Creek; thence up Raglin's Creek to its head;
thence by a straight line N. 40.75° W. 10 miles 17 chains;
thence N. 56.5° W. 1 mile 14 chains to a point over Rice
Creek on Peay's plantation, nearly half a mile above the fork of
Twenty-five Mile Creek; on the west by Fairfield County, from
which it is separated by a line drawn from the last-mentioned point
N. 18.25° E. 23 miles 14 chains or until it intersects the
Wateree River and up said river 1 /2 mile above Peay's Ferry; on
the northwest and north by Lancaster County from which it is
divided by the following lines: beginning at a point on Catawba
River 1 /2 mile above Peay's Ferry, thence N. 54° E. 9
miles 62 chains to stone corner near Russell Place; thence N.
74° E. 1 mile 37 chains and 50 links to corner at Hammond's
Springs 75 feet left; thence N. 48° E. 2 miles 63 chains to
stone corner near Hanging Rock Bridge; thence south along the
Salisbury Road 4 miles 16 chains to corner near Bethel Church;
thence N. 66° E. 14 miles 76 chains 16 links to Lynch's
River, separating Chesterfield from Kershaw and Lancaster
Counties; on the northeast by Chesterfield and Darlington Counties,
from which it is separated by Lynch's River down to the place of
beginning, less the following territory transferred to Lee County by
act of the General Assembly approved March 7 1921, to wit:
commencing at that point on the McCullum public road from
Bishopville to Camden, west of Marshall's just where the present
boundary line between Lee and Kershaw Counties enters said road;
thence a northerly direction to a point where the lands now or
formerly owned by Joseph Radcliffe, D. L. Johnson and Richard
Cullum corner; thence in a northeasterly direction to Neil's crossing
on Thickhead Swamp; thence in a northeasterly direction along the
boundary line between lands now or formerly owned by M. H. Pate
and Wesley McCaskill to neighborhood road leading from the
McCullum road by residence of Wesley McCaskill; thence in a
northerly direction along said road to the point where the land now
or formerly owned by J. S. Tisdale corners with the land now or
formerly belonging to the estate of Bullock; thence in a
northeasterly direction along the boundary line between said lands
of estate of Bullock and lands now or formerly owned by J. S.
Tisdale and between lands now or formerly belonging to J. J. Self
and Wiley Hatfield to neighborhood road, known as Riley's old
road; thence with the said road in a northeasterly direction to the
intersection of Lee County and Kershaw County boundary lines;
thence with the Lee County line back to the beginning point. To the
above-described area of Kershaw County is to be added that
territory transferred from Lee County by act approved March 5
1925, to wit: all that small portion of Lee County containing one
thousand and seventeen acres, or one and 58 /100 square miles, as
shown by plat thereof on file in the office of the Secretary of
State Governor, executed by H. W. Shaw and A. B.
Boykin, surveyors, dated June 25 and 26 1924, that is to say, that
body of land which lies between the lines heretofore dividing the
said two counties, and the line represented on said plat as beginning
at Harbord Branch where the line between the said two counties
crosses said branch running thence S. 41° E. 3319 feet;
thence 27° 30' E. 1025 feet; thence S. 79° W. 2530
feet; thence S. 1° W. 5147.09 feet; thence S. 8° 15' E.
3288 feet; thence S. 33° W. 8225 feet; thence N. 78°
30' W., to the Three Notch Road, be and the same is hereby
annexed to Kershaw County, and the lines heretofore dividing the
said two counties are altered accordingly."
SECTION 32. Section 4-3-360 of the 1976 Code is amended to
read:
"Section 4-3-360. Lee County is bounded as follows:
beginning at Field's Bridge on Lynch's River and running down
said river a distance of thirteen miles, leaving said river back of
Irby Truluck's plantation and crossing the Lynchburg and Lake City
Road between the places now or formerly belonging to Bob Welsh
and Dr. Miller a course S. 28° W. 3.25 miles striking a new
road; thence S. 80° W. 2.75 miles to the Pudding Swamp
Road at the land now or formerly T. L. Kirkpatrick's; thence S.
65° W. crossing Raccoon Road at the place now or formerly
Sam Wilson's 5.75 miles to Scottsville; thence from Scottsville S.
76.25° W. .75 of a mile to Black River; thence up Black
River, in Sumter County, 3.75 miles to Witherspoon Crossing;
thence S. 80° W. to Scape O'er Swamp; thence up said
swamp 2 5 /8 miles to the C. S. & N. R. R. Crossing; thence
N. 80° W. to a pine on the old dividing line between Lee and
Sumter Counties on the west side of the public road leading from
Oswego to DuBose's Cross Roads, and at a distance of .4 of a mile
from the center of said public road; and running thence N.
16° 27' W. 1.74 miles to a point in the center of said public
road leading from Oswego to DuBose's Cross Roads about opposite
the dwelling of Mrs. Martin; thence along the center of said public
road for a distance of 1.27 miles to DuBose's Cross Roads; thence
N. 61° 10' W. along the center of the road leading to
Herriott's Cross Roads, a distance of .3 of a mile; thence S.
87° 35' W. a distance of 3.23 miles to the bridge at the main
run of Open Branch on the road leading to Bradford's Springs;
thence S. 63° 20' W. a distance of 1.11 miles to a point in
field now or formerly Stanyarne Burrow's; thence S. 43° 50'
W. to the intersection with the line between Lee and Sumter
Counties; thence N. 62° 5.37 miles to a point in Bradley's
field near the Kershaw County line; thence due north 1.87 miles to
Kershaw County line; thence down said line 2.62 miles to
Reynold's Mill; thence following the Three Notch Road, in
Kershaw County, a distance of 3 miles to Antioch schoolhouse;
thence N. 50° E. 1.25 miles; thence due north 1.75 miles to
the Camden Road; thence following said road a distance of 4.75
miles to Harrison Hall Mill; thence in an eastern direction 1.87
miles to the old Georgetown Road; thence up said road to near the
head of Turkey Creek; thence in a northern line to the Camden
Road leading from Kelly's Bridge on Lynch's River to Camden;
thence down said road to the Holland Ditch; thence up said ditch
.75 of a mile to a corner of plantation now or formerly belonging to
Edmond Tiller; thence 63° E. crossing the Mecklenburg Road
near the house now or formerly occupied by Whitfield Gardner to
Lynch's River south of the place now or formerly Dr. Norwood's
3.37 miles; thence down said river a distance of 3 miles near
Kelly's Bridge, .25 of a mile south of said bridge; thence N.
42° E. 3 miles to Ashland Methodist Church; thence N.
22° E. crossing the Chesterfield road between the property
now or formerly belonging to J. E. Woodham and the property now
or formerly J. W. Gardner's 2.62 miles to Stuckey's gate on the old
State road; thence down said road .75 of a mile; thence due south
2.62 miles to Liberty Hill Church at the head of Sparrow Swamp;
thence down Sparrow Swamp to a point in the Marco Mill Pond,
near the property now or formerly owned by B. A. Howls; thence
in Cypress township S. 28° E. 1.5 miles to Long Branch;
thence up said Branch .25 of a mile; thence S. 28° E. 1 1 /8
miles to Screeches Branch; thence due south 3 miles to the Lamar
township line; thence following said line to the beginning corner,
and in addition the following territory transferred from Kershaw
County by act of the General Assembly, approved March 7 1921, to
wit: commencing at that point on the McCullum public road from
Bishopville to Camden, west of Marshall's church, where the
present boundary line between Lee and Kershaw Counties enters
said road, thence a northern direction to the point where the land
now or formerly owned by Joseph Radcliffe, D. L. Johnson and
Richard Outlaw corner; thence in a northeasterly direction to Neil's
Crossing on Thickhead Swamp; thence in a northeasterly direction
along the boundary line between land now or formerly owned by
M. H. Pate and Wesley McCaskill to neighborhood road leading
from the McCullum road by residence now or formerly occupied by
Wesley McCaskill; thence in a northerly direction along said road to
the point where the land now or formerly owned by J. S. Tisdale
corners with the land now or formerly belonging to the estate of
Bullock; thence in a northeasterly direction along the boundary line
between said lands of estate of Bullock and land of J. S. Tisdale
and between land now or formerly owned by J. J. Self and land
now or formerly owned by Wiley Hatfield to neighborhood road
known as the Riley Hall road; thence with the said road in a
northeasterly direction to the intersection of the Lee County and
Kershaw County boundary line; thence with the Lee County line
back to the beginning point, containing by survey 4.24 square
miles. Less, however, that territory transferred to Kershaw County
by act approved March 5 1925, to wit: all that small portion of Lee
County containing 1017 acres, or 1.58 square miles, as shown by
plat thereof on file in the office of the Secretary of State
Governor executed by H. W. Shaw and A. B. Boykin,
surveyors, dated June 25 and 26 1924, that is to say, that body of
land which lies between the lines heretofore dividing said two
counties, and the line represented on said plat as beginning at
Harbord Branch where the line between the said two counties
crosses said branch running thence S. 41° E. 3319 feet;
thence 27° 30' E. 1025 feet; thence S. 79° W. 2530
feet; thence S. 1° W. 5147.09 feet; thence S. 8° 15' E.
3288 feet; thence S. 33° W. 8225 feet; thence N. 78°
30' W. to the Three Notch Road, be and the same is hereby
annexed to Kershaw County, and the lines heretofore dividing the
said two counties are altered accordingly."
SECTION 33. Section 4-3-370 of the 1976 Code is amended to
read:
"Section 4-3-370. Lexington County is bounded on the
northeast and east by Richland County; on the southeast by
Orangeburg and Calhoun Counties, from which it is divided by
Beaver Creek; on the Southwest by Aiken County, from which it is
separated by the north fork of the Edisto River to the mouth of the
southern branch of Chinquepin Falls Creek and then by said creek
to a point where it intersects the line drawn from Silver Bluff, on
the Savannah River, to the mouth of Rocky Creek, on Saluda River;
on the northwest by Saluda County, from which it is separated by a
line drawn from Silver Bluff, on Savannah River, to the mouth of
Rocky Creek, on the Saluda River; and by Newberry County, from
which it is separated by a line beginning at a point in Broad River,
on the Fairfield-Lexington County line, about .25 of a mile below
Peak, and running thence S. 40° W. to a point on the west
bank of Broad River; thence S. 40° W. 1956 feet to an oak;
thence S. 46° 40' W. 2410 feet to a stone on the public road;
thence S. 41° W. 1143 feet to a stake; thence S. 32°
30' W. 9568 feet to a stake on a branch; thence down the run of the
branch to a stake; thence S. 45° W. 575 feet to a stake;
thence N. 86° 30' W. 3782 feet to a pine; thence S.
26° 30' W. 3650 feet to a stake; thence S. 53° 30' W.
4990 feet to a point on the Columbia, Newberry and Laurens
Railroad; thence S. 73° 30' W. 2613 feet to a maple in a
branch; thence S. 68° 30' W. 2180 feet to a stake near a
negro church; thence N. 77° 30' W. 5577 feet to a stake just
west of the public road, near Little Mountain; thence S. 28°
W. 20850 feet to Camping Creek, near the mouth of Stevens Creek;
thence up the run of Camping Creek to the old
Newberry-Lexington County line; thence southwesterly with the old
Newberry-Lexington County line to Saluda County on Broad River.
Less however, that territory transferred to Richland County by act
approved March 11 1922, to wit: all that certain piece of land
containing 8900 acres, or 14 square miles, situate in the
northeastern part of Lexington County on the Broad River, and
being bounded and delineated as follows, to wit: beginning at a
point on said Broad River, and running S. 41° W. 82.51
chains to a stake, thence turning and running S. 32.5° W.
160.65 chains to a stake, thence running along a creek which
empties into Wateree Creek 42.24 chains to a stake, thence running
to the point where said creek joins Wateree Creek 71.51 chains,
thence running along said Wateree Creek 94 chains, thence turning
and running S. 23° E. 142.50 chains to a point in Slice Creek
known as Rocky Ford, thence turning and running northerly along
Slice Creek 164 chains, thence turning and running easterly along
Wateree Creek 305.00 chains to the point of entrance of Wateree
Creek and Broad River, thence turning and running in a
northwesterly direction along Broad River 410 chains, said piece of
land being bounded on the west by Newberry County, on the south
and southwest by Lexington County, on the south by Richland
County, and on the east and north by the Broad River, being more
particularly known as the plat of said property, completed on
November 25 1921, by W. A. Counts and J. C. Wessinger,
surveyors, said plat being filed in the office of the Secretary of
State Governor. And less that territory transferred to
Newberry County by act approved May 12 1953, to wit: all of that
certain territory or portion of Lexington County embraced within
the following lines and boundaries, to wit: beginning at a point of
the intersection of Lexington County-Saluda County-Newberry
County lines at Saluda River; thence N. 22° 30' E. 17710
feet to Camping Creek; thence in a general southeastern direction
along Camping Creek to confluence of Saluda River; thence in a
northwesterly direction along Saluda River to point of beginning,
being more particularly lined and described on a plat of said
territory by the Columbia Engineering Company, completed
November 1 1952, said plat being filed in the office of the
Secretary of State Governor."
SECTION 34. Section 4-3-410 of the 1976 Code is amended to
read:
"Section 4-3-410. Newberry County is bounded as follows:
on the northwest by Laurens County from which it is separated by
line beginning at Island Ford on Saluda River and running thence
along the old road to O'Dell's Ford on Enoree River; on the north
by a line commencing at O'Dell's Ford on Enoree River and
running thence down Enoree River to Anderson's Ford; thence
along the road to Hill's Ferry on Tyger River; thence down the
same to the mouth; thence down Broad River to a point on the
Fairfield-Lexington County line about one fourth of a mile below
Peak, and running thence S. 40° W. to a point on the west
bank of Broad River; thence S. 40° W. 1956 feet to an oak;
thence S. 46° 40' W. 2410 feet to a stone in the public road;
thence S. 41° W. 1143 feet to a stake; thence S. 32°
30' W. 95.68 feet to a stake on a branch; thence down the run of
the branch to a stake; thence S. 55° W. 575 feet to a stake;
thence N. 86° 30' W. 3782 feet to a pine; thence S.
26° 30' W. 3650 feet to a stake; thence S. 50° 30' W.
4940 feet to a point on the Columbia, Newberry and Laurens
Railroad; thence S. 73° 30' W. 2613 feet to a maple in a
branch; thence S. 68° 30' W. 2180 feet to a stake near a
negro church; thence N. 77° 30' W. 5577 feet to a stake, just
west of the public road near Little Mountain; thence S. 28°
W. 2850 feet to Camping Creek near the mouth of Stevens' Creek;
thence up the run of Camping Creek to the old Newberry-Lexington
County line; thence with the old Lexington-Newberry County line
to the Saluda River; and on the southwest by the Saluda River,
which separates it from Saluda and Greenwood Counties. To the
above-described area of Newberry County is to be added all that
territory transferred from Lexington County by act approved May
12 1953, to wit: all of that certain territory or portion of Lexington
County embraced within the following lines and boundaries, to wit:
beginning at a point of the intersection of Lexington County-Saluda
County-Newberry County lines at Saluda River; thence N.
22° 30' E. 17710 feet to Camping Creek; thence in a general
southeastern direction along Camping Creek to confluence of
Saluda River; thence in a northwesterly direction along Saluda
River to point of beginning, being more particularly lined and
described on a plat of said territory by the Columbia Engineering
Company, completed November 1 1952, said plat being filed in the
office of the Secretary of State Governor."
SECTION 35. Section 4-3-460 of the 1976 Code is amended to
read:
"Section 4-3-460. Richland County is bounded on the
north by Fairfield County, from which it is separated by new
boundary lines set forth and specifically described in the location
and boundary of Fairfield County; on the east by Kershaw County
and Sumter County from which it is separated by the Wateree
River; on the south by Calhoun County; on the west by Lexington
County, from which it is separated by a line beginning on the
Congaree River where the counties of Lexington and Richland meet
on the southern division thereof, and running thence with the
Congaree River to where the confluence of the Broad and Saluda
Rivers unite to form the Congaree, and following the thread of
Saluda River about two and one-half miles to a concrete boundary
marker; thence in a northwesterly direction upon the circumference
of a circle having Lexington courthouse as its center, with a radius
of not less than eight miles and a deflection of 1° 21' for
every one thousand feet, to a concrete boundary marker on the
eastern boundary line of the town of Irmo; thence along the
boundary line of the town of Irmo to the northeast corner of the
town; thence west along the northern boundary of the town of Irmo
2,260 feet to a stake located thereon; thence along the
circumference of the circle first described 11,360 feet to a stake;
then N. 42° 30' W. 878 feet; thence west 5,000 feet to a
stake; thence S. 85° W. 5,000 feet to a stake; thence S.
80° W. 5,541 feet to a stake; thence N. 37° 28' W.
10,618 feet to a stake; thence S. 85° W. 750 feet to a pine;
thence N. 34° 45' W. 10,491 feet to a stake; thence N.
22° E. 914 feet to a stake; thence N. 37° 5' W. 1,313
feet to a stake; thence N. 13° 45' E. 2,597 feet to a stake;
thence N. 56° 35' E. 3,920 feet to a point on Rocky Ford on
Wateree Creek; thence north, northeast and east along the Wateree
Creek to where it empties into Broad River. To the above-described
area of Richland County is to be added all that territory transferred
from Lexington County by act approved March 11 1922, to wit: all
that certain piece of land containing 8,900 acres, or 14 square
miles, situate in the northeastern part of Lexington County on the
Broad River, and being bounded and delineated as follows, to wit:
beginning at a point on the Broad River, and running S. 41°
W. 82.51 chains to a stake; thence turning and running S.
32.5° W. 160.65 chains to a stake; thence running along a
creek which empties into Wateree Creek 42.24 chains to a stake;
thence running to the point where said creek joins Wateree Creek
71.51 chains; thence running along Wateree Creek 94 chains; thence
turning and running S. 23° E. 142.50 chains to a point in
Slice Creek known as Rocky Ford; thence turning and running
northerly along Slice Creek 164 chains; thence turning and running
easterly along Wateree Creek 305.00 chains to the point of entrance
of Wateree Creek and Broad River; thence turning and running in a
northwesterly direction along Broad River 410 chains, said piece of
land being bounded on the west by Newberry County, on the south
and southwest by Lexington County, on the south by Richland
County, and on the east and north by the Broad River, being more
particularly known as the plat of said property, completed on
November 25 1921, by W.A. Counts and J.C. Wessinger, surveyors,
said plat being filed in the office of the Secretary of State
Governor."
SECTION 36. Section 4-3-490 of the 1976 Code is amended to
read:
"Section 4-3-490. Sumter County is bounded as follows:
on the north by Kershaw, Lee and Florence Counties; on the east by
Florence County; on the south by Clarendon County, from which it
is separated by the northwestern line of Clarendon County
mentioned in Section 4-3-140 defining boundaries of Clarendon
County; on the west by the Santee River, which separates it from
Richland County; on the northwest by Kershaw County, from which
it is separated by a line running up Raglin's Gut to Big Swift Creek
and in addition the following territory transferred from Clarendon
County by act of the General Assembly, approved March 7 1921, to
wit: commencing at a point on the Sumter County line and running
due south 1.42 miles to an oak at the intersection of the public road
leading from Paxville to Pinewood with the road leading from
Paxville to Broadways siding; then S. 9° 30' E. 1.52 miles
to the center of the Curtis Mill dam; then S. 1° 20' E. 2.36
miles to the intersection of the run of Hungary Hall Branch with the
run of Des Champs Branch; then following the run of Des Champs
Branch to the intersection of said run with the public road leading
from Panola to Calvary Church; then S. 78° 2.93 miles to
intersection with the line of School District No. 1; then S. 2°
30' W. 2.49 miles to intersection with the boundary between Big
Home, Hickory Hill and Elmwood plantation or to intersection with
a projection of said boundary line; then S. 39° W. 4000 feet,
then N. 47° W. 817 feet; then in a southwest direction to
Santee River; then in a northwest direction up the Santee River to a
point where the same intersects the Sumter County line, then
eastwardly along the Sumter line to the beginning point. The metes
and bounds and location and lines are more accurately set forth on
plat bearing date July 16 1920, made by Theodore C. Hamby,
William Weston and Lindley Arthur, filed in the office of the
Secretary of State Governor. The territory to be
taken from Clarendon County to be added to and to be incorporated
into Sumter County contains, by actual survey, 93.50 square miles;
less, however, that territory transferred to Clarendon County by act
approved March 11 1922, to wit: all that certain territory or portion
of Sumter County embraced within the following lines and
boundaries, to wit: beginning at a point on Santee River 72 feet
northwest of the center of the Atlantic Coast Line Railroad running
from Sumter to Orangeburg, running N. 46° 50' E. for a
distance of 9521 feet parallel to railroad; thence N. 41° 2' E.
for a distance 5658 feet to a point 72 feet west of center of railroad;
thence N. 16° E. for a distance of 7257 feet, parallel to
railroad; thence N. 26° 50' E. for a distance of 8650 feet to a
point 72 feet northwest of railroad; thence S. 87° E. for a
distance of 6864 feet; thence N. 12° 30' E. for a distance of
8840 feet; thence N. 87° 30' E. for a distance of 5920 feet;
thence S. 15° 30' E. for a distance of 5430 feet; thence S.
65° W. for a distance of 2370 feet; thence S. 9° W. for
a distance of 3432 feet; thence N. 85° E. for a distance of
13200 feet; thence S. 1° 20' E. for a distance of 10479 feet
to the intersection of Hungary Hall Branch and Des Champs
Branch; thence up the run of Des Champs Branch in a
southwesterly direction to the public road; thence S. 78° W.
for a distance of 16390 feet; thence S. 2° 30' W. for a
distance of 13200 feet; thence S. 39° W. for a distance of
4000 feet; thence N. 47° W. for a distance of 817 feet;
thence S. 42° W. for a distance of 2248 feet; thence S.
40° W. for a distance of 2280 feet; thence S. 37° 30'
W. for a distance of 13268 feet to a point on Santee River; thence
up Santee River to the beginning point 72 feet northwest of
railroad."
SECTION 37. Section 4-5-150 of 1976 Code is amended to read:
"Section 4-5-150. Certified plats of such line shall be filed
with the Secretary of State Budget and Control Board,
Office of Research and Statistics and with the respective clerks
of court of each county affected thereby and a deposit of an amount
of money sufficient to cover expenses of survey and plats and other
necessary expenses including advertising shall be made with the
treasurer of the county whose territory is proposed to be reduced by
those requesting or petitioning for the change of line."
SECTION 38. Section 4-5-190 of the 1976 Code, as last
amended by Act 520 of 1988, is further amended to read:
"Section 4-5-190. Except as provided for in Section
4-5-170(B), the commissioners of elections for the county from
which the area is proposed to be transferred shall canvass the
returns of the managers of each precinct in the area seeking
annexation in their county as the returns are canvassed in general
elections and shall certify the results of the canvassing in a
tabulated statement of the vote at each precinct to the Secretary
of State State Election Commission who shall transmit
a tabulated statement of the vote at each precinct of the county to
the Senate and House of Representatives at its next session."
SECTION 39. Section 4-5-200 of the 1976 Code, as last
amended by Act 520 of 1988, is further amended to read:
"Section 4-5-200. Except as provided in Section
4-5-170(B), the commissioners of election for the county to which
the area is proposed to be transferred shall canvass the returns of
the managers of each voting place in the county as the returns are
canvassed in the general elections and shall certify the results of the
canvass in a tabulated statement of the vote at each polling place to
the Secretary of State State Election Commission
who shall transmit a tabulated statement of the vote at each polling
place to the General Assembly for action as provided for in Section
4-5-220."
SECTION 40. Section 4-7-110 of the 1976 Code is amended to
read:
"Section 4-7-110. The commissioners of election for each
old county proposed to be cut shall canvass the returns of the
managers of each precinct in their county at which such election has
been held, as such returns in general elections in this State are
canvassed, and shall certify the result thereof in a tabulated
statement of the vote at each precinct to the Secretary of
State State Election Commission who shall transmit a
tabulated statement of the vote at each precinct of an old county
proposed to be cut off to both branches of the General Assembly at
its next session."
SECTION 41. Section 4-8-100 of the 1976 Code, as last
amended by Act 319 of 1992, is further amended to read:
"Section 4-8-100. Whenever a charter for the consolidation
of any county and the municipalities and other political subdivisions
within the county has been adopted, the county governing body
shall furnish a certified copy of the charter with returns of the
special election provided for in this chapter to the Secretary of
State Governor. The Secretary of State
Governor shall issue his proclamation showing and
declaring the results of the election on the adoption of the proposed
charter. One copy of the proclamation must be attached to a copy
of the charter certified to the Secretary of State
Governor and one copy must be delivered to the clerk of
the governing body of the county and the clerks of the governing
bodies of the respective municipalities of the county."
SECTION 42. Section 4-9-10 of the 1976 Code is amended to
read:
"Section 4-9-10. (a) Each county, after at least two
public hearings which shall have been advertised in a newspaper of
general circulation in the county and wherein the alternate forms of
government provided for in this chapter are explained by the
legislative delegation of the county, may prior to July 1, 1976,
conduct a referendum to determine the wishes of the qualified
electors as to the form of government to be selected or become
subject to the provisions of subsection (b) of this section. The
referendum may be called by an act of the General Assembly,
resolution of the governing body, or upon petition of not less than
ten percent of the registered electors of the county. The referendum
shall be conducted by the county election commission. The question
submitted shall be framed by the authority calling for the
referendum and when called by petition such petition shall state the
question to be proposed. All alternate forms of government
provided for in this chapter shall appear on the ballot and unless
one form receives a majority favorable vote in the initial
referendum, a second or runoff referendum shall be held two weeks
after the first referendum at which time the two forms which
received the highest number of votes shall again be submitted to the
qualified electors for final selection of the form to be adopted. A
referendum may also be called to determine the wishes of the
registered electors as to the question of whether the members of the
governing body of the county shall be elected from defined single
member election districts or at large from the county. Such
referendum may be called by an act of the General Assembly,
resolution of the governing body of the county or by petition of
not less than ten percent of the registered electors. The governing
body shall by resolution provide for adoption of the form of
government selected in the referendum, which shall be filed in the
office of the Secretary of State Governor and be
effective immediately upon such filing. All resolutions which adopt
a form of county government shall be printed in the Code of Laws
of South Carolina and remain a part thereof until amended or
repealed. The General Assembly shall provide for the number of
councilmen or commissioners. In the event that the members of the
governing body are required to be elected from defined single
member election districts, the General Assembly shall provide for
the composition of such districts.
(b) Notwithstanding any other provisions of this chapter, unless
otherwise determined by referendum prior to July 1, 1976, the
county concerned shall, beginning on that date, have the form of
government including the method of election, number, composition
and terms of the governing body most nearly corresponding to the
form in effect in the county immediately prior to that date, which
the General Assembly hereby determines to be as follows:
For the counties of Abbeville, Allendale, Barnwell, Calhoun,
Dillon, Georgetown, Greenwood, Horry, Laurens, Oconee and
Saluda, the council form of government as prescribed in Article 3
of this chapter.
For the counties of Anderson, Bamberg, McCormick, Union
and York, the council-supervisor form of government as prescribed
in Article 5 of this chapter.
For the counties of Aiken, Beaufort, Charleston, Cherokee,
Chester, Chesterfield, Clarendon, Darlington, Dorchester, Edgefield,
Fairfield, Florence, Greenville, Hampton, Jasper, Kershaw, Lee,
Lancaster, Lexington, Newberry, Pickens, Richland, Spartanburg
and Sumter the council-administrator form of government as
prescribed in Article 7 of this chapter.
For the counties of Berkeley, Colleton, Marion, Orangeburg,
Marlboro and Williamsburg, the county board of commissioners
form of government as prescribed in Article 11 of this chapter.
For those counties in which the county governing body,
immediately prior to June 25, 1975, was appointed rather than
elected, the members of the governing body shall be required to be
elected from defined single member election districts, unless
otherwise determined by a valid referendum prior to July 1, 1976.
For the purpose of this section, such referendum shall be deemed
valid unless declared to be in violation of state or federal law by a
court of competent jurisdiction.
(c) After the initial form of government and the number and
method of election of county council including the chairman has
been adopted and selected, the adopted form, number, and method
of election shall not be changed for a period of two years from the
date such form becomes effective and then only as a result of a
referendum as hereinafter provided for. Referendums may be called
by the governing body or upon petition of not less than ten percent
of the registered electors of the county. Petitions shall be certified
as valid or rejected by the county board of registration within sixty
days after they have been delivered to the board and, if certified,
shall be filed with the governing body which shall provide for a
referendum not more than ninety days thereafter. If more than one
petition is filed within the time allowed for such filing, the petition
bearing the largest number of signatures of registered electors shall
be the proposal presented, in the manner set forth hereinafter.
Referendums shall be conducted by the county election
commissioner and may be held in a general election or in a special
election as determined by the governing body. No change to an
alternate form of government, different number of council
members, or method of election of council including the chairman
as a result of a referendum shall become effective unless such
proposed form receives a favorable vote of a majority of those
persons voting in a referendum. In any referendum, the question
voted upon, whether it be to change the form of government,
number of council members, or methods of election, shall give the
qualified electors an alternative to retain the existing form of
government, number of council members, or method of election or
change to one other designated form, number, or method of
election. After a referendum has been held and whether or not a
change in the form results therefrom, no additional referendums
shall be held for a period of four years.
If the governing body of the county as initially or subsequently
established pursuant to a referendum or otherwise shall be declared
to be illegal and not in compliance with state and federal law by a
court of competent jurisdiction, the General Assembly shall have
the right to prescribe the form of government, the method of
election, and the number and terms of council members but may
submit to the qualified electors by referendum a question as to their
wishes with respect to any element thereof which question shall
include as an option the method of election in effect at the time of
the referendum.
(d) Notwithstanding any other provision of this section, the
council-manager form of government as provided for in Article 9 of
this chapter shall be adopted only after receiving a favorable
referendum vote.
(e) All members of the governing bodies of the respective
counties serving terms of office on the date on which a particular
form of county government becomes effective shall continue to
serve the terms for which they were elected or appointed and until
their successors are elected or appointed and have qualified."
SECTION 43. Section 4-11-30 of the 1976 Code is amended to
read:
"Section 4-11-30. In all cases in which the Governor is
required to appoint any person to any position created by statute in
any county of this State having a population of between 101,060
and 117,000, as shown by the United States census of 1930, upon
the recommendation of a certain number or proportion of the
county legislative delegation from such county or by a certain
proportion of the House delegation and the Senator of such county,
as the case may be, the Governor shall make such appointments
within ten days from the date of the filing in his office of such
recommendation signed by the requisite number of members of the
House and Senate as may be required under the terms of the
particular statute relating to that particular position. Upon the failure
of the Governor to make any such appointment and certify the
same immediately to the Secretary of State
Governor within the time limit herein provided, such
recommendation so signed and filed in the office of the Governor
shall of itself, automatically as a matter of law, immediately operate
as an effectual appointment of the person so recommended, having
the same legal force and effect as though the Governor himself had
made the appointment, and thereupon the Secretary of State
Governor shall immediately, upon the expiration of said
ten-day period, issue to the person so appointed a commission in
the usual form showing such appointment and deliver it to the
appointee, who shall upon production thereof be entitled to take
over the office or other position to which he has been appointed,
and any person in possession thereof shall forthwith surrender the
same to him, together with all records and property relating
thereto."
SECTION 44. Section 4-11-290 of the 1976 Code, as added by
Act 516 of 1992, is amended to read:
"Section 4-11-290. (A) For purposes of this section,
`special purpose district' or `district' means any district created by
or pursuant to an act of the General Assembly before March 7,
1973, and to which has been committed before March 7, 1973, any
governmental function, and includes those districts created by
special legislation as well as those districts created by virtue of
referenda held pursuant to general legislation.
(B) No special purpose district may be dissolved pursuant to this
section if any one or more of the following conditions exists:
(1) the district is presently providing a governmental service
within its boundaries;
(2) the district has outstanding general obligation
indebtedness;
(3) the district has outstanding indebtedness payable from
revenues derived from the provision of one or more governmental
services; and
(a) the indebtedness has not been declared in default by or
upon behalf of the holder of it, or
(b) a receiver has been appointed to manage the affairs of
the district or application has been made for the appointment of a
receiver; or
(4) the district has provided a governmental service within
two years of the date of the petition and has formally budgeted
funds to resume the provision of a governmental service within the
present or succeeding fiscal year;
(5) the governing body of a county in which the district is
located objects to the dissolution of the district.
(C) An individual residing or owning property within the
boundaries of a special purpose district may petition the
Secretary of State Attorney General to dissolve the
district through the issuance of an order of dissolution.
(D) A petition for dissolution of a special purpose district must
contain the following items:
(1) a description of the governmental services which the
district is authorized by law to provide;
(2) a statement that the district is not presently providing any
authorized governmental service;
(3) identification of the special legislation or the general
legislation pursuant to which the district was created. If the district
was created pursuant to general legislation, the petition must state
the date upon which the approving referendum was held;
(4) a general description of the boundaries of the district. If
the boundaries of the district have at any time been enlarged or
diminished pursuant to general laws, the date or dates of the action
must be stated;
(5) a statement of the reason or reasons for which dissolution
of the district is sought.
(E) The petition must be filed with the clerk of court of each
county in which the district is located, and a certified copy of the
petition shall within ten days after that time be filed with the
Secretary of State Attorney General.
(F) The Secretary of State Attorney General
shall, upon receipt of a petition, commence proceedings as set forth
in this subsection for the purpose of investigating the matters set
forth in the petition and determining whether a district must be
dissolved.
(1) Within twenty days of the receipt of a petition, the
Secretary of State Attorney General shall serve
upon the Governor, the State Treasurer, and the governing bodies of
the county or counties in which the district is located a copy of the
petition, together with a copy of the notice of review authorized by
subsection (F)(2). The Governor, the State Treasurer, and
the county governing bodies may comment upon the petition, or in
the case of county governing bodies, interpose an objection to
dissolution of the district, by serving a return to the petition setting
forth the comments or grounds for the objection within forty days
of the service of the petition.
(2) Within twenty days of the receipt of a petition, the
Secretary of State Attorney General must have
published in a newspaper of general circulation in each county in
which the district is located once a week for three successive weeks
a notice of review which must state:
(a) the name of the district and the boundaries of it;
(b) the statutory authorization for the existence of the
district and a brief description of the governmental powers granted
by the authorization;
(c) the date upon which the petition was received by the
Secretary of State Attorney General;
(d) that the petition is available for inspection at the office
of the clerks of court in each county in which the district is
located;
(e) that the Secretary of State Attorney
General is reviewing the matters set forth in the petition and
may undertake to dissolve the district if the matters are found to be
true;
(f) the names of the persons shown in the records of the
Secretary of State Attorney General, or, in the case
of a district with an elected governing body, the county election
commission, who constitute the most recently appointed or elected
governing body of the district. In the case of an appointed
governing body, there also must be identified the official or
officials charged with appointing the members of the governing
body; and
(g) that persons wishing to comment upon the dissolution
of the district may file a return to the petition within twenty days of
the last publication of the notice.
(3) A copy of the petition and the notice of review must be
served, in the manner provided by law for service of process upon
individuals, upon the persons identified as members of the
governing body of the district in subsection (F)(2)(f) and mailed to
the last known address, if any, of the office of the governing body.
(G) Upon the expiration of the time periods set forth in
subsections (F)(1) and (2), the filing of a return to the petition, the
Secretary of State Attorney General shall determine
whether the district must be dissolved. The district must be
dissolved if the procedures established by this section have been
met and if none of the conditions set forth in subsection (B) are
found by the Secretary of State Attorney General to
exist. The findings of the Secretary of State Attorney
General must be published in an order of dissolution. The
order of dissolution must state:
(1) the name of the district and the boundaries of it;
(2) the statutory authorization for the existence of the district
and a brief description of the governmental powers granted by such
authorization;
(3) the date upon which the petition was received by the
Secretary of State Attorney General;
(4) that the petition has been served upon the Governor, the
State Treasurer, and the governing bodies of each county in which
the district is located;
(5) that the notice of review provided for by subsection
(F)(2) was published once a week for three successive weeks in a
newspaper of general circulation in each county in which the district
is located;
(6) that the persons shown in the records of the Secretary
of State Attorney General, or, in the case of a district
with an elected governing body, the county election commission,
who constitute the most recently appointed or elected governing
body of the district, were served with a copy of the petition and the
notice of review; and
(7) that the Secretary of State Attorney
General has caused investigation to be made and has
determined that the district must be dissolved pursuant to this act.
(H)(1) The order of dissolution must be filed in the office of the
clerk of court in each county in which the district is located. The
Secretary of State Attorney General shall have
published once a week for three successive weeks in a newspaper of
general circulation in each county in which the district is located a
notice of dissolution, which must state:
(a) the date of the filing of the petition;
(b) the statutory authorization for the existence of the
district and a brief description of the governmental powers granted
by the authorization and the boundaries of the district;
(c) that the Secretary of State Attorney
General has determined that the district must be dissolved
pursuant to this section;
(d) that the order of dissolution is available for inspection
in the office of clerk of court of each county in which the district is
located; and
(e) that the order of dissolution will become final on the
twenty-first day following the final publication of the notice of
dissolution.
(2) The notice of dissolution also must be served upon the
Governor and the State Treasurer in the manner provided by law
for service of process upon individuals, upon the persons identified
as members of the governing body of the district in subsection
(F)(2)(f) and be mailed to the last known address, if any, of the
office of such governing body.
(3) Any resident or landowner of the district, the Governor,
the State Treasurer, or a county governing body may, by action de
novo instituted in the court of common pleas in a county in which
the district is located, within twenty days following the publication
of the notice of dissolution, but not afterwards, challenge the action
of the Secretary of State Attorney General. The
scope of any action must be limited to the authorization of the
Secretary of State Attorney General to issue the
order of dissolution in accordance with the requirements of this
chapter or of the Constitution of this State.
(I) In the event a district is located in more than one county
and the Secretary of State Attorney General declines
to issue an order of dissolution solely on the grounds that the
governing bodies of one or more of such counties object to
dissolution, the governing body of any county which does not
object to dissolution is authorized to diminish the boundaries of the
district so that it no longer includes any portion of that county. In
diminishing the boundaries of a district, the governing body shall
utilize the procedure set forth in Article 3, Chapter 11, Title 6. No
consent or action by the governing bodies of other counties in
which the district is located is required."
SECTION 45. Section 5-1-10 of the 1976 Code is amended to
read:
"Section 5-1-10. All municipalities which have a
certificate of incorporation issued by the Secretary of State
Governor and all township governments which have
heretofore been established by act of the General Assembly are
hereby declared to be perpetual bodies, politic and corporate and are
entitled to exercise all the powers and privileges and are subject to
all the limitations and liabilities provided for municipal corporations
in this State.
The incorporation or corporate capacity of any municipality or
township government established heretofore by act of the General
Assembly shall not be attacked in any court in this State except as
hereinafter provided by statute."
SECTION 46. Section 5-1-30 of the 1976 Code, as last amended
by Act 7 of 1991, is further amended to read:
"Section 5-1-30. Before issuing a corporate certificate to
a proposed municipality, the Secretary of State
Governor shall first determine:
(1) that the area seeking to be incorporated has a population
density of at least three hundred persons a square mile according to
the latest official United States Census;
(2) that no part of the area is within five miles of the
boundary of an active incorporated municipality; and
(3) that an approved service feasibility study for the proposed
municipality has been filed with and approved by the Secretary
of State Governor.
When an area seeking incorporation has petitioned pursuant to
Chapter 17 the nearest incorporated municipality to be annexed to
the municipality, and has been refused annexation by the
municipality for six months, or when the population of the area
seeking incorporation exceeds fifteen thousand persons, then the
provision of the five-mile limitation of this section does not apply
to the area.
The five-mile limit does not apply when the boundaries of the
area seeking incorporation are within five miles of the boundaries
of two different incorporated municipalities in two separate counties
other than the county within which the area seeking incorporation
lies, and when the boundaries of the proposed municipality are
more than five miles from the boundaries of the nearest
incorporated municipality that lies within the same county within
which the proposed municipality lies, and when the land area of the
territory seeking incorporation exceeds one-fourth of the land area
of the nearest incorporated municipality.
The population requirements do not apply to areas bordering on
and being within two miles of the Atlantic Ocean and to all sea
islands bounded on at least one side by the Atlantic Ocean, both of
which have a minimum of one hundred fifty dwelling units and at
least an average of one dwelling unit for each three acres of land
within the area and for which petitions for incorporation contain the
signatures of at least fifteen percent of the freeholders and fifty of
the electors of the respective areas seeking incorporation. The
freeholders and electors need not be all different persons.
This section does not apply to those areas which have petitioned
to the Secretary of State before June 25, 1975, or which may be
under adjudication in the courts of this State. The five-mile limit
does not apply to counties with a population according to the latest
official United States Census of less than fifty-one thousand."
SECTION 47. Section 5-1-40 of the 1976 Code is amended to
read:
"Section 5-1-40. Except as otherwise provided by law,
the citizens of any proposed municipality in this State, desiring to
be incorporated, shall file with the Secretary of State
Governor their petition for that purpose, setting out the
corporate limits proposed for the municipality and the number of
inhabitants therein and signed by fifty qualified electors thereof and
fifteen percent of the freeholders who reside within the proposed
municipality."
SECTION 48. Section 5-1-50 of the 1976 Code is amended to
read:
"Section 5-1-50. After receipt of such a petition, the
Secretary of State Governor shall then issue to three
or more persons residing in the area of such proposed municipality,
a commission empowering them to (a) hold an election not less than
twenty days nor more than ninety days after the issuance of the
commission, and (b) appoint three managers of election who shall
conduct such election. Notice of the election shall be published in a
newspaper of general circulation in the community [or] by posting
in three public places within the area sought to be incorporated
which shall contain detailed information concerning the election.
The notice shall be published or posted not less than five nor more
than fifteen days before the date of the election.
At such election, all registered electors living in the area sought
to be incorporated shall be allowed to vote on the following
questions: (a) incorporation; (b) name of the municipality; (c) the
form of government; (d) method of election as prescribed in Section
5-15-20; (e) whether the election shall be partisan or nonpartisan;
and (f) the terms of the mayor and council members. When any of
the above questions proposed in an election contain more than two
options, the option receiving the highest number of votes will
prevail.
Provided, however, that when any community votes in favor of
incorporation pursuant to this section and selects a form of
government in such election, notwithstanding the results of the
selections made by the voters as to questions (d), (e) and (f) above,
the initial governing body of the incorporated municipality shall
consist of four council members and a mayor, all elected at large
in a nonpartisan election for terms of two years.
The managers of election shall conduct the election, unless
otherwise provided for in this chapter, according to the general law
governing the conduct of special elections mutatis mutandis."
SECTION 49. Section 5-1-70 of the 1976 Code is amended to
read:
"Section 5-1-70. The commissioners shall certify the
result of such election under oath to the Secretary of State
Governor, and if the result is in favor of incorporation, the
Secretary of State Governor shall issue a certificate
of incorporation of such municipality and the municipality shall
have all the privileges, powers and immunities and shall be subject
to the limitations provided by law."
SECTION 50. Section 5-1-80 of the 1976 Code is amended to
read:
"Section 5-1-80. Before any certificate of incorporation is
delivered by the Secretary of State Governor, he
shall require the production of a receipt from the State Treasurer for
the payment of the incorporation fees as follows: (a) for
municipalities with a population of one thousand or less, one
hundred dollars; (b) for municipalities with a population between
one thousand and five thousand, three hundred dollars; (c) for
municipalities with a population over five thousand, six hundred
dollars."
SECTION 51. Section 5-1-100 of the 1976 Code is amended to
read:
"Section 5-1-100. Whenever it shall appear that a
municipality has decreased in population since its incorporation to
less than fifty inhabitants, the certificate of such municipality shall
be automatically forfeited and void. Whenever a majority of the
registered electors of any municipality shall file with the municipal
council of such municipality a petition requesting the municipal
certificate be surrendered, the council shall order an election to
determine the question, at which election all qualified electors of
the municipality shall be permitted to vote, and if two-thirds of
those voting shall vote in favor of surrendering the certificate, the
council shall certify the result to the Secretary of State
Governor, who shall thereupon cancel the certificate
theretofore issued to such municipality.
If the Secretary of State Governor shall determine
that any previously incorporated municipality is neither performing
municipal services nor collecting taxes or other revenues and has
not held an election during the past four years, he shall cancel the
certificate of such municipality."
SECTION 52. Section 5-3-90 of the 1976 Code, as last amended
Section 59, Act 181 of 1993, is further amended to read:
"Section 5-3-90. Any city or town increasing its territory
shall file a notice with the Secretary of State
Governor, Department of Transportation, and the
Department of Public Safety describing its new boundaries. Such
notice shall include a written description of the boundary, along
with a map or plat which clearly defines the new territory
added."
SECTION 53. Section 5-3-280 of the 1976 Code is amended to
read:
"Section 5-3-280. Whenever a petition is presented to a
city or town council signed by a majority of the resident freeholders
of the city or town asking for a reduction of the corporate limits of
the city or town, the council shall order an election after not less
than ten days' public advertisement. Such advertisement shall
describe the territory that is proposed to be cut off. If a majority of
the qualified electors vote at such election in favor of the release of
the territory, then the council shall issue an ordinance declaring the
territory no longer a portion of the city or town and shall so notify
the Secretary of State Governor, furnishing him at
the same time with the new boundaries of the town."
SECTION 54. Section 5-5-30 of the 1976 Code is amended to
read:
"Section 5-5-30. Until changed by an election, the
selection of the form of government as initially determined by the
governing body by ordinance shall remain effective. The ordinance
selecting the form of government shall be filed in the office of the
Secretary of State Governor who shall issue an
appropriate certificate of incorporation to the municipality. No other
such election shall be held for a period of four years after an
election is held pursuant to Section 5-5-20."
SECTION 55. Section 6-11-1620 of the 1976 Code is amended
to read:
"Section 6-11-1620. (A) Within ninety days after the
effective date of this article, and before December thirty-first of
every even-numbered year thereafter, the governing bodies of all
special purpose districts in this State must notify the Secretary
of State Governor and the auditor of the county in
which the special purpose district is located of their existence.
(B) The notification required by subsection (A) of this section
must substantially conform to the following form and all portions of
the form must be completed if applicable:
SPECIAL PURPOSE DISTRICT
NOTIFICATION FORM
1. -----------------------------------------------------------
Legal Name of Special Purpose District
2. ------------------ ----------------------------------------
Permanent address (If no permanent address,
telephone number, name, and address of agent)
3. -----------------------------------------------------------
Services provided
4. -----------------------------------------------------------
-----------------------------------------------------------
General description of geographical boundary of service
area
(Attach legal description)
5. -----------------------------------------------------------
Citation of Statutory Authority (Please include copy)
6. -----------------------------------------------------------
Date of Origin
7. ----------------------------------------------------------
Tax Rate or Fee Charged
8. Names of Members of Governing Body and terms of
office:
------------------------------ --------------------------
------------------------------ --------------------------
9. ------------------ ----------------------------------------
Method of selecting members of governing body
10.Financial information for prior fiscal year (Please
identify year):
-----------------------------------------------------------
Total revenues by source including investment earnings
-----------------------------------------------------------
Total expenditures
-----------------------------------------------------------
Total indebtedness (indicate bonded or otherwise)
-----------------------------------------------------------
Total investments (individual amounts, location,
rate of interest)
11. ----------------------------------------------------------
Person Completing this Form
------------------ ------------------
Title Date
(C) The auditor of the county in which the special purpose
district is located must inspect and sign the notification
forms."
SECTION 56. Section 6-11-1630 of the 1976 Code is amended
to read:
"Section 6-11-1630. (A) Notification as provided in
Section 6-11-1620 must be forwarded to the Secretary of
State Governor and the auditor of the county in which
the district is located within ninety days after the election of the
governing body of a special purpose district created after the
effective date of this article.
(B) The Secretary of State Governor shall issue
each even-numbered year a directory of active and inactive special
purpose districts in the State. The directory shall contain all
information provided by the districts as required by the notification
form. Inactive districts must be deleted after being listed for two
consecutive report cycles. This directory must be mailed to all
special purpose districts and general purpose governments in the
State.
(C) If the governing body of a public service district fails to
report to the Secretary of State Governor as
provided by this article, the Secretary Governor
may determine that the district is nonfunctioning and notify the
governing body of the county or municipality with a certified copy
of the letter to any of the last known members of the governing
body of the public service district. Thereafter, the district may not
be registered with the Secretary of State Governor
and it must be declared inactive.
(D) The governing body of any county or municipality so
notified shall withhold any fees, taxes, or interest thereon collected
for any special purpose district by the municipality or county until
the special purpose district complies with the notification
requirements of this article."
SECTION 57. Section 6-11-1640 of the 1976 Code is amended
to read:
"Section 6-11-1640. (A) The Secretary of State
Governor shall investigate failures of special purpose
districts to disclose information required by this article. Where
special failures are a result of good faith efforts to file reports, the
Secretary of State Governor may grant extensions to
districts not to exceed sixty days.
(B) When the reports required by this article have not been
produced because of a volitional refusal by the governing body of a
special purpose district, the Secretary of State
Governor or the county auditor may seek a writ of
mandamus in the county in which the special purpose district is
located to compel the production of the reports."
SECTION 58. Section 6-13-20 of the 1976 Code is amended to
read:
"Section 6-13-20. In order to create a district under the
provisions of this article, at least twenty-five owners of real
property residing within the boundaries of the proposed district shall
file a petition with the governing body of the county which, among
other things, shall propose a name for the district. The petition shall
set forth a full description of the area of the district. Upon receipt
of the petition, the governing body shall call for an election to be
held within the area within sixty days. Notice of the election shall
be published in a newspaper having general circulation within the
area for at least two consecutive weeks prior to the election. The
governing body shall have prepared and distributed a sufficient
number of ballots, including absentee ballots, if requested. The
ballots shall contain the question regarding the formation of the
district and such other instructions as the governing body deems
necessary. The governing body shall appoint managers for the
election and such other personnel as it deems necessary and shall
canvass the results of the ballots. The final result shall be filed in
the office of the clerk of court and, if favorable, also in the offices
of the Secretary of State Governor and the Code
Commissioner, together with a full description of the district.
Should a majority of those voting in the election vote in favor of
the creation of the district, it shall become immediately
effective."
SECTION 59. Section 6-13-120 of the 1976 Code, as added by
Section 1, Act 6 of 1993, is amended to read:
"Section 6-13-120. (A) For purposes of this section,
`assuming service provider' includes, but is not limited to, a county,
municipality, special purpose district as defined by Section
6-11-810(d), or corporation not for profit as defined by Section
33-35-10.
(B) A district created pursuant to the provisions of this article
may be dissolved if the procedures proscribed in subsections (C) or
(D) of this section are followed.
(C) A petition signed by not less than twenty-five percent of the
resident customers of the district, excluding corporations, requesting
the dissolution of the district and identifying the assuming service
provider must be presented to the governing body of the district.
The governing body shall verify the petition within thirty days, and
notify the county election commission of the county, or counties if
the district is located in more than one county, in which the district
is located of those customers eligible to vote in a referendum which
must be held within sixty days after notification to the election
commission. The district shall give thirty days notice to its
customers of the referendum by including in the monthly statement
for services a separate sheet of paper on which is printed the notice
of the referendum which must state the time, date, purpose, and
location where customers may vote. The commission, or
commissions, if the district is located in more than one county, shall
prepare the ballots, conduct the referendum, and determine its
results pursuant to the election laws of this State, mutatis mutandis.
The district shall reimburse the commission, or commissions, if the
district is located in more than one county, for all costs incurred in
conducting the referendum. If sixty percent of the resident users
of the district voting in the referendum, excluding corporations,
vote in favor of the dissolution of the district and its transfer to the
assuming service provider, it is effective upon the assumption, by
ordinance if assumed by a municipality or county, or by resolution
if assumed by a special purpose district or nonprofit corporation, of
all debts and obligations by the governing body of the assuming
service provider. An assuming service provider must be located in
the county where the district is located or be authorized to serve a
contiguous area.
(D) A petition signed by not less than seventy-five percent of
the resident customers of the district, excluding corporations,
requesting the dissolution of the district and identifying the
assuming service provider must be presented to the governing body
of the district. The governing body shall verify the petition within
thirty days. If the verified petition is signed by seventy-five percent
of the resident users of the district, excluding corporations,
requesting the dissolution of the district and its transfer to the
assuming service provider, it is effective upon the assumption, by
ordinance if assumed by a municipality or county, or by resolution
if assumed by a special purpose district or nonprofit corporation, of
all debts and obligations by the governing body of the assuming
service provider. An assuming service provider must be located in
the county where the district is located or be authorized to serve a
contiguous area.
(E) The governing body of the district must notify the
Secretary of State Governor within sixty days of the
referendum as provided in subsection (C), or verification of the
petition as provided in subsection (D), if the district is
dissolved."
SECTION 60. Section 6-16-50 of the 1976 Code is amended to
read:
"Section 6-16-50. Upon fulfilling the requirements set
forth in Section 6-16-40, each governing body which determines
that its participation in the proposed joint agency is in its best
interest shall by resolution appoint one representative to the
proposed joint agency. Any two or more representatives shall file
with the Secretary of State Governor an application
signed by the representative of each proposed member setting forth:
(a) The names of all the proposed members and their
respective appointed representatives;
(b) A certified copy of (i) the resolution or ordinance of each
member determining it is in its best interest to participate in the
proposed joint agency and (ii) the resolution appointing such
member's representative;
(c) The desire that the joint agency be organized as a public
body and a body corporate and politic under this chapter;
(d) The name which is proposed for the joint agency.
The Secretary of State Governor shall file the
application if after examining it and determining that it complies
with the requirements set forth above and that the proposed name of
the joint agency is not identical with that of any other corporation
of the State or any agency or instrumentality or so nearly similar as
to lead to confusion and uncertainty.
After the application has been made and filed, the Secretary
of State Governor shall issue a corporate certificate
which shall be filed with the application and the joint agency shall
then be constituted a public body corporate and politic under the
name proposed in the application. The corporate certificate shall set
forth the names of the members and the name of the joint agency.
Notice of the issuance of such corporate certificate shall be given to
all members of the joint agency by the Secretary of State
Governor.
In any suit, action or proceeding involving the validity or
enforcement of, or relating to, any contract of a joint agency, the
joint agency in the absence of establishing fraud shall be
conclusively deemed to have been established in accordance with
the provisions of this chapter upon proof of the issuance of the
certificate by the Secretary of State Governor. A
copy of such certificate, duly certified by the Secretary of
State Governor, shall be admissible in evidence in any
such suit, action or proceeding and shall be conclusive proof of the
filing and contents."
SECTION 61. Section 6-16-70 of the 1976 Code is amended to
read:
"Section 6-16-70. After the creation of a joint agency, any
other governing body may become a member upon:
(a) Adoption of a resolution or ordinance complying with the
requirements of Section 6-16-40 including publication of notice;
(b) Submission of an application to the joint agency;
(c) Approval of such application by resolution of the
governing body of each member of such joint agency.
Any member may withdraw from a joint agency by resolution or
ordinance of its governing body. All contractual rights acquired and
contractual obligations incurred by a member while it was a
member shall remain in full force and effect.
Notice of any change in membership shall be filed in the office
of the Secretary of State Governor and no change
shall be final until such filing."
SECTION 62. Section 6-19-40 of the 1976 Code is amended to
read:
"Section 6-19-40. (a) Application for a grant hereunder
may be made to the advisory committee and accompanied by an
application to the primary financial source and processed by the
Department of Health and Environmental Control. The Department
of Health and Environmental Control, on approval of the advisory
committee, shall make the necessary rules and regulations
for the consideration and processing of all State grant requests
appropriated under this chapter, which shall generally conform to
those used by federal grant and loan agencies, and
which rules shall must be filed
promulgated in the office of the Secretary of State
accordance with the provisions of the Administrative Procedures
Act (Chapter 23, Title 1). The rules shall contain, but shall not
be limited to the following criteria:
(1) preliminary engineering costs study;
(2) bonded indebtedness of the district, authority or
community;
(3) financial conditions of the district, authority or
community;
(4) costs per connection;
(5) economic level in the district, area or community;
(6) ratio of contracted users to potential users which shall not
be less than sixty-seven percent;
(7) conformity to overall State, regional or local plans;
(8) operation and maintenance costs identified and proper
replacement costs;
(9) amount of connection charges and minimum user charges;
and
(10) sustaining costs of rural water and sewer systems.
(b) No funds shall be dispensed until the applicant furnishes
evidence of a commitment from the primary financial source."
SECTION 63. Section 6-23-50 of the 1976 Code is amended to
read:
"Section 6-23-50. Upon fulfilling the requirements set
forth in Section 6-23-40 hereof, the governing body of each
municipality which determines that its participation in the proposed
joint agency is in its best interest shall by resolution appoint one
representative of the proposed joint agency. Any two or more
representatives so appointed shall file with the Secretary of
State Governor an application signed by a
representative of each proposed member municipality setting forth:
(a) The names of all the proposed member municipalities and
their respective appointed representatives;
(b) A certified copy of the resolution or ordinance of each
member municipality determining it is in its best interest to
participate in the proposed joint agency and the resolution
appointing such representative;
(c) The desire that the joint agency be organized as a public
body and a body corporate and politic under this chapter; and
(d) The name which is proposed for the joint agency. The
Secretary of State Governor shall examine the
application and, before filing such application, shall determine that
the application complies with the requirements set forth above and,
in addition, that the proposed name of the joint agency is not
identical with that of any other corporation of the State or any
agency or instrumentality thereof or so nearly similar as to lead to
confusion and uncertainty. Thereupon, the Secretary of State
Governor shall receive and file the application.
When the application has been made and filed as provided herein,
the Secretary of State Governor shall make and
issue a corporate certificate which shall be filed with the
application, and the joint agency shall thereupon be and constitute a
public body corporate and politic under the name proposed in the
application. The corporate certificate shall set forth the names of the
member municipalities and the name of the joint agency. The
existence of the joint agency shall begin when the corporate
certificate is issued by the Secretary of State
Governor. Notice of the issuance of such corporate
certificate shall be given to all member municipalities of the joint
agency by the Secretary of State Governor. The
joint agency shall give notice of the issuance of such corporate
certificate to the Public Service Commission.
In any suit, action or proceeding involving the validity or
enforcement of, or relating to, any contract of the joint agency, the
joint agency, in the absence of establishing fraud, shall be
conclusively deemed to have been established in accordance with
the provisions of this chapter upon proof of the issuance of the
aforesaid certificate by the Secretary of State
Governor. A copy of such certificate, duly certified by the
Secretary of State Governor, shall be admissible in
evidence in any such suit, action or proceeding, and shall be
conclusive proof of the filing and contents thereof."
SECTION 64. Section 6-25-50 of the 1976 Code is amended to
read:
"Section 6-25-50. Upon fulfilling the requirements set
forth in Section 6-25-40, each governing body which determines
that its participation in the proposed joint system is in its best
interest shall by resolution appoint one representative to the
proposed joint system. Any two or more representatives shall file
with the Secretary of State Governor an application
signed by the representative of each proposed member setting forth:
(a) The names of all the proposed members and their
respective appointed representatives;
(b) A certified copy of (i) the resolution or ordinance of each
member determining it is in its best interest to participate in the
proposed joint system and (ii) the resolution appointing such
member's representative;
(c) The desire that the joint system be organized as a public
body and a body corporate and politic under this chapter;
(d) The name which is proposed for the joint system.
The Secretary of State Governor shall file the
application if after examining it and determining that it complies
with the requirements in this section and that the proposed name of
the joint system is not identical with that of any other corporation
of the State or any agency or instrumentality or so nearly similar as
to lead to confusion and uncertainty.
After the application has been made and filed, the Secretary
of State Governor shall issue a corporate certificate
which shall be filed with the application, and the joint system shall
then be constituted a public body corporate and politic under the
name proposed in the application. The corporate certificate shall set
forth the names of the members and the name of the joint system.
Notice of the issuance of such corporate certificate shall be given to
all members of the joint system by the Secretary of State
Governor.
In any suit, action, or proceeding involving the validity or
enforcement of, or relating to, any contract of a joint system, the
joint system in the absence of establishing fraud shall be
conclusively deemed to have been established in accordance with
the provisions of this chapter upon proof of the issuance of the
certificate by the Secretary of State Governor. A
copy of such certificate, duly certified by the Secretary of
State Governor, shall be admissible in evidence in any
suit, action, or proceeding and shall be conclusive proof of the
filing and contents."
SECTION 65. Section 6-25-70 of the 1976 Code is amended to
read:
"Section 6-25-70. After the creation of a joint system, any
other municipality may become a member upon:
(a) Adoption of a resolution or ordinance by the governing
body complying with the requirements of Section 6-25-40 including
publication of notice;
(b) Submission of an application to the joint system;
(c) Approval of such application by resolution of the
governing body of each member of such joint system.
Any member may withdraw from a joint system by resolution or
ordinance of its governing body. All contractual rights acquired and
contractual obligations incurred by a member while it was a
member must remain in full force and effect.
Notice of any change in membership must be filed in the office
of the Secretary of State Governor, and no change
is final until such filing."
SECTION 66. Section 7-9-10 of the 1976 Code is amended to
read:
"Section 7-9-10. Political parties desiring to nominate
candidates for offices to be voted on in a general or special election
shall, before doing so, have applied to the State Election
Commission (Commission) for certification as such. Parties shall
nominate candidates of that party on a regular basis, as provided in
this title, in order to remain certified. Any certified political party
that fails to organize on the precinct level as provided by Section
7-9-50, hold county conventions as provided by Sections 7-9-70
and 7-9-80, and hold a state convention as provided by Section
7-9-100; that fails to nominate candidates for national, state,
multi-county district, countywide, or less than countywide office by
convention or party primary as provided by Sections 7-11-20,
7-11-30, and 7-13-40; and that fails to certify the candidates as
provided by Section 7-13-350 in at least one of two consecutive
general elections held on the first Tuesday following the first
Monday in November of an even-numbered year, or that fails to
nominate and certify candidates in any other election which might
be held within the period of time intervening between the two
general elections, must be decertified by the State Election
Commission. The party must be notified in writing of its
decertification at the last address of record. If the notification of
decertification is returned as undeliverable, it must be placed on file
in the office of the State Election Commission and with the
Secretary of State.
Any decertified party or any noncertified party, organization, or
association may obtain certification as a political party at any time
by filing with the Commission a petition for the certification signed
by ten thousand or more registered electors residing in this State,
giving the name of the party, which must be substantially different
from the name of any other party previously certified.
No petition for certification may be submitted to the Commission
later than six months prior to any election in which the political
party seeking certification wishes to nominate candidates for public
office.
At the time a petition is submitted to the Commission for
certification, the Commission shall issue a receipt to the person
submitting the petition which reflects the date the petition was
submitted and the total number of signatures contained therein.
Once the petition is received by the Commission, the person
submitting the petition shall not submit or add additional signatures.
If the Commission determines, after checking the validity of the
signatures in the petition, that it does not contain the required
signatures of registered electors, the person submitting the petition
must be notified and shall not submit any new petition seeking
certification as a political party under the same name for one year
from the date the petition was rejected.
Once a petition for certification has been submitted and rejected
by the Commission, the same signatures may not be submitted in
any subsequent petition to certify a new political party.
Once submitted for verification, a petition for certification may
not be returned to the political party, organization, or association
seeking certification, but shall become a part of the permanent
records of the Commission."
SECTION 67. Section 7-9-80 of the 1976 Code is amended to
read:
"Section 7-9-80. Each county convention shall be called
to order by the county chairman and shall proceed to elect a
temporary president, a temporary secretary and a committee on
credentials for the purpose of organizing. When organized, it shall
elect a permanent president, a secretary and treasurer. It shall also
elect the county chairman, the county vice-chairman and a member
of the State committee from the county and as many delegates to
the State convention as triple the number of members from the
county in the House of Representatives, plus one. But county
conventions at their discretion may elect double the number of
delegates in which case each delegate shall have one-half vote. The
secretary of the convention shall keep a record of the proceedings
in the minute book.
All officers except delegates shall be reported to the clerk of
court of the county and to the Secretary of State State
Election Commission prior to the State convention. The reports
shall be public record."
SECTION 68. Section 7-9-100 of 1976 Code, as last amended by
Act 136 of 1989, is further amended to read:
"Section 7-9-100. The state convention shall meet at a
location in this State determined by the state committee to have
adequate facilities during a thirteen-month period ending May
fifteenth of every general election year on a day and at a time fixed
by the state committee and announced publicly at least ten days
before the meeting. The state committee shall notify the delegates
to the state convention of the accommodations that are available for
the delegates during the convention. This listing must be as
complete as practicable and must include the accommodations in
close proximity to the convention site as well as any other
accommodations that are chosen by the state committee. This
notice must include the name and location of the accommodations,
the cost per day, and any discounts or surcharges that are applicable
during the period of the convention. Should the state committee
fix the date for the state convention in a nongeneral election year, it
must be held for the purpose of reorganization only. The
convention to be held for the purpose of nominating candidates for
public office to be filled in the general election must be held in the
general election year. At the time that the state committee sets the
date for the state convention it shall set what month during the
twelve-month period ending March thirty-first of every general
election year that the county convention must be held. If it sets a
month in a nongeneral election year for the county conventions to
be held for the purpose of reorganization, it must set a month
during the general election year for the county convention to be
reconvened for the purpose of nominating candidates for public
office to be filled in the general election. Sufficient advance notice
of the month set for county conventions must be given to county
executive committees so that the public notices required by law
may be met. The convention must be composed of delegates
elected by the county conventions. Each county is entitled to one
delegate for each six thousand residents of the county, according to
the latest official United States Census, plus two additional
members. If a county has a fractional portion of population of at
least three thousand residents above its last six thousand resident
figure it is entitled to an additional delegate. When the state
convention assembles, it must be called to order by the chairman of
the state committee. A temporary president must be nominated and
elected by the convention, and after its organization the convention
shall proceed immediately to the election of permanent officers and
to the transaction of business. When the business has concluded it
shall adjourn sine die, or may recess. The state chairman may
recall the state convention into special session at any time he
determines appropriate.
The officers of the state convention must be a president, vice
president, two secretaries, and a treasurer. Each county delegation to
a state convention may fill any vacancies therein. Any county
failing or refusing to organize under the provisions of this title may
not have representation in the state convention. The state officers
must be reported to the Secretary of State and to the
State Election Commission within fifteen days of their election and
the reports must be public record."
SECTION 69. Section 7-13-70 of the 1976 Code, as last
amended by Act 253 of 1992, is further amended to read:
"Section 7-13-70. For the purpose of carrying on general
or special elections provided for in Section 7-13-10, the Governor,
at least ninety days before the election, shall appoint for each
county not less than three nor more than five commissioners of
election upon the recommendation of the senatorial delegation and
at least half of the members of the House of Representatives from
the respective counties. The Governor shall notify the State Election
Commission in writing of the appointments. The State Election
Commission shall verify that at least one of the appointees
represents the largest political party and one represents the second
largest political party as determined by the composition of that
county's delegation in the General Assembly or the makeup of the
General Assembly as a whole if the county's delegation is
composed of only one party's members. The commissioners shall
continue in office until their successors are appointed and qualified.
For the general election held on the first Tuesday following the first
Monday in November in each even-numbered year, the
commissioners of election shall appoint three managers of election
for each polling place in the county for which they must
respectively be appointed for each five hundred electors, or portion
of each five hundred electors, registered to vote at the polling place.
For primary elections held on the second Tuesday in June of each
general election year, the commissioners of election shall appoint
three managers of election for each polling place in the county for
which they must respectively be appointed for the first five hundred
electors registered to vote in each precinct in the county, and may
appoint three additional managers for each five hundred electors
registered to vote in the precinct above the first five hundred
electors, or portion thereof. The commissioners shall also appoint
from among the managers a clerk for each polling place in the
county, and none of the officers may be removed from office
except for incompetence or misconduct. For all other primaries,
special, or municipal elections, the authority charged by law with
conducting the primaries, special, or municipal elections shall
appoint three managers of election for the first five hundred electors
registered to vote in each precinct in the county, municipality, or
other election district and one additional manager for each five
hundred electors registered to vote in the precinct above the first
five hundred electors. The authority responsible by law for
conducting the election shall also appoint from among the managers
a clerk for each polling place in a primary, special, or municipal
election. Forty-five days prior to any primary, except municipal
primaries, each political party holding a primary may submit to the
county election commission a list of prospective managers for each
precinct. The county election commission must appoint at least one
manager for each precinct from the list of names submitted by each
political party holding a primary. However, the county election
commission may refuse to appoint any prospective manager for
good cause. No person may be appointed as a manager in a primary
who has not completed a training program concerning his duties
and responsibilities as a poll manager and who has not received
certification of having completed the training program. The
training program and the issuance of certification must be carried
out by the county election commission. After their appointment the
commissioners, managers, and clerks shall take and subscribe,
before any officer authorized to administer oaths, the following oath
of office prescribed by Section 26 of Article III of the Constitution:
`I do solemnly swear (or affirm) that I am duly qualified, according
to the Constitution of this State, to exercise the duties of the office
to which I have been appointed, and that I will, to the best of my
ability, discharge the duties thereof, and preserve, protect and
defend the Constitution of this State and of the United States. So
help me God.'
It must be immediately filed in the office of the clerk of court of
common pleas of the county in which the commissioners, managers,
and clerks are appointed, or, if there is no clerk of court, in the
office of the Secretary of State State Election
Commission. Before opening the polls, the managers of
election shall take and subscribe the oath provided for in Section
7-13-100. Upon the completion of the canvassing of votes, this
oath must be filed with the commissioners of election along with
the ballots from that election precinct."
SECTION 70. Section 7-13-180 of the 1976 Code is amended to
read:
"Section 7-13-180. Whenever an amendment to the
Constitution of this State shall be voted upon at any election, the
commissioners of election of each county in the State shall have
such amendment conspicuously posted at each voting precinct in the
county upon the day of the election. Such printed amendments shall
be furnished to the commissioners of election by the Secretary
of State State Election Commission."
SECTION 71. Section 7-13-320 of the 1976 Code is amended to
read:
"Section 7-13-320. General election ballots shall conform
to the following standards and specifications:
(A) The ballot shall be printed on paper of such thickness that
the printing cannot be distinguished from the back and shall be of
such size and color as directed by the State Election Commission. If
more than one ballot is to be used in any election, each such ballot
shall be printed upon different colored paper;
(B) Across the top of the ballot shall be printed `Official
Ballot, General Election,' beneath which shall be printed the date of
the election, the county and the precinct. Above the caption of each
ballot shall be one stub, with a perforated line between the stub
and the top of the ballot. The stub shall have printed thereon
`Official Ballot, General Election' and then shall appear the name
of the county, the precinct and the date of the election. On the right
side there shall be a blank line under which there shall be `Initials
of Issuing Officer.' Stubs on ballots for each precinct shall be
prenumbered consecutively, beginning with No. 1;
(C) On the ballot for presidential electors there shall be
printed, under the titles of the offices, the names of the candidates
for President and Vice President of the United States nominated by
each political party qualified under the provisions of Section 7-9-10
and those nominated by petition. A separate column shall be
assigned to each political party with candidates and to each separate
petition slate of candidates on the ballot and each party and each
petition candidate's columns shall be separated by distinct black
lines. At the head of each column the party or petition name shall
be printed in large type and below it a circle, one-half inch in
diameter, and below the circle the names of the party's and petition
candidates for President and Vice President in that order. On the
face of the ballot above the party and petition candidate's column
division the following instruction shall be printed in heavy black
type:
a. To vote this ballot make a cross (X) mark in the circle
below the name of the political party or petition column for whose
candidates you wish to vote.
b. A vote for the names of a political party's candidates
or petition candidates for President and Vice President is a vote for
the electors of that party or petition candidates, the names of whom
are on file with the Secretary of State State Election
Commission.
On the bottom of the ballot shall be printed an identified
facsimile of the signature of the Executive Director of the State
Election Commission.
The official ballot for presidential electors shall not be
combined with any other official ballots.
(D) The names of candidates offering for any other office
shall be placed in the proper place on the appropriate ballot, stating
whether it is a state, congressional, legislative, county or other
office.
(E) The names of the several officers to be voted for and the
tickets of the parties and petition candidates shall be placed on the
ballots in an order as arranged by the State Election Commission as
to those ballots for which it is responsible for distribution and by
the commissioners of election for the respective counties as to the
ballots for which they are responsible for distribution, including
those for State Senator and member of the House of
Representatives. If the State Senator or member of the House of
Representatives or any other officer is to be elected from more than
one county, the commissioners of election from the various counties
from which they are to be elected shall assure that there shall be
uniformity of placement on the ballots of their respective counties
and should the commissioners fail to agree within sixty days prior
to the general election, and upon receipt of written certification by
at least one commissioner, that they have failed to act, the State
Election Commission shall determine the order of placing the names
on the ballots."
SECTION 72. Section 7-17-290 of the 1976 Code is amended to
read:
"Section 7-17-290. The Board shall make and subscribe,
on the proper statement, a certificate of their determination and
shall deliver the same to the Secretary of State
Governor."
SECTION 73. Section 7-17-300 of the 1976 Code is amended to
read:
"Section 7-17-300. The Secretary of State
Governor shall record in his office, in a book to be kept by
him for that purpose, each certified statement and determination
which shall be delivered to him by the Board of State Canvassers
and every dissent or protest that shall have been delivered to him by
a canvasser."
SECTION 74. Section 7-17-310 of the 1976 Code is amended to
read:
"Section 7-17-310. The Secretary of State
Governor shall, without delay, transmit a copy, under the
seal of his office, of such certified determination to each person
thereby declared to be elected and a like copy to the
Governor."
SECTION 75. Section 7-17-320 of the 1976 Code is amended to
read:
"Section 7-17-320. The Secretary of State
Governor shall cause a copy of such certified statements
and determinations to be printed in one or more public newspapers
of this State."
SECTION 76. Section 7-17-330 of the 1976 Code is amended to
read:
"Section 7-17-330. The Secretary of State
Governor shall prepare a general certificate, under the seal
of the State and attested by him as Secretary thereof,
addressed to the House of Representatives of the United States in
that Congress for which any person shall have been chosen, of the
due election of such person as Representative of this State in
Congress and shall transmit the same to such House of
Representatives at their first meeting."
SECTION 77. Section 7-17-340 of the 1976 Code is amended to
read:
"Section 7-17-340. The Secretary of State
Governor shall enter in a book to be kept in his office the
names of the respective county officers elected in this State,
specifying the counties for which they were severally elected, their
place of residence, the office for which they were respectively
elected and their term of office."
SECTION 78. Section 7-19-70 of the 1976 Code is amended to
read:
"Section 7-19-70. Unless otherwise provided, the election
of presidential electors shall be conducted and the returns made in
the manner prescribed by this chapter for the election of state
officers.
The names of candidates for electors of President and Vice
President nominated by any political party recognized in this State
under Section 7-9-10 or by a valid petition shall be filed with the
Secretary of State State Election Commission but
shall not be printed on the ballot. In place of their names, in
accordance with the provisions of Section 7-13-320, there shall be
printed on the ballot the names of the candidates for President and
Vice President of each political party recognized in this State and
the names of any petition candidates for President and Vice
President. A vote for the candidates named on the ballot shall be a
vote for the electors of the party by which those candidates were
nominated or the electors of petition candidates whose names have
been filed with the Secretary of State State Election
Commission.
Upon receipt of the certified determination of the Board of State
Canvassers and delivered to him in accordance with Section
7-17-300, the Secretary of State chairman of the State
Election Commission, under his hand and the seal of his office,
as required by Section 7-17-310, shall certify to the Governor the
names of the persons elected to the office of elector for President
and Vice President of the United States as stated in the certified
determination, who shall be deemed appointed as electors.
It shall be the duty of the Governor, as soon as practicable after
the conclusion of the appointment of the electors pursuant to the
laws of the State providing for the election and appointment of the
electors, to communicate by registered mail under the seal of the
State to the Administrator of General Services a certificate of
appointment of the electors, setting forth the names of the electors
and the canvass or other ascertainment under the laws of this State
of the number of votes given or cast for each person for whose
appointment any and all votes have been given or cast. It shall also
thereupon be the duty of the Governor to deliver to the electors of
the State, on or before the day on which they are required by law to
meet, six duplicate originals of the same certificate under the seal of
the State. If there shall have been any final determination in the
manner provided for by law of a controversy or contest concerning
the appointment of all or any of the electors, it shall be the duty of
the Governor, as soon as practicable after the determination, to
communicate under the seal of the State to the Administrator of
General Services a certificate of such determination."
SECTION 79. Section 7-19-80 of the 1976 Code is amended to
read:
"Section 7-19-80. Each candidate for presidential and
vice-presidential elector shall declare which candidate for president
and vice-president he will vote for if elected. Those elected shall
vote for the president and vice-president candidates for whom they
declared. Any person selected to fill a vacancy in the electoral
college shall vote for the candidates the elector whose place he is
taking had declared for. The declaration shall be made to the
Secretary of State State Election Commission on
such form as he may require not later than sixty days prior to the
general election for electors. No candidate for president and
vice-president elector shall have his name placed on the ballot who
fails to make such declaration by the prescribed time. Any elector
who votes contrary to the provisions of this section shall be
deemed guilty of violating the election laws of this State and upon
conviction shall be punished according to law. Any registered
elector shall have the right to institute proper action to require
compliance with the provisions of this section. The Attorney
General shall institute criminal action for any violation of the
provision of this section. Provided, the executive committee of the
party from which an elector of the electoral college was elected
may relieve the elector from the obligation to vote for a specific
candidate when, in its judgment, circumstances shall have arisen
which, in the opinion of the committee, it would not be in the best
interest of the State for the elector to cast his ballot for such a
candidate."
SECTION 80. Section 7-19-90 of the 1976 Code is amended to
read:
"Section 7-19-90. The electors for President and Vice
President shall convene at the capitol, in the office of the
Secretary of State State Election Commission, at
eleven in the forenoon, on the first Monday after the second
Wednesday in December next following their appointment, and
shall proceed to effect a permanent organization by the election of a
president and secretary from their own body. The electors shall next
proceed to fill by ballot and by plurality of votes all vacancies in
the electoral college occasioned by the death, refusal to serve, or
neglect to attend, of any elector. The electors shall then and there
vote by ballot for President and Vice President, one of whom at
least shall not be an inhabitant of the same State with themselves.
The electors shall make and sign six certificates of all the votes
given by them for President and Vice President, each of which
certificates shall contain two distinct lists, one of the votes for
President and the other for Vice President, and shall annex to each
of the certificates one of the lists of the electors which shall have
been furnished to them by the Secretary of State State
Election Commission by direction of the Governor. The
electors shall seal up separately the certificates and lists of the
electors so made by them, and certify upon each that the list of all
the votes of the State given for President, and of all of the votes
given for Vice President are contained therein."
SECTION 81. Section 7-19-100 of the 1976 Code is amended to
read:
"Section 7-19-100. The electors shall dispose of the
certificates so made by them and the lists attached thereto in the
following manner:
First. They shall forthwith forward by registered mail one of
the certificates and lists to the President of the Senate at the seat of
government.
Second. Two of the certificates and lists shall be delivered to
the Secretary of State State Election Commission of
South Carolina, one of which shall be held subject to the order of
the President of the Senate, and the other shall be preserved by him
for one year and shall be a part of the public records of his office
and shall be open to public inspection.
Third. On the day thereafter they shall forward by registered
mail two of the certificates and lists to the Administrator of General
Services at the seat of government, one of which shall be held
subject to the order of the President of the Senate.
Fourth. They shall forthwith cause the other of the certificates
and lists to be delivered to the judge of the district in which the
electors shall have assembled."
SECTION 82. Section 7-19-110 of the 1976 Code is amended to
read:
"Section 7-19-110. Every elector for this State for the
election of a president and vice-president of the United States who
shall attend at any election of those officers and give his vote at the
time and place appointed by law shall be entitled to receive for his
attendance at such election and for traveling to and from his place
of residence by the most usual route the regular mileage,
subsistence and per diem allowance authorized for state boards,
committees and commissions to be paid from appropriations to the
office of the Secretary of State State Election
Commission."
SECTION 83. Section 7-19-120 of the 1976 Code is amended to
read:
"Section 7-19-120. The Governor, Secretary of
State and other State officers shall perform such duties and
functions in respect to the election of electors, the election of the
President and Vice-President of the United States and certification
of electors and results of such election as provided by the acts of
Congress in relation thereto."
SECTION 84. Section 8-3-40 of the 1976 Code is amended to
read:
"Section 8-3-40. The Secretary of State
Governor shall ascertain the number of officers in this State
for whom bonds are required and cause an equal number of such
bonds to be printed annually at the expense of the State. Such forms
shall include space for the proper officers to approve securities and
for probate. The Secretary of State Governor shall
distribute to each county, annually, the number of such bonds equal
to the number of officers for whom bonds are required in that
county."
SECTION 85. Section 8-3-140 of the 1976 Code is amended to
read:
"Section 8-3-140. The bonds of all public officers of the
State shall, before they are accepted or recorded, be examined by
the Attorney General or by one of the solicitors, who must certify
in writing upon the bond that he approves the form and execution
thereof. When so examined, approved and certified the bonds of
State, district or circuit officers shall be filed with the Secretary
of State Governor and shall be recorded by him,
without charge, in suitable books kept by him for the purpose and
when so recorded shall be filed with the State Treasurer except that
the bond of the State Treasurer shall be filed with the
Governor."
SECTION 86. Section 8-3-150 of the 1976 Code is amended to
read:
"Section 8-3-150. Every county officer who is required to
give bond for the faithful performance of the duties of his office
shall, within thirty days after notification of his election or
appointment, have his bond recorded in the office of the register of
mesne conveyances or, if there be no such officer, in the office of
the clerk of the circuit court for the county in which such officer
resides and the register or clerk shall keep a separate book, properly
indexed, for the purpose of recording such bonds, which shall be
provided by the governing body of the county. The register or clerk
shall be entitled to exact a fee from the public officer of one dollar
for recording his bond. But no such bond shall be recorded until
first approved as to surety by the proper officials as prescribed by
law and as to execution and form by the Attorney General or such
other official as may be designated for this purpose. Such bonds
when recorded shall be immediately transmitted to the Secretary
of State Governor who, after recording them as
required by Section 8-3-140, shall file them with the State
Treasurer."
SECTION 87. Section 8-11-20 of the 1976 Code is amended to
read:
"Section 8-11-20. All persons who hold or are appointed
to any of the positions in the departments of the State government
referred to in this section, or who shall be appointed by any of such
departments as accountants to investigate and report the condition of
any State or county officer, shall take oath of office in the usual
form and the constitutional oath and give good and sufficient bond
in the form of official bonds as prescribed by Section 8-3-30. Such
bonds shall be approved and filed as the bonds of other State
officers. In the instance of individual bonds to be given pursuant to
this section by employees of each of the departments referred to
below, the penal sums of such bonds shall be as follows: For
each clerk in the office of the Secretary of State, four thousand
dollars; For each clerk in the office of the Comptroller
General, five thousand dollars; for each clerk in the office of the
State Treasurer, ten thousand dollars; for each clerk in the office of
the State Superintendent of Education, twenty-five hundred dollars;
for each stenographer or typist in the office of the State Treasurer,
twenty-five hundred dollars; for each Assistant Attorney General,
twenty-five hundred dollars; and for each accountant appointed by
any of such departments, five thousand dollars.
In lieu of the individual bonds as provided above, the heads of
the respective departments referred to in this section may, with the
approval of the State Budget and Control Board, procure bonds in
form to be approved by the Attorney General covering all persons
employed in or by such department, including, if practical, such
accountants mentioned above. In such event the penal sum of such
bonds shall be in such amount as the State Budget and Control
Board shall approve.
Any individual or blanket bonds given pursuant to the
requirements of this section shall be executed by a fidelity or surety
company licensed to do business in this State. In all cases, the
premium or annual payment required to keep such bonds in force
and effect shall be paid by the State Treasurer on the warranty of
the Comptroller General."
SECTION 88. Section 8-11-92 of the 1976 Code is amended to
read:
"Section 8-11-92. A. Nonprofit charitable organizations for
which such payroll deductions may be made shall include any
nonprofit, eleemosynary corporation, association or organization
which is organized and operated exclusively for charitable, health,
or welfare services to the public and meets all of the following
qualifications:
(1) Is and continues to be organized and qualified to solicit
and operate under the laws of this State, pursuant to Chapter 55 of
Title 33;
(2) Provide direct and continuing services to or on behalf of
the citizens of the State. For purposes of this section, `direct and
continuing services' means: (a) services other than legal advocacy
services which are provided directly to and specifically for one
individual or one family; or, (b) services which are in the nature of
medical research; or, (c) services which involve the collection and
administration of funds by umbrella organizations for other
organizations, all of which qualify under this act;
(3) Is recognized as tax exempt under Section 501(c)(3) of
Title 26, United States Code (the Internal Revenue Code of 1954,
as amended);
(4) Is not an organization contemplated by Section 501(c)(4),
501(c)(5), or 501(c)(6) of Title 26, United States Code (the Internal
Revenue Code of 1954, as amended) and is not an organization
primarily engaged in the propagation of a religious faith or belief;
this prohibition shall include, but not be limited to, organizations
primarily engaged in lobbying or political activity;
(5) Is operated without discrimination in regard to all persons
served, and complies with all requirements of law, including
administrative regulations, respecting nondiscrimination and equal
opportunity regarding its officers, staff, employees and volunteers;
(6) Has neither a parent organization nor a subsidiary
organization which fails to meet qualifications herein contained in
items (1) through (5).
B. The Secretary of State State Treasurer shall
determine on an annual basis, based upon the applications of
nonprofit, charitable organizations and groups of such organizations,
those which are eligible to participate in payroll deductions for
state-employee contributions. His decision shall be final unless
determined by a court of competent jurisdiction to be arbitrary,
capricious or unsupported by any credible evidence."
SECTION 89. Section 8-11-94 of the 1976 Code is amended to
read:
"Section 8-11-94. The names of state employees
authorizing deductions of charitable contributions and the amount of
the individual contributions shall be confidential and shall not be
made public. This prohibition against disclosure shall not bar the
Secretary of State State Treasurer, State Auditor or
state or federal tax authorities from access to all information
necessary to verify or establish the eligibility, the tax exempt status
or the tax liability of such organizations or groups of such
organizations. The tax returns and books and records of such
organizations or groups of such organizations shall be made
available at all times necessary to determine the status and
eligibility of any such charitable organization or groups of such
organizations."
SECTION 90. Section 11-15-20 of the 1976 Code is amended to
read:
"Section 11-15-20. (1) Definitions:
(a) `Bonds' shall include general obligations of the issuer
and obligations of the issuer payable in whole or in part from any
special fund or other source, any part of which is expressed to
mature more than twelve months from the date thereof but shall not
include obligations issued in anticipation of the collection of taxes
or in anticipation of the issuance of bonds.
(b) `State agency' shall mean the State of South Carolina, its
agencies and institutions.
(c) `Governing board' shall mean the board, commission,
board of trustees, authority, or any other public body upon which is
devolved by law the administrative and executive duties relating to
the issuance of bonds of any State agency.
(2) In every instance where the governing board of any State
agency shall propose to effect the issuance of bonds, it shall make a
full record of the proceedings relating to the issuance of such
bonds, exclusive of papers and documents relating to the delivery of
such bonds, and shall, prior to the delivery of such bonds, file a
copy of such record in the office of the Secretary of State
State Treasurer. It shall be the duty of the Secretary of
State State Treasurer to file and index the record in a
special book to be kept by such officer for such purpose. The
Secretary of State State Treasurer shall be
authorized to prepare and deliver certified copies of the records as
thus filed and to deliver them to the purchasers of the bonds or
other interested parties. For each such certification a reasonable fee
may be charged."
SECTION 91. Section 11-25-260 of the 1976 Code is amended
to read:
"Section 11-25-260. The faithful performance for printing
for each House shall be certified by its presiding officer and clerk.
In the absence of either of such officers from the seat of the
government, the Secretary of State, to whom the work may be
delivered, shall certify to its proper execution."
SECTION 92. Section 11-31-10 of the 1976 Code is amended to
read:
"Section 11-31-10. Whenever the holder of any general
obligation bonds of the State of South Carolina shall request the
State Board to exchange outstanding coupon bonds for fully
registered bonds of the same issue and of the same maturity and
interest rate, the State Board shall be empowered to authorize the
proper offices of the State, being the then Governor,
and the then State Treasurer and the then Secretary of
State, to execute and deliver fully registered bonds in
denominations of multiples of five thousand dollars upon such
terms and conditions and upon payment of such charges as the State
Board shall deem appropriate."
SECTION 93. Section 12-6-5520 of the 1976 Code, as added by
Act 76 of 1995, is amended to read:
"Section 12-6-5520. (A) The department shall notify a
domestic or foreign corporation, as defined in Section 12-20-10(3)
and (4), of its failure to comply with the provisions of this chapter
and Chapter 20 of this title requiring the filing of returns. If the
corporation fails to file the required return within sixty days of the
notice, the department may provide the taxpayer's name to the
Secretary of State Governor. The department may
not make an estimated assessment or issue any warrant based on an
estimated assessment against a taxpayer prior to referring such
taxpayer to the Secretary of State Governor for
administrative dissolution or revocation.
(B) After referral from the department, the Secretary of
State Governor shall administratively dissolve a
domestic corporation or revoke a foreign corporation's authority to
transact business in this State."
SECTION 94. Section 12-8-540 of the 1976 Code, as added by
Act 76 of 1995, is amended to read:
"Section 12-8-540. (A) A person making rent or royalty
payments to a nonresident of twelve hundred dollars in any calendar
year or more annually for the use or privilege of using property in
this State shall withhold seven percent of each payment to a
nonresident individual, partnership, trust, or estate and five percent
of each payment to a nonresident corporation or any other
nonresident entity.
(B) This section does not apply:
(1) to a person for the rental of residential housing units,
including short-term rentals, when four or fewer units are owned by
the nonresident.
(2) to an individual who pays rent directly to a nonresident
solely for a residential housing unit which is his legal residence;
(3) to a nonresident which has registered with the Secretary
of State Governor or the Department of Revenue and
Taxation and by that registration has agreed to be subject to the
jurisdiction of the department and the courts of this State to
determine its South Carolina tax liability, including estimated taxes,
together with any related interest and penalties, if any. Registering
with the Secretary of State Governor or the
department is not an admission of tax liability. If the person
renting from or having a royalty contract with a nonresident obtains
an affidavit from the nonresident stating that the nonresident is
registered with the department or with the Secretary of State
Governor, the person is not responsible for the withholding.
The department may revoke the exemption granted by the
registration provided in this item if it determines that the
nonresident taxpayer is not cooperating with the department in the
determination of the nonresident taxpayer's correct South Carolina
tax liability. The revocation does not revive the duty of a person
renting from or having a royalty contract with a nonresident to
withhold until the person receives notice of the revocation."
SECTION 95. Section 12-8-550 of the 1976 Code, as added by
Act 76 of 1995, is amended to read:
"Section 12-8-550. A person hiring or contracting with a
nonresident conducting a business or performing personal services
of a temporary nature within this State shall withhold two percent
of each payment in which the South Carolina portion of the contract
exceeds or could reasonably be expected to exceed ten thousand
dollars. This item does not apply to a nonresident which registered
with the Secretary of State Governor or the
Department of Revenue and Taxation and by that registration has
agreed to be subject to the jurisdiction of the department and the
courts of this State to determine its South Carolina tax liability,
including withholding and estimated taxes, together with any related
interest and penalties, if any. Registering with the Secretary of
State Governor or the department is not an admission
of tax liability nor must this act of registering be construed to
require the filing of an income tax or franchise (license) tax return.
If the person hiring, contracting, or having a contract with a
nonresident obtains an affidavit from the nonresident stating that the
nonresident is registered with the department or with the
Secretary of State Governor, the person is not
responsible for the withholding.
The department may revoke the exemption granted by registering
with the Secretary of State Governor or the
department if it determines that the nonresident taxpayer is not
cooperating with the department in the determination of the
nonresident taxpayer's correct South Carolina tax liability. This
revocation does not revive the duty of a person hiring, contracting,
or having a contract with a nonresident to withhold, until the person
receives notice of the revocation."
SECTION 96. Section 12-20-30 of the 1976 Code, as added by
Act 76 of 1995, is amended to read:
"Section 12-20-30. (A) The annual report must be in a
form prescribed by the department and Secretary of State
Governor and contain all information that the department
or the Secretary of State Governor may require for
the administration of the provisions of this chapter and the
provisions of Title 33. The information in the annual report must
be current as of the date the annual report is executed on behalf of
the corporation and contain the following information:
(1) the name of the corporation and the state or country of
incorporation;
(2) the address of the registered office and the name of the
registered agent in this State;
(3) the address of the principal office;
(4) the names and business addresses of the directors and
principal officers;
(5) a brief description of the nature of the business;
(6) the total number of authorized shares of stock, itemized by
class and series, if any, within each class; and
(7) the total number of issued and outstanding shares of stock,
itemized by class and series, if any, within each class.
The information required by this subsection is open to
unrestricted public inspection. Any person may request a copy of
the information from either the Secretary of State
Governor or the department.
(B) The Secretary of State Governor or the
department may by regulation permit the public disclosure of other
information that is required to be filed as part of the corporation's
annual report in addition to the information required by subsection
(A)."
SECTION 97. Section 12-20-40 of the 1976 Code, as added by
Act 76 of 1995, is amended to read:
"Section 12-20-40. (A) An initial annual report and the
minimum license fee required by Sections 12-20-50 and
12-20-100(C) must be filed with the Secretary of State
Governor with the initial articles of incorporation filed by a
domestic corporation or an application for certificate of authority
filed by a foreign corporation. The initial annual report must be
submitted to the department by the Secretary of State
Governor and contain the information required in Section
12-20-30(A).
(B) A corporation that does not file an application for certificate
of authority with the Secretary of State Governor
shall file the initial annual report and pay the minimum license fee
required by Sections 12-20-50 and 12-20-100 to the department on
or before sixty days after initially doing business, or using a portion
of its capital in this State."
SECTION 98. Section 12-28-1505(A)(3)(b) of the 1976 Code, as
added by Act 136 of 1995, is amended to read:
"(b) receives from the Secretary of State
department a verification number authorizing the
diversion;"
SECTION 99. Section 12-49-90 of the 1976 Code, as last
amended by Section 228, Act 181 of 1993, is further amended to
read:
"Section 12-49-90. The courts of this State shall
recognize and enforce liabilities for taxation lawfully imposed by
other states which extend like comity to this State. The South
Carolina Department of Revenue and Taxation, with the assistance
of the Attorney General, is hereby empowered to bring suit in the
courts of other states to collect taxes legally due this State. The
officials of other states which extend a like comity to this State are
empowered to sue for the collection of such taxes in the courts of
this State. A certificate by the Secretary of State
Governor that such officers have authority to collect the tax
shall be conclusive evidence of such authority."
SECTION 100. Section 12-54-125 of the 1976 Code, as added
by Section 8, Act 444 of 1988, is further amended to read:
"Section 12-54-125. If, upon investigation, the
commission department determines that any
corporation which has been dissolved by the Secretary of
State Department of Commerce has not conducted any
business since the last return was filed with the commission
department, or if there are no available assets of the
corporation, the commission may deem that warrants of distraint
issued against the corporation were issued in error and may
withdraw them."
SECTION 101. Section 13-7-145 of the 1976 Code is amended
to read:
"Section 13-7-145. A. Any shipper who is not a resident
of South Carolina and who is not registered with the Secretary
of State Attorney General for purposes of doing
business within South Carolina shall be subject to service of process
for purposes of administering and enforcing this article by leaving a
copy of the summons or any other legal paper in the hands of the
Secretary of State Attorney General or in his office,
and such service shall be deemed sufficient service and shall have
like force and effect in all respects as service upon citizens of this
State found within its limits if notice of such service and a copy of
the paper served are forthwith sent by certified mail to the shipper
and the shipper's return receipt and an affidavit of compliance
therewith are filed in the cause and submitted to the administrative
agency or court from which such process or other paper issued.
Such service may also be made by delivery of a copy thereof to
any such shipper outside the State, and proof of such delivery may
be made by the affidavit of the person delivering such copy. Such
affidavit shall be filed in the cause and submitted to the
administrative agency or court from which the process or other
paper issued.
B. Any carrier who is not a resident of South Carolina and who
is not registered with the Secretary of State Attorney
General for purposes of doing business within South Carolina
shall be subject to service of process for purposes of administering
and enforcing this article by leaving a copy of the summons or any
other legal paper in the hands of the Secretary of State
Attorney General or in his office, and such service shall be
deemed sufficient service and shall have like force and effect in all
respects as service upon citizens of this State found within its limits
if notice of such service and a copy of the paper served are
forthwith sent by certified mail to the carrier and the carrier's return
receipt and an affidavit of compliance therewith are filed in the
cause and submitted to the administrative agency or court from
which such process or other paper issued.
Such service may also be made by delivery of a copy thereof to
any such carrier outside the State, and proof of such delivery may
be made by the affidavit of the person delivering such copy. Such
affidavit shall be filed in the cause and submitted to the
administrative agency or court from which the process or other
paper issued."
SECTION 102. Section 13-12-15 of the 1976 Code, as last
amended by Section 1, Act 518 of 1992, is further amended to read:
"Section 13-12-15. Upon the implementation of the
provisions of this chapter, should only two of the three counties of
Berkeley, Dorchester, and Charleston have elected to participate by
approval of the initial referendum, the governing body of the
nonparticipating county may thereafter call a referendum in such
county on the question of participation in the authority. After one
referendum has been held under the provisions of this section, no
more than one such referendum may thereafter be held within a two
year period. The referendum question shall read as follows:
`Shall [insert name of county] join in the Trident Economic
Development Finance Authority which shall have the power, among
other things, with the approval of the governing bodies of
Berkeley, Dorchester, and Charleston counties, to issue general
obligation bonds for the purpose of promoting economic
development in the area of the authority?
Yes []
No []
Those voting in favor of the question shall deposit a ballot
with a check or cross mark in the square before the word `Yes', and
those voting against the question shall deposit a ballot with a check
or cross mark in the square before the word `No'.'
If this question receives a majority of the votes cast in the
county, as certified by the Board of State Canvassers, the
jurisdictional area of the authority shall be expanded to include the
approving county on the date on which written evidence of this
fact is transmitted to the Secretary of State
Governor."
SECTION 103. Section 14-5-110 of the 1976 Code is amended
to read:
"Section 14-5-110. The circuit judges of this State, upon
their election, shall qualify by taking the oath required by the
Constitution of this State before a justice of the Supreme Court, the
President of the Senate, the Speaker or Speaker Emeritus of the
House of Representatives, a circuit judge, a clerk of the Supreme
Court, a clerk of the court of common pleas or a probate judge of
the county, and shall forthwith enter upon their duties. Such oath
must be filed in the office of the Secretary of State
Governor. Terms of office for all circuit judges elected
after January 1, 1977, shall commence as of July first of the year in
which they are elected."
SECTION 104. Section 14-11-20 of the 1976 Code, as last
amended by Section 4, Part II, Act 678 of 1988, is further amended
to read:
"Section 14-11-20. Masters-in-equity must be appointed
by the Governor with the advice and consent of the General
Assembly for a term of six years and until their successors are
appointed and qualify. No person is eligible to hold the office of
master-in-equity who is not at the time of his appointment a citizen
of the United States and of this State, has not attained the age of
twenty-six years upon his appointment, has not been a licensed
attorney for at least five years upon his appointment, and has not
been a resident of this State for five years immediately preceding
his appointment.
Each master-in-equity of this State qualifies by taking the oath
required by the Constitution of this State before a justice of the
Supreme Court, a judge of the Court of Appeals, the President of
the Senate, the Speaker of the House of Representatives, a circuit
judge, the Clerk of the Supreme Court, a clerk of the Court of
Common Pleas, or a probate judge of the county and immediately
enters upon his duties. The oath must be filed in the office of the
Secretary of State Governor.
A full-time master-in-equity is prohibited from engaging in the
practice of law. A part-time master-in-equity may practice law but
is prohibited from appearing before another master-in-equity. A
standing master-in-equity may not serve as the probate judge of any
county."
SECTION 105. Section 14-17-340 of the 1976 Code is amended
to read:
"Section 14-17-340. The clerk shall administer the oaths of
office required to be taken by magistrates appointed within his
county, on their application, within ninety days after such
appointment. On the first day of November, annually, he shall
transmit a list of the names of magistrates who have qualified
during the preceding year to the office of the Secretary of
State Governor at Columbia."
SECTION 106. Section 15-9-245 of the 1976 Code, as last
amended by Section 4, Act 384 of 1994, is further amended to read:
"Section 15-9-245. (a) Every foreign business or
nonprofit corporation which is not authorized to do business in this
State, by doing in this State, either itself or through an agent, any
business, including any business activity for which authority need
not be obtained as provided by Section 33-15-101, is considered to
have designated the Secretary of State Attorney
General as its agent upon whom process against it may be
served in any action or proceeding arising in any court in this State
out of or in connection with the doing of any business in this State.
(b) Service of the process is made by delivering to and leaving
with the Secretary of State Attorney General, or
with any person designated by him to receive such service,
duplicate copies of the process, notice, or demand. The
Secretary of State Attorney General immediately
shall cause one of the copies to be forwarded by certified mail,
addressed to the corporation either at its registered office in the
jurisdiction of its incorporation, its principal place of business in the
jurisdiction, or at the last address of the foreign business or
nonprofit corporation known to the plaintiff, in that order.
(c) Proof of service must be by affidavit of compliance with
this section and filed, together with a copy of the process, with the
clerk of court in which the action or proceeding is pending. There
must be filed with the affidavit of compliance the return receipt
signed by the foreign business or nonprofit corporation or other
official proof of delivery or, if acceptance was refused, there must
be filed the original or a photostated or certified copy of the
envelope with a notation by the postal authorities that acceptance
was refused. If acceptance was refused, a copy of the notice and
process, together with notice of the mailing by certified mail and of
refusal to accept must be sent promptly to the foreign business or
nonprofit corporation. If this section is complied with, the refusal
to accept delivery of the certified mail or to sign the return receipt
shall not affect the validity of the service, and the foreign
corporation refusing to accept the certified mail must be charged
with knowledge of the contents thereof.
(d) Service under this section may be made also by delivery of
a copy of the process to any foreign business or nonprofit
corporation outside the State. Proof of the delivery must be made
by affidavit of the person making delivery, and the affidavit must
be filed with the clerk of court in which the action or proceeding is
pending.
(e) The Secretary of State Attorney General
shall charge a fee of ten dollars for the service.
(f) This section does not prescribe the only means, or
necessarily the required means, of serving a foreign business or
nonprofit corporation not authorized to do business in this
State."
SECTION 107. Section 15-9-250 of the 1976 Code is amended
to read:
"Section 15-9-250. Service of process may be made upon
the Secretary of State Attorney General as agent for
a foreign rural electric cooperative pursuant to his appointment as
such under the provisions of Section 33-49-1320. In the event of
such service, the Secretary of State Attorney
General shall forthwith forward it by registered mail to such
corporation at the address specified in the instrument appointing the
Secretary of State Attorney General as such
agent."
SECTION 108. Section 15-9-280 of the 1976 Code, as last
amended by Sections 260-262, Act 181 of 1993, is further amended
to read:
"Section 15-9-280. (a) Any act of transacting an
insurance business as set forth in Section 38-25-110 by an
unauthorized insurer is equivalent to and constitutes an irrevocable
appointment by the insurer, binding upon him, his executor or
administrator, or successor in interest if a corporation, of the
Secretary of State Attorney General or his successor
in office to be the true and lawful attorney of the insurer upon
whom may be served all lawful process in any action, suit, or
proceeding in any court by the Director of the Department of
Insurance or his designee, or by the State and upon whom may be
served any notice, order, pleading, or process in any proceeding
before the Department of Insurance and which arises out of
transacting an insurance business in this State by the insurer. Any
act of transacting an insurance business in this State by an
unauthorized insurer is signification of its agreement that any such
lawful process in such court action, suit, or proceeding and any
such notice, order, pleading, or process in such administrative
proceeding before the Department of Insurance so served are of the
same legal force and validity as personal service of process in this
State upon the insurer.
(b) Service of process in such action is made by delivering to
and leaving with the Secretary of State Attorney
General, or some person in apparent charge of his office, two
copies thereof and by payment to the Secretary of State
Attorney General of the fee prescribed by law. Service
upon the Secretary of State Attorney General as
attorney is service upon the principal.
(c) The Secretary of State shall immediately forward by
certified mail one of the copies of the process or the notice, order,
pleading, or process in proceedings before the Department of
Insurance to the defendant in the court proceeding or to whom the
notice, order, pleading, or process in the administrative proceeding
is addressed or directed at its last known principal place of business
and shall keep a record of all process so served on him which shall
show the day and hour of service. The service is sufficient if:
(1) notice of the service and a copy of the court process or
the notice, order, pleading, or process in the administrative
proceeding are sent within ten days thereafter by certified mail by
the plaintiff or the plaintiff's attorney in the court proceeding or by
the Department of Insurance in the administrative proceeding to the
defendant in the court proceeding or to whom the notice, order,
pleading, or process in the administrative proceeding is addressed or
directed at the last known principal place of business of the
defendant in the court or administrative proceeding; and
(2) the defendant's receipt or receipts issued by the post
office with which the letter is registered, showing the name of the
sender of the letter and the name and address of the person or
insurer to whom the letter is addressed, and an affidavit of the
plaintiff or the plaintiff's attorney in a court proceeding or of the
Department of Insurance in an administrative proceeding, showing
compliance therewith, are filed with the clerk of court in which the
action, suit, or proceeding is pending or with the Department of
Insurance in administrative proceedings, by the date the defendant
in the court or administrative proceeding is required to appear or
respond thereto, or within any further time as the court or the
Department of Insurance may allow.
(d) No plaintiff is entitled to a judgment by default, a judgment
with leave to prove damages, or a judgment pro confesso in any
court or administrative proceeding in which court process or
notice, order, pleading, or process in proceedings before the
Department of Insurance is served under this section until the
expiration of thirty days from the date of filing of the affidavit of
compliance.
(e) Nothing in this section limits or affects the right to serve
any process, notice, order, or demand upon any person or insurer in
any other manner permitted by law."
SECTION 109. Section 15-9-430 of the 1976 Code, as last
amended by Section 5, Act 384 of 1994, is further amended to read:
"Section 15-9-430. (a) Each director of a domestic
business corporation who is a nonresident of this State at the time
of his election or who becomes a nonresident during his term in
office, shall by his acceptance of election or by continuing in office
as director, be deemed to have appointed the Secretary of
State Attorney General as an agent to receive service of
process upon him in any action or proceeding relating to actions of
such corporation and arising while he held office as director of such
corporation.
(b) Service of such process shall be made by delivering to and
leaving with the Secretary of State Attorney
General, or with any person designated by him to receive such
service, duplicate copies of such process. The Secretary of
State Attorney General shall thereupon immediately
cause one of such copies to be forwarded to the nonresident
director by certified mail. Proof of service shall be by affidavit of
compliance with this section filed, together with a copy of the
process, with the clerk of court in which the action or proceeding is
pending.
(c) Service under this section may also be made by delivery of
a copy of the process to the nonresident director at his address
outside the State. Proof of such delivery shall be made by affidavit
of the person making delivery and the affidavit shall be filed with
the clerk of court in which the action or proceeding is pending.
(d) The resignation in good faith of any nonresident director,
effective as of the date of filing with the Secretary of State
Attorney General a notice of his resignation, shall terminate
the application to him of the provisions of this section, except for
any cause of action already accrued.
(e) Every domestic business corporation which has any director
who is or becomes a nonresident of this State after the corporation
has filed its most recent annual report pursuant to Section 12-19-20
shall file with the Secretary of State Attorney
General the names and addresses of its directors and shall file
supplementary reports showing any change of address or residence
of any director. The reports must be filed within ten days from the
date of election, removal from this State, or change of address of
any director. The Secretary of State Attorney
General shall compile and maintain a current list, indexed by
corporation, of all nonresident directors of domestic business
corporations which are listed on such interim filings. Delivery of
copies of service as required in subsections (b) and (c) to the
nonresident director must be made by delivering the copy to the
most recent address on file with the company's most current annual
report or any more current interim report which has been filed with
the Secretary of State Attorney General pursuant to
this subsection.
(f) The Secretary of State Attorney General
shall charge a fee of ten dollars to accompany service
thereunder."
SECTION 110. Section 15-9-440 of the 1976 Code is amended
to read:
"Section 15-9-440. (1) Service on resident trustee
constitutes service on all other trustees. -Service upon one resident
trustee of an inter vivos trust shall constitute service on all other
trustees, resident and nonresident, of the same trust, for the purpose
of adjudicating any action or proceeding in a court of this State
involving, directly or indirectly, such trust.
(2) Trustee served to notify other trustees. -The resident
trustee, so served, shall within five days, give prompt notice to such
nonresident trustee and other resident trustee of the action. The
failure of notification to the other trustees shall in no way impair
the action.
(3) Service on nonresident trustee when there is no resident
trustee. -When there is no resident trustee, the nonresident trustee
of an inter vivos trust shall be deemed to have consented to the
service of any summons, notice or other legal process in connection
with any proceeding in the courts of this State involving such trust,
directly or indirectly, when served upon the Secretary of
State Attorney General, when the trust was created
under the laws of this State or, in the case of a foreign trust, when
part of the trust property is situated in this State.
(4) Time allowed for answer. -The time within which to
answer under the provisions of this section shall be the same as that
provided for by law for substituted service.
(5) Penalties. -Any trustee responsible for notifying another
trustee, who fails to comply with the provisions of this section,
shall be guilty of a misdemeanor and shall, upon conviction, be
fined not more than one hundred dollars or imprisoned for not more
than thirty days."
SECTION 111. Section 15-9-460 of the 1976 Code is amended
to read:
"Section 15-9-460. Service of process on any person who
shall have appointed the Secretary of State Attorney
General as his agent to accept service under the provisions of
Section 46-33-40 may be made by serving such process upon the
Secretary of State Attorney General."
SECTION 112. Section 15-63-200 of the 1976 Code is amended
to read:
"Section 15-63-200. Upon the rendition of such judgment
against a corporation or for the vacating or annulling of letters
patent the Attorney General shall cause a copy of the judgment roll
to be forthwith filed in the his office of the
Secretary of State."
SECTION 113. Section 15-63-210 of the 1976 Code is amended
to read:
"Section 15-63-210. The Secretary of State
Attorney General shall, upon the filing of a copy of the
judgment roll, if the record relates to letters patent, make an entry
in the records of his office of the substance and effect of such
judgment and of the time when the record thereof was docketed.
The real property granted by such letters patent may thereafter be
disposed of in the same manner as if such letters patent had never
been issued."
SECTION 114. Section 15-78-30(c) of the 1976 Code, as last
amended by Act 380 of 1994, is further amended to read:
"(c) Prior to January 1, 1989, `Employee' means any
officer, employee, or agent of the State or its political subdivisions,
including elected or appointed officials, law enforcement officers,
and persons acting on behalf or in service of a governmental entity
in the scope of official duty, whether with or without compensation,
but the term does not include an independent contractor doing
business with the State or any political subdivision thereof. Custody
of prisoners by the State or any of its political subdivisions does not
in and of itself create an employer and employee relationship
between the State and the prisoner. Provided, the provisions of this
section shall in no way limit or modify the liability of a licensed
physician or dentist, acting within the scope of his profession.
On or after January 1, 1989, `Employee' means any officer,
employee, or agent of the State or its political subdivisions,
including elected or appointed officials, law enforcement officers,
and persons acting on behalf or in service of a governmental entity
in the scope of official duty, whether with or without
compensation, but the term does not include an independent
contractor doing business with the State or any political subdivision
thereof. Custody of prisoners by the State or any of its political
subdivisions does not in and of itself create an employer and
employee relationship between the State and the prisoner.
Provided, the provisions of this section shall in no way limit or
modify the liability of a licensed physician or dentist, acting within
the scope of his profession, with respect to any action or claim
brought hereunder which involved services for which the physician
or dentist was paid, should have been paid, or expected to be paid
at the time of the rendering of the services from any source other
than the salary appropriated by the governmental entity or fees
received from any practice plan authorized by the employer whether
or not the practice plan is incorporated and registered with the
Secretary of State Department of Commerce."
SECTION 115. Section 15-78-70(c) of the 1976 Code, as last
amended by Act 380 of 1994, is amended to read:
"(c) Prior to January 1, 1989, a person, when bringing an
action against a governmental entity under the provisions of this
chapter, shall name as a party defendant only the agency or political
subdivision for which the employee was acting and is not required
to name the employee individually, unless the agency or political
subdivision for which the employee was acting cannot be
determined at the time the action is instituted. In the event that the
employee is individually named, the agency or political subdivision
for which the employee was acting must be substituted as the party
defendant. The provisions of this section may in no way limit or
modify the liability of a licensed physician or dentist, acting within
the scope of his profession.
On or after January 1, 1989, a person, when bringing an action
against a governmental entity under the provisions of this chapter,
shall name as a party defendant only the agency or political
subdivision for which the employee was acting and is not required
to name the employee individually, unless the agency or political
subdivision for which the employee was acting cannot be
determined at the time the action is instituted. In the event that the
employee is individually named, the agency or political subdivision
for which the employee was acting must be substituted as the party
defendant. The provisions of this section in no way shall limit or
modify the liability of a licensed physician or dentist, acting within
the scope of his profession, with respect to any action or claim
brought hereunder which involved services for which the physician
or dentist was paid, should have been paid, or expected to be paid
at the time of the rendering of the services from any source other
than the salary appropriated by the governmental entity or fees
received from any practice plan authorized by the employer whether
or not the practice plan is incorporated and registered with the
Secretary of State Department of Commerce."
SECTION 116. Section 15-78-120(a)(5) of the 1976 Code, as
last amended by Section 4, Act 380 of 1994, is further amended to
read:
"(5) The provisions of Section 15-78-120(a)(3) and (a)(4)
shall in no way limit or modify the liability of a licensed physician
or dentist, acting within the scope of his profession, with respect to
any action or claim brought hereunder which involved services for
which the physician or dentist was paid, should have been paid, or
expected to be paid at the time of the rendering of the services from
any source other than the salary appropriated by the governmental
entity or fees received from any practice plan authorized by the
employer whether or not the practice plan is incorporated and
registered with the Secretary of State Department of
Commerce."
SECTION 117. Section 16-17-40 of the 1976 Code is amended
to read:
"Section 16-17-40. Any corporation or unincorporated
association found guilty of the crime of barratry shall be forever
barred from doing any business or carrying on any activity within
this State, and in the case of a corporation its charter or certificate
of domestication shall be summarily revoked by the Secretary of
State Department of Commerce."
SECTION 118. Section 17-13-80 of the 1976 Code, as last
amended by Section 277, Act 181 of 1993, is further amended to
read:
"Section 17-13-80. Whenever a warrant has been issued
against a corporation under the provisions of Section 22-3-750 or
an indictment has been returned against it under the provisions of
Section 17-19-70, a copy of the warrant or indictment, accompanied
in the case of an indictment by a notice to such corporation of the
term of the court of general sessions at which such case shall be
tried, shall be served upon such corporation in the manner provided
by law for the service of process in civil actions. And when there
is no agent or officer of the company within the county the service
shall be made upon such person as is in charge of the property of
the corporation and, if no such person can be found, it shall be
served upon the Secretary of State Attorney
General, who shall transmit a copy of the warrant or indictment
and notice by mail to the last known residence of the managing
officer of the corporation, directed to such officer; provided, that in
the case of a foreign corporation if such foreign corporation have
no agent or other officer within the county in which the offense, or
some part thereof, has been committed then process shall be served
on the person appointed by such corporation to receive service of
process as now required by law regulating foreign corporations or
upon the Director of the Department of Insurance when by law
service of process in civil actions may be made upon the Director
of the Department of Insurance and such service shall be made in
the same manner provided by law for service of summons in civil
actions against such corporations."
SECTION 119. Section 22-1-20 of the 1976 Code is amended
to read:
"Section 22-1-20. Before entering upon the discharge of
the duties of his office, each magistrate must take in writing the
oath of office prescribed in the Constitution before the clerk of the
court of common pleas of the county or, in case there be no such
clerk, before anyone authorized to administer an oath, and must file
the same with the Secretary of State
Governor."
SECTION 120. Section 23-7-30 of the 1976 Code is amended
to read:
"Section 23-7-30. All special State constables appointed
under this chapter shall be required to take the oath prescribed by
Article III Section 26 of the Constitution of 1895. Every such
special State constable shall give and file in the office of the
Secretary of State Governor a surety bond in the
penal sum of two thousand dollars conditioned upon the faithful
performance of his duties and further conditioned upon the payment
of any judgment recovered against him in any court of competent
jurisdiction upon a claim or cause of action arising out of a breach
or abuse of official duty or power or other unlawful act committed
under color of office."
SECTION 121. Section 25-1-330 of the 1976 Code is amended
to read:
"Section 25-1-330. Before entering upon his official
duties, the Adjutant General shall execute an official bond running
to the State in the penal sum of ten thousand dollars, conditioned
upon the faithful performance of his duties, such bond to be
submitted to the Attorney General for approval and when approved
to be filed in the office of the Secretary of State
Governor. The cost of such bonds shall be paid from the
military fund of the State. The Adjutant General shall obtain and
pay for, from the military fund, surety company bonds running to
the State, in such amounts as prescribed by the Adjutant General,
covering all the officers of the National Guard of South Carolina
responsible to the State for money or military property, such bonds
to be approved and filed in the same manner as the Adjutant
General's bond."
SECTION 122. Section 26-1-10 of the 1976 Code is amended
to read:
"Section 26-1-10. The Governor may appoint from the
qualified electors as many notaries public throughout the State as
the public good shall require, to hold their offices for a term of ten
years. A commission shall be issued to each notary public so
appointed and the record of such appointment shall be filed in
the his office of the Secretary of State. All
commissions issued or renewed after July 1, 1967 shall be for the
specified term. All commissions issued prior to July 1, 1967,
unless renewed for the term herein provided, shall expire and
terminate on January 1, 1970 for any person whose last name
begins with A through K and on January 1, 1971 for any person
whose last name begins with L through Z."
SECTION 123. Section 26-1-20 of the 1976 Code is amended
to read:
"Section 26-1-20. Each county legislative delegation shall
determine whether the endorsement of notaries public must be by
(1) one-half of the members of the legislative delegation
representing that county in which the applicant resides or, (2)
endorsement by the Senator and Representative in whose district the
applicant resides, without other endorsers. Each county legislative
delegation shall notify the Secretary of State
Governor in writing if it chooses to utilize method (2)
within the individual county. If the county legislative delegation
chooses to utilize method (2), the applicant, Senator, and
Representative shall indicate their respective districts on the
application provided to the Secretary of State
Governor. If the office of Senator or Representative from
that district is vacant at the time the application is submitted, the
notary public may be appointed upon the endorsement of a
majority of the legislative delegation representing the county in
which the applicant resides."
SECTION 124. Section 26-1-30 of the 1976 Code is amended
to read:
"Section 26-1-30. The fee for the issuance or renewal of a
commission is twenty-five dollars, collected by the Secretary of
State Governor as other fees."
SECTION 125. Section 26-1-40 of the 1976 Code is amended
to read:
"Section 26-1-40. Every notary public shall take the oath
of office prescribed by the Constitution, certified copies of which
shall be recorded in the office of the Secretary of State
Governor."
SECTION 126. Section 26-1-70 of the 1976 Code is amended
to read:
"Section 26-1-70. Any notary public whose name is legally
changed during his term of office may apply to the Secretary of
State Governor in such manner as may be prescribed
by him, and the Secretary of State Governor may
change the name of the notary upon proper application and upon
payment of a fee of ten dollars. The term expires at the same time
as the original term."
SECTION 127. Section 26-1-95 of the 1976 Code is amended
to read:
"Section 26-1-95. A notary public who, in his official
capacity, falsely certifies to affirming, swearing, or acknowledging
of a person or his signature to an instrument, affidavit, or writing is
guilty of a misdemeanor and, upon conviction, must be fined not
more than two hundred dollars or imprisoned not more than thirty
days. A notary public convicted under the provisions of this section
shall forfeit his commission and shall not be issued another
commission. The court in which the notary public is convicted
shall notify the Secretary of State Governor within
ten days after conviction."
SECTION 128. Section 27-15-30 of the 1976 Code is amended
to read:
"Section 27-15-30. All the reversionary right, title and
interest of this State in and to the Catawba Indian lands, situated in
the counties of York and Lancaster, within a boundary of fifteen
miles square and which are represented in the plat of survey made
by Samuel Wiley, dated February 22, 1764 and now on file in the
office of the then Secretary of State, are hereby vested in
the persons who may hold such lands as lessees of the Catawba
Indians, their heirs and assigns, according to the location of their
respective leases."
SECTION 129. Section 27-15-40 of the 1976 Code is amended
to read:
"Section 27-15-40. Each lessee of the Catawba Indian
lands who shall deposit with the then Secretary of State his
lease and also the receipt or receipts of the former tax collector of
the county wherein such lands may be situated for such taxes as
may have been paid thereon, as heretofore required by law, shall be
entitled to locate and receive a grant from the State (in the manner
provided by law for granting vacant lands) for the land held by him
under lease, upon payment of the usual fees, and thenceforth hold
the land so granted in the same right as any other lands granted by
this State are held."
SECTION 130. Section 27-16-30(12) of the 1976 Code, as
added by Act 142 of 1993, is amended to read:
"(12) `Settlement Agreement' means the written
`Agreement in Principle' reached between the State and the Tribe
and attached to the copy of the act enacting this chapter signed by
the Governor and filed with the then Secretary of
State."
SECTION 131. Section 27-16-140(C) of the 1976 Code, as
added by Act 142 of 1993, is amended to read:
"(C) Whenever possible, this chapter must be construed in
a manner consistent with the Settlement Agreement. If there is a
conflict between this chapter and the Settlement Agreement, this
chapter governs. The Settlement Agreement must be maintained on
file and available for public inspection in the Office of the
Secretary of State Governor and in the offices of
the Clerks of Court for York and Lancaster Counties. Copies must
be made available upon request upon the payment of reasonable and
normal copying fees."
SECTION 132. Section 27-19-10 of the 1976 Code is amended
to read:
"Section 27-19-10. The Secretary of State
Governor, in every case when, on his knowledge or belief
or on the information of another, certain lands have been escheated
to the State by the death of the person last seized in fee simple,
either in law or in fact, without leaving any person who can
lawfully claim such lands either by purchase or descent from such
former proprietor, shall, on such knowledge or information or the
order of any court of record, issue his notification of such
supposedly escheated lands to one of the judges of the circuit court
at least two months previous to the next session of such court to be
held in the county where such lands lie."
SECTION 133. Section 27-19-20 of the 1976 Code is amended
to read:
"Section 27-19-20. The judge presiding at such court
shall cause a jury, being first duly sworn, to proceed and make a
true inquest of all such supposedly escheated lands which by the
Secretary of State Governor shall be subjected to
their investigation and a true verdict made thereon. Thereupon the
judge of the court shall certify such verdict, under his hand and the
seal of the court, to the Secretary of State Governor
who shall record it in a book to be kept by him for that purpose
and shall return the original within two months after the date
thereof into the office of the clerk of the court, to be there filed and
kept as a record thereof."
SECTION 134. Section 27-19-30 of the 1976 Code is amended
to read:
"Section 27-19-30. On the return of any inquest of
supposedly escheated lands by the Secretary of State
Governor into the office of the clerk of the county in
which the lands lie, the clerk shall thereupon cause to be advertised,
in a newspaper of the county or other nearest gazette, the first week
in every month, for six months, a notice containing a particular
description of the lands, the name of the person last seized and the
supposed time of his death, together with the part of the world in
which he was supposed to have been born, and requiring his heirs
or others claiming under him to appear and make claim."
SECTION 135. Section 27-19-50 of the 1976 Code is amended
to read:
"Section 27-19-50. If any suit for property supposed to
be escheated shall be prosecuted by the Secretary of State
Governor and the jury before whom the trial shall be had
shall think there is no probable cause, the jury shall assess and
award to the party aggrieved such damages as they shall think
proper."
SECTION 136. Section 27-19-60 of the 1976 Code is amended
to read:
"Section 27-19-60. When no claimant shall appear to
make title as aforesaid, the Secretary of State
Governor shall rent out the escheated lands, if it can be
done with advantage to the State, until the process of escheat shall
be concluded and the lands sold."
SECTION 137. Section 27-19-70 of the 1976 Code is amended
to read:
"Section 27-19-70. If no person shall appear and claim
lands within twelve months after the expiration of the time
prescribed for advertising, the clerk shall issue process, to be signed
by the judge of the circuit court of the county, to the Secretary
of State Governor, pronouncing the lands escheated and
vested according to law and directing him forthwith to sell and
convey them upon the usual notice."
SECTION 138. Section 27-19-80 of the 1976 Code is amended
to read:
"Section 27-19-80. As soon as the Secretary of
State Governor shall receive the process in Section
27-19-70 mentioned, he shall advertise the sale of such lands in a
newspaper of the county or other nearest gazette and also in the
most public places of the county in which the lands lie, giving six
weeks' public notice, on a credit of twelve months, payable in
lawful money. He shall, moreover, take good and sufficient surety
and a mortgage of the premises before the title shall be altered or
changed."
SECTION 139. Section 27-19-90 of the 1976 Code is amended
to read:
"Section 27-19-90. When any such lands shall exceed six
hundred acres and can be divided into smaller tracts with advantage
to the State in the sale thereof, the Secretary of State
Governor shall cause them to be divided in such manner as
shall be most beneficial to the State."
SECTION 140. Section 27-19-100 of the 1976 Code is amended
to read:
"Section 27-19-100. At any sale of escheated property, if,
in his judgment, the property is being sold at a sacrifice, the
Secretary of State Governor may buy the land for
the State Budget and Control Board or cause it to be so bid in and,
upon payment of the costs accrued thereon, may cause the title deed
to be made therefor as escheated property to the State Budget and
Control Board which shall rent or sell the property in such manner,
at such time and upon such terms as, in its judgment, shall be for
the best interests of the State and apply the proceeds thereof as
directed in Section 27-19-340."
SECTION 141. Section 27-19-210 of the 1976 Code is amended
to read:
"Section 27-19-210. When any moneys or other personal
estate shall be found in the hands of an executor or administrator,
being the property of any person deceased leaving no person
entitled to claim and without making disposition of them, the
Secretary of State or the Attorney General, on behalf of the
State, shall sue for and recover and pay any moneys so recovered
into the State Treasury."
SECTION 142. Section 27-19-310 of the 1976 Code is amended
to read:
"Section 27-19-310. The duties of escheator are devolved
upon the Secretary of State Attorney General as
agent of the State Budget and Control Board and as escheator the
Secretary of State Attorney General shall act under
the direction and control of the State Budget and Control Board
and, under the direction of the Board, may use such of the funds
and the services of such subagents of the Board as in its discretion
may be necessary to efficiency in discovering, renting, litigating and
realizing money from escheated lands under existing law."
SECTION 143. Section 27-19-320 of the 1976 Code is amended
to read:
"Section 27-19-320. The Secretary of State
Attorney General shall not, directly or indirectly, either by
himself or any person whomsoever, purchase or be concerned with
any person in purchasing any escheated lands, without being subject
and liable to the payment of five thousand dollars, to be sued for
and recovered in any court of record, one half for the benefit of the
informer, who shall sue for and recover such penalty, and the other
half to be applied to the use of the State. And such Secretary of
State The Attorney General shall also be rendered
incapable of holding or exercising any office of trust or emolument
therein."
SECTION 144. Section 27-19-330 of the 1976 Code is amended
to read:
"Section 27-19-330. When any person shall appear and
make title to lands or personal estate, after office found by the jury,
the court may assess such reasonable costs and charges as the
Secretary of State Attorney General has sustained in
promoting the claim of the State."
SECTION 145. Section 27-19-340 of the 1976 Code is amended
to read:
"Section 27-19-340. The Secretary of State
Attorney General shall turn over to the State Treasurer the
net proceeds of escheats after deducting and retaining therefrom for
the benefit of the Sinking Fund so much money as in the opinion of
the State Budget and Control Board will reimburse the Sinking
Fund for moneys and agents' services used and advanced as
aforesaid and also any other expense necessarily incurred in
executing the law and protecting the interest of the State in the
matter of escheats. Costs and expenses incurred as aforesaid on
account of agents' services and money advanced or otherwise in
one case may be deducted and retained from the proceeds of any
other case of escheatment in the discretion of the State Budget and
Control Board."
SECTION 146. Section 27-19-360 of the 1976 Code is amended
to read:
"Section 27-19-360. A report shall be made annually by
the Secretary of State Attorney General, to be
included in his annual report, showing the receipts and payments
under the provisions of this chapter in each case of escheat, with
the items thereof. In case any escheated property be purchased by
the State Budget and Control Board, its annual report shall show all
resales of such property and all income, rents and profits derived
from such property while held by the Board."
SECTION 147. Section 27-19-370 of the 1976 Code is amended
to read:
"Section 27-19-370. If the Secretary of State
Attorney General shall fail to do his duty, as herein
directed, on behalf of the State and any loss or damage shall accrue
to the State by his misconduct or fraudulent practices, he shall be
responsible for all such loss or damage and the court of common
pleas may order a prosecution in the name of the State. A jury shall
try the fact and assess the damage and, upon conviction, such
Secretary of State Attorney General shall be
incapable forever thereafter from holding or exercising any office of
trust or profit within this State."
SECTION 148. Section 27-19-390 of the 1976 Code is amended
to read:
"Section 27-19-390. The provisions of this chapter are
complementary to and not in derogation of the `Uniform
Disposition of Unclaimed Property Act' as contained in the
permanent provisions of Chapter 18 of this title. All personal
property for which provision is made in that chapter shall be
disposed of as therein provided and the Secretary of State
Attorney General is relieved of all responsibility assigned
to him in this chapter for such property."
SECTION 149. Section 27-40-130 of the 1976 Code is amended
to read:
"Section 27-40-130. (a) The circuit courts and magistrate
courts of this State shall exercise concurrent jurisdiction over any
landlord with respect to any conduct in this State governed by this
chapter or with respect to any claim arising from a transaction
subject to this chapter. In addition to any other method provided
by rule or by statute, personal jurisdiction over a landlord may be
acquired in a civil action or proceeding instituted in the court of
common pleas or magistrate court by the service of process in the
manner provided by this section.
(b) If a landlord is not a resident of this State or is a
corporation not authorized to do business in this State and engaged
in any conduct in this State governed by this chapter, or engaged in
a transaction subject to this chapter, he may designate an agent
upon whom service of process may be made in this State. The
agent must be a resident of this State or a corporation authorized to
do business in this State. The designation must be in writing and
filed with the Secretary of State Attorney General.
If no designation is made and filed or if process cannot be served in
this State upon the designated agent, process may be served upon
the Secretary of State Attorney General, but service
upon him is not effective unless the plaintiff or petitioner forthwith
mails a copy of the process and pleading by registered or certified
mail requiring a signed receipt to the defendant or respondent at his
last reasonably ascertainable address. An affidavit of compliance
with this section must be filed with the court of the county wherein
the action is instituted on or before the return day of the process, if
any, or within any further time the court allows."
SECTION 150. Section 30-7-10 of the 1976 Code is amended
to read:
"Section 30-7-10. All deeds of conveyance of lands,
tenements, or hereditaments, either in fee simple or for life, all
deeds of trust or instruments in writing conveying estate, creating a
trust in regard to the property, or charging or encumbering it, all
mortgages or instruments in writing in the nature of a mortgage of
any real property, all marriage settlements, or instruments in the
nature of a settlement of a marriage, all leases or contracts in
writing made between landlord and tenant for a longer period than
twelve months, all statutory liens on buildings and lands for
materials or labor furnished on them, all statutory liens on ships and
vessels, all certificates of renunciation of dower, all contracts for
the purchase and sale of real property, all assignments,
satisfactions, releases, and contracts in the nature of subordinations,
waivers, and extensions of landlords' liens, laborers' liens,
sharecroppers' liens, or other liens on real property created by law
or by agreement of the parties and generally all instruments in
writing conveying an interest in real estate required by law to be
recorded in the office of the register of mesne conveyances or clerk
of court in those counties where the office of the register of mesne
conveyances has been abolished or in the office of the Secretary
of State Department of Commerce delivered or
executed after July 31, 1934, except as otherwise provided by
statute, are valid so as to affect the rights of subsequent creditors
(whether lien creditors or simple contract creditors), or purchasers
for valuable consideration without notice, only from the day and
hour when they are recorded in the office of the register of mesne
conveyances or clerk of court of the county in which the real
property affected is situated. In the case of a subsequent purchaser
of real estate, or in the case of a subsequent lien creditor on real
estate for valuable consideration without notice, the instrument
evidencing the subsequent conveyance or subsequent lien must be
filed for record in order for its holder to claim under this section as
a subsequent creditor or purchaser for value without notice, and the
priority is determined by the time of filing for record."
SECTION 151. Section 31-1-110 of the 1976 Code is amended
to read:
"Section 31-1-110. Any number of natural persons, not
less than three, a majority of whom are citizens of the United
States, may become a limited dividend housing corporation by
subscribing, acknowledging and filing in the office of the
Secretary of State Department of Commerce articles
of incorporation, hereinafter called `articles,' setting forth the
information required by Chapter 7 of Title 33; except as herein
modified or changed."
SECTION 152. Section 31-3-340 of the 1976 Code, as last
amended Acts 360 and 361 of 1994, is further amended to read:
"Section 31-3-340. When the council of a municipality
adopts a resolution as provided in this chapter, the council shall
appoint five persons as commissioners of the authority created for
the municipality. However, two additional commissioners may be
appointed, for terms of five years, when the authority exercises
extraterritorial jurisdiction outside the corporate boundaries of the
municipality. These two additional commissioners must reside in
the area in which the municipality exercises its extraterritorial
jurisdiction. The commissioners who are first appointed must be
designated to serve for terms of one, two, three, four, and five
years, respectively, from the date of their appointment, but
thereafter commissioners must be appointed for a term of office of
five years except that all vacancies must be filled for the unexpired
term, except that the two additional commissioners for the
extraterritorial area must be appointed for terms of five years. No
commissioner of an authority may be an officer or employee of the
city for which the authority is created. A commissioner shall hold
office until his successor has been appointed and has qualified. A
certificate of the appointment or reappointment of any
commissioner must be filed in the office of the clerk of the circuit
court of the county in which the city is located, in the office of the
Secretary of State Governor, and in the office of the
Secretary of Commerce, and the certificate is conclusive evidence
of the due and proper appointment of the commissioner."
SECTION 153. Section 31-3-370 of the 1976 Code, as last
amended by Acts 360 and 361 of 1994, is further amended to read:
"Section 31-3-370. For inefficiency, neglect of duty, or
misconduct in office a commissioner of an authority may be
removed by the council, but a commissioner may be removed only
after he has been given a copy of the charges at least ten days
before the hearing on it and had an opportunity to be heard in
person or by counsel. In the event of the removal of any
commissioner a record of the proceedings, together with the charges
and findings on it must be filed in the office of the clerk of the
circuit court of the county in which the city is located, in the office
of the Secretary of State Governor, and in the office
of the Secretary of Commerce."
SECTION 154. Section 31-10-30 of the 1976 Code is amended
to read:
"Section 31-10-30. (a) Each municipality is authorized
to create one or more separate and distinct bodies corporate and
politic to be known as a redevelopment commission of the
municipality by the passage by the governing body of such
municipality of an ordinance creating a commission to function
within the territorial limits of the municipality or portion of the
municipality; provided, however, no commission may be created
with power over the same territorial area as any other commission.
Notice of the intent to consider the passage of such ordinance shall
be published at least fifteen days prior to first reading of the
ordinance creating the commission.
(b) The governing body of a municipality shall not adopt an
ordinance pursuant to subsection (a) above unless it finds:
(1) that a blighted area or conservation area exists in whole
or in part in such municipality,
(2) that the redevelopment of such areas is necessary in the
interest of the public health, safety, morals, or welfare of the
residents of such municipality.
(c) The governing body shall cause a certified copy of such
ordinance to be filed in the office of the Secretary of State
Governor; upon receipt of the certified copy of such
ordinance, the Secretary of State Governor shall
issue a certificate of incorporation.
(d) In any suit, action, or proceeding involving or relating to the
validity or enforcement of any contract or act of a commission, a
copy of the certificate of incorporation duly certified by the
Secretary of State is admissible in evidence and is conclusive proof
of the legal establishment of the commission."
SECTION 155. Section 31-13-30 of the 1976 Code, as last
amended by Act 410 of 1992, is further amended to read:
"Section 31-13-30. The Governor shall appoint, with the
advice and consent of the Senate, seven persons to be
commissioners of the South Carolina State Housing Finance and
Development Authority. The seven persons so appointed shall have
experience in the fields of mortgage finance, banking, real estate,
and home building. The Governor shall appoint a chairman from
among the seven commissioners.
The commissioners must be appointed for terms of four years,
except that all vacancies must be filled for the unexpired term. A
commissioner shall hold office until his successor has been
appointed and qualifies. A certificate of the appointment or
reappointment of any commissioner must be filed in the office of
the Secretary of State Governor and in the office of
the Authority, and the certificate is conclusive evidence of the due
and proper appointment of the commissioner. The Governor or his
designee and the State Commissioner of Health and Environmental
Control or his designee from his administrative staff shall serve ex
officio as commissioners of the Authority with the same powers as
the other commissioners."
SECTION 156. Section 33-1-200 of the 1976 Code is amended
to read:
"Section 33-1-200. (a) A document must satisfy the
requirements of this section, and of any other section that adds to or
varies from these requirements, to be entitled to filing by the
Secretary of State Department of Commerce.
(b) Chapters 1 through 20 of this Title must require or permit
filing the document in the office of the Secretary of State
Department of Commerce.
(c) The document must contain the information required by
Chapters 1 through 20 of this Title. It may contain other
information as well.
(d) The document must be typewritten or printed.
(e) The document must be in the English language. A
corporate name need not be in English if written in English letters
or Arabic or Roman numerals, and the certificate of existence
required of foreign corporations need not be in English if
accompanied by a reasonably authenticated English translation.
(f) The document must be executed:
(1) by the chairman of the board of directors of a domestic or
foreign corporation, or by its president, or by another of its officers;
(2) if directors have not been selected or the corporation has
not been formed, by an incorporator; or
(3) if the corporation is in the hands of a receiver, trustee, or
other court-appointed fiduciary, by that fiduciary.
(g) The person executing the document shall sign it and state
beneath or opposite his signature his name and the capacity in
which he signs. The document may but need not contain: (1) the
corporate seal, (2) an attestation by the secretary or an assistant
secretary, and (3) an acknowledgment, verification, or proof.
(h) If the Secretary of State Department of
Commerce has prescribed a mandatory form for the document
under Section 33-1-210, the document must be in or on the
prescribed form.
(i) The document must be delivered to the office of the
Secretary of State Department of Commerce for
filing and must be accompanied by one exact or conformed copy
(except as provided in Sections 33-5-103 and 33-15-109), the
correct filing fee, and any franchise tax, license fee, or penalty
required by the act or other law."
SECTION 157. Section 33-1-210 of the 1976 Code, as last
amended by Section 512, Act 181 of 1993, is further amended to
read:
"Section 33-1-210. (a) The Secretary of State
Department of Commerce may prescribe and furnish on
request forms for:
(1) an application for a certificate of existence,
(2) a foreign corporation's application for a certificate of
authority to transact business in this State,
(3) a foreign corporation's application for a certificate of
withdrawal, and
(4) in conjunction with the Department of Revenue and
Taxation, the annual report. If the Secretary of State
Department of Commerce so requires, use of these forms is
mandatory. The Secretary of State Department of
Commerce, through regulation, may prescribe a mandatory
form in regard to any other forms required or permitted by
Chapters 1 through 20 of this Title to be filed in his office. All
such mandatory forms must comply with all statutory requirements
contained in Chapters 1 through 20 of this Title.
(b) The Secretary of State Department of
Commerce may prescribe and furnish on request forms for
other documents required or permitted to be filed by Chapters 1
through 20 of this Title but their use is not mandatory."
SECTION 158. Section 33-1-220 of the 1976 Code, as last
amended by Act 378 of 1994, is further amended to read:
"Section 33-1-220. (a) The Secretary of State
Department of Commerce shall collect the following fees
when the documents described in this subsection are delivered to
him for filing:
DOCUMENT FEE
(1) Articles of incorporation $ 10.00.
(2) Application for use of indistinguishable name $ 10.00.
(3) Application for reserved name $ 10.00.
(4) Notice of transfer of reserved name $ 3.00.
(5) Application for registered name $ 10.00.
(6) Application for renewal of registered name $ 10.00.
(7) Corporation's statement of change of
registered agent or registered office or both $ 10.00.
(8) Agent's statement of change of registered
office for each affected corporation $ 2.00.
(9) Agent's statement of resignation $ 3.00.
(10) Amendment of articles of incorporation $ 10.00.
(11) Restatement of articles of incorporation
with amendment of articles $ 10.00.
(12) Articles of merger or share exchange $ 10.00.
(13) Articles of dissolution $ 10.00.
(14) Articles of revocation of dissolution $ 10.00.
(15) Certificate of administrative dissolutionNo fee.
(16) Application for reinstatement following
administrative dissolution $ 25.00.
(17) Certificate of reinstatement No fee.
(18) Certificate of judicial dissolution No fee.
(19) Application for certificate of authority $ 10.00.
(20) Application for amended certificate of authority $ 10.00.
(21) Application for certificate of withdrawal $ 10.00.
(22) Certificate of revocation of authority to
transact business No fee.
(23) Annual report--As provided in Section 12-19-20 Fee Paid
to Tax
Commission
(24) Articles of correction $ 10.00.
(25) Application for certificate of existence
or authorization $ 2.00.
(26) Any other document required or permitted
to be filed by this act $ 10.00.
(b) The Secretary of State Department of
Commerce shall collect a fee of ten dollars each time process is
served on him under Chapters 1 through 20 of this Title. The party
to a proceeding causing service of process is entitled to recover this
fee as costs if he prevails in the proceeding.
(c) The Secretary of State Department of
Commerce shall collect the following fees for copying and
certifying the copy of any filed document relating to a domestic or
foreign corporation:
(1) for copying, one dollar for the first page and fifty cents
for each additional page; and
(2) two dollars for the certificate.
(d) Before filing any of the following documents, the
Secretary of State Department of Commerce shall
collect the following taxes which must be remitted to the State
Treasurer for use of the State:
(1) articles of incorporation, one hundred dollars plus the
minimum license fee imposed pursuant to Chapter 19 of Title 12;
(2) amendment to articles of incorporation, one hundred
dollars;
(3) articles of merger or share exchange, one hundred dollars;
(4) application by a foreign corporation for a certificate of
authority to do business in South Carolina, one hundred dollars plus
the minimum license fee imposed pursuant to Chapter 19 of Title
12;
(5) amendment by a foreign corporation of its certificate of
authority, one hundred dollars."
SECTION 159. Section 33-1-230 of the 1976 Code is amended
to read:
"Section 33-1-230. (a) Except as provided in subsection
(b) of this section and Section 33-1-240(c), a document accepted for
filing is effective:
(1) at the time for filing on the date it is filed, as evidenced
by the Secretary of State's Department of
Commerce's date and time endorsement on the original
document; or
(2) at the time specified in the document as its effective time
on the date it is filed.
(b) A document may specify a delayed effective time and date,
and if it does so the document becomes effective at the time and
date specified. If a delayed effective date but no time is specified,
the document is effective at the close of business on that date. A
delayed effective date for a document may not be later than the
ninetieth day after the date it is filed."
SECTION 160. Section 33-1-240 of the 1976 Code is amended
to read:
"Section 33-1-240. (a) A domestic or foreign
corporation may correct a document filed by the Secretary of
State Department of Commerce if the document (1)
contains an incorrect statement or (2) was defectively executed,
attested, sealed, verified, or acknowledged.
(b) A document is corrected:
(1) by preparing articles of correction that (i) describe the
document (including its filing date) or attach a copy of it to the
articles, (ii) specify the incorrect statement and the reason it is
incorrect or the manner in which the execution was defective, and
(iii) correct the incorrect statement or defective execution; and
(2) by delivering the articles to the Secretary of State
Department of Commerce for filing.
(c) Articles of correction are effective on the effective date of
the document they correct except as to persons relying on the
uncorrected document and adversely affected by the correction. As
to those persons, articles of correction are effective when
filed."
SECTION 161. Section 33-1-250 of the 1976 Code is amended
to read:
"Section 33-1-250. (a) If a document delivered to the
office of the Secretary of State Department of
Commerce for filing satisfies the requirements of Section
33-1-200, the Secretary of State Department of
Commerce shall file it.
(b) The Secretary of State Department of
Commerce files a document by stamping or otherwise
endorsing `Filed', together with his name and official title and the
date and time of receipt, on both the original and document copy,
together with a further endorsement that the document copy is a
true copy of the original document. After filing a document, except
as provided in Sections 33-5-103 and 33-15-200, the Secretary
of State Department of Commerce shall deliver the
document copy to the domestic or foreign corporation or its
representative and the document copy must be retained as a part of
the permanent records of the corporation.
(c) If the Secretary of State Department of
Commerce refuses to file a document, he shall return it to the
domestic or foreign corporation or its representative within five
days after the document was delivered, together with a brief, written
explanation of the reason for his refusal.
(d) The Secretary of State's Department of
Commerce's duty to file documents under this section is
ministerial. His filing or refusing to file a document does not:
(1) affect the validity or invalidity of the document in whole
or part;
(2) relate to the correctness or incorrectness of information
contained in the document;
(3) create a presumption that the document is valid or invalid
or that information contained in the document is correct or
incorrect."
SECTION 162. Section 33-1-260 of the 1976 Code is amended
to read:
"Section 33-1-260. (a) If the Secretary of State
Department of Commerce refuses to file a document
delivered to his office for filing, the domestic or foreign corporation
may appeal the refusal within thirty days after the return of the
document to the Circuit Court of Richland County. The appeal is
commenced by petitioning the court to compel filing the document
and by attaching to the petition the document and the Secretary
of State's Department of Commerce's explanation of
his refusal to file.
(b) The court may summarily order the Secretary of
State Department of Commerce to file the document or
take other action the court considers appropriate.
(c) The court's final decision may be appealed as in other civil
proceedings."
SECTION 163. Section 33-1-270 of the 1976 Code is amended
to read:
"Section 33-1-270. A certificate attached to a copy of a
document filed by the Secretary of State Department of
Commerce, bearing his signature (which may be in facsimile)
and the seal of this State, is conclusive evidence that the original
document is on file with the Secretary of State
Department of Commerce and must be taken and received
in all courts, public offices, official bodies, and in all proceedings
as prima facie evidence of the facts therein stated."
SECTION 164. Section 33-1-280 of the 1976 Code is amended
to read:
"Section 33-1-280. (a) Anyone may apply to the
Secretary of State Department of Commerce to
furnish a certificate of existence for a domestic corporation or a
certificate of authorization for a foreign corporation.
(b) A certificate of existence or authorization sets forth:
(1) the domestic corporation's corporate name or the foreign
corporation's corporate name used in this State;
(2) that (i) the domestic corporation is duly incorporated
under the law of this State, the date of its incorporation, and the
period of its duration if less than perpetual; or (ii) the foreign
corporation is authorized to transact business in this State;
(3) that all fees, taxes, and penalties owed to the Secretary
of State Department of Commerce have been paid;
(4) that the Secretary of State Department of
Commerce has not mailed notice to the corporation pursuant to
either Section 33-14-210 or 33-15-310 that the corporation is
subject to being dissolved or its authority revoked;
(5) that articles of dissolution have not been filed; and
(6) other facts of record in the office of the Secretary of
State Department of Commerce that may be requested
by the applicant.
(c) Subject to any qualification stated in the certificate, a
certificate of existence or authorization issued by the Secretary
of State Department of Commerce may be relied upon
as conclusive evidence that the domestic or foreign corporation is in
existence or is authorized to transact business in this State."
SECTION 165. Section 33-1-290 of the 1976 Code is amended
to read:
"Section 33-1-290. (a) A person commits an offense if
he signs a document he knows is false in any material respect
(including an omission of a material fact necessary in order to make
the statements made in light of the circumstances under which they
were made, not misleading) with intent that the document be
delivered to the Secretary of State Department of
Commerce for filing.
(b) An offense under this section is a misdemeanor punishable
by a fine of not to exceed five hundred dollars.
(c) Any person who violates subsection (a) is liable to any
person who is damaged thereby."
SECTION 166. Section 33-1-300 of the 1976 Code is amended
to read:
"Section 33-1-300. The Secretary of State
Department of Commerce has the power reasonably
necessary to perform the duties required of him by Chapters 1
through 20 of this title."
SECTION 167. Section 33-2-101 of the 1976 Code is amended
to read:
"Section 33-2-101. Any person may act as the
incorporator of a corporation by delivering articles of incorporation
to the Secretary of State Department of Commerce
for filing."
SECTION 168. Section 33-2-103 of the 1976 Code is amended
to read:
"Section 33-2-103. (a) Unless a delayed effective date is
specified, the corporate existence begins when the articles of
incorporation are filed.
(b) The Secretary of State's Department of
Commerce's filing of the articles of incorporation is conclusive
proof that the incorporators satisfied all conditions precedent to
incorporation except in a proceeding by the State to cancel or
revoke the incorporation or involuntarily dissolve the
corporation."
SECTION 169. Section 33-4-101 of the 1976 Code, as last
amended by Act 446 of 1990, is further amended to read:
"Section 33-4-101. (a) Except as otherwise authorized
by either subsection (f) or (g), a corporate name:
(1) must contain the word `corporation', `incorporated',
`company', or `limited', the abbreviation `corp.', `inc.', `co.', or
`ltd.', or words or abbreviations of like import in another language;
and
(2) may not contain language stating or implying that the
corporation is organized for a purpose other than that permitted by
Section 33-3-101 and its articles of incorporation.
(b) Except as authorized by subsections (c) and (d), a corporate
name must be distinguishable upon the records of the Secretary
of State Department of Commerce from:
(1) the corporate name of a corporation incorporated or
authorized to transact business in this State;
(2) a corporate name reserved or registered under Section
33-4-102 or 33-4-103;
(3) the fictitious name adopted by a foreign corporation
authorized to transact business in this State because its real name is
unavailable;
(4) the corporate name of a not-for-profit corporation
incorporated or authorized to transact business in this State;
(5) the name of a limited partnership authorized to transact
business in this State.
(c) A corporation may apply to the Secretary of State
Department of Commerce for authorization to use a name
that is not distinguishable upon his records from one or more of the
names described in subsection (b). The Secretary of State
Department of Commerce shall authorize use of the name
applied for if:
(1) the other corporation consents to the use in writing and
submits an undertaking in form satisfactory to the Secretary of
State Department of Commerce to change its name to a
name that is distinguishable upon the records of the Secretary of
State Department of Commerce from the name of the
applying corporation; or
(2) the applicant delivers to the Secretary of State
Department of Commerce a certified copy of the final
judgment of a court of competent jurisdiction establishing the
applicant's right to use the name applied for in this State.
(d) A corporation may use the name (including the fictitious
name) of another domestic or foreign corporation that is used in
this State if the other corporation is incorporated or authorized to
transact business in this State and the proposed user corporation:
(1) has merged with the other corporation;
(2) has been formed by reorganization of the other
corporation; or
(3) has acquired all or substantially all of the assets, including
the corporate name, of the other corporation.
(e) Chapters 1 through 20 of this title does not control the use
of fictitious names.
(f) The following corporations are exempt from subsection
(a)(1):
(1) a bank, building and loan association, savings and loan
association, insurance company, public utility, and railroad;
(2) a corporation which was organized before January 1,
1964, and whose charter or articles of incorporation on the effective
date of this Business Corporation Act of 1988 specified a corporate
name that would not meet the requirements of subsection (a) of this
section, may continue to use that name as its official name;
(3) nonprofit corporation; and
(4) a professional corporation governed by Chapter 19 of this
title, but the name of the professional corporation must comply with
Section 33-19-150.
(g) Any corporation incorporated in South Carolina which, prior
to the effective date of Chapters 1 through 20 of this Title, filed a
renewable certificate with the Secretary of State
Department of Commerce adopting an `assumed name'
pursuant to the provisions of Section 33-5-35 in Section 2 of Act
146 of 1981, and which filed assumed name would not meet the
requirements of subsection (a) of this section, may continue to use
the name as its name until December 31, 1994, at which time the
name of the corporation must meet the requirements of subsections
(a) and (b) of this section. If necessary to meet the requirements of
subsections (a) and (b), the corporation must amend its articles of
incorporation prior to December 31, 1994.
If any corporation incorporated in South Carolina prior to the
effective date of Chapters 1 through 20 of this Title adopted an
assumed name which complies with all of the provisions of
subsections (a) and (b), that assumed name, upon filing of amended
articles designating such name as the name of the corporation, is the
corporation's name.
No certificate of assumed name may be renewed after the
effective date of Chapters 1 through 20 of Title 33, and all such
certificates, regardless of stated expiration date, automatically expire
on December 31, 1994."
SECTION 170. Section 33-4-102 of the 1976 Code, as last
amended by Act 3 of 1991, is further amended to read:
"Section 33-4-102. (a) A person may reserve the
exclusive use of a corporate name, including a fictitious name for a
foreign corporation whose corporate name is not available, by
delivering an application to the Secretary of State
Department of Commerce for filing. The application must
set forth the name and address of the applicant and the name
proposed to be reserved. If the Secretary of State
Department of Commerce finds that the corporate name
applied for is available, he shall reserve the name for the applicant's
exclusive use for a nonrenewable one hundred twenty-day period.
(b) The owner of a reserved corporate name may transfer the
reservation to another person by delivering to the Secretary of
State Department of Commerce a signed notice of the
transfer that states the name and address of the transferee.
(c) The name of a corporation administratively dissolved under
Section 33-14-210 is not subject to reservation for a period of two
years from the date the Secretary of State Department of
Commerce sends a copy of the certificate of dissolution to the
corporation as provided by Section 33-14-210(b)."
SECTION 171. Section 33-4-103 of the 1976 Code is amended
to read:
"Section 33-4-103. (a) A foreign corporation may
register its corporate name, or its corporate name with any addition
required by Section 33-15-106, if the name is distinguishable upon
the records of the Secretary of State Department of
Commerce from the corporate names that are not available
under Section 33-4-101(b)(3).
(b) A foreign corporation registers its corporate name, or its
corporate name with any addition required by Section 33-15-106,
by delivering to the Secretary of State Department of
Commerce for filing an application:
(1) setting forth its corporate name, or its corporate name
with any addition required by Section 33-15-106, the state or
country and date of its incorporation, and a brief description of the
nature of the business in which it is engaged; and
(2) accompanied by a certificate of existence (or a document
of similar import) from the state or country of incorporation.
(c) The name is registered for the applicant's exclusive use
upon the effective date of the application.
(d) A foreign corporation whose registration is effective may
renew it for successive years by delivering to the Secretary of
State Department of Commerce for filing a renewal
application, which complies with the requirements of subsection (b),
between October first and December thirty-first of the preceding
year. The renewal application, when filed, renews the registration
for the following calendar year.
(e) A foreign corporation whose registration is effective may
qualify thereafter as a foreign corporation under the registered name
or consent in writing to the use of that name by a corporation
thereafter incorporated under Chapters 1 through 20 of this Title or
by another foreign corporation thereafter authorized to transact
business in this State. The registration terminates when the
domestic corporation is incorporated or the foreign corporation
qualifies or consents to the qualification of another foreign
corporation under the registered name."
SECTION 172. Section 33-5-102 of the 1976 Code is amended
to read:
"Section 33-5-102. (a) A corporation may change its
registered office or registered agent by delivering to the
Secretary of State Department of Commerce for
filing a statement of change that sets forth:
(1) the name of the corporation;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street
address of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name
of the new registered agent and the new agent's written consent
(either on the statement or attached to it) to the appointment; and
(6) that after the change or changes are made, the street
addresses of its registered office and the business office of its
registered agent will be identical.
(b) If a registered agent changes the street address of his
business office, he may change the street address of the registered
office of any corporation for which he is the registered agent by
notifying the corporation in writing of the change and signing
(either manually or in facsimile) and delivering to the Secretary
of State Department of Commerce for filing a
statement that complies with the requirements of subsection (a) and
recites that the corporation has been notified of the change."
SECTION 173. Section 33-5-103 of the 1976 Code is amended
to read:
"Section 33-5-103. (a) A registered agent may resign his
agency appointment by signing and delivering to the Secretary
of State Department of Commerce for filing the signed
original and two exact or conformed copies of a statement of
resignation. The statement may include a statement that the
registered office is also discontinued.
(b) After filing the statement the Secretary of State
Department of Commerce shall mail one copy to the
registered office (if not discontinued) and the other copy to the
corporation at its principal office.
(c) The agency appointment is terminated, and the registered
office discontinued if so provided, on the thirty-first day after the
date on which the statement was filed."
SECTION 174. Section 33-6-102 of the 1976 Code is amended
to read:
"Section 33-6-102. (a) If the articles of incorporation so
provide, the board of directors may determine, in whole or part, the
preferences, limitations, and relative rights (within the limits set
forth in Section 33-6-101) of (1) any class of shares before the
issuance of any shares of that class or (2) one or more series within
a class before the issuance of any shares of that series.
(b) Each series of a class must be given a distinguishing
designation.
(c) All shares of a series must have preferences, limitations, and
relative rights identical with those of other shares of the same series
and, except to the extent otherwise provided in the description of
the series, with those of other series of the same class.
(d) Before issuing any shares of a class or series created under
this section, the corporation must deliver to the Secretary of
State Department of Commerce for filing articles of
amendment, which are effective without shareholder action, that set
forth:
(1) the name of the corporation;
(2) the text of the amendment determining the terms of the
class or series of shares;
(3) the date it was adopted; and
(4) a statement that the amendment was duly adopted by the
board of directors."
SECTION 175. Section 33-6-310 of the 1976 Code is amended
to read:
"Section 33-6-310. (a) A corporation may acquire its
own shares, and shares so acquired constitute authorized but
unissued shares.
(b) If the articles of incorporation prohibit the reissue of
acquired shares, the number of authorized shares is reduced by the
number of shares acquired, effective upon amendment of the
articles of incorporation.
(c) The board of directors may adopt articles of amendment
under this section without shareholder action and deliver them to
the Secretary of State Department of Commerce for
filing. The articles must set forth:
(1) the name of the corporation;
(2) the reduction of the number of authorized shares, itemized
by class and series; and
(3) the total number of authorized shares, itemized by class
and series, remaining after reduction of the shares."
SECTION 176. Section 33-10-102 of the 1976 Code is amended
to read:
"Section 33-10-102. Unless the articles of incorporation
provide otherwise, a corporation's board of directors may adopt one
or more amendments to the corporation's articles of incorporation
without shareholder action to:
(1) delete the names and addresses of the initial directors;
(2) delete the name and address of the initial registered agent
or registered office, if a statement of change is on file with the
Secretary of State Department of Commerce;
(3) change each issued and unissued authorized share of an
outstanding class into a greater number of whole shares if the
corporation has only shares of that class outstanding;
(4) change the corporate name by substituting the word
`corporation', `incorporated', `company', `limited', or the
abbreviation `corp.', `inc.', `co.', or `ltd.' for a similar word or
abbreviation in the name or by adding, deleting, or changing a
geographical attribution for the name; or
(5) make any other change expressly permitted by Chapters 1
thru 20 of this title to be made without shareholder action."
SECTION 177. Section 33-10-106 of the 1976 Code is amended
to read:
"Section 33-10-106. A corporation amending its articles of
incorporation shall deliver to the Secretary of State
Department of Commerce for filing articles of amendment
setting forth:
(1) the name of the corporation;
(2) the text of each amendment adopted;
(3) if an amendment provides for an exchange,
reclassification, or cancellation of issued shares, provisions for
implementing the amendment if not contained in the amendment
itself;
(4) the date of each amendment's adoption;
(5) if an amendment was adopted by the incorporators or
board of directors without shareholder action, a statement to that
effect and that shareholder action was not required;
(6) if an amendment was approved by the shareholders:
(i) the designation, number of outstanding shares, number
of votes entitled to be cast by each voting group entitled to vote
separately on the amendment, and number of votes of each voting
group indisputably represented at the meeting;
(ii) either the total number of votes cast for and against the
amendment by each voting group entitled to vote separately on the
amendment or the total number of undisputed votes cast for the
amendment by each voting group and a statement that the number
cast for the amendment by each voting group was sufficient for
approval by that voting group."
SECTION 178. Section 33-10-107 of 1976 Code is amended to
read:
"Section 33-10-107. (a) A corporation's board of
directors may restate its articles of incorporation with or without
shareholder action.
(b) The restatement may include amendments to the articles. If
the restatement includes an amendment requiring shareholder
approval, it must be adopted as provided in Section 33-10-103.
(c) If the board of directors submits a restatement for
shareholder action, the corporation shall notify each shareholder,
whether or not entitled to vote, of the proposed shareholders'
meeting in accordance with Section 33-7-105. The notice must
state also that the purpose, or one of the purposes, of the meeting is
to consider the proposed restatement and contain or be accompanied
by a copy of the restatement that identifies any amendment or
other change it would make in the articles.
(d) A corporation restating its articles of incorporation shall
deliver to the Secretary of State Department of
Commerce for filing articles of restatement setting forth the
name of the corporation (and, if it has been changed, all of its
former names), the date of filing of its original articles, and the text
of the restated articles of incorporation together with a certificate
setting forth:
(1) whether the restatement contains an amendment to the
articles requiring shareholder approval and, if it does not, that the
board of directors adopted the restatement; or
(2) if the restatement contains an amendment to the articles
requiring shareholder approval, the information required by Section
33-10-106.
(e) Duly adopted restated articles of incorporation supersede
the original articles of incorporation and all amendments to them.
(f) The Secretary of State Department of
Commerce may certify restated articles of incorporation, as the
articles of incorporation currently in effect, without including the
certificate information required by subsection (d)."
SECTION 179. Section 33-10-108 of the 1976 Code is amended
to read:
"Section 33-10-108. (a) A corporation's articles of
incorporation may be amended without action by the board of
directors or shareholders to carry out a plan of reorganization
ordered or decreed by a court of competent jurisdiction under
federal statute if the articles of incorporation after amendment
contain only provisions required or permitted by Section 33-2-102.
(b) The individual designated by the court shall deliver to the
Secretary of State Department of Commerce for
filing articles of amendment setting forth:
(1) the name of the corporation;
(2) the text of each amendment approved by the court;
(3) the date of the court's order or decree approving the
articles of amendment;
(4) the title of the reorganization proceeding in which the
order or decree was entered; and
(5) a statement that the court had jurisdiction of the
proceeding under federal statute.
(c) Shareholders of a corporation undergoing reorganization do
not have dissenters' rights except as and to the extent provided in
the reorganization plan.
(d) This section does not apply after entry of a final decree in
the reorganization proceeding even though the court retains
jurisdiction of the proceeding for limited purposes unrelated to
consummation of the reorganization plan."
SECTION 180. Section 33-11-104 of the 1976 Code is amended
to read:
"Section 33-11-104. (a) A parent corporation owning at
least ninety percent of the outstanding shares of each class of a
subsidiary corporation may merge the subsidiary into itself without
approval of the shareholders of the parent or subsidiary.
(b) The board of directors of the parent shall adopt a plan of
merger that sets forth the:
(1) names of the parent and subsidiary; and
(2) manner and basis of converting the shares of the
subsidiary into shares, obligations, or other securities of the parent
or any other corporation or into cash or other property in whole or
part.
(c) The parent shall mail a copy or summary of the plan of
merger to each shareholder of the subsidiary who does not waive
the mailing requirement in writing.
(d) The parent may not deliver articles of merger to the
Secretary of State Department of Commerce for
filing until at least thirty days after the date it mailed a copy of the
plan of merger to each shareholder of the subsidiary who did not
waive the mailing requirement.
(e) Articles of merger under this section may not contain
amendments to the articles of incorporation of the parent
corporation (except for amendments enumerated in Section
33-10-102)."
SECTION 181. Section 33-11-105 of the 1976 Code is amended
to read:
"Section 33-11-105. (a) After a plan of merger or share
exchange is approved by the shareholders, or adopted by the board
of directors if shareholder approval is not required, the surviving or
acquiring corporation shall deliver to the Secretary of State
Department of Commerce for filing articles of merger or
share exchange setting forth:
(1) the plan of merger or share exchange;
(2) if shareholder approval was not required, a statement to
that effect;
(3) if approval of the shareholders of one or more
corporations party to the merger or share exchange was required:
(i) the designation, number of outstanding shares, and
number of votes entitled to be cast by each voting group entitled to
vote separately on the plan as to each corporation; and
(ii) either the total number of votes cast for and against the
plan by each voting group entitled to vote separately on the plan or
the total number of undisputed votes cast for the plan separately by
each voting group and a statement that the number cast for the plan
by each voting group was sufficient for approval by that voting
group.
(b) A merger or share exchange takes effect upon the effective
date of the articles of merger or share exchange."
SECTION 182. Section 33-11-107 of the 1976 Code is amended
to read:
"Section 33-11-107. (a) Foreign corporations may merge
or enter into a share exchange with domestic corporations if:
(1) in a merger, the merger is permitted by the law of the
state or country under whose law each foreign corporation is
incorporated and each foreign corporation complies with that law in
effecting the merger;
(2) in a share exchange, the corporation whose shares are to
be acquired is a domestic corporation, whether or not a share
exchange is permitted by the law of the state or country under
whose law the acquiring corporation is incorporated;
(3) the foreign corporation complies with Section 33-11-105
if it is the surviving corporation of the merger or acquiring
corporation of the share exchange; and
(4) each domestic corporation complies with the applicable
provisions of Sections 33-11-101 through 33-11-104 and, if it is the
surviving corporation of the merger or acquiring corporation of the
share exchange, with Section 33-11-105.
(b) Upon the merger or share exchange taking effect, the
surviving foreign corporation of a merger and the acquiring foreign
corporation of a share exchange is considered to:
(1) appoint the Secretary of State Department of
Commerce as its agent for service of process in a proceeding to
enforce any obligation or the rights of dissenting shareholders of
each domestic corporation party to the merger or share exchange;
and
(2) agree that it will pay promptly to the dissenting
shareholders of each domestic corporation party to the merger or
share exchange the amount, if any, to which they are entitled under
Chapter 13.
(c) This section does not limit the power of a foreign
corporation to acquire all or part of the shares of one or more
classes or series of a domestic corporation through a voluntary
exchange or otherwise."
SECTION 183. Section 33-11-108 of the 1976 Code is amended
to read:
"Section 33-11-108. (a) A parent corporation owning at
least ninety percent of the outstanding shares of each class of a
subsidiary corporation may merge itself into the subsidiary without
approval of the shareholders of the subsidiary if the plan of merger
is submitted to and approved by the shareholders of the parent in
accordance with Section 33-11-103.
(b) The board of directors of the parent shall adopt a plan of
merger that sets forth the:
(1) names of the parent and subsidiary; and
(2) manner and basis of converting the shares of the parent
pro rata into shares of the subsidiary.
(c) The subsidiary shall mail a copy or summary of the plan of
merger to each of its shareholders who does not waive the mailing
requirement in writing.
(d) The subsidiary may not deliver articles of merger to the
Secretary of State Department of Commerce for
filing until at least thirty days after the date it mailed a copy of the
plan of merger to each of its shareholders who did not waive the
mailing requirement.
(e) Articles of merger under this section may not contain
amendments to the articles of incorporation of the subsidiary
corporation (except for amendments enumerated in Section
33-10-102)."
SECTION 184. Section 33-14-101 of the 1976 Code is amended
to read:
"Section 33-14-101. The board of directors or, if the
corporation has no directors, a majority of the incorporators of a
corporation that has not issued shares or has not commenced
business may dissolve the corporation by delivering to the
Secretary of State Department of Commerce for
filing articles of dissolution that set forth:
(1) the name of the corporation;
(2) the date of its incorporation;
(3) either (i) that none of the corporation's shares has been
issued or (ii) that the corporation has not commenced business;
(4) that no debt of the corporation remains unpaid;
(5) that the net assets of the corporation remaining after
winding up have been distributed to the shareholders, if shares were
issued; and
(6) that a majority of the incorporators or initial directors
authorized the dissolution."
SECTION 185. Section 33-14-103 of the 1976 Code is amended
to read:
"Section 33-14-103. (a) At any time after dissolution is
authorized, the corporation may dissolve by delivering to the
Secretary of State Department of Commerce for
filing articles of dissolution setting forth:
(1) the name of the corporation;
(2) the names and addresses of its directors;
(3) the names and addresses of its officers;
(4) the date dissolution was authorized;
(5) if dissolution was approved by the shareholders:
(i) the number of votes entitled to be cast on the proposal
to dissolve; and
(ii) either the total number of votes cast for and against
dissolution or the total number of undisputed votes cast for
dissolution and a statement that the number cast for dissolution was
sufficient for approval.
(6) If voting by voting groups was required, the information
required by item (5) must be provided separately for each voting
group entitled to vote separately on the plan to dissolve.
(b) A corporation is dissolved upon the effective date of its
articles of dissolution."
SECTION 186. Section 33-14-104 of the 1976 Code is amended
to read:
"Section 33-14-104. (a) A corporation may revoke its
dissolution within one hundred twenty days of its effective date.
(b) Revocation of dissolution must be authorized in the same
manner as the dissolution was authorized unless that authorization
permitted revocation by action of the board of directors alone, in
which event the board of directors may revoke the dissolution
without shareholder action.
(c) After the revocation of dissolution is authorized, the
corporation may revoke the dissolution by delivering to the
Secretary of State Department of Commerce for
filing, articles of revocation of dissolution, together with a copy of
its articles of dissolution, that set forth:
(1) the name of the corporation;
(2) the effective date of the dissolution that was revoked;
(3) the date that the revocation of dissolution was authorized;
(4) if the corporation's board of directors (or incorporators)
revoked the dissolution, a statement to that effect;
(5) if the corporation's board of directors revoked a
dissolution authorized by the shareholders, a statement that
revocation was permitted by action by the board of directors alone
pursuant to that authorization; and
(6) if shareholder action was required to revoke the
dissolution:
(i) the number of votes entitled to be case on the proposal
to revoke the dissolution; and
(ii) either the total number of votes cast for and against
revocation or the total number of undisputed votes cast for
revocation and a statement that the number cast for revocation was
sufficient for approval.
(7) If voting by voting groups was required, the information
required by item (6) must be separately provided for each voting
group entitled to vote separately on the proposal to revoke the
dissolution.
(d) Revocation of dissolution is effective upon the effective date
of the articles of revocation of dissolution.
(e) When the revocation of dissolution is effective, it relates
back to and takes effect as of the effective date of the dissolution
and the corporation resumes carrying on its business as if
dissolution had never occurred."
SECTION 187. Section 33-14-200 of the 1976 Code, as last
amended by Section 513, Act 181 of 1993, is further amended to
read:
"Section 33-14-200. (a) The Secretary of State
Department of Commerce shall commence a proceeding
under Section 33-14-210(a) to dissolve a corporation
administratively if:
(1) the corporation does not pay when they are due any
franchise taxes, taxes payable under Chapter 7 of Title 12, or
penalties imposed by law;
(2) the corporation does not deliver its annual report to the
Department of Revenue and Taxation when it is due;
(3) the corporation is without a registered agent or registered
office in this State;
(4) the corporation does not notify the Secretary of
State Department of Commerce that its registered agent
or registered office has been changed, that its registered agent has
resigned, or that its registered office has been discontinued; or
(5) the corporation's period of duration stated in its articles of
incorporation expires.
(b) The Secretary of State Department of
Commerce shall dissolve a corporation under Section
33-14-210(c) if he is notified by the Department of Revenue and
Taxation that the corporation has failed to file a required tax return
within sixty days of the notice required by Section
12-7-1675."
SECTION 188. Section 33-14-210 of the 1976 Code is amended
to read:
"Section 33-14-210. (a) If the Secretary of State
Department of Commerce determines that grounds exist
under Section 33-14-200(a) for dissolving a corporation, he shall
mail written notice of his determination to the corporation.
(b) If the corporation does not correct each ground for
dissolution or demonstrate to the reasonable satisfaction of the
Secretary of State Department of Commerce that
each ground determined by the Secretary of State
Department of Commerce does not exist within sixty days
after the notice required by subsection (a) was mailed, the
Secretary of State Department of Commerce shall
dissolve the corporation administratively by signing a certificate of
dissolution that recites the grounds for dissolution and its effective
date. The Secretary of State Department of
Commerce shall file the original of the certificate and send a
copy to the corporation by registered or certified mail addressed to
its registered agent at its registered office or to the office of the
secretary of the corporation at its principal office.
(c) If the Secretary of State Department of
Commerce is notified by the Tax Commission that the
corporation has failed to file a required tax return within sixty days
of the notice required by Section 12-7-1675, the Secretary of
State Department of Commerce shall dissolve the
corporation administratively by signing a certificate of dissolution
that recites the grounds for dissolution and its effective date. The
Secretary of State Department of Commerce shall
file the original of the certificate and send a copy to the corporation
by registered or certified mail addressed to its registered agent at its
registered office or to the office of the secretary of the corporation
at its principal office.
(d) A corporation dissolved administratively continues its
corporate existence but may not carry on any business except that
necessary to wind up and liquidate its business and affairs under
Section 33-14-105 and notify claimants under Sections 33-14-106
and 33-14-107.
(e) The administrative dissolution of a corporation does not
terminate the authority of its registered agent."
SECTION 189. Section 33-14-220 of the 1976 Code, as last
amended by Section 514, Act 181 of 1993, is further amended to
read:
"Section 33-14-220. (a) A corporation dissolved
administratively under Section 33-14-210 may apply to the
Secretary of State Department of Commerce for
reinstatement at any time after the effective date of dissolution.
The application must:
(1) recite the name of the corporation and the effective date
of its administrative dissolution;
(2) state that the grounds for dissolution either did not exist
or have been eliminated;
(3) state that the corporation's name satisfies the requirements
of Section 33-4-101; and
(4) contain a certificate from the South Carolina Department
of Revenue and Taxation reciting that all taxes, penalties, and
interest owed by the corporation, whether assessed or not, have
been paid.
(b) If the Secretary of State Department of
Commerce determines that the application contains the
information required by subsection (a) and that the information is
correct, he shall cancel the certificate of dissolution and prepare a
certificate of reinstatement that recites his determination and the
effective date of reinstatement, file the original of the certificate,
and send a copy to the corporation.
(c) When the reinstatement is effective, it relates back to and
takes effect as of the effective date of the administrative dissolution
and the corporation resumes carrying on its business as if the
administrative dissolution had never occurred."
SECTION 190. Section 33-14-230 of the 1976 Code is amended
to read:
"Section 33-14-230. (a) If the Secretary of State
Department of Commerce denies a corporation's
application for reinstatement following administrative dissolution,
he shall send a written notice that explains the reasons for denial to
the corporation by registered or certified mail addressed to its
registered agent at its registered office or to the office of the
secretary of the corporation at its principal office.
(b) The corporation may appeal the denial of reinstatement to
the circuit court for Richland County within thirty days after the
notice of denial was received. The corporation appeals by
petitioning the court to set aside the dissolution and attaching to the
petition copies of the Secretary of State's Department of
Commerce's certificate of dissolution, the corporation's
application for reinstatement, and the Secretary of State's
Department of Commerce's notice of denial.
(c) The court may summarily order the Secretary of
State Department of Commerce to reinstate the
dissolved corporation or may take other action the court considers
appropriate.
(d) The court's final decision may be appealed as in other civil
proceedings."
SECTION 191. Section 33-14-330 of the 1976 Code is amended
to read:
"Section 33-14-330. (a) If after a hearing the court
determines that grounds for judicial dissolution described in Section
33-14-300 exist, it may enter a decree dissolving the corporation
and specifying the effective date of the dissolution, and the clerk of
court shall deliver a certified copy of the decree to the Secretary
of State Department of Commerce, who shall file it
without charging any fee.
(b) After entering the decree of dissolution, the court shall
direct the winding up and liquidation of the corporation's business
and affairs in accordance with Section 33-14-105 and the
notification of claimants in accordance with Sections 33-14-106 and
33-14-107."
SECTION 192. Section 33-15-101 of the 1976 Code, as last
amended by Act 446 of 1990, is further amended to read:
"Section 33-15-101. (a) A foreign corporation may not
transact business in this State until it obtains a certificate of
authority from the Secretary of State Department of
Commerce.
(b) The following activities, among others, do not constitute
transacting business within the meaning of subsection (a):
(1) maintaining, defending, or settling any proceeding;
(2) holding meetings of the board of directors or shareholders
or carrying on other activities concerning internal corporate affairs;
(3) maintaining bank accounts;
(4) maintaining offices or agencies for the transfer, exchange,
and registration of the corporation's own securities or maintaining
trustees or depositories with respect to those securities;
(5) selling through independent contractors;
(6) soliciting or obtaining orders, whether by mail or through
employees or agents or otherwise, if the orders require acceptance
outside this State before they become contracts;
(7) creating or acquiring any indebtedness, mortgages, and
security interests in real or personal property;
(8) securing or collecting any debts or enforcing mortgages,
security interests, or any other rights in property securing debts;
(9) owning, without more, real or personal property;
(10) conducting an isolated transaction that is completed within
thirty days and that is not one in the course of repeated transactions
of a like nature;
(11) transacting business in interstate commerce; or
(12) owning and controlling a subsidiary corporation
incorporated in or transacting business within this State.
(c) The list of activities in subsection (b) is not
exhaustive."
SECTION 193. Section 33-15-103 of the 1976, as last amended
by Act 466 of 1994, is further amended to read:
"Section 33-15-103. (a) A foreign corporation may apply
for a certificate of authority to transact business in this State by
delivering an application to the Secretary of State
Department of Commerce for filing. The application must
set forth:
(1) the name of the foreign corporation or, if its name is
unavailable for use in this State, a corporation name that satisfies
the requirements of Section 33-15-106;
(2) the name of the state or country under whose law it is
incorporated;
(3) its date of incorporation and period of duration;
(4) the street address of its principal office;
(5) the address of its proposed registered office in this State
and the name of its proposed registered agent at that office;
(6) the names and usual business addresses of its current
directors and officers;
(7) a statement of the aggregate number of shares which the
corporation has authority to issue, itemized by classes and series, if
any, within a class.
(b) The foreign corporation shall deliver with the completed
application a certificate of existence (or a document of similar
import) duly authenticated by the Secretary of State
Director of the Department of Commerce or other official
having custody or corporate records in the state or country under
whose law it is incorporated.
(c) The foreign corporation shall deliver with the completed
application the initial annual report of the corporation as
specified in Section 12-19-20 by law."
SECTION 194. Section 33-15-104 of the 1976 Code is amended
to read:
"Section 33-15-104. (a) A foreign corporation authorized
to transact business in this State must obtain an amended certificate
of authority from the Secretary of State Department of
Commerce if it changes:
(1) its corporate name;
(2) the period of its duration; or
(3) the state or country of its incorporation.
(b) The requirements of Section 33-15-103 for obtaining an
original certificate of authority apply to obtaining an amended
certificate under this section."
SECTION 195. Section 33-15-106 of the 1976 Code is amended
to read:
"Section 33-15-106. (a) Except as authorized by
subsection (f), if the corporate name of a foreign corporation does
not satisfy the requirements of Section 33-4-101, the foreign
corporation to obtain or maintain a certificate of authority to
transact business in this State may:
(1) add `corporation', `incorporated', `company', or `limited'
or the abbreviation `corp.', `inc.', `co.', or `ltd.' to its corporate
name for use in this State; or
(2) use a fictitious name in this State if its real name is
unavailable and it delivers to the Secretary of State
Department of Commerce for filing a copy of the
resolution of its board of directors, certified by its secretary,
adopting the fictitious name which includes one or more of the
words or abbreviations in item (1) of this subsection.
(b) Except as authorized by subsections (c) and (d), the
corporate name (including a fictitious name) of a foreign
corporation must be distinguishable upon the records of the
Secretary of State Department of Commerce from:
(1) the corporate name of a corporation incorporated or
authorized to transact business in this State;
(2) a corporate name reserved or registered under Section
33-4-102 or 33-4-103;
(3) the fictitious name of another foreign corporation
authorized to transact business in this State; and
(4) the corporate name of a not-for-profit corporation
incorporated or authorized to transact business in this State.
(c) A foreign corporation may apply to the Secretary of
State Department of Commerce for authorization to use
in this State the name of another corporation incorporated or
authorized to transact business in this State that is not
distinguishable upon his records from the name applied for. The
Secretary of State department shall authorize use of
the name applied for if:
(1) the other corporation consents to the use in writing and
submits an undertaking in form satisfactory to the Secretary of
State Department of Commerce to change its name to a
name that is distinguishable upon the records of the Secretary of
State department from the name of the applying
corporation; or
(2) the applicant delivers to the Secretary of State
Department of Commerce a certified copy of a final
judgment of a court of competent jurisdiction establishing the
applicant's right to use the name applied for in this State.
(d) A foreign corporation may use in this State the name
(including the fictitious name) of another domestic or foreign
corporation that is used in this State if the other corporation is
incorporated or authorized to transact business in this State and the
foreign corporation has:
(1) merged with the other corporation;
(2) been formed by reorganization of the other corporation;
or
(3) acquired all or substantially all of the assets, including the
corporate name, of the other corporation.
(e) If a foreign corporation authorized to transact business in
this State changes its corporate name to one that does not satisfy the
requirements of Section 33-4-101, it may not transact business in
this State under the changed name until it adopts a name satisfying
the requirements of Section 33-4-101 and obtains an amended
certificate of authority under Section 33-15-104.
(f) If any foreign corporation authorized to transact business in
South Carolina had filed, prior to the effective date of Chapters 1
thru 20 of this title, a certificate with the then Secretary of
State adopting an assumed name pursuant to Section 33-5-35 in
Section 2 of Act 146 of 1981 which does not meet the requirements
of either Section 33-4-101(a) and (b) or Section 33-15-106(a)
through (e) of Chapters 1 thru 20 of this title, it may continue to
use the assumed name as its name until December 31, 1994, at
which time the name of the corporation must meet the requirements
of Chapters 1 thru 20 of this title and, if necessary to meet them,
must be adopted by an amended certificate of authority under
Section 33-15-104. If any filed assumed name does not meet the
requirements of Section 33-4-101(a) and (b), but does meet the
requirements of this section, the corporation may continue to use
the name in this State as its name and is not required to file the
certificate mentioned in item (2) of subsection (a) of this
section."
SECTION 196. Section 33-15-108 of the 1976 Code is amended
to read:
"Section 33-15-108. (a) A foreign corporation authorized
to transact business in this State may change its registered office or
registered agent by delivering to the Secretary of State
Department of Commerce for filing a statement of change
that sets forth:
(1) its name;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street
address of its new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name
of its new registered agent and the new agent's written consent to
the appointment either on the statement or attached to it; and
(6) that, after the changes are made, the street addresses of its
registered office and the business office of its registered agent will
be identical.
(b) If a registered agent changes the street address of his
business office, he may change the street address of the registered
office of any foreign corporation for which he is the registered
agent by notifying the corporation in writing of the change and
signing either manually or in facsimile and delivering to the
Secretary of State Department of Commerce for
filing a statement of change that complies with the requirements of
subsection (a) and recites that the corporation has been notified of
the change."
SECTION 197. Section 33-15-109 of the 1976 Code is amended
to read:
"Section 33-15-109. (a) The registered agent of a foreign
corporation may resign his agency appointment by signing and
delivering to the Secretary of State Department of
Commerce for filing the original and two exact or conformed
copies of a statement of resignation. The statement of resignation
may include a statement that the registered office is discontinued
also.
(b) After filing the statement, the Secretary of State
Department of Commerce shall attach the filing receipt to
one copy and mail the copy and receipt to the registered office if
not discontinued. The Secretary of State
department shall mail the other copy to the foreign
corporation at its principal office address shown in its most recent
annual report.
(c) The agency appointment is terminated, and the registered
office discontinued if so provided, on the thirty-first day after the
date on which the statement was filed."
SECTION 198. Section 33-15-200 of the 1976 Code is amended
to read:
"Section 33-15-200. (a) A foreign corporation authorized
to transact business in this State may not withdraw from this State
until it obtains a certificate of withdrawal from the Secretary of
State Department of Commerce.
(b) A foreign corporation authorized to transact business in this
State may apply for a certificate of withdrawal by delivering an
application to the Secretary of State Department of
Commerce for filing. The application must set forth:
(1) the name of the foreign corporation and the name of the
state or country under whose law it is incorporated;
(2) that it is not transacting business in this State and that it
surrenders its authority to transact business in this State;
(3) that it revokes the authority of its registered agent to
accept service on its behalf and appoints the Secretary of
State Director of the Department of Commerce as its
agent for service of process in any proceeding based on a cause of
action arising during the time it was authorized to transact business
in this State;
(4) a mailing address to which the Secretary of State
Director of the Department of Commerce may mail a copy
of any process served on him under item (3); and
(5) a commitment to notify the Secretary of State
director in the future of any change in its mailing address.
(c) After the withdrawal of the corporation is effective, service
of process on the Secretary of State Director of the
Department of Commerce under this section is service on the
foreign corporation. Upon receipt of process, the Secretary of
State director shall mail a copy of the process to the
foreign corporation at the mailing address set forth under
subsection (b)."
SECTION 199. Section 33-15-300 of the 1976 Code, as last
amended by Section 516, Act 181 of 1993, is further amended to
read:
"Section 33-15-300. (a) The Secretary of State
Department of Commerce shall commence a proceeding
under Section 33-15-310 to revoke the certificate of authority of a
foreign corporation authorized to transact business in this State if:
(1) the foreign corporation does not deliver its annual report
to the Department of Revenue and Taxation when due;
(2) the foreign corporation does not pay, when they are due,
any franchise taxes, taxes payable under Chapter 7
6 of Title 12, or penalties imposed by this act or other law;
(3) the foreign corporation is without a registered agent or
registered office in this State;
(4) the foreign corporation does not inform the Secretary
of State Department of Commerce under Section
33-15-108 or 33-15-109 that its registered agent or registered office
has changed, that its registered agent has resigned, or that its
registered office has been discontinued;
(5) an incorporator, director, officer, or agent of the foreign
corporation signed a document he knew was false in any material
respect with intent that the document be delivered to the
Secretary of State Department of Commerce for
filing;
(6) the Secretary of State Department of
Commerce receives a duly authenticated certificate from the
Secretary of State department or other official
having custody of corporate records in the state or country under
whose law the foreign corporation is incorporated stating that it has
been dissolved or disappeared as the result of a merger.
(b) The Secretary of State Department of
Commerce shall proceed under Section 33-15-310(c) to revoke
the certificate of authority of a foreign corporation authorized to
transact business in this State if he is notified by the Department of
Revenue and Taxation that the corporation has failed to file a
required tax return within sixty days of the notice required by
Section 12-7-1675 law."
SECTION 200. Section 33-15-310 of the 1976 Code, as last
amended by Section 517, Act 181 of 1993, is further amended to
read:
"Section 33-15-310. (a) If the Secretary of State
Department of Commerce determines that grounds exist
under Section 33-15-300(a) for revocation of a certificate of
authority, he it shall mail written notice of his
determination to the foreign corporation.
(b) If the foreign corporation does not correct each ground for
revocation or demonstrate to the reasonable satisfaction of the
Secretary of State Department of Commerce that
each ground determined by the Secretary of State
department does not exist within sixty days after the notice
required by subsection (a) was mailed, the Secretary of State
department shall revoke the foreign corporation's certificate
of authority by signing a certificate of revocation that recites the
grounds for revocation and its effective date. The Secretary of
State department shall file the original of the certificate
and send a copy to the foreign corporation by registered or certified
mail addressed to its registered agent at its registered office or to
the office of the secretary of the corporation at its principal office.
(c) If the Secretary of State Department of
Commerce is notified by the Department of Revenue and
Taxation that the foreign corporation has failed to file a required tax
return within sixty days of the notice required by Section
12-7-1675 law, the Secretary of State
department shall revoke the foreign corporation's certificate
of authority by signing a certificate of revocation that recites the
grounds for revocation and its effective date. The Secretary of
State department shall file the original of the certificate
and send a copy to the foreign corporation by registered or certified
mail addressed to its registered agent at its registered office or to
the office of the secretary of the corporation at its principal office.
(d) The authority of a foreign corporation to transact business in
this State ceases on the date shown on the certificate revoking its
certificate of authority.
(e) The Secretary of State's Department of
Commerce's revocation of a foreign corporation's certificate of
authority appoints the Secretary of State Director of the
Department of Commerce as the foreign corporation's agent for
service of process in any proceeding based on a cause of action
which arose during the time the foreign corporation was authorized
to transact business in this State. Service of process on the
Secretary of State Director of the Department of
Commerce under this subsection is service on the foreign
corporation. Upon receipt of process, the Secretary of State
director shall mail a copy of the process to the secretary of
the foreign corporation at its principal office shown in its most
recent annual report or in any subsequent communication received
from the corporation stating the current mailing address of its
principal office or, if none is on file, in its application for a
certificate of authority.
(f) Revocation of a foreign corporation's certificate of authority
does not terminate the authority of the registered agent of the
corporation."
SECTION 201. Section 33-15-320 of the 1976 Code is amended
to read:
"Section 33-15-320. (a) A foreign corporation may
appeal the Secretary of State's Department of
Commerce's revocation of its certificate of authority to the
Richland County Circuit Court within thirty days after the
certificate of revocation was received. The foreign corporation
appeals by petitioning the court to set aside the revocation and
attaching to the petition copies of its certificate of authority and the
Secretary of State's department certificate of
revocation.
(b) The court may summarily order the Secretary of
State Department of Commerce to reinstate the
certificate of authority or may take any other action the court
considers appropriate.
(c) The court's final decision may be appealed as in other civil
proceedings."
SECTION 202. Section 33-15-330 of the 1976 Code, as last
amended by Section 518, Act 181 of 1993, is further amended:
"Section 33-15-330. (A) A foreign corporation whose
certificate of authority has been revoked administratively under
Section 33-15-310 may apply to the Secretary of State
Department of Commerce for reinstatement at any time
after the effective date of revocation. The application must:
(1) recite the name of the foreign corporation and the
effective date of its administrative revocation;
(2) state that the grounds for revocation either did not exist or
have been eliminated;
(3) state that the foreign corporation's name satisfies the
requirements of Section 33-4-101;
(4) contain a certificate from the South Carolina Department
of Revenue and Taxation stating that all taxes, penalties, and
interest owed by the corporation, whether assessed or not, have
been paid.
(B) If the Secretary of State Department of
Commerce determines that the application contains the
information required by subsection (A) and that the information is
correct, he it shall cancel the certificate of
revocation and prepare a certificate of reinstatement that recites his
determination and the effective date of reinstatement, file the
original of the certificate, and send a copy to the foreign
corporation.
(C) When the reinstatement is effective, it relates back to and
takes effect as of the effective date of the administrative revocation
and the foreign corporation may resume carrying on its business as
if the administrative revocation had never occurred."
SECTION 203. Section 33-19-109 of the 1976 Code is amended
to read:
"Section 33-19-109. (a) A person may incorporate a
professional corporation by delivering to the Secretary of
State Department of Commerce for filing articles of
incorporation that state (1) it is a professional corporation and (2)
its purpose is to render the specified professional services.
(b) A corporation incorporated under a general law of this State
that is not repealed by this chapter may elect professional
corporation status by amending its articles of incorporation to
comply with subsection (a) and Section 33-19-150."
SECTION 204. Section 33-19-420 of the 1976 Code is amended
to read:
"Section 33-19-420. The Attorney General may commence
a proceeding under Sections 33-14-300 through 33-14-330 to
dissolve a professional corporation if:
(1) the Secretary of State Department of
Commerce or a licensing authority with jurisdiction over a
professional service described in the corporation's articles of
incorporation serves written notice on the corporation under Section
33-1-300 that it has violated or is violating a provision of this
chapter;
(2) the corporation does not correct each alleged violation, or
demonstrate to the reasonable satisfaction of the Secretary of
State Department of Commerce or licensing authority
that it did not occur, within sixty days after service of the notice is
perfected under Section 33-1-300; and
(3) the Secretary of State Department of
Commerce or licensing authority certifies to the Attorney
General a description of the violation, that it notified the
corporation of the violation, and that the corporation did not correct
it, or demonstrate that it did not occur, within sixty days after
perfection of service of the notice."
SECTION 205. Section 33-19-500 of the 1976 Code is amended
to read:
"Section 33-19-500. (a) Except as provided in subsection
(c), a foreign professional corporation may not transact business in
this State until it obtains a certificate of authority from the
Secretary of State Department of Commerce.
(b) A foreign professional corporation may not obtain a
certificate of authority unless:
(1) its corporate name satisfies the requirements of Section
33-19-150;
(2) it is incorporated for one or more of the purposes
described in Section 33-19-110; and
(3) all of its shareholders, not less than one-half of its
directors, and all of its officers other than its secretary and
treasurer, if any, are licensed in one or more states to render a
professional service described in its articles of incorporation.
(c) A foreign professional corporation is not required to obtain
a certificate of authority to transact business in this State unless it
maintains or intends to maintain an office in this State for conduct
of business or professional practice."
SECTION 206. Section 33-19-520 of the 1976 Code is amended
to read:
"Section 33-19-520. The Secretary of State
Department of Commerce administratively may revoke
under Sections 33-15-300 through 33-15-320 the certificate of
authority of a foreign professional corporation authorized to transact
business in this State if a licensing authority with jurisdiction over a
professional service described in the corporation's articles of
incorporation certifies to the Secretary of State
department that the corporation is in violation of a
provision of this chapter and describes the violation in the
certificate."
SECTION 207. Section 33-19-700 of the 1976 Code is amended
to read:
"Section 33-19-700. (a) Except as set forth in subsections
(b), (c), (d), and (e), this chapter applies to a professional
corporation formed under Act 784 of 1962 in existence on its
effective date.
(b) Section 33-19-109 does not apply to professional
corporations formed prior to the effective date of this chapter unless
and until its articles of association are amended.
(c) Section 33-19-210 does not apply to any share certificates
that are issued and outstanding prior to the effective date of this
chapter.
(d) Section 33-19-600 does not apply to any professional
corporation in existence prior to the effective date of this chapter
that was not on that date required to file its articles of association
with a licensing authority. Any professional corporation qualifying
for this exemption shall file its articles of association with the first
annual report required to be filed pursuant to Section 33-19-610.
(e) Within thirty days after the effective date of this chapter, the
Secretary of State Department of Commerce shall
send to the president of each professional corporation at the
association's address as shown in the association's most recent
annual report on file in the office of with the
Secretary of State Department of Commerce a
written notice stating that:
(1) the association is required to file with the Secretary of
State Department of Commerce on or before January 1,
1991, a copy of the association's articles of association and all
amendments to the articles;
(2) the articles of association may have to be amended on or
before January 1, 1991, in order to comply with Chapter 19 of this
title;
(3) all future amendments and restatements of the
association's articles of association must be filed with the
Secretary of State Department of Commerce and
must comply with the requirements of this title; and
(4) no amendment or restatement of the association's articles
after the effective date of this chapter may be filed in the office of
the clerks of court.
(f) A professional corporation in existence on the effective date
of this chapter is not in violation of this chapter for failure to file
its articles of association with the Secretary of State as required by
subsection (e) or to make any amendments to its articles of
association required by this chapter or Chapters 1 through 17 of the
South Carolina Business Corporation Act of 1988 until January 1,
1991. The failure of a professional corporation to file its articles
of association and any necessary amendments to its articles of
association by that date does not:
(1) impair the validity of any contract or act of the
professional corporation;
(2) prevent the professional corporation from maintaining or
defending any action, suit, or proceeding in any court in this State;
or
(3) result in any shareholder not being governed by Section
33-19-340 with respect to liability for professional services.
(g) This chapter does not affect an existing or future right or
privilege to render professional services through the use of any
other form of business entity."
SECTION 208. Section 33-31-120 of the 1976 Code is amended
to read:
"Section 33-31-120. (a) A document must satisfy the
requirements of this section, and of any other section that adds to or
varies these requirements, to be entitled to filing by the
Secretary of State Department of Commerce.
(b) This chapter must require or permit filing the document in
the office of the Secretary of State Department of
Commerce.
(c) The document must contain the information required by this
chapter. It may contain other information as well.
(d) The document must be typewritten or printed.
(e) The document must be in the English language. However, a
corporate name need not be in English if written in English letters
or Arabic or Roman numerals, and the certificate of existence
required of foreign corporations need not be in English if
accompanied by a reasonably authenticated English translation.
(f) The document must be executed:
(1) by the presiding officer of its board of directors of a
domestic or foreign corporation, its president, or by another of its
officers;
(2) if directors have not been selected or the corporation has
not been formed by an incorporator; or
(3) if the corporation is in the hands of a receiver, trustee, or
other court-appointed fiduciary, by that fiduciary.
(g) The person executing a document shall sign it and state
beneath or opposite the signature his or her name and the capacity
in which he or she signs. The document may, but need not,
contain:
(1) the corporate seal;
(2) an attestation by the secretary or an assistant secretary; or
(3) an acknowledgement, verification, or proof.
(h) If the Secretary of State Department of
Commerce has prescribed a mandatory form for a document
under Section 33-31-121, the document must be in or on the
prescribed form.
(i) The document must be delivered to the office of the
Secretary of State Department of Commerce for
filing and must be accompanied by one exact or conformed copy,
except as provided in Sections 33-31-503 and 33-31-1509, the
correct filing fee, and any franchise tax, license fee, or penalty
required by this chapter or other law."
SECTION 209. Section 33-31-121 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-121. (a) The Secretary of State
Department of Commerce may prescribe and furnish on
request forms for:
(1) an application for a certificate of existence;
(2) a foreign corporation's application for a certificate of
authority to transact business in South Carolina;
(3) a foreign corporation's application for a certificate of
withdrawal; and
(4) the notice of change of principal office. If the
Secretary of State Department of Commerce so
requires, use of these forms is mandatory.
The Secretary of State department through
regulation may prescribe a mandatory form with regard to any
other forms required or permitted by Chapter 31, Title 33 to be
filed in his office. All mandatory forms must comply with the
statutory requirements contained in Chapter 31.
(b) The Secretary of State Department of
Commerce may prescribe and furnish on request forms for
other documents required or permitted to be filed by this chapter,
but their use is not mandatory."
SECTION 210. Section 33-31-122 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-122. (a) The Secretary of State
Department of Commerce shall collect the following fees
when the documents described in this subsection are delivered for
filing:
(1) Articles of incorporation $25.00
(2) Application for use of indistinguishable name$10.00
(3) Application for reserved name$10.00
(4) Notice of transfer of reserved name$ 3.00
(5) Application for registered name$10.00
(6) Application for renewal of registered name$10.00
(7) Corporation's statement of change of registered
agent or registered office or both$10.00
(8) Agent's statement of change of registered office
for each affected corporation$ 2.00
(9) Agent's statement of resignation$ 3.00
(10) Amendment of articles of incorporation$10.00
(11) Restatement of articles of incorporation with
amendments $10.00
(12) Articles of merger $10.00
(13) Articles of dissolution $10.00
(14) Articles of revocation of dissolution$10.00
(15) Certificate of administrative dissolutionNo Fee
(16) Application for reinstatement following
administrative dissolution $25.00
(17) Certificate of reinstatementNo Fee
(18) Certificate of judicial dissolutionNo Fee
(19) Application for certificate of authority$10.00
(20) Application for amended certificate of authority$10.00
(21) Application for certificate of withdrawal$10.00
(22) Certificate of revocation of authority to transact
business No Fee
(23) Notice of change of principle office$10.00
(24) Articles of correction $10.00
(25) Application for certificate of existence or
authorization $10.00
(26) Notification by existing corporation$10.00
(27) Irrevocable election to be governed$25.00
(28) Any other document required or permitted
to be filed by this chapter $10.00
(b) The Secretary of State Department of
Commerce shall collect a fee of ten dollars each time process
is served on him under Chapter 31 of this title. The party to a
proceeding causing service of process is entitled to recover this fee
as costs if he prevails in the proceeding.
(c) The Secretary of State Department of
Commerce shall collect the following fees for copying and
certifying the copy of any filed document relating to a domestic or
foreign corporation:
(1) for copying, one dollar for the first page and fifty cents
for each additional page; and
(2) two dollars for the certificate."
SECTION 211. Section 33-31-123 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-123. (a) Except as provided in subsection
(b), a document is effective:
(1) at the time of filing on the date it is filed, as evidenced
by the Secretary of State's Department of
Commerce's endorsement on the original document; or
(2) at the time specified in the document as its effective time
on the date it is filed.
(b) A document may specify a delayed effective time and date
and if it does so the document becomes effective at the time and
date specified. If a delayed effective date but no time is specified,
the document is effective at the close of business on that date. A
delayed effective date for a document may not be later than the
ninetieth day after the date filed."
SECTION 212. Section 33-31-124 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-124. (a) A domestic or foreign
corporation may correct a document filed by the Secretary of
State Department of Commerce if the document:
(1) contains an incorrect statement; or
(2) was defectively executed, attested, sealed, verified, or
acknowledged.
(b) A document is corrected:
(1) by preparing articles of correction that:
(i) describe the document, including its filing date, or
attach a copy of it to the articles;
(ii) specify the incorrect statement and the reason it is
incorrect or the manner in which the execution was defective; and
(iii) correct the incorrect statement or defective execution;
and
(2) by delivering the articles of correction to the Secretary
of State Department of Commerce.
(c) Articles of correction are effective on the effective date of
the document they correct except as to persons relying on the
uncorrected document and adversely affected by the correction. As
to those persons, articles of correction are effective when
filed."
SECTION 213. Section 33-31-125 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-125. (a) If a document delivered to the
office of the Secretary of State Department of
Commerce for filing satisfies the requirements of Section
33-31-120, the Secretary of State department shall
file it.
(b) The Secretary of State Department of
Commerce files a document by stamping or otherwise
endorsing `filed', together with his name and official title and date
and time of receipt, on both the original and document copy,
together with a further endorsement that the document is a true
copy of the original document. After filing a document, except as
provided in Sections 33-31-503 and 33-31-1510, the Secretary
of State department shall deliver the document copy to
the domestic or foreign corporation or its representative and the
document copy must be retained as part of the permanent records of
the corporation.
(c) Upon refusing to file a document, the Secretary of
State Department of Commerce shall return it to the
domestic or foreign corporation or its representative within five
days after the document was delivered, together with a brief, written
explanation of the reason or reasons for the refusal.
(d) The Secretary of State's Department of
Commerce's duty to file documents under this section is
ministerial. His Its filing or refusing to file a
document does not:
(1) affect the validity or invalidity of the document in whole
or in part;
(2) relate to the correctness or incorrectness of information
contained in the document; or
(3) except as provided in Section 33-31-127, create a
presumption that the document is valid or invalid or that
information contained in the document is correct or incorrect."
SECTION 214. Section 33-31-126 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-126. (a) If the Secretary of State
Department of Commerce refuses to file a document
delivered for filing to the Secretary of State's
department's office, the domestic or foreign corporation
may appeal the refusal to the court of common pleas for Richland
County. The appeal is commenced by petitioning the court to
compel filing the document and by attaching to the petition the
document and the Secretary of State's department's
explanation of the refusal to file.
(b) The court may summarily order the Secretary of
State Department of Commerce to file the document or
take other action the court considers appropriate.
(c) The court's final decision may be appealed as in other civil
proceedings."
SECTION 215. Section 33-31-127 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-127. A certificate attached to a copy of a
document filed by the Secretary of State Department of
Commerce, bearing his the signature of the
director of the department, which may be in facsimile, and the
seal of this State, is conclusive evidence that the original document
is on file with the Secretary of State department and
must be taken and received in all courts, public offices, official
bodies, and in all proceedings as prima facie evidence of the facts
therein stated."
SECTION 216. Section 33-31-128 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-128. (a) A person may apply to the
Secretary of State Department of Commerce to
furnish a certificate of existence for a domestic corporation or
certificate of authorization for a foreign corporation.
(b) The certificate of existence or authorization sets forth:
(1) the domestic corporation's corporate name or the foreign
corporation's corporate name used in this State;
(2) that (i) the domestic corporation is duly incorporated
under the law of this State, the date of its incorporation, and the
period of its duration if less than perpetual; or (ii) that the foreign
corporation is authorized to transact business in this State;
(3) that all fees, taxes, and penalties owed to the Secretary
of State Department of Commerce have been paid;
(4) that the Secretary of State Department of
Commerce has not mailed notice to the corporation pursuant to
either Section 33-31-1421 or 33-31-1531 that the corporation is
subject to being dissolved or its authority revoked;
(5) that articles of dissolution have not been filed; and
(6) other facts of record in the office of the Secretary of
State Department of Commerce that may be requested
by the applicant.
(c) Subject to any qualification stated in the certificate, a
certificate of existence or authorization issued by the Secretary
of State Department of Commerce may be relied upon
as conclusive evidence that the domestic or foreign corporation is in
existence or is authorized to transact business in this State."
SECTION 217. Section 33-31-129 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-129. (a) A person commits an offense if
he signs a document he knows is false in any material respect,
including an omission of a material fact necessary in order to make
the statements made in light of the circumstances under which they
were made, not misleading, with intent that the document be
delivered to the Secretary of State Department of
Commerce for filing.
(b) An offense under this section is a misdemeanor punishable
by a fine of not to exceed five hundred dollars.
(c) A person who violates subsection (a) is liable to any person
who is damaged by the violation."
SECTION 218. Section 33-31-130 of the 1976 Code is amended
to read:
"Section 33-31-130. The Secretary of State
Department of Commerce has the power reasonably
necessary to perform the duties required of the Secretary of
State's department's office by this chapter."
SECTION 219. Section 33-31-140(16) of the 1976 Code is
amended to read:
"(16) `File', `filed', or `filing' means filed in the office of
the Secretary of State Department of
Commerce."
SECTION 220. Section 33-31-201 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-201. One or more persons may act as the
incorporator or incorporators of a corporation by delivering articles
of incorporation to the Secretary of State Department of
Commerce for filing."
SECTION 221. Section 33-31-203 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-203. (a) Unless a delayed effective date is
specified, the corporate existence begins when the articles of
incorporation are filed.
(b) The Secretary of State's Department of
Commerce's filing of the articles of incorporation is conclusive
proof that the incorporators satisfied all conditions precedent to
incorporation except in a proceeding by the State to cancel or
revoke the incorporation or involuntarily dissolve the
corporation."
SECTION 222. Section 33-31-401 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-401. (a) A corporate name may not
contain language stating or implying that the corporation is
organized for a purpose other than that permitted by Section
33-31-301 and its articles of incorporation.
(b) Except as authorized by subsections (c) and (d), a corporate
name must be distinguishable upon the records of the Secretary
of State Department of Commerce from the name
appearing upon the records of the Secretary of State
department of any other nonprofit or business corporation,
professional corporation, or limited partnership incorporated in,
formed in, or authorized to do business in South Carolina, or a
name reserved, registered, or otherwise filed upon the records of the
Secretary of State department.
(c) A corporation may apply to the Secretary of State
Department of Commerce for authorization to use a name
that is not distinguishable upon the Secretary of State's
department's records from one or more of the names
described in subsection (b). The Secretary of State
department shall authorize use of the name applied for if:
(1) the other corporation consents to the use in writing and
submits an undertaking in form satisfactory to the Secretary of
State Department of Commerce to change its name to a
name that is distinguishable upon the records of the Secretary of
State department from the name of the applying
corporation; or
(2) the applicant delivers to the Secretary of State
Department of Commerce a certified copy of a final
judgment of a court of competent jurisdiction establishing the
applicant's right to use the name applied for in this State.
(d) A corporation may use the name, including the fictitious
name, of another domestic or foreign business or nonprofit
corporation that is used in this State if the other corporation is
incorporated or authorized to do business in this State and the
proposed user corporation has:
(1) merged with the other corporation;
(2) been formed by reorganization of the other corporation;
or
(3) acquired all or substantially all of the assets, including the
corporate name, of the other corporation.
(e) Except for allowing foreign corporations to file for a
certificate of authority under a fictitious name as provided in
Section 33-31-1506, this chapter does not control the use of
fictitious names."
SECTION 223. Section 33-31-402 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-402. (a) A person may reserve the
exclusive use of a corporate name including the corporate name of a
foreign corporation or its corporate name with any change required
by Section 33-31-1506, by delivering an application to the
Secretary of State Department of Commerce for
filing which shall set forth the name and address of the applicant
and the name proposed to be reserved. Upon finding that the
corporate name applied for is available, the Secretary of
State department shall reserve the name for the
applicant's exclusive use for a nonrenewable one hundred
twenty-day period.
(b) The owner of a reserved corporate name may transfer the
reservation to another person by delivering to the Secretary of
State Department of Commerce a signed notice of the
transfer that states the name and address of the transferee."
SECTION 224. Section 33-31-403 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-403. (a) A foreign corporation may
register its corporate name, or its corporate name with any change
required by Section 33-31-1506, if the name is distinguishable upon
the records of the Secretary of State Department of
Commerce from the name appearing upon the records of the
Secretary of State department of any other nonprofit
or business corporation, professional corporation, or limited
partnership incorporated in, formed in, or authorized to do business
in this State, or a name reserved or registered upon the records of
the Secretary of State department.
(b) A foreign corporation registers its corporate name, or its
corporate name with any change required by Section 33-31-1506,
by delivering to the Secretary of State Department of
Commerce an application:
(1) setting forth its corporate name, or its corporate name
with any change required by Section 33-31-1506, the state or
country and date of its incorporation, a statement that the foreign
corporation is not, and has not done business in South Carolina, and
a brief description of the nature of the activities in which it is
engaged; and
(2) accompanied by a certificate of existence, or a document
of similar import, from the state or country of incorporation current
within sixty days of delivery, duly authenticated by the official
having custody of the corporation records in the state or country
under whose law it is incorporated.
(c) The name is registered for the applicant's exclusive use
upon the effective date of the application.
(d) A foreign corporation whose registration is effective may
renew it for successive years by delivering to the Secretary of
State Department of Commerce for filing a renewal
application, which complies with the requirements of subsection (b),
between October first and December thirty-first of the preceding
year. The renewal application renews the registration for the
following calendar year.
(e) A foreign corporation whose registration is effective may
qualify thereafter as a foreign corporation under that name or
consent in writing to the use of that name by a corporation
thereafter incorporated under this chapter or by another foreign
corporation thereafter authorized to transact business in this State.
The registration terminates when the domestic corporation is
incorporated or the foreign corporation qualifies or consents to the
qualification of another foreign corporation under the registered
name."
SECTION 225. Section 33-31-502 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-502. (a) A corporation may change its
registered office or registered agent by delivering to the
Secretary of State Department of Commerce for
filing a statement of change that sets forth:
(1) the name of the corporation;
(2) the street address, with zip code, of its current registered
office;
(3) if the current registered office is to be changed, the street
address, including zip code, of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name
of the new registered agent and the new agent's written consent,
either on the statement or attached to it, to the appointment; and
(6) that after the change or changes are made, the street
addresses of its registered office and the office of its registered
agent which will be identical.
(b) If the street address of a registered agent's office is changed,
the registered agent may change the street address of the registered
office of any corporation for which the registered agent is the
registered agent by notifying the corporation in writing of the
change and by signing, either manually or in facsimile, and
delivering to the Secretary of State Department of
Commerce for filing a statement that complies with the
requirements of subsection (a) and recites that the corporation has
been notified of the change."
SECTION 226. Section 33-31-503 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-503. (a) A registered agent may resign as
registered agent by signing and delivering to the Secretary of
State Department of Commerce the original and two
exact or conformed copies of a statement of resignation. The
statement may include a statement that the registered office is
discontinued also.
(b) After filing the statement the Secretary of State
Department of Commerce shall mail one copy to the
registered office, if not discontinued, and the other copy to the
corporation at its principal office as shown in its articles or most
recently filed notice of change of principal office.
(c) The agency appointment is terminated, and the registered
office discontinued if so provided, on the thirty-first day after the
date on which the statement was filed."
SECTION 227. Section 33-31-505 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-505. If a corporation changes the location
of its principal office, the corporation within thirty days shall file a
Notice of Change of Principal Office with the Secretary of
State Department of Commerce. The Notice of Change
of Principal Office shall set forth:
(a) The name of the corporation; and
(b) The current street address with zip code of the corporation's
principal office and the former principal office address."
SECTION 228. Section 33-31-704 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-704. (a) Unless limited or prohibited by
the articles or bylaws, action required or permitted by this chapter
to be approved by the members may be approved without a meeting
of members if the action is approved by members holding at least
eighty percent of the voting power. The action must be evidenced
by one or more written consents describing the action taken, signed
by those members representing at least eighty percent of the voting
power, and delivered to the corporation for inclusion in the minutes
or filing with the corporate records.
(b) If not otherwise determined under Section 33-31-703 or
33-31-707, the record date for determining members entitled to take
action without a meeting is the date the first member signs the
consent under subsection (a).
(c) A consent signed under this section has the effect of a
meeting vote and may be described as such in any document filed
with the Secretary of State Department of
Commerce.
(d) Written notice of member approval pursuant to this section
must be given to all members who have not signed the written
consent. If written notice is required, member approval pursuant to
this section is effective ten days after the written notice is
given."
SECTION 229. Section 33-31-1001 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1001. (a) A corporation may amend its
articles of incorporation to add or change a provision that is
required or permitted in the articles or to delete a provision not
required in the articles. Whether a provision is required or
permitted in the articles is determined as of the effective date of the
amendment.
(b) A corporation either designated on the records of the Office
of the Secretary of State Department of Commerce
as a public benefit or religious corporation, or which qualifies as
such pursuant to Section 33-31-1707, may amend or restate its
articles of incorporation so that it becomes designated as a mutual
benefit corporation only if notice, including a copy of the proposed
amendment or restatement, has been delivered to the Attorney
General at least twenty days before consummation of the
amendment or restatement.
(c) Except as provided in Section 33-31-611(c), a member of
the corporation does not have a vested property right resulting from
any provision in the articles of incorporation or bylaws."
SECTION 230. Section 33-31-1002 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1002. (a) Unless the articles provide
otherwise, a corporation's board of directors may adopt one or more
amendments to the corporation's articles without member approval:
(1) to extend the duration of the corporation if it was
incorporated at a time when limited duration was required by law;
(2) to delete the names and addresses of the initial directors;
(3) to delete the name and address of the initial registered
agent or registered office, if a statement of change is on file with
the Secretary of State Department of Commerce;
(4) to change the corporate name by substituting the word
`corporation', `incorporated', `company', `limited', or the
abbreviation `corp.', `inc.', `co.', or `ltd.', for a similar word or
abbreviation in the name, or by adding, deleting, or changing a
geographical attribution to the name; or
(5) to make any other change expressly permitted by this
chapter to be made by director action;
(6) with respect to a corporation incorporated before the
effective date of this chapter, to include, consistent with its purpose,
a statement of whether the corporation is a public benefit, mutual
benefit, or religious corporation.
(b) If a corporation has no members, or has no members
entitled to vote on the amendment to the articles, its incorporators,
until directors are chosen, and thereafter its board of directors, may
adopt one or more amendments to the corporation's articles subject
to any approval required pursuant to Section 33-31-1030. The
corporation shall provide notice of any meeting at which an
amendment is to be voted upon. The notice must be in accordance
with Section 33-31-822(c). The notice also must state that the
purpose, or one of the purposes, of the meeting is to consider a
proposed amendment to the articles and contain or be accompanied
by a copy or summary of the amendment or state the general nature
of the amendment. The amendment must be approved by a
majority of the directors in office at the time the amendment is
adopted."
SECTION 231. Section 33-31-1005 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1005. A corporation amending its articles
shall deliver to the Secretary of State Department of
Commerce articles of amendment setting forth:
(1) the name of the corporation;
(2) the text of each amendment adopted;
(3) the date of each amendment's adoption;
(4) if approval of members was not required, a statement to that
effect and a statement that the amendment was approved by a
sufficient vote of the board of directors or incorporators;
(5) if approval by members was required:
(i) the designation, number of memberships outstanding,
number of votes entitled to be cast by each class entitled to vote
separately on the amendment, and number of votes of each class
indisputably voting on the amendment; and
(ii) either the total number of votes cast for and against the
amendment by each class entitled to vote separately on the
amendment or the total number of undisputed votes cast for the
amendment by each class and a statement that the number cast for
the amendment by each class was sufficient for approval by that
class;
(6) if approval of the amendment by some person or persons
other than the members, the board, or the incorporators is required
pursuant to Section 33-31-1030, a statement that the approval was
obtained;
(7) if an amendment provides for an exchange, reclassification,
or cancellation of memberships, provisions for implementing the
amendment if not contained in the amendment itself must be
included in the articles."
SECTION 232. Section 33-31-1006 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1006. (a) A corporation's board of
directors may restate its articles of incorporation with or without
approval by members or any other person.
(b) The restatement may include one or more amendments to
the articles. If the restatement includes an amendment requiring
approval by the members or any other person, it must be adopted as
provided in Section 33-31-1003.
(c) If the restatement includes an amendment requiring approval
by members, the board must submit the restatement to the members
for their approval.
(d) If the board seeks to have the restatement approved by the
members at the membership meeting, the corporation shall notify
each of its members of the proposed membership meeting in
writing in accordance with Section 33-31-705. The notice must
also state that the purpose, or one of the purposes, of the meeting is
to consider the proposed restatement and contain or be accompanied
by a copy or summary of the restatement that identifies any
amendments or other change it would make in the articles.
(e) If the board seeks to have the restatement approved by the
members by written ballot or written consent, the material soliciting
the approval shall contain or be accompanied by a copy or other
change it would make in the articles.
(f) A restatement requiring approval by the members must be
approved by the same vote as an amendment to articles under
Section 33-31-1003.
(g) If the restatement includes an amendment requiring approval
pursuant to Section 33-31-1030, the board must submit the
restatement for such approval.
(h) A corporation restating its articles shall deliver to the
Secretary of State Department of Commerce articles
of restatement setting forth the name of the corporation and the text
of the restated articles of incorporation together with a certificate
setting forth:
(1) whether the restatement contains an amendment to the
articles requiring approval by the members or any other person
other than the board of directors and, if it does not, that the board
of directors adopted the restatement; or
(2) if the restatement contains an amendment to the articles
requiring approval by the members, the information required by
Section 33-31-1005; and
(3) if the restatement contains an amendment to the articles
requiring approval by a person whose approval is required pursuant
to Section 33-31-1030, a statement that the approval was obtained.
(i) Duly adopted restated articles of incorporation supersede the
original articles of incorporation and all amendments to them.
(j) The Secretary of State Department of
Commerce may certify restated articles of incorporation, as the
articles of incorporation currently in effect, without including the
certificate information required by subsection (h).
(k) If the restatement provides for an exchange, reclassification,
or cancellation of memberships, provisions for implementing the
restatement if not contained in the restatement itself must be
included in the restated articles.
(l) Restated articles of incorporation shall include all statements
required to be included in original articles of incorporation except
that no statement is required to be made with respect to the names
and addresses of the incorporators or the initial or present registered
office or agent."
SECTION 233. Section 33-31-1007 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1007. (a) A corporation's articles may
be amended without board approval or approval by the members or
approval required pursuant to Section 33-31-1030 to carry out a
plan of reorganization ordered or decreed by a court of competent
jurisdiction under federal statute if the articles after amendment
contain only provisions required or permitted by Section 33-31-202.
(b) A corporation's articles may be amended in a proceeding
brought by the Attorney General in the court of common pleas for
Richland County to correct the statement in the articles of
incorporation with regard to whether the corporation is a public
benefit or mutual benefit corporation or, subject to the provisions of
Section 33-31-180, a religious corporation.
(c) Any individual designated by the court shall deliver to the
Secretary of State Department of Commerce articles
of amendment setting forth:
(1) the name of the corporation;
(2) the text of each amendment approved by the court;
(3) the date of the court's order or decree approving the
articles of amendment;
(4) the title of the reorganization proceeding in which the
order or decree was entered; and
(5) a statement that the court had jurisdiction of the
proceeding under federal statute.
(d) Subsection (a) does not apply after entry of a final decree in
the reorganization proceeding even though the court retains
jurisdiction of the proceeding for limited purposes unrelated to
consummation of the reorganization plan."
SECTION 234. Section 33-31-1102 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1102. (a) Without the prior approval of
the court of common pleas of Richland County in a proceeding in
which the Attorney General has been given written notice, a public
benefit or religious corporation may merge only with:
(1) a public benefit or religious corporation;
(2) a foreign corporation that would qualify under this
chapter as a public benefit or religious corporation;
(3) a foreign or domestic business; mutual benefit
corporation; or a corporation chartered directly by special act of the
General Assembly, a city, county, or other governmental unit other
than the Secretary of State Department of
Commerce, provided the public benefit or religious corporation
is the surviving corporation and continues to be a public benefit or
religious corporation after the merger; or,
(4) a foreign or domestic business or mutual benefit
corporation, provided that:
(i) on or before the effective date of the merger, assets
with a value equal to the greater of the fair market value of the net
tangible and intangible assets, including goodwill, of the public
benefit corporation or religious corporation or the fair market value
of the public benefit corporation or religious corporation if it were
to be operated as a business concern are transferred or conveyed to
one or more persons who would have received its assets under
Section 33-31-1406(a)(5) and (6) had it dissolved;
(ii) it shall return, transfer, or convey any assets held by it
upon condition requiring return, transfer, or conveyance, which
condition occurs by reason of the merger, in accordance with such
condition; and
(iii) the merger is approved by a majority of directors of the
public benefit or religious corporation who are not and will not
become members or shareholders in or officers, employees, agents,
or consultants of the surviving corporation.
(b) At least twenty days before consummation of a merger of a
public benefit corporation or a religious corporation pursuant to
subsection (a)(4), notice, including a copy of the proposed plan of
merger, must be delivered to the Attorney General.
(c) No member of a public benefit or religious corporation may
receive or keep anything as a result of a merger other than a
membership or membership in the surviving public benefit or
religious corporation.
(d) Where approval or consent is required by this section, it
must be given if the transaction is consistent with the purposes of
the public benefit or religious corporation or is otherwise in the
public interest."
SECTION 235. Section 33-31-1104 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1104. After a plan of merger is approved
by the board of directors of each merging corporation and if
required by Section 33-31-1103 by the members and any other
persons, the surviving corporation shall deliver to the Secretary
of State Department of Commerce articles of merger
setting forth:
(1) the plan of merger;
(2) if approval of members was not required, a statement to that
effect and a statement that the plan was approved by a sufficient
vote of the board of directors of each corporation;
(3) if approval by the members of one or more corporations was
required:
(i) the designation, number of memberships outstanding,
number of votes entitled to be cast by each class entitled to vote
separately on the plan, and number of votes of each class
indisputably voting on the plan; and
(ii) either the total number of votes cast for and against the
plan by each class entitled to vote separately on the plan or the total
number of undisputed votes cast for the plan by each class and a
statement that the number cast for the plan by each class was
sufficient for approval by that class;
(4) If approval of the plan by some person or persons other than
the members of the board is required pursuant to Section
33-31-1103(a)(3), a statement that the approval was obtained;
(5) Unless a delayed effective date is specified, a merger takes
effect when the articles of merger are filed."
SECTION 236. Section 33-31-1106 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1106. (a) Except as provided in Section
33-31-1102, one or more foreign business or nonprofit corporations
may merge with one or more domestic nonprofit corporations if:
(1) the merger is permitted by the law of the state or country
under whose law each foreign corporation is incorporated and each
foreign corporation complies with that law in effecting the merger;
(2) the foreign corporation complies with Section 33-31-1104
if it is the surviving corporation of the merger; and
(3) each domestic nonprofit corporation complies with the
applicable provisions of Sections 33-31-1101 through 33-31-1103
and, if it is the surviving corporation of the merger, with Section
33-31-1104.
(b) Upon the merger taking effect, the surviving foreign
business or nonprofit corporation is deemed to have irrevocably
appointed the Secretary of State Director of the
Department of Commerce as its agent for service of process in
any proceeding brought against it."
SECTION 237. Section 33-31-1401 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1401. (a) The incorporators of a
corporation that has no members and that does not yet have initial
directors, upon written consents signed by a majority of the
incorporators, or through a vote of a majority of the incorporators
at a meeting of the incorporators, subject to any approval required
by the articles or bylaws, may dissolve the corporation by
delivering to the Secretary of State Department of
Commerce articles of dissolution.
(b) The incorporators in approving dissolution shall adopt a plan
of dissolution indicating to whom the assets owned or held by the
corporation will be distributed after all creditors have been
paid."
SECTION 238. Section 33-31-1403 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1403. (a) A public benefit or religious
corporation shall give the Attorney General written notice that it
intends to dissolve at or before the time it delivers articles of
dissolution to the Secretary of State Department of
Commerce. The notice shall include a copy or summary of the
plan of dissolution.
(b) No assets may be transferred or conveyed by a public
benefit or religious corporation as part of the dissolution process
until twenty days after it has given the written notice required by
subsection (a) to the Attorney General or until the Attorney General
has consented in writing to the dissolution, or indicated in writing
that he will take no action in respect to the transfer or conveyance,
whichever is earlier.
(c) When all or substantially all of the assets of a public
benefit corporation have been transferred or conveyed following
approval of dissolution, the board shall deliver to the Attorney
General a list showing those, other than creditors, to whom the
assets were transferred or conveyed. The list shall indicate the
addresses of each person, other than creditors, who received assets
and indicate what assets each received."
SECTION 239. Section 33-31-1404 of the 1976 Code, as added
by Section 1, Act 384 of 1994, is amended to read:
"Section 33-31-1404. (a) At any time after dissolution is
authorized, the corporation may dissolve by delivering to the
Secretary of State Department of Commerce articles
of dissolution setting forth:
(1) the name of the corporation;
(2) the date dissolution was authorized;
(3) a statement that dissolution was approved by a sufficient
vote of the board, or incorporators if dissolution is pursuant to
Section 33-31-1401;
(4) if approval of members was not required, a statement to
that effect and a statement that dissolution was approved by a
sufficient vote of the board of directors or incorporators;
(5) if approval by members was required:
(i) the designation, number of memberships outstanding,
number of votes entitled to be cast by each class entitled to vote
separately on dissolution, and number of votes of each class
indisputably voting on dissolution; and
(ii) either the total number of votes cast for and against
dissolution by each class entitled to vote separately on dissolution
or the total number of undisputed votes cast for dissolution by each
class and a statement that the number cast for dissolution by each
class was sufficient for approval by that class;
(6) if approval of dissolution by some person or persons other
than the members, the board, or the incorporators is required
pursuant to Section 33-31-1402(a)(3), a statement that the approval
was obtained; and
(7) if the corporation is a public benefit or religious
corporation, that the notice to the Attorney General required by
Section 33-31-1403(a) has been given.
(b) A corporation is dissolved upon the effective date of its
articles of dissolution."
SECTION 240. Section 33-31-1405 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1405. (a) A corporation may revoke its
dissolution within one hundred twenty days of its effective date.
(b) Revocation of dissolution must be authorized in the same
manner as the dissolution was authorized unless that authorization
permitted revocation by action of the board of directors alone, in
which event the board of directors may revoke the dissolution
without action by the members or any other person.
(c) After the revocation of dissolution is authorized, the
corporation may revoke the dissolution by delivering to the
Secretary of State Department of Commerce for
filing articles of revocation of dissolution, together with a copy of
its articles of dissolution, that set forth:
(1) the name of the corporation;
(2) the effective date of the dissolution that was revoked;
(3) the date that the revocation of dissolution was authorized;
(4) if the corporation's board of directors, or incorporators,
revoked the dissolution, a statement to that effect;
(5) if the corporation's board of directors revoked a
dissolution authorized by the members alone or in conjunction with
another person, a statement that revocation was permitted by action
by the board of directors alone pursuant to that authorization; and
(6) if member or third person action was required to revoke
the dissolution, the information required by Section
33-31-1404(a)(5) and (6).
(d) Revocation of dissolution is effective upon the effective date
of the articles of revocation of dissolution.
(e) When the revocation of dissolution is effective, it relates
back to and takes effect as of the effective date of the dissolution
and the corporation resumes carrying on its activities as if
dissolution had never occurred."
SECTION 241. Section 33-31-1420 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1420. The Secretary of State
Department of Commerce may commence a proceeding
under Section 33-31-1421 to administratively dissolve a corporation
if the:
(1) corporation does not deliver a report of change of
principal office when due;
(2) corporation is without a registered agent or registered
office in this State;
(3) corporation does not notify the Secretary of State
Department of Commerce that its registered agent or
registered office has been changed, that its registered agent has
resigned, or that its registered office has been discontinued;
(4) corporation's period of duration, if any, stated in its
articles of incorporation expires; or
(5) corporation has been adjudicated bankrupt pursuant to
Chapter 7 of the United States Bankruptcy Code."
SECTION 242. Section 33-31-1421 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1421. (a) Upon determining that one or
more grounds exist under Section 33-31-1420(a) for dissolving a
corporation, the Secretary of State Department of
Commerce may serve the corporation with written notice of
that determination under Section 33-31-504, and in the case of a
public benefit corporation shall also notify the Attorney General in
writing.
(b) If the corporation does not correct each ground for
dissolution or demonstrate to the reasonable satisfaction of the
Secretary of State Department of Commerce that
each ground determined by the Secretary of State
department does not exist within at least sixty days after
service of the notice is perfected under Section 33-31-504, the
Secretary of State department shall administratively
dissolve the corporation by signing a certificate of dissolution that
recites the ground or grounds for dissolution and its effective date.
The Secretary of State department shall file the
original of the certificate and serve a copy on the corporation under
Section 33-31-504, and in the case of a public benefit or religious
corporation shall notify the Attorney General in writing.
(c) A corporation administratively dissolved continues its
corporate existence but may not carry on any activities except those
necessary to wind up and liquidate its affairs under Section
33-31-1406 and notify its claimants under Sections 33-31-1407 and
33-31-1408.
(d) The administrative dissolution of a corporation does not
terminate the authority of its registered agent."
SECTION 243. Section 33-31-1422 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1422. (a) A corporation administratively
dissolved under Section 33-31-1421 may apply to the Secretary
of State Department of Commerce for reinstatement
within two years after the effective date of dissolution. The
application must:
(1) recite the name of the corporation and the effective date
of its administrative dissolution;
(2) state that the ground or grounds for dissolution either did
not exist or have been eliminated;
(3) state that the corporation's name satisfies the requirements
of Section 33-31-401.
(b) If the Secretary of State Department of
Commerce determines that the application contains the
information required by subsection (a) and that the information is
correct, the Secretary of State department shall
cancel the certificate of dissolution and prepare a certificate of
reinstatement reciting that determination and the effective date of
reinstatement, file the original of the certificate, and serve a copy
on the corporation under Section 33-31-504.
(c) When reinstatement is effective, it relates back to and takes
effect as of the effective date of the administrative dissolution and
the corporation shall resume carrying on its activities as if the
administrative dissolution had never occurred."
SECTION 244. Section 33-31-1423 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1423. (a) The Secretary of State
Department of Commerce, upon denying a corporation's
application for reinstatement following administrative dissolution,
shall serve the corporation by registered or certified mail addressed
to its registered agent at its registered office or to the office of the
secretary of the corporation at its principal office with a written
notice that explains the reason or reasons for denial.
(b) The corporation may appeal the denial of reinstatement to
the court of common pleas for Richland County within thirty days
after service of the notice of denial is perfected. The corporation
appeals by petitioning the court to set aside the dissolution and
attaching to the petition copies of the Secretary of State's
Department of Commerce's certificate of dissolution, the
corporation's application for reinstatement, and the Secretary of
State's department's notice of denial.
(c) The court may summarily order the Secretary of
State Department of Commerce to reinstate the
dissolved corporation or may take other action the court considers
appropriate.
(d) The court's final decision may be appealed as in other civil
proceedings."
SECTION 245. Section 33-31-1433 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1433. (a) If after a hearing the court
determines that one or more grounds for judicial dissolution
described in Section 33-31-1430 exist, it may enter a decree
dissolving the corporation and specifying the effective date of the
dissolution, or may order any other form of relief which it deems
proper in the circumstances, and the clerk of the court shall deliver
a certified copy of the decree to the Secretary of State
Department of Commerce, who shall file it without
charging a fee.
(b) After entering the decree of dissolution, the court shall
direct the winding up and liquidation of the corporation's affairs in
accordance with Section 33-31-1406 and the notification of its
claimants in accordance with Sections 33-31-1407 and
33-31-1408."
SECTION 246. Section 33-31-1501 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1501. (a) A foreign corporation may not
transact business in this State until it obtains a certificate of
authority from the Secretary of State Department of
Commerce.
(b) The following activities, among others, do not constitute
transacting business within the meaning of subsection (a):
(1) maintaining, defending, or settling any proceeding;
(2) holding meetings of the board of directors or members or
carrying on other activities concerning internal corporate affairs;
(3) maintaining bank accounts;
(4) maintaining offices or agencies for the transfer, exchange,
and registration of memberships or securities or maintaining trustees
or depositaries with respect to those securities;
(5) selling through independent contractors;
(6) soliciting or obtaining orders, whether by mail or through
employees or agents or otherwise, if the orders require acceptance
outside this State before they become contracts;
(7) creating or acquiring indebtedness, mortgages, and
security interests in real or personal property;
(8) securing or collecting debts or enforcing mortgages and
security interests or any other rights in property securing the debts;
(9) owning, without more, real or personal property;
(10) conducting an isolated transaction that is completed within
thirty days and that is not one in the course of repeated transactions
of a like nature;
(11) transacting business in interstate commerce;
(12) soliciting those contributions as are defined in Section
33-55-20(3) or any succeeding statute of like tenor and effect.
(b) The list of activities in subsection (b) is not
exhaustive."
SECTION 247. Section 33-31-1503 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1503. (a) A foreign corporation may
apply for a certificate of authority to transact business in this State
by delivering an application to the Secretary of State
Department of Commerce. The application must set forth:
(1) the name of the foreign corporation or, if its name is
unavailable for use in this State, a corporate name that satisfies the
requirements of Section 33-31-1506;
(2) the name of the state or country under whose law it is
incorporated;
(3) the date of incorporation and period of duration;
(4) the street address, including zip code, of its principal
office;
(5) the street address, including zip code, of its proposed
registered office in this State and the name of its proposed
registered agent at that office;
(6) the names and usual business addresses, including zip
codes, of its current directors and officers;
(7) whether the foreign corporation has members; and
(8) whether the corporation, if it had been incorporated in
this State, would be a public benefit, mutual benefit or religious
corporation.
(b) The foreign corporation shall deliver with the completed
application a certificate of existence, or a document of similar
import, duly authenticated by the Secretary of State
Department of Commerce or other official having custody
of corporate records in the state or country under whose law it is
incorporated within sixty days of the date that it is filed in this
State."
SECTION 248. Section 33-31-1504 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1504. (a) A foreign corporation
authorized to transact business in this State must obtain an amended
certificate of authority from the Secretary of State
Department of Commerce if it changes:
(1) its corporate name;
(2) the period of its duration; or
(3) the state or country of its incorporation.
(b) The requirements of Section 33-31-1503 for obtaining an
original certificate of authority apply to obtaining an amended
certificate under this section."
SECTION 249. Section 33-31-1506 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1506. (a) If the corporate name of a
foreign corporation does not satisfy the requirements of Section
33-31-401, the foreign corporation, to obtain or maintain a
certificate of authority to transact business in this State, may use a
fictitious name to transact business in this State if its real name is
unavailable and it delivers to the Secretary of State
Department of Commerce for filing a copy of the
resolution of its board of directors, certified by its secretary,
adopting the fictitious name.
(b) Except as authorized by subsections (c) and (d), the
corporate name, including a fictitious name, of a foreign
corporation must be distinguishable upon the records of the
Secretary of State Department of Commerce from
the name appearing upon the records of the Secretary of
State department of any other nonprofit corporation,
business corporation, professional corporation, or limited
partnership incorporated in, formed in, or authorized to do business
in this State, or a name reserved, registered, or otherwise filed upon
the records of the Secretary of State department.
(c) A foreign corporation may apply to the Secretary of
State Department of Commerce for authorization to use
in this State the name of another corporation, incorporated or
authorized to transact business in this State, that is not
distinguishable upon the records of the Secretary of State
department from the name applied for. The Secretary
of State department shall authorize use of the name
applied for if:
(1) the other corporation consents to the use in writing and
submits an undertaking in form satisfactory to the Secretary of
State Department of Commerce to change its name to a
name that is distinguishable upon the records of the Secretary of
State department from the name of the applying
corporation; or
(2) the applicant delivers to the Secretary of State
Department of Commerce a certified copy of a final
judgment of a court of competent jurisdiction establishing the
applicant's right to use the name applied for in this State.
(d) A foreign corporation may use in this State the name,
including the fictitious name, of another domestic or foreign
business or nonprofit corporation that is used in this State if the
other corporation is incorporated or authorized to transact business
in this State and the foreign corporation:
(1) has merged with the other corporation;
(2) has been formed by reorganization of the other
corporation; or
(3) has acquired all or substantially all of the assets,
including the corporate name, of the other corporation.
(e) If a foreign corporation authorized to transact business in
this State changes its corporate name to one that does not satisfy the
requirements of Section 33-31-401, it may not transact business in
this State under the changed name until it adopts a name satisfying
the requirements of Section 33-31-401 and obtains an amended
certificate of authority under Section 33-31-1504."
SECTION 250. Section 33-31-1508 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1508. (a) A foreign corporation
authorized to transact business in this State may change its
registered office or registered agent by delivering to the
Secretary of State Department of Commerce for
filing a statement of change that sets forth:
() the name of the corporation;
() the street address of its current registered office;
() if the current registered office is to be changed, the street
address of its new registered office;
() the name of its current registered agent;
() if the current registered agent is to be changed, the name of
its new registered agent and the new agent's written consent, either
on the statement or attached to it, to the appointment; and
() that after the change or changes are made, the street
addresses of its registered office and the office of its registered
agent will be identical.
(b) If the street address of a registered agent's office is changed,
the registered agent may change the street address of the registered
office of any corporation for which the registered agent is the
registered agent by notifying the corporation in writing of the
change and by signing, either manually or in facsimile, and
delivering to the Secretary of State Department of
Commerce for filing a statement that complies with the
requirements of subsection (a) and recites that the corporation has
been notified of the change."
SECTION 251. Section 33-31-1509 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1509. (a) The registered agent of a
foreign corporation may resign as agent by signing and delivering
to the Secretary of State Department of Commerce
the original and two exact or conformed copies of a statement of
resignation. The statement may include a statement that the
registered office is also discontinued.
(b) After filing the statement, the Secretary of State
Department of Commerce shall mail one copy to the
registered office, if not discontinued, and the other copy to the
corporation at its principal office as shown in its application for
certificate of authority or most recent notice of change of principal
office.
(c) The agency appointment is terminated, and the registered
office discontinued if so provided, on the thirty-first day after the
date on which the statement was filed."
SECTION 252. Section 33-31-1515 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1515. If a foreign corporation changes the
location of its principal office, then within thirty days of the date of
the change the corporation shall file a notice of change of principal
office with the Secretary of State Department of
Commerce. The notice of change shall set forth:
(1) the name of the corporation; and
(2) the current street address, with zip code, of the corporation's
principal office and the address of the former principal
office."
SECTION 253. Section 33-31-1520 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1520. (a) A foreign corporation
authorized to transact business in this State may not withdraw from
this State until it obtains a certificate of withdrawal from the
Secretary of State Department of Commerce.
(b) A foreign corporation authorized to transact business in this
State may apply for a certificate of withdrawal by delivering an
application to the Secretary of State Department of
Commerce for filing. The application must set forth:
(1) the name of the foreign corporation and the name of the
state or country under whose law it is incorporated;
(2) that it is not transacting business in this State and that it
surrenders its authority to transact business in this State;
(3) that it revokes the authority of its registered agent to
accept service on its behalf and appoints the Secretary of
State Director of the Department of Commerce as its
agent for service of process in any proceeding based on a cause of
action arising during the time it was authorized to do business in
this State;
(4) a mailing address to which the Secretary of State
Director of the Department of Commerce may mail a copy
of any process served on him under item (3); and
(5) a commitment to notify the Secretary of State
Department of Commerce during the six years following
the delivery of the certificate of withdrawal of any change in the
mailing address.
(c) After the withdrawal of the corporation is effective, service
of process on the Secretary of State Director of the
Department of Commerce under this section is service on the
foreign corporation. Upon receipt of process, the Secretary of
State director shall mail a copy of the process to the
foreign corporation at the post office address set forth in its
application for withdrawal."
SECTION 254. Section 33-31-1530 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1530. (a) The Secretary of State
Department of Commerce may commence a proceeding
under Section 33-31-1531(a) to revoke the certificate of authority
of a foreign corporation authorized to transact business in this State
if:
(1) the foreign corporation does not deliver a notice of
change of principal office when due;
(2) the foreign corporation is without a registered agent or
registered office in this State;
(3) the foreign corporation does not inform the Secretary
of State department that its registered agent or
registered office has been changed, that its registered agent has
resigned, or that its registered office has been discontinued;
(4) the corporation's period of duration, if any, stated in its
articles of incorporation expires;
(5) the Secretary of State department receives
a duly authenticated certificate from the Secretary of State or other
official having custody of corporate records in the state or country
under whose law the foreign corporation is incorporated stating that
it has been dissolved or disappeared as the result of a merger; or,
(6) that the corporation has been adjudicated bankrupt
pursuant to Chapter 7 of the United States Bankruptcy Code.
(b) The Richland County Court of Common Pleas under Section
33-31-1531(b) may revoke the certificate of authority of a foreign
corporation authorized to transact business in this State in a
proceeding by the Attorney General if it is established that:
(1) the corporation obtained its articles of incorporation
through fraud;
(2) the corporation has continued to exceed or abuse the
authority conferred upon it by law;
(3) the corporation is a public benefit corporation and the
assets are being misapplied or wasted;
(4) the corporation is a public benefit corporation and it is no
longer able to carry out its purposes;
(5) the corporation has improperly solicited money or has
fraudulently used the money solicited; or,
(6) the corporation has carried on, conducted, or transacted
its business or affairs in a persistently fraudulent or illegal manner.
The enumeration of the grounds in items (1) through (6)
revoking the authority shall not exclude actions or special
proceedings by the Attorney General or other state official for
revoking the authority of a foreign nonprofit corporation for other
causes as provided in this chapter or in any other statute of this
State."
SECTION 255. Section 33-31-1531 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1531. (a) Upon determining that one or
more grounds exist under Section 33-31-1530(a) to revoke a
certificate of authority of a foreign nonprofit corporation, the
Secretary of State Department of Commerce may
serve the foreign corporation with written notice of that
determination pursuant to Section 33-31-1510.
If the foreign corporation does not correct each ground for
revocation or demonstrate to the reasonable satisfaction of the
Secretary of State department that each ground for
revocation determined by the Secretary of State
department does not exist within sixty days after service of
the notice is perfected under Section 33-31-1510, the Secretary
of State department shall revoke the foreign
corporation's certificate of authority by signing a certificate of
revocation that recites the ground or grounds for revocation and its
effective date. The Secretary of State department
shall file the original of the certificate and serve a copy on the
foreign corporation under Section 33-31-1510 and, in the case of a
public benefit corporation, shall notify the Attorney General in
writing.
(b) If the court of Common Pleas of Richland County
determines that one or more grounds for revoking the foreign
nonprofit's authority to transact business as described in Section
33-31-1530(b) exists, it may enter a decree dissolving the
corporation and specifying the effective date of the dissolution, and
the clerk of the court shall deliver a certified copy of the decree to
the Secretary of State Department of Commerce,
who shall file it without charging any fee.
Before revoking the foreign nonprofit corporation's authority to
transact business in this State, the court shall consider whether:
(1) there are reasonable alternatives to revoking the authority;
(2) revoking the authority is in the public interest, if the
corporation is a public benefit corporation; and,
(3) revoking the authority is the best way of protecting the
interests of members, if the corporation is a mutual benefit
corporation.
The court of common pleas of Richland County may order any
other form of relief which it deems proper in the circumstances.
(c) The authority of a foreign corporation to transact business in
this State ceases on the date shown on the certificate revoking its
certificate of authority.
(d) The Secretary of State's Department of
Commerce's or Richland County Court of Common Pleas
revocation of a foreign corporation's certificate of authority
appoints the Secretary of State Director of the
Department of Commerce the foreign corporation's agent for
service of process in any proceeding based on a cause of action that
arose during the time the foreign corporation was authorized to
transact business in this State. Service of process on the
Secretary of State director under this subsection is
service on the foreign corporation. Upon receipt of process, the
Secretary of State director shall mail a copy of the
process to the secretary of the foreign corporation at its principal
office shown in its most recent notice of change of principal office
or in any subsequent communications received from the corporation
stating the current mailing address of its principal office, or, if none
are on file, in its application for a certificate of authority.
(e) Revocation of a foreign corporation's certificate of authority
does not terminate the authority of the registered agent of the
corporation."
SECTION 256. Section 33-31-1532 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1532. (a) A foreign corporation may
appeal the Secretary of State's Department of
Commerce's revocation of its certificate of authority to the
Richland County Court of Common Pleas within thirty days after
the service of the certificate of revocation was received. The
foreign corporation appeals by petitioning the court to set aside the
revocation and attaching to the petition copies of its certificate of
authority and the Secretary of State's Department of
Commerce's certificate of revocation.
(b) The court may summarily order the Secretary of
State Department of Commerce to reinstate the
certificate of authority or may take any other action the court
considers appropriate.
(c) The court's final decision may be appealed as in other civil
proceedings."
SECTION 257. Section 33-31-1601 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1601. (a) A corporation shall keep as
permanent records minutes of all meetings of its members and
board of directors, a record of all actions taken by the members or
directors without a meeting, and a record of all actions taken by
committees of the board of directors as authorized by Section
33-31-825(d).
(b) A corporation shall maintain appropriate accounting records.
(c) A corporation or its agent shall maintain a record of its
members in a form that permits preparation of a list of the name
and address of all members, in alphabetical order by class, showing
the number of votes each member is entitled to cast.
(d) A corporation shall maintain its records in written form or
in another form capable of conversion into written form within a
reasonable time.
(e) A corporation shall keep a copy of the following records at
its principal office:
(1) its articles or restated articles of incorporation and all
amendments to them currently in effect;
(2) its bylaws or restated bylaws and all amendments to them
currently in effect;
(3) resolutions adopted by its board of directors relating to
the characteristics, qualifications, rights, limitations, and obligations
of members or any class or category of members;
(4) the minutes of all meetings of members and records of all
actions approved by the members for the past three years;
(5) all written communications to members generally within
the past three years, including the financial statements furnished for
the past three years under Section 33-31-1620;
(6) a list of the names and business or home addresses of its
current directors and officers; and
(7) its most recent report of each type required to be filed by
it with the Secretary of State Department of
Commerce under this chapter."
SECTION 258. Section 33-31-1701 of the 1976, as added by
Act 384 of 1994, is amended to read:
"Section 33-31-1701. (a) This chapter applies to all
domestic corporations which on this chapter's effective date were
governed by Title 33, Chapter 31 of the 1976 Code.
(b) This chapter applies to each domestic corporation in
existence on its effective date, organized other than under Title 33,
Chapter 31, Code of Laws of South Carolina, 1976, upon such
corporation's filing with the Secretary of State
Department of Commerce an irrevocable election to be
governed by the provisions of this chapter. The irrevocable election
shall contain all the information required by, and may include any
other matter permitted by, Section 33-31-202 (except that
information required by subsection (a)(4), relating to the
incorporators, is not required). The irrevocable election shall be
signed by the presiding officer of its board (or other governing
body), its president, by another of its officers, or any other person,
regardless of designation, whose functions are those of, or
equivalent to such officer.
(c) This chapter applies to all domestic corporations resulting
from the merger of any corporation with a corporation organized
under this chapter, when the latter is designated as the surviving
corporation."
SECTION 259. Section 33-31-1706 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1706. (a) On the effective date of this
chapter, each domestic corporation that is or becomes subject to this
chapter shall be designated as a public benefit, mutual benefit, or
religious corporation as follows:
(1) any corporation designated by statute as a public benefit
corporation, a mutual benefit corporation, or a religious corporation
is the type of corporation designated by statute;
(2) any corporation that does not come within subsection (1)
but is organized primarily or exclusively for religious purposes is a
religious corporation;
(3) any corporation that does not come within subsection (1) or (2) but that is recognized as exempt under section 501(c)(3) of the Internal Revenue Code, or any successor provision, is a
public benefit corporation;
(4) any corporation that does not come within subsection (1),
(2) or (3), but that is organized for a public or charitable purpose
and that upon dissolution must distribute its assets to a public
benefit corporation, the United States, a state, or a person that is
recognized as exempt under section 501(c)(3) of the Internal
Revenue Code or any successor provision, is a public benefit
corporation; and
(5) any corporation that does not come within subsection (1),
(2), (3), or (4) is a mutual benefit corporation.
(b) In any filing with the Secretary of State
Department of Commerce, an existing corporation may
elect designation as a public benefit, mutual benefit, or religious
corporation."
SECTION 300. Section 33-31-1707 of the 1976 Code, as added
by Act 384 of 1994, is amended to read:
"Section 33-31-1707. (a) All domestic corporations in
existence on May 10, 1994 which are governed by this chapter, and
all foreign nonprofit corporations authorized to transact business in
this State on May 10, 1994 which do not then have on file with the
then Secretary of State either a current registered office or
a current registered agent at that office shall file on or before
January 2, 1996, `Notification by Existing Corporation' form. Such
form shall designate:
(1) the name of the corporation;
(2) the street address of the registered office in this State with
zip code; and,
(3) the name of the registered agent whose office address
shall be identical with the registered office.
(b) If any domestic or foreign corporation fails to make the
filing required by subsection (a) on or before January 2, 1996, it is
considered as of January 2, 1996, to have designated the
Secretary of State Director of the Department of
Commerce as its agent upon whom process against it may be
served in any action or proceeding arising in any court in this State.
Service of process is made by delivering to and leaving with the
Secretary of State director, or with any person
designated by him to receive such service, duplicate copies of the
process, notice, or demand. The Secretary of State
director immediately shall cause copies to be forwarded by
certified mail addressed to the corporation at (1) the headquarters or
principal office of the domestic corporation designated upon its
declaration and petition for incorporation or application for
qualification of a foreign corporation, (2) the last address of the
domestic or foreign corporation known to the plaintiff, and (3) with
respect to a foreign corporation, any registered office in the
jurisdiction of incorporation (which address shall be as provided to
the Secretary of State director by the plaintiff). All
costs of mailing shall be paid by the plaintiff and the Secretary
of State director may charge a fee of twenty dollars for
the service.
(c) All domestic corporations in existence on May 10, 1994
which are governed by this chapter, and all foreign nonprofit
corporations authorized to transact business in this State on May 10,
1994 whose headquarters or principal office as listed upon its
declaration and petition for incorporation as a domestic nonprofit
corporation or application for certificate of authority to transact
business as a foreign nonprofit corporation which is no longer the
location of the corporation's principal office shall file (1) a Notice
of Change of Principal Office as is required by Section 33-31-505
or Section 33-31-1515, or (2) may designate upon the notice filed
pursuant to subsection (a) the current street address along with the
zip code of the corporation's principal office and the address of the
former principal office (which filing shall serve as a Notification of
Change of Principal Office). Any such domestic corporation may
also elect a designation as a public benefit, mutual benefit, or
religious corporation as is provided in Section
33-31-1706(b)."
SECTION 301. Section 33-35-30 of the 1976 Code is amended
to read:
"Section 33-35-30. Corporations may be organized
hereunder by any three or more persons who shall make, subscribe,
acknowledge and file articles of incorporation in the office of the
Secretary of State Department of Commerce, and
shall obtain approval thereof by the Secretary of State
department.
The articles of incorporation shall contain:
(1) The name of the proposed corporation, which shall include
the word `Incorporated' or `Inc.' The name shall not be the same
as, or deceptively similar to, the name of any other domestic
corporation, or any foreign corporation authorized to do business in
this State.
(2) The purpose for which the corporation is organized.
(3) The qualification of members and the manner of their
admission.
(4) The term for which it is to exist, which may be perpetual.
(5) The names and residences of the subscribers.
(6) By what officers the affairs of the corporation are to be
managed, and the times at which they will be elected or appointed.
(7) The names of the officers who are to serve until the first
election or appointment under the articles of incorporation.
(8) The number of persons constituting the first board of
directors, managers, or trustees, which shall not be less than three,
and the names and addresses of the persons who are to serve as
directors, managers, or trustees until the first election thereof.
(9) By whom the bylaws of the corporation are to be made,
altered or rescinded.
(10) By whom and in what manner amendments to the articles of
incorporation may be proposed and adopted.
(11) Any provision which the incorporators may choose to insert
for the conduct of the affairs of the corporation and any provision
creating, dividing, limiting and regulating the powers of the
corporation, the directors, managers or trustees, and the members,
including, but not limited to, provisions establishing classes of
membership and limiting voting rights to one or more of such
classes.
(12) The articles of incorporation shall be in writing, subscribed
by not less than three natural persons competent to contract and
acknowledged by all of the subscribers before an officer authorized
to take acknowledgments, and filed in the office of the Secretary
of State Department of Commerce for approval. A
duplicate copy so subscribed and acknowledged may also be
filed."
SECTION 302. Section 33-35-40 of the 1976 Code is amended
to read:
"Section 33-35-40. When the articles of incorporation
have been filed in the office of the Secretary of State
Department of Commerce and approved by him
it and the filing fee herein specified has been paid, the
subscribers thereof and their associates and successors shall
constitute a corporation. The approval of the articles of
incorporation by the Secretary of State department
shall be indicated by his endorsement thereof with the date and time
of approval on the original. The original shall be filed in the
records of his office. If a duplicate is received with the original, it
shall, on receipt of the fee required for certified copies, be so
endorsed, certified and returned to the person from whom it is
received."
SECTION 303. Section 33-35-50 of the 1976 Code, as last
amended by Act 361 of 1992, is further amended to read:
"Section 33-35-50. Upon filing any articles of
incorporation, amendment thereof or other paper relating to the
incorporation, merger, consolidation or dissolution of any
corporation not for profit in the office of the Secretary of
State Department of Commerce, the following fees
shall be paid to him it for the use of the State:
(1) A filing fee of ten dollars for the filing and approval of
articles of incorporation.
(2) A fee of one dollar for the first page, fifty cents for each
additional page and two dollars for authentication for furnishing
certified copies of articles of incorporation or other documents
concerning a corporation not for profit.
(3) A fee of five dollars in each case for filing papers relating
to dissolution or amendment of articles of incorporation.
(4) A fee of ten dollars for filing the annual report.
[For tax years beginning on or after January 1, 1993, this section
reads as follows:] Upon filing any articles of incorporation,
amendment thereof, or other paper relating to the incorporation,
merger, consolidation, or dissolution of any corporation not for
profit in the office of the Secretary of State Department
of Commerce, the following fees must be paid to him
it for the use of the State:
(1) a filing fee of ten dollars for the filing and approval of
articles of incorporation;
(2) a fee of one dollar for the first page, fifty cents for each
additional page and two dollars for authentication for furnishing
certified copies of articles of incorporation or other documents
concerning a corporation not for profit;
(3) a fee of five dollars in each case for filing papers relating to
dissolution or amendment of articles of incorporation."
SECTION 304. Section 33-35-60 of the 1976 Code is amended
to read:
"Section 33-35-60. Any corporation incorporated
hereunder may amend its charter by resolution as provided in the
bylaws. In any case, the charter or articles of incorporation shall be
amended and the amendment incorporated therein only when the
amendment has been filed with the Secretary of State
Department of Commerce, approved by him
it, and all filing fees have been paid."
SECTION 305. Section 33-35-70 of the 1976 Code is amended
to read:
"Section 33-35-70. The Secretary of State
Department of Commerce shall conform any articles of
incorporation supplied by his its office for
`corporations not for profit' to the provisions of Sections 33-35-10
and 33-35-20."
SECTION 306. Section 33-35-120 of the 1976 Code is amended
to read:
"Section 33-35-120. Any corporation organized for the
purposes herein mentioned which shall have accomplished the
purpose for which it has been organized or which may desire to
wind up its affairs may do so upon a vote of a two-thirds majority
of its members at a meeting of which published notice or written
notice mailed to each member shall be given. Such notice shall state
the purpose of the proposed meeting. A certificate stating such facts
shall be filed with the Secretary of State Department of
Commerce."
SECTION 307. Section 33-35-130 of the 1976 Code is amended
to read:
"Section 33-35-130. A certified copy of the charter and
any amendment thereof from the Secretary of State
Department of Commerce or from the clerk of the court or
register of mesne conveyances of the county in which such charter
is required to be recorded shall be sufficient evidence of the
incorporation of any corporation chartered under this chapter and of
any amendment to its certificate of incorporation."
SECTION 308. Section 33-35-140 of the 1976 Code is amended
to read:
"Section 33-35-140. All papers required to be filed
hereunder and all charters or amendments thereof that may be
granted shall be filed under proper numbers and indexed by the
Secretary of State Department of Commerce. The
charter or amendment shall be recorded within thirty days after
receipt in the office of the clerk of court or register of mesne
conveyances in the county in which the corporation is
organized."
SECTION 309. Section 33-37-210 of the 1976 Code is amended
to read:
"Section 33-37-210. Twenty-five or more persons, a
majority of whom shall be residents of this State, who may desire
to create a business development corporation under the provisions
of this chapter for the purpose of promoting, developing and
advancing the prosperity and economic welfare of the State and, to
that end, to exercise the powers and privileges provided in this
chapter, may be incorporated in the following manner. Such persons
shall, by declaration of charter filed with the Secretary of
State Department of Commerce, under their hands and
seals, set forth:
(1) The name of the corporation, which shall include the words
`Business Development Corporation of South Carolina';
(2) The location of the principal office of the corporation; and
(3) The purposes for which the corporation is founded, which
shall include the following: The purposes of the corporation shall be
to promote, stimulate, develop and advance the business prosperity
and economic welfare of this State and its citizens; to encourage
and assist through loans, investments or other business transactions,
in the location of new business and industry in this State and to
rehabilitate and assist existing business and industry; and so to
stimulate and assist in the expansion of all kinds of business activity
which will tend to promote the business development and maintain
the economic stability of this State, provide maximum opportunities
for employment, encourage thrift and improve the standard of living
of the citizens of this State; similarly, to cooperate and act in
conjunction with other organizations, public or private, in the
promotion and advancement of industrial, commercial, agricultural
and recreational developments in this State; and to provide
financing for the promotion, development and conduct of all kinds
of business activity in this State."
SECTION 310. Section 33-37-260 of the 1976 Code, as last
amended by Act 123 of 1995, is further amended to read:
"Section 33-37-260. The charter may be amended by the
votes of the stockholders and the members of the corporation voting
separately by classes. The amendments require approval by the
affirmative vote of two thirds of the votes to which the stockholders
are entitled and two thirds of the votes to which the members are
entitled. No amendment of the charter which is inconsistent with
the general purposes expressed in this chapter or which eliminates
or curtails the right of the Secretary of State Department
of Commerce to examine the corporation or the obligation of
the corporation to make reports as provided by law may be made
without amendment of this chapter. No amendment of the charter
which increases the obligation of a member to make loans to the
corporation, makes a change in the principal amount, interest rate,
or maturity date or in the security or credit position of an
outstanding loan of a member to the corporation, affects a
member's right to withdraw from membership as provided in
Section 33-37-430, or affects a member's voting rights as provided
in Sections 33-37-440 and 33-37-450 may be made without the
consent of each member affected by the amendment."
SECTION 311. Section 33-37-270 of the 1976 Code is amended
to read:
"Section 33-37-270. Within thirty days after any meeting
at which an amendment of the charter has been adopted articles of
amendment signed and sworn to by the president, treasurer and a
majority of the directors, setting forth such amendment and the due
adoption thereof, shall be submitted to the Secretary of State
Department of Commerce, who shall examine them and, if
he finds that they conform to the requirements of this chapter, shall
so certify and endorse his approval thereon. Thereupon, the articles
of amendment shall be filed in the office of the Secretary of
State Department of Commerce, and no such
amendment shall take effect until such articles of amendment shall
have been filed as aforesaid."
SECTION 312. Section 33-39-210 of the 1976 Code is amended
to read:
"Section 33-39-210. Ten or more persons, a majority of
whom shall be residents of the same county of the State, who may
desire to create a business development corporation under the
provisions of this chapter for the purpose of promoting, developing
and advancing the prosperity and economic welfare of the county
and, to that end, to exercise the powers and privileges provided in
this chapter, may be incorporated in the following manner. Such
persons shall, by declaration of charter filed with the Secretary
of State Department of Commerce, under their hands
and seals, set forth:
(1) The name of the corporation, which shall include the words
`Business Development Corporation of ____ County';
(2) The location of the principal office of the corporation within
the county; and
(3) The purposes for which the corporation is founded, which
shall include the following: To promote, stimulate, develop and
advance the business prosperity and economic welfare of the county
in which formed and its citizens; to encourage and assist through
loans, investments or other business transactions in the location of
new business and industry in the county and to rehabilitate and
assist existing business and industry; and so to stimulate and assist
in the expansion of all kinds of business activity which will tend to
promote the business development and maintain the economic
stability of the county, provide maximum opportunities for
employment, encourage thrift and improve the standard of living of
the citizens of the county; to cooperate and act in conjunction with
other organizations, public or private, in the promotion and
advancement of industrial, commercial, agricultural and
recreational developments in the county; and to provide financing
for the promotion, development and conduct of all kinds of business
activity in the county."
SECTION 313. Section 33-39-260 of the 1976 Code is amended
to read:
"Section 33-39-260. The charter may be amended by the
votes of the stockholders and the members of the corporation,
voting separately by classes, and such amendments shall require
approval by the affirmative vote of two thirds of the votes to which
the stockholders shall be entitled and two thirds of the votes to
which the members shall be entitled; provided, that no amendment
of the charter which is inconsistent with the general purposes
expressed in this chapter, which authorizes any additional class of
capital stock to be issued or which eliminates or curtails the right of
the Secretary of State Department of Commerce to
examine the corporation or the obligation of the corporation to
make reports as provided by law shall be made without amendment
of this chapter; and provided, further, that no amendment of the
charter which increases the obligation of a member to make loans to
the corporation, makes any change in the principal amount, interest
rate or maturity date or in the security or credit position of any
outstanding loan of a member to the corporation, affects a
member's right to withdraw from membership as provided in
Section 33-39-430 or affects a member's voting rights as provided
in Sections 33-39-440 and 33-39-450 shall be made without the
consent of each member affected by such amendment."
SECTION 314. Section 33-39-270 of the 1976 Code is amended
to read:
"Section 33-39-270. Within thirty days after any meeting
at which amendment of the charter has been adopted articles of
amendment signed and sworn to by the president, treasurer and a
majority of the directors, setting forth such amendment and the due
adoption thereof, shall be submitted to the Secretary of State
Department of Commerce, who shall examine them and, if
he finds that they conform to the requirements of this chapter, shall
so certify and endorse his approval thereon. Thereupon, the articles
of amendment shall be filed in the office of the Secretary of
State Department of Commerce, and no such
amendment shall take effect until such articles of amendment shall
have been filed as aforesaid."
SECTION 315. Section 33-41-1110 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-41-1110. (A) To become and to continue as
a registered limited liability partnership, a partnership shall file with
the Secretary of State Department of Commerce an
application or a renewal application, as the case may be, stating the
name of the partnership; the address of its principal office, if the
partnership's principal office is not located in this State; the address
of a registered office, and the name and address of a registered
agent for service of process in this State, which the partnership will
be required to maintain; the number of partners; a brief statement of
the business in which the partnership engages, and that the
partnership applies for status or renewal of its status, as the case
may be, as a registered limited liability partnership.
(B) The application or renewal application must be executed by
a majority in interest of the partners or by one or more partners
authorized to execute an application or renewal application.
(C) The application or renewal application must be accompanied
by a fee of one hundred dollars.
(D) The Secretary of State Department of
Commerce shall register as a registered limited liability
partnership and shall renew the registration of any registered limited
liability partnership, any partnership that submits a completed
application or renewal application with the required fee.
(E) Registration is effective for one year after the date an
application is filed unless voluntarily withdrawn pursuant to Section
33-41-1190. Registration, whether pursuant to an original
application or a renewal application, as a registered limited liability
partnership is renewed if during the sixty-day period preceding the
date the application or renewal application otherwise would have
expired the partnership files with the Secretary of State
Department of Commerce a renewal application. A
renewal application expires one year after the date an original
application would have expired if the last renewal of the application
had not occurred.
(F) The status of a partnership as a registered limited liability
partnership may not be affected by changes after the filing of an
application or a renewal application in the information stated in the
application or renewal application.
(G) The Secretary of State Department of
Commerce may provide forms for application or for renewal of
registration."
SECTION 316. Section 33-41-1160 of the 1976 Code, as last
amended by Act 60 of 1995, is further amended to read:
"Section 33-41-1160. (A) A foreign limited liability
partnership may apply for a certificate of authority to transact
business in this State by delivering an application to the
Secretary of State Department of Commerce for
filing. The application must set forth:
(1) the name of the foreign limited liability partnership that
satisfies the requirements of Section 33-41-1120;
(2) the name of the state or country under which it is
organized;
(3) its date of organization;
(4) the street address of its proposed registered office in this
State and the name of its proposed registered agent at that office;
and
(5) a statement that the foreign limited liability partnership
has liability insurance of the amount and type described in Section
33-41-1130(A)(1) or segregated funds as described in Section
33-41-1130(C) in an amount equal to or greater than the amount
specified in Section 33-41-1130(A)(1).
(B) The foreign limited liability partnership shall deliver with
the completed application a certificate of existence (or a document
of similar import) duly authenticated by the Secretary of
State Department of Commerce or other official having
custody of limited liability partnership records in the state or
country under which law it is organized.
(C) If the foreign limited liability partnership renders
`professional services' as defined in Section 33-19-103(7), the
application required by subsection (A) must also contain a statement
that:
(1) all of its partners are licensed in one or more states to
render the professional services which the foreign limited liability
partnership practices and that one or more of its partners is licensed
in South Carolina to render such professional services; and
(2) the foreign limited liability partnership is in compliance
with the requirements of Section 33-41-1130(A)(2); provided,
however, that to the extent any such requirements are determined by
reference to the number of licensed partners or individuals, such
determination shall be made on the basis of the number of partners
or individuals who render professional services in South Carolina.
(D) The Secretary of State Department of
Commerce shall collect a fee of one hundred dollars when a
foreign limited liability partnership delivers to him for filing an
annual or renewal application for a certificate to transact business in
this State.
(E) By applying for a certificate of authority to transact business
in this State, the foreign limited liability partnership agrees to be
subject to the jurisdiction of the Department of Revenue and
Taxation and the South Carolina courts to determine its South
Carolina tax liability, including withholding and estimated taxes,
together with any related interest and penalties, if any. Registering
is not an admission of tax liability."
SECTION 317. Section 33-41-1170 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-41-1170. (A) If the Secretary of
State Department of Commerce finds that an
application for a certificate of authority to transact business in this
State conforms to the provisions of this article and all requisite fees
have been paid, the Secretary shall:
(1) endorse on each signed original and duplicate copy the
word `filed' and the date and time of its acceptance for filing;
(2) retain the signed original in the Secretary of
State's Department of Commerce's files; and
(3) return the duplicate copy to the person who filed it or the
person's representative.
(B) If the Secretary of State Department of
Commerce is unable to make the determination required for
filing by subsection (A) at the time any documents are delivered for
filing, the documents are considered to have been filed at the time
of delivery if the Secretary of State Department of
Commerce subsequently determines that:
(1) the documents as delivered conform to the filing
provisions of this chapter; or
(2) within twenty days after notification of nonconformance
is given by the Secretary of State Department of
Commerce to the person who delivered the documents for
filing for the person's representative, the documents are brought
into conformance.
(C) If the filing and determination requirements of this chapter
are not satisfied within the time prescribed in subsection (B)(2), the
documents shall not be filed.
(D) A certificate of authority to transact business in this State is
effective for one year after the date the application is filed unless
voluntarily withdrawn pursuant to Section 33-41-1190.
Registration, whether pursuant to an original application or a
renewal application, as a registered limited liability partnership is
renewed if, during the sixty-day period preceding the date the
application or renewal application otherwise would have expired,
the partnership files with the Secretary of State
Department of Commerce a renewal application. A
renewal application expires one year after the date an original
application would have expired if the last renewal of the application
had not occurred."
SECTION 318. Section 33-41-1180 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-41-1180. (A) The application for a foreign
limited liability partnership's certificate of authority to transact
business in this State is amended by filing articles of amendment
with the Secretary of State Department of
Commerce signed by a person with authority to do so under
the laws of the State or other jurisdiction of its formation. The
articles of amendment shall set forth:
(1) the name of the foreign limited liability partnership;
(2) the date the original application for registration was filed;
and
(3) the amendment to the application for registration.
(B) The application for a certificate to transact business in this
State may be amended in any way, provided that the application, as
amended, contains only provisions that may be lawfully contained
in an application for a certificate to transact business in this State at
the time of the amendment.
(C) A foreign limited liability partnership authorized to transact
business in South Carolina must obtain an amended certificate of
authority from the Secretary of State Department of
Commerce if it changes:
(1) its limited liability partnership name;
(2) the street address of its registered office in this State or
the name of its registered agent at that office; or
(3) the state or country of its organization.
An amended certificate of authorization must also be obtained if
there is a false or erroneous statement in the original filed
application for a certificate of authority.
(D) The Secretary of State Department of
Commerce shall collect a fee of one hundred dollars when a
foreign limited liability partnership delivers to him for filing an
amendment to a certificate to transact business in this State."
SECTION 319. Section 33-41-1190 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-41-1190. (A) A foreign limited liability
partnership authorized to transact business in this State may cancel
its registration upon procuring from the Secretary of State
Department of Commerce a certificate of cancellation. In
order to procure such certificate, the foreign limited liability
partnership shall deliver to the Secretary of State
Department of Commerce an application for cancellation,
which shall set forth:
(1) the name of the foreign limited liability partnership and
the state or other jurisdiction under the laws of which it is formed;
(2) that the foreign limited liability partnership is not
transacting business in this State;
(3) that the foreign limited liability partnership surrenders its
certificate of authority to transact business in this State;
(4) that the foreign limited liability partnership revokes the
authority of its registered agent for service of process in this State
and consents that service of process in any action, suit, or
proceeding based upon any cause of action arising in this State may
thereafter be made on such foreign limited liability partnership by
service thereof upon the Secretary of State Department
of Commerce; and
(5) an address to which a person may mail a copy of any
process against the foreign limited liability partnership.
(B) The application for cancellation shall be in the form and
manner designated by the Secretary of State Department
of Commerce and shall be executed on behalf of the foreign
limited liability partnership by a person with authority to do so
under the laws of the State or other jurisdiction of its formation, or
if the foreign limited liability partnership is in the hands of a
receiver, trustee, or other court-appointed fiduciary by that
fiduciary.
(C) A cancellation does not terminate the authority of the
Secretary of State Department of Commerce to
accept service of process on the foreign limited liability partnership
with respect to causes of action arising out of the transaction of
business in this State."
SECTION 320. Section 33-41-1200 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-41-1200. (A) A foreign limited liability
partnership transacting business in this State may not maintain an
action, suit, or proceeding in a court of this State until the
Secretary of State Department of Commerce has
issued it a certificate of authority to transact business in this State.
(B) The failure of a foreign limited liability partnership to
register in this State does not:
(1) impair the validity of any contract or act of the foreign
limited liability partnership;
(2) affect the right of any other party to the contract to
maintain any action, suit, or proceeding on the contract; or
(3) prevent the foreign limited liability partnership from
defending any action, suit, or proceeding in any court of this State.
(C) A foreign limited liability partnership, by transacting
business in this State without registration, appoints the Secretary
of State Department of Commerce as its agent for
service of process with respect to a cause of action arising out of
the transaction of business in this State.
(D) A foreign limited liability partnership which transacts
business in this State without a certificate of authority shall be
liable to the State for the years or parts thereof during which it
transacted business in this State without a certificate of authority in
an amount equal to all fees which would have been imposed by this
chapter upon that foreign limited liability partnership had it duly
registered, and all penalties imposed by this chapter. The Attorney
General may bring proceedings to recover all amounts due this
State under the provisions of this section.
(E) A foreign limited liability partnership which transacts
business in this State without a certificate of authority shall be
subject to a civil penalty, payable to the State of ten dollars per
day, not to exceed one thousand dollars per year.
(F) The civil penalty set forth in subsection (E) may be
recovered in an action brought within a court by the Attorney
General. Upon a finding by the court that a foreign limited liability
partnership has transacted business in this State in violation of this
chapter, the court shall issue, in addition to the imposition of a civil
penalty, an injunction restraining further transactions of the business
of the foreign limited liability partnership and the further exercise
of any limited liability partnership's rights and privileges in this
State. The foreign limited liability partnership shall be enjoined
from transacting business in this State until all civil penalties plus
any interest and court costs which the court may assess have been
paid and until the foreign limited liability partnership has otherwise
complied with the provisions of this article.
(G) A partner of a foreign limited liability partnership is not
liable for the debts and obligations of the limited liability
partnership solely because the limited liability partnership transacted
business in this State without registration."
SECTION 321. Section 33-41-1210 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-41-1210. (A) A foreign limited liability
partnership may not transact business in this State until it obtains a
certificate of authority from the Secretary of State
Department of Commerce.
(B) The following activities, among others, do not constitute
transacting business within the meaning of subsection (A):
(1) maintaining, defending, or settling any proceeding;
(2) holding meetings of the partners or carrying on other
activities concerning internal affairs;
(3) maintaining bank accounts;
(4) selling through independent contractors;
(5) soliciting or obtaining orders, whether by mail or through
employees or agents or otherwise, if the orders require acceptance
outside this State before they become contracts;
(6) creating or acquiring any indebtedness, mortgages, and
security interests in real or personal property;
(7) securing or collecting any debts or enforcing mortgages,
security interests, or any other rights in property securing debts;
(8) owning, without more, real or personal property;
(9) conducting an isolated transaction that is completed within
thirty days and that is not one in the course of repeated
transactions of like nature; and
(10) transacting business in interstate commerce.
(C) A foreign limited liability partnership which renders a
professional service is not required to obtain a certificate of
authority to transact business in this State unless it maintains or
intends to maintain an office in this State for the conduct of
business or professional practice.
(D) The list of activities in subsection (B) is not
exhaustive."
SECTION 322. Section 33-42-20(1) of the 1976 Code is
amended to read:
"(1) `Certificate of limited partnership' means the
certificate referred to in Section 33-42-210, any certificate of
limited partnership filed with the office of the Secretary of
State Department of Commerce in connection with the
formation of a limited partnership under any applicable statute of
this State prior to the effective date of this chapter, and any such
certificate as amended, or restated."
SECTION 323. Section 33-42-40(b) of the 1976 Code is
amended to read:
"(b) The reservation shall be made by filing with the
Secretary of State Department of Commerce an
application, executed by the applicant, to reserve a specified name.
If the Secretary of State Department of Commerce
finds that the name is available for use by a domestic or foreign
limited partnership, he shall reserve the name for the exclusive use
of the applicant for a period of one hundred twenty days. Once
having so reserved a name, the same applicant may not again
reserve the same name until more than sixty days after the
expiration of the last one hundred twenty day period for which that
applicant reserved that name. The right to the exclusive use of a
reserved name may be transferred to any other person by filing in
the office of the Secretary of State a notice of transfer,
executed by the applicant for whom the name was received and
specifying the name and address of the transferee."
SECTION 324. Section 33-42-45 of the 1976 Code is amended
to read:
"Section 33-42-45. (a) This section rather than Sections
39-13-10 through 39-13-40 of the 1976 Code governs the
registration of assumed names of limited partnerships formed or
transacting business in South Carolina.
(b) A limited partnership that conducts or intends to conduct
business in this State under a name other than the name shown in
its certificate of limited partnership (or in the case of a foreign
limited partnership that has registered in this State, the name shown
in its certificate of registration to transact business in this State)
shall file with the Secretary of State Department of
Commerce an assumed name certificate which shall state the
name shown on its certificate of limited partnership (or certificate
of registration in the case of a foreign limited partnership), the
name under which the limited partnership's business is to be
conducted, which assumed name shall not be deceptively similar to
the name of any domestic or foreign limited partnership authorized
to transact business in this State, or to any reserved name pursuant
to Section 33-42-40 and the address of the partnership's registered
office required to be maintained in this State.
(c) Such filing shall be effective, unless sooner terminated by
the filing of a certificate of termination or by the cancellation of the
certificate of limited partnership (or in the case of foreign limited
partnership by cancellation of the certificate of registration to
transact business in this State), for a period expiring on December
thirty-first of the fifth full calendar year following the year in which
it is filed. It may be extended for additional consecutive periods of
five full calendar years each by the filing of a new assumed name
certificate not earlier than ninety days preceding the expiration of
any such period. The Secretary of State Department of
Commerce shall notify a limited partnership of the impending
expiration of its assumed name, by first-class mail addressed to the
partnership's registered office as shown on the partnership's
certificate of limited partnership (or certificate of registration in the
case of a foreign limited partnership that has registered in this
State), no later than three calendar months before the initial or
subsequent five-year period will expire.
(d) The Secretary of State Department of
Commerce shall maintain current lists, alphabetically arranged,
of the partnership registrants and assumed names permitted
hereunder.
(e) The failure of any limited partnership to file the assumed
name certificate required by subsection (b) does not:
(i) impair the validity of any contract or act of the limited
partnership;
(ii) prevent the limited partnership from maintaining or
defending any action, suit, or proceeding in any court of this State;
or
(iii) result in any limited partner becoming liable as a general
partner solely by reason of the failure of the limited partnership to
file the required assumed name certificate."
SECTION 325. Section 33-42-210 of the 1976 Code is amended
to read:
"Section 33-42-210. (a) In order to form a limited
partnership, a certificate of limited partnership must be executed
and filed in the office of the Secretary of State
Department of Commerce. The certificate shall set forth:
(1) the name of the limited partnership;
(2) the address of the office and the name and address of the
agent for service of process required to be maintained by Section
33-42-50;
(3) the name and a mailing address of each general partner;
(4) The latest date upon which the limited partnership is to
dissolve; and
(5) any other matters the partners determine to include
therein.
(b) A limited partnership is formed at the time of the filing of
the certificate of limited partnership in the office of the
Secretary of State Department of Commerce or at
any later time specified in the certificate of limited partnership if, in
either case, there has been substantial compliance with the
requirements of this section."
SECTION 326. Section 33-42-220 of the 1976 Code is amended
to read:
"Section 33-42-220. (a) A certificate of limited
partnership is amended by filing a certificate of amendment thereto
in the office of the Secretary of State Department of
Commerce. The certificate shall set forth:
(1) the name of the limited partnership;
(2) the date of filing the certificate; and
(3) the amendment to the certificate.
(b) Within thirty days after the happening of any of the
following events, an amendment to a certificate of limited
partnership reflecting the occurrence of the event or events shall be
filed:
(1) the admission of a new general partner;
(2) the withdrawal of a general partner; or
(3) the continuation of the business under Section 33-42-1410
after an event of withdrawal of a general partner.
(c) A general partner who becomes aware that any statement in
a certificate of limited partnership was false when made or that any
arrangements or other facts described have changed, making the
certificate inaccurate in any respect, shall promptly amend the
certificate.
(d) A certificate of limited partnership may be amended at any
time for any other proper purpose the general partners determine.
(e) No person has any liability because an amendment to a
certificate of limited partnership has not been filed to reflect the
occurrence of any event referred to in subsection (b) of this section
if the amendment is filed within the thirty-day period specified in
subsection (b).
(f) A restated certificate of limited partnership may be executed
and filed in the same manner as a certificate of amendment.
(g) (1) Each limited partnership formed before June 27, 1984,
shall file no later than January 1, 1988, a certificate of amendment
pursuant to this chapter causing such limited partnership to comply
with the requirements of Section 33-42-30 respecting the name of
the limited partnership, Section 33-42-50(1) respecting the office of
the limited partnership at which certain records are to be kept, and
Section 33-42-50(2) respecting the agent for service of process on
the limited partnership. However, a limited partnership formed
before June 27, 1984, is required to file the certificate of
amendment only to the extent it does not fully comply with
Sections 33-42-30 and 33-42-50 on or before January 1, 1988. The
certificate of amendment is considered effective under this chapter
upon its execution by a general partner of the limited partnership
and its filing in the office of the Secretary of State
Department of Commerce.
(2) The failure of any limited partnership formed before June
27, 1984, to comply with subsection (g)(1) shall result on January
1, 1988, in, but only to, the extent of the failure:
(i) the designation of the principal place of business of the
limited partnership as specified in the limited partnership's
certificate of limited partnership on that date as the office of
partnership at which certain records are to be kept for purposes of
Section 33-42-50(1);
(ii) the designation of the Secretary of State
Department of Commerce as the agent for service of
process on such limited partnership for purposes of Section
33-42-50(2); and
(iii) the limited partnership being prohibited from filing any
other certificate of amendment unless it satisfies the requirements of
subsection (g)(1).
(3) The failure of any limited partnership formed before June
27, 1984, to file the certificate of amendment required by
subsection (g)(1) does not:
(i) impair the validity of any contract or act of the limited
partnership;
(ii) prevent the limited partnership from maintaining or
defending any action, suit, or proceeding in any court in this State;
or
(iii) result in any limited partner becoming liable as a
general partner solely by reason of the failure of the limited
partnership to file the required certificate of amendment."
SECTION 327. Section 33-42-230 of the 1976 Code is amended
to read:
"Section 33-42-230. A certificate of limited partnership
must be canceled upon the dissolution and the commencement of
winding up of the partnership or at any other time there are no
limited partners. A certificate of cancellation must be filed in the
office of the Secretary of State Department of
Commerce and set forth:
(1) the name of the limited partnership;
(2) the date of filing of its certificate of limited partnership;
(3) the reason for filing the certificate of cancellation;
(4) the effective date (which shall be a date certain) of
cancellation if it is not to be effective upon the filing of the
certificate; and
(5) any other information the general partners filing the
certificate determine."
SECTION 328. Section 33-42-240(a) of the 1976 Code is
amended to read:
"(a) Each certificate required by this article to be filed in
the office of the Secretary of State Department of
Commerce must be executed in the following manner:
(1) an original certificate of limited partnership must be
signed by all general partners named therein;
(2) a certificate of amendment must be signed by at least one
general partner and by each other general partner designated in the
certificate as a new or substitute general partner; and
(3) a certificate of cancellation must be signed by all general
partners."
SECTION 329. Section 33-42-250 of the 1976 Code is amended
to read:
"Section 33-42-250. If a person required by Section
33-42-240 to execute any certificate fails or refuses to do so, any
other person who is adversely affected by the failure or refusal may
petition the circuit court of the county in which the limited
partnership's office designated pursuant to Section 33-42-50(1) is
located to direct the execution of the certificate. If the court finds
that it is proper for the certificate to be executed and that any
person designated has failed or refused to execute the appropriate
certificate, it shall order the Secretary of State
Department of Commerce to record an appropriate
certificate."
SECTION 330. Section 33-42-260 of the 1976 Code is amended
to read:
"Section 33-42-260. (a) Two signed copies of the
certificate of limited partnership and of any certificates of
amendment or cancellation (or of any judicial decree of amendment
or cancellation) must be delivered to the Secretary of State
Department of Commerce. A person who executes a
certificate as an agent or fiduciary need not exhibit evidence of his
authority as a prerequisite to filing. Unless the Secretary of
State Department of Commerce finds that any
certificate does not conform to law, upon receipt of all filing fees
required by law he shall:
(1) endorse on each duplicate original the word `Filed' and
the day, month, and year of the filing thereof;
(2) file one duplicate original in his office; and
(3) return the other duplicate original to the person who filed
it or his representative.
(b) Upon the filing of a certificate of amendment (or judicial
decree of amendment) in the office of the Secretary of State
Department of Commerce, the certificate of limited
partnership shall be amended as set forth therein and, upon the
effective date of a certificate of cancellation (or a judicial decree
thereof), the certificate of limited partnership is canceled."
SECTION 331. Section 33-42-280 of the 1976 Code is amended
to read:
"Section 33-42-280. The fact that a certificate of limited
partnership is on file in the office of the Secretary of State
Department of Commerce is notice that the partnership is a
limited partnership and the persons designated therein as general
partners are general partners, but it is not notice of any other
fact."
SECTION 332. Section 33-42-290 of the 1976 Code is amended
to read:
"Section 33-42-290. Upon the return by the Secretary
of State Department of Commerce pursuant to Section
33-42-260 of a certificate marked `Filed', the general partners shall
promptly deliver or mail a copy of the certificate of limited
partnership or the certificate of amendment or cancellation or
restated certificate or any judicial decree of any of the above, as the
case may be, to each limited partner unless the partnership
agreement provides otherwise."
SECTION 333. Section 33-42-310 of the 1976 Code is amended
to read:
"Section 33-42-310. Certificates of limited partnership and
certificates of amendment filed in any official county records of this
State pursuant to any applicable statute of this State prior to June
27, 1984, are of no further force or effect for any purpose under
this chapter on or after June 27, 1984. All certificates of
amendment, certificates of cancellation, and restated certificates are
fully effective to amend or cancel the certificates of limited
partnership, as the case may be, upon proper filing thereof with the
office of the Secretary of State Department of
Commerce pursuant to the requirements of this chapter."
SECTION 334. Section 33-42-320 of the 1976 Code is amended
to read:
"Section 33-42-320. (a) Pursuant to an agreement, a
domestic limited partnership may merge or consolidate with or into
one or more limited partnerships formed under the laws of this
State or any other state with such limited partnership as the
agreement shall provide being the surviving or resulting limited
partnership.
(b) A domestic limited partnership that is not the surviving or
resulting limited partnership in the merger or consolidation shall file
a certificate of cancellation which shall have an effective date not
later than the effective date of the merger or consolidation.
(c) If, following a merger or consolidation of one or more
domestic limited partnerships and one or more limited partnerships
formed under the laws of any other state, the surviving or resulting
limited partnership is not a domestic limited partnership, there shall
be attached to the certificate of cancellation filed pursuant to
Section 33-42-230 for each such domestic limited partnership a
certificate executed by the surviving or resulting limited partnership,
stating that the surviving or resulting limited partnership agrees that
it may be served with process in the State of South Carolina in any
action, suit, or proceeding involving such domestic limited
partnership as a party, irrevocably appointing the Secretary of
State Department of Commerce as its agent to accept
service of process in any such action, suit, or proceeding and
specifying the address to which a copy of such process shall be
mailed to it by the Secretary of State Department of
Commerce.
(d) When the certificate of cancellation required by Section
33-42-230 shall have become effective, for all purposes of the laws
of this State, all of the rights, privileges, and powers of the limited
partnerships that have merged or consolidated, and all property,
real, personal, and mixed, and all debts due to any of said limited
partnerships, as well as all other things and causes of action
belonging to each of such limited partnerships, shall be vested in
the surviving or resulting limited partnership, and shall thereafter be
the property of the surviving or resulting limited partnership as they
were of each of the limited partnerships that have merged or
consolidated, and the title to any real property vested by deed or
otherwise, in any of such limited partnerships, shall not revert or be
in any way impaired by reason of this section; but all rights of
creditors and all liens upon any property of any of said limited
partnerships shall be preserved unimpaired, and all debts, liabilities,
and duties of each of the limited partnerships that have merged or
consolidated shall thenceforth attach to the surviving or resulting
limited partnership and may be enforced against it to the same
extent as if said debts, liabilities, and duties have been incurred or
contracted by it.
(e) This section shall have no legal effect on any other method
of combining two or more limited partnerships made prior or
subsequent to its enactment."
SECTION 335. Section 33-42-440 of the 1976 Code is amended
to read:
"Section 33-42-440. (a) Except as provided in subsection
(b), a person who makes a contribution to a business enterprise and
erroneously but in good faith believes that he has become a limited
partner in the enterprise is not a general partner in the enterprise
and is not bound by its obligations by reason of making the
contribution, receiving distributions from the enterprise, or
exercising any rights of a limited partner if, on ascertaining the
mistake, he:
(1) causes an appropriate certificate of limited partnership or
a certificate of amendment to be executed and filed; or
(2) withdraws from future equity participation in the
enterprise by executing and filing in the office of the Secretary
of State Department of Commerce a certificate
declaring withdrawal under this section.
(b) A person who makes a contribution of the kind described in
subsection (a) is liable as a general partner to any third party who
transacts business with the enterprise (i) before the person
withdraws and an appropriate certificate is filed to show
withdrawal, or (ii) before an appropriate certificate is filed to show
that he is not a general partner, but in either case only if the third
party actually believed in good faith that the person was a general
partner at the time of the transaction."
SECTION 336. Section 33-42-1620 of the 1976 Code, as last
amended by Part II, Act 497 of 1994, is further amended to read:
"Section 33-42-1620. Before transacting business in this
State, a foreign limited partnership shall register with the
Secretary of State Department of Commerce. In
order to register, a foreign limited partnership shall submit to the
Secretary of State Department of Commerce, in
duplicate, an application for registration as a foreign limited
partnership, signed and sworn to by a general partner and setting
forth:
(1) the name of the foreign limited partnership and, if
different, the name under which it proposes to register and transact
business in this State;
(2) the state and date of its formation;
(3) the name and address of any agent for service of process
on the foreign limited partnership whom the foreign limited
partnership elects to appoint; the agent must be an individual
resident of this State, a domestic corporation, or a foreign
corporation having a place of business in, and authorized to do
business in, this State;
(4) a statement that the Secretary of State
Department of Commerce is appointed the agent of the
foreign limited partnership for service of process if no agent has
been appointed under subsection (3) or, if appointed, the agent's
authority has been revoked or if the agent cannot be found or
served with the exercise of reasonable diligence;
(5) the address of the office required to be maintained in the
state of its organization by the laws of that state or, if not so
required, of the principal office of the foreign limited partnership;
(6) the name and a mailing address of each general partner;
and
(7) the address of the office at which is kept a list of the
names and addresses of the limited partners and their capital
contributions, together with an undertaking by the foreign limited
partnership to keep those records until the foreign limited
partnership's registration in this State is canceled or withdrawn.
By registering, the foreign limited partnership agrees to be
subject to the jurisdiction of the Department of Revenue and
Taxation and the courts of this State to determine its South Carolina
tax liability, including withholding and estimated taxes, together
with related interest and penalties, if any. Registering is not an
admission of tax liability."
SECTION 337. Section 33-42-1630 of the 1976 Code is
amended to read:
"Section 33-42-1630. (a) If the Secretary of
State Department of Commerce finds that an
application for registration conforms to law and all requisite fees
have been paid, he shall:
(1) endorse on the application the word `Filed', and the
month, day, and year of the filing thereof;
(2) file in his office a duplicate original of the application;
and
(3) issue a certificate of registration to transact business in
this State.
(b) The certificate of registration, together with a duplicate
original of the application, shall be returned to the person who filed
the application or his representative."
SECTION 338. Section 33-42-1640 of the 1976 Code is
amended to read:
"Section 33-42-1640. (a) A foreign limited partnership
may register with the Secretary of State Department of
Commerce under any name (whether or not it is the name
under which it is registered in its state of organization) that could
be registered by a domestic limited partnership under Section
33-42-30.
(b) A foreign limited partnership transacting business in this
State under a name other than the name shown on the certificate of
registration shall comply with provisions of Section
33-42-45."
SECTION 339. Section 33-42-1650 of the 1976 Code is
amended to read:
"Section 33-42-1650. If any statement in the application
for registration of a foreign limited partnership was false when
made or any arrangements or other facts described have changed,
making the application inaccurate in any respect, the foreign limited
partnership shall promptly file in the office of the Secretary of
State Department of Commerce a certificate, signed
and sworn to by a general partner, correcting such statement."
SECTION 340. Section 33-42-1660 of the 1976 Code is
amended to read:
"Section 33-42-1660. A foreign limited partnership may
cancel its registration by filing with the Secretary of State
Department of Commerce a certificate of cancellation
signed and sworn to by a general partner. A cancellation does not
terminate the authority of the Secretary of State
Department of Commerce to accept service of process on
the foreign limited partnership with respect to causes of action
arising out of the transactions of business in this State."
SECTION 341. Section 33-42-1670 of the 1976 Code is
amended to read:
"Section 33-42-1670. (a) A foreign limited partnership
transacting business in this State may not maintain any action, suit,
or proceeding in any court of this State until it has registered in this
State.
(b) The failure of a foreign limited partnership to register in this
State does not impair the validity of any contract or act of the
foreign limited partnership or prevent the foreign limited
partnership from defending any action, suit, or proceeding in any
court of this State.
(c) A limited partner of a foreign limited partnership is not
liable as a general partner of the foreign limited partnership solely
by reason of having transacted business in this State without
registration.
(d) A foreign limited partnership, by transacting business in
this State without registration, appoints the Secretary of
State Department of Commerce as its agent for service
of process with respect to causes of action arising out of the
transaction of business in this State."
SECTION 342. Section 33-42-2040 of the 1976 Code is
amended to read:
"Section 33-42-2040. (a) The Secretary of State
Department of Commerce shall charge ten dollars for filing
any document required to be filed pursuant to this chapter. This
charge shall include the cost of sending to the person requesting the
filing, or that person's designee, a duplicate copy of the document
submitted with the original showing the date of filing.
(b) In all other cases of requests for copies of documents filed
pursuant to this chapter, the Secretary of State
Department of Commerce shall charge one dollar for the
first page, fifty cents for each additional page, and two dollars for
furnishing a certificate under seal."
SECTION 343. Section 33-43-103 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-103. (A) The name of each limited
liability company must contain the words `limited liability
company' or `limited company' or the abbreviation `L.L.C.', `L.C.',
`LLC', `LC'. The word `limited' may be abbreviated as `LTD.'
and the word `company' may be abbreviated as `CO.'
(B) A limited liability company name may not be the same as or
deceptively similar to:
(1) the name filed with the Secretary of State
Department of Commerce of any limited liability company,
limited partnership, professional corporation, or corporation existing
under the laws of this State or foreign limited liability company,
foreign corporation, or foreign professional corporation authorized
to transact business in this State; or
(2) any name reserved or registered under Section 33-43-104,
or any reserved name for a corporation or professional corporation
existing under the laws of this State, or any registered name of
either a foreign corporation or foreign professional corporation
authorized to transact business in this State.
(C) The provisions of subsection (B) shall not apply if the
applicant files with the Secretary of State Department of
Commerce either of the following:
(1) the written consent of the holder of a reserved or
registered name or filed name to use a deceptively similar name if
one or more words are added, altered, or deleted to make the name
distinguishable from the reserved or registered or filed name; or
(2) a certified copy of a final decree of a court of competent
jurisdiction establishing the prior right of the applicant to the use
of the name of this State."
SECTION 344. Section 33-43-104 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-104. (A) A person may reserve the
exclusive use of a 'limited liability company' name, including a
designated name provided for in Section 33-43-1004 for a foreign
limited liability company whose name is not available, by delivering
an application to the Secretary of State Department of
Commerce for filing. The application must set forth the name
and address of the applicant and the name proposed to be reserved.
If the Secretary of State Department of Commerce
finds that the limited liability company name applied for is
available, he shall reserve the name for the applicant's exclusive use
for a nonrenewable one hundred twenty-day period.
(B) The owner of a reserved limited liability company name
may transfer the reservation to another person by delivering to the
Secretary of State Department of Commerce a
signed notice of the transfer that states the name and address of the
transferee.
(C) A foreign limited liability company may register its name
that satisfies the requirements of Section 33-43-103.
(D) A foreign limited liability company registers its name or a
designated name as provided in Section 33-43-1004 by delivering to
the Secretary of State Department of Commerce for
filing an application:
(1) setting forth its limited liability company name or a
designated name as provided in Section 33-43-1004, the state or
country and date of its organization, and a brief description of the
nature of the business in which it is engaged; and
(2) accompanied by a certificate of existence (or a document
of similar import) from the state or country of organization.
(E) The name is registered for the applicant's exclusive use
upon the effective date of the application.
(F) A foreign limited liability company whose registration is
effective may renew it for successive years by delivering to the
Secretary of State Department of Commerce for
filing a renewal application, which complies with the requirements
of subsection (D), between October first and December thirty-first
of the preceding year. The renewal application, when filed, renews
the registration for the following calendar year.
(G) A foreign limited liability company whose registration is
effective may qualify thereafter as a foreign limited liability
company under the registered name or consent in writing to the use
of that name by a limited liability company thereafter incorporated
under Sections 33-43-101 through 33-43-1409 or by another foreign
limited liability company thereafter authorized to transact business
in this State. The registration terminates when the domestic limited
liability company is incorporated or the foreign limited liability
company qualifies or consents to the qualification of another foreign
limited liability company under the registered name."
SECTION 345. Section 33-43-105 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-105. (A) A limited liability company and
a foreign limited liability company authorized to do business in
South Carolina shall continuously maintain in this State:
(1) a registered office that may, but need not, be the same as
its place of business; and
(2) a registered agent for service or process on the limited
liability company that is an individual resident of this State, a
limited liability company, a foreign limited liability company
authorized to transact business in this State, or a corporation formed
under the laws of or authorized to transact business in this State
having a business office identical with the registered office.
(B) A limited liability company or a foreign limited liability
company may change its registered office or registered agent by
delivering to the Secretary of State Department of
Commerce for filing a statement of change that sets forth:
(1) the name of the limited liability company;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street
address of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name
of the new registered agent and the new agent's written consent
(either on the statement or attached to it) to the appointment; and
(6) that after the change or changes are made, the street
addresses of its registered office and the business office of its
registered agent will be identical.
(C) If a registered agent changes the street address of his
business office, he may change the street address of the registered
office of any limited liability company or foreign limited liability
company for which he is the registered agent by notifying the
domestic or foreign limited liability company in writing of the
change and signing (either manually or in facsimile) and delivering
to the Secretary of State Department of Commerce
for filing a statement that complies with the requirements of
subsection (A) and recites that the domestic or foreign limited
liability company has been notified of the change.
(D) A registered agent may resign his agency appointment by
signing and delivering to the Secretary of State
Department of Commerce for filing the signed original and
two exact or conformed copies of a statement or resignation. The
statement may include a statement that the registered office is also
discontinued.
(1) After filing the statement, the Secretary of State
Department of Commerce shall mail one copy to the
registered office (if not discontinued) and the other copy to the
domestic or foreign limited liability company at its principal office.
(2) The agency appointment is terminated, and the registered
office discontinued if so provided, on the thirty-first day after the
date on which the statement was filed."
SECTION 346. Section 33-43-201 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-201. Two or more persons may form a
limited liability company by signing articles of organization and
delivering the signed articles to the Secretary of State
Department of Commerce for filing. The persons who
form a limited liability company must be members of the limited
liability company at the time of formation.
A copy of the articles of organization which is filed with the
Secretary of State Department of Commerce and
which is stamped `filed' and marked with the filing date is
conclusive evidence that all conditions precedent required to be
performed by the organizers have been satisfied and that the limited
liability company has been legally organized under Sections
33-43-101 through 33-43-1409."
SECTION 347. Section 33-43-203 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-203. (A) The articles of organization of a
limited liability company may be amended by filing articles of
amendment with the Secretary of State Department of
Commerce. The articles of amendment shall set forth:
(1) the name of the limited liability company;
(2) the date the articles of organization were filed; and
(3) the amendment to the articles of organization.
(B) The articles of organization may be amended so long as the
articles, as amended, contain only provisions that may be lawfully
contained in articles of organization at the time of making the
amendment.
(C) The articles of organization of a limited liability company
must be amended when:
(1) there is a change in the name of the limited liability
company;
(2) there is a false or erroneous statement in the articles of
organization;
(3) there is a change in the time, as stated in the articles of
organization, for the dissolution of the limited liability company;
(4) a limited liability company which is authorized to be
managed by managers is no longer managed by managers;
(5) a limited liability company managed by members elects to
be managed by managers; and
(6) the members desire to make a change in any other
statement in the articles of organization in order for the articles to
accurately represent the agreement among them.
(D) Articles of organization may be restated at any time.
Restated articles of organization shall be filed with the Secretary
of State Department of Commerce and shall be
specifically designated as such in the heading and shall state either
in the heading or in an introductory paragraph the limited liability
company's present name, and, if it has been changed, all of its
former names and the date of the filing of its articles of
organization."
SECTION 348. Section 33-43-204 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-204. (A) Unless otherwise provided in any
other section of Sections 33-43-101 through 33-43-1409, any
document required by Sections 33-43-101 through 33-43-1409 to be
filed with the Secretary of State Department of
Commerce shall be executed:
(1) if management of the limited liability company is vested
in one or more managers by any manager;
(2) if management of the limited liability company is
reserved to the members by any member;
(3) if the limited liability company has not been formed by
the persons forming the limited liability company; or
(4) if the limited liability company is in the hands of a
receiver, trustee, or other court-appointed fiduciary by that
fiduciary.
(B) The person executing the document shall sign it and state
beneath or opposite his signature the person's name and the
capacity in which he signs.
(C) The person executing the document may do so as an
attorney-in-fact. Powers of attorney relating to the execution of the
document need not be filed with the Secretary of State
Department of Commerce, but shall be retained by the
limited liability company."
SECTION 349. Section 33-43-205 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-205. Articles of incorporation or any other
document to be filed pursuant to Sections 33-43-101 through
33-43-1409 shall be delivered to the office of the Secretary of
State Department of Commerce, duly executed and
accompanied by one exact or conformed copy. Should the
Secretary of State Department of Commerce
determine that a document conforms to the filing provisions of
Sections 33-43-101 through 33-43-1409, including the payment of
all required fees, the Secretary of State Department of
Commerce shall:
(1) endorse on each signed original and duplicate copy the
word `filed' and the date and time of the document's acceptance for
filing;
(2) retain the signed original in the Secretary of
State's Department of Commerce's files; and
(3) return the duplicate copy to the person who filed it or the
person's representative."
SECTION 350. Section 33-43-206 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-206. (A) A limited liability company is
formed when the articles of organization are filed by the
Secretary of State Department of Commerce.
(B) Each copy of the articles of organization stamped `filed' and
marked with the filing date is conclusive proof that all conditions
precedent required to be performed by the organizers have been
complied with and that the limited liability company has been
legally organized and formed under Sections 33-43-101 through
33-43-1409."
SECTION 351. Section 33-43-405(A) of the 1976 Code, as
added by Act 448 of 1994, is amended to read:
"(A) A limited liability company shall keep at its principal
place of business the following:
(1) a current and a past list, setting forth the full name and
last known mailing address of each member and manager, if any,
set forth in alphabetical order;
(2) a copy of the articles of organization, all amendments
thereto, and all other documents filed with the Secretary of
State Department of Commerce, together with executed
copies of any powers of attorney pursuant to which the articles of
amendment or any filed document has been executed;
(3) copies of the limited liability company's federal, state,
and local tax returns and financial statements, if any, for the six
most recent years or, if those returns and statements were not
prepared for any reason, copies of the information and statements
provided to, or which should have been provided to, the members
to enable them to prepare their federal, state, and local tax returns
for the period;
(4) copies of any effective written operating agreements, and
all amendments thereto, and copies of any written operating
agreements no longer in effect;
(5) unless contained in writing in an operating agreement:
(a) a writing setting out the amount of cash, if any, and a
statement of the agreed value of other property or services, if any,
contributed by each member and the times at which or events upon
the happening of which any additional contributions are to be made
by each member;
(b) a writing stating events, if any, upon the happening of
which the limited liability company is to be dissolved and its affairs
wound up; and
(c) other writings prepared pursuant to a requirement, if
any, in any operating agreement."
SECTION 352. Section 33-43-901.1 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-901.1. (A) The Secretary of State
Department of Commerce shall commence a proceeding
under Section 33-43-901.2 to dissolve a limited liability company
administratively if:
(1) the limited liability company does not pay when they are
due any taxes, interest, or penalties imposed by law of this State;
(2) the limited liability company is without a registered agent
or registered office in this State; or
(3) the limited liability company does not notify the
Secretary of State Department of Commerce that its
registered agent or registered office has been changed, that its
registered agent has resigned, or that its registered office has been
discontinued.
(B) The Secretary of State Department of
Commerce shall dissolve a limited liability company under
Section 33-43-901.2(C) if he is notified by the Department of
Revenue and Taxation that the limited liability company has failed
to file a required tax return within sixty days of the notice they are
delinquent."
SECTION 353. Section 33-43-901.2 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-901.2. (A) If the Secretary of
State Department of Commerce determines that
grounds exist under Section 33-43-901(A) for dissolving a limited
liability company, he shall mail written notice of his determination
to the limited liability company.
(B) If the limited liability company does not correct each ground
for dissolution or demonstrate to the reasonable satisfaction of the
Secretary of State Department of Commerce that
each ground determined by the Secretary of State
Department of Commerce does not exist within sixty days
after the notice required by subsection (A) was mailed, the
Secretary of State Department of Commerce shall
dissolve the limited liability company administratively by signing a
certificate of dissolution that recites the grounds for dissolution and
its effective date. The Secretary of State Department of
Commerce shall file the original of the certificate and send a
copy to the limited liability company by registered or certified mail
addressed to its registered agent at its registered office.
(C) If the Secretary of State Department of
Commerce is notified by the Department of Revenue and
Taxation that the limited liability company has failed to file a
required tax return within sixty days of the notice they are
delinquent, the Secretary of State Department of
Commerce shall dissolve the limited liability company
administratively by signing a certificate of dissolution that recites
the grounds for dissolution and its effective date. The Secretary
of State Department of Commerce shall file the
original of the certificate and send a copy to the limited liability
company by registered or certified mail addressed to its registered
agent at its registered office.
(D) A limited liability company dissolved administratively may
wind up its business and affairs pursuant to the provisions of
Section 33-43-904, distribute its assets as provided in Section
33-43-905, file articles of dissolution pursuant to Section
33-43-906, and notify claimants pursuant to Section 33-43-907 and
Section 33-43-908.
(E) The administrative dissolution of a limited liability company
does not terminate the authority of its registered agent."
SECTION 354. Section 33-43-901.3 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-901.3. (A) A limited liability company
dissolved administratively under Section 33-43-901.2 may apply to
the Secretary of State Department of Commerce for
reinstatement at any time after the effective date of dissolution and
prior to the latest date upon which the limited liability company is
to dissolve as set forth in the dissolved limited liability company's
articles of organization. The applicant must:
(1) recite the name of the limited liability company and the
effective date of its administrative dissolution;
(2) state that the grounds for dissolution either did not exist
or have been eliminated;
(3) state that the limited liability company's name satisfies
the requirements of Section 33-43-103; and
(4) contain a certificate from the South Carolina Department
of Revenue and Taxation reciting that all taxes, penalties, and
interest owed by the limited liability company, whether assessed or
not, have been paid.
(B) If the Secretary of State Department of
Commerce determines that the application contains the
information required by subsection (A) and that the information is
correct, he shall cancel the certificate of dissolution and prepare a
certificate of reinstatement that recites his determination and the
effective date of reinstatement, file the original of the certificate,
and send a copy to the limited liability company.
(C) When the reinstatement is effective, it relates back to and
takes effect as of the effective date of the administrative
dissolution, and the limited liability company resumes carrying on
its business as if the administrative dissolution had never
occurred."
SECTION 355. Section 33-43-901.4 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-901.4. (A) If the Secretary of
State Department of Commerce denies a limited
liability company's application for reinstatement following
administrative dissolution, he shall send a written notice that
explains the reasons for denial to the limited liability company by
registered or certified mail addressed to its registered agent at its
registered office.
(B) The limited liability company may appeal the denial of
reinstatement to the court of common pleas for Richland County
within thirty days after the notice of denial was received. The
limited liability company appeals by petitioning the court to set
aside the dissolution and attaching to the petition copies of the
Secretary of State's Department of Commerce's
certificate of dissolution, the limited liability company's application
for reinstatement, and the Secretary of State's
Department of Commerce's notice of denial.
(C) The court may summarily order the Secretary of
State Department of Commerce to reinstate the
dissolved limited liability company or may take other action the
court considers appropriate.
(D) The court's final decision may be appealed as in other civil
proceedings."
SECTION 356. Section 33-43-906 of the 1976 Code, as added
Act 448 of 1994, is amended to read:
"Section 33-43-906. After the dissolution of the limited
liability company pursuant to Section 33-43-901, the limited
liability company may file articles of dissolution with the
Secretary of State Department of Commerce which
set forth:
(A) the name of the limited liability company;
(B) the date of filing of its articles of organization and all
amendments thereto;
(C) the reason for filing the articles of dissolution;
(D) the effective date (which shall be a date certain) of the
articles of dissolution if they are not to be effective upon the filing;
and
(E) any other information the members or managers filing the
certificate shall deem proper."
SECTION 357. Section 33-43-1002 of the 1976 Code, as last
amended by Act 60 of 1995, is further amended to read:
"Section 33-43-1002. (A) A foreign limited liability
company may apply for a certificate of authority to transact
business in this State by delivering an application to the
Secretary of State Department of Commerce for
filing. The application must set forth:
(1) the name of the foreign limited liability company that
satisfies the requirements of Section 33-43-1004;
(2) the name of the state or country under which it is
organized;
(3) its date of organization and the latest date upon which the
limited liability company is to dissolve;
(4) the street address of its proposed registered office in this
State and the name of its proposed registered agent at that office;
(5) if management of the limited liability company is vested
in a manager or managers, a statement to that effect.
(B) The foreign limited liability company shall deliver with the
completed application a certificate of existence (or a document of
similar import) duly authenticated by the Secretary of State
Department of Commerce or other official having custody
of limited liability company records in the state or country under
which law it is organized.
(C) If the foreign limited liability company renders `professional
services' as defined in Section 33-43-102(N), a statement that all of
its members are licensed in one or more states to render the
professional services which the foreign limited liability company
practices and that one or more of its members is licensed in South
Carolina to render such professional services.
(D) By applying for a certificate of authority to transact business
in this State, the foreign limited liability company agrees to be
subject to the jurisdiction of the Department of Revenue and
Taxation and the South Carolina courts to determine its South
Carolina tax liability, including withholding and estimated taxes,
together with any related interest and penalties, if any. Registering
is not an admission of tax liability."
SECTION 358. Section 33-43-1003 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1003. (A) If the Secretary of
State Department of Commerce finds that an
application for registration conforms to the provisions of this article
and all requisite fees have been paid, the Secretary shall:
(1) endorse on each signed original and duplicate copy the
word `filed' and the date and time of its acceptance for filing;
(2) retain the signed original in the Secretary of
State's Department of Commerce files; and
(3) return the duplicate copy to the person who filed it or the
person's representative.
(B) If the Secretary of State Department of
Commerce is unable to make the determination required for
filing by subsection (A) at the time any documents are delivered
for filing, the documents are deemed to have been filed at the time
of delivery if the Secretary of State Department of
Commerce subsequently determines that:
(1) the documents as delivered conform to the filing
provisions of Sections 33-43-101 through 33-43-1409; or
(2) within twenty days after notification of nonconformance
is given by the Secretary of State Department of
Commerce to the person who delivered the documents for
filing for the person's representative, the documents are brought
into conformance.
(C) If the filing and determination requirements of Sections
33-43-101 through 33-43-1409 are not satisfied within the time
prescribed in subsection (B)(2), the documents shall not be
filed."
SECTION 359. Section 33-43-1005 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1005. (A) The application for registration
of a foreign limited liability company is amended by filing articles
of amendment with the Secretary of State Department of
Commerce signed by a person with authority to do so under
the laws of the State or other jurisdiction of its formation. The
articles of amendment shall set forth:
(1) the name of the foreign limited liability company;
(2) the date the original application for registration was filed;
and
(3) the amendment to the application for registration.
(B) the application for registration may be amended in any way,
provided that the application for registration, as amended, contains
only provisions that may be lawfully contained in an application for
registration at the time of the amendment.
(C) A foreign limited liability company authorized to transact
business in South Carolina must obtain an amended certificate of
authority from the Secretary of State Department of
Commerce if it changes:
(1) its limited liability company name;
(2) the period of its duration;
(3) the state or country of its organization;
(4) from a member managed limited liability company to a
limited liability company managed by managers;
(5) from a limited liability company managed by managers
to a limited liability company managed by its members;
An amended certificate of authorization must also be obtained
if:
(6) there is a false or erroneous statement in the original filed
application for a certificate of authority."
SECTION 360. Section 33-43-1006 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1006. (A) A foreign limited liability
company authorized to transact business in this State may cancel its
registration upon procuring from the Secretary of State
Department of Commerce a certificate of cancellation. In
order to procure such certificate, the foreign limited liability
company shall deliver to the Secretary of State
Department of Commerce an application for cancellation,
which shall set forth:
(1) the name of the foreign limited liability company and the
state or other jurisdiction under the laws of which it is formed;
(2) that the foreign limited liability company is not
transacting business in this State;
(3) that the foreign limited liability company surrenders its
certificate of registration to transact business in this State;
(4) that the foreign limited liability company revokes the
authority of its registered agent for service of process in this State
and consents that service of process in any action, suit, or
proceeding based upon any cause of action arising in this State may
thereafter be made on such foreign limited liability company by
service thereof upon the Secretary of State Department
of Commerce; and
(5) an address to which a person may mail a copy of any
process against the foreign limited liability company.
(B) The application for cancellation shall be in the form and
manner designated by the Secretary of State Department
of Commerce and shall be executed on behalf of the foreign
limited liability company by a person with authority to do so under
the laws of the State or other jurisdiction of its formation, or, if the
foreign limited liability company is in the hands of a receiver,
trustee, or other court-appointed fiduciary by that fiduciary.
(C) A cancellation does not terminate the authority of the
Secretary of State Department of Commerce to
accept service of process on the foreign limited liability company
with respect to causes of action arising out of the doing of business
in this State."
SECTION 361. Section 33-43-1007(C) of the 1976 Code, as
added by Act 448 of 1994, is amended to read:
"(C) A foreign limited liability company, by transacting
business in this State without registration, appoints the Secretary
of State Department of Commerce as its agent for
service of process with respect to a cause of action arising out of
the transaction of business in this State."
SECTION 362. Section 33-43-1008(A) of the 1976 Code, as
added by Act 448 of 1994, is amended to read:
"(A) A foreign limited liability company may not transact
business in this State until it obtains a certificate of authority from
the Secretary of State Department of
Commerce."
SECTION 363. Section 33-43-1105 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1105. The Attorney General may
commence a proceeding to dissolve a limited liability company
which renders professional services if:
(1) the Secretary of State Department of
Commerce or a licensing authority with jurisdiction over the
limited liability company which renders professional services serves
written notice on the limited liability company that it has violated
or is violating a provision of this chapter (other than the provisions
specified in Section 33-43-901.1, a violation of which gives the
Secretary of State Department of Commerce
authority to administratively dissolve the limited liability company);
(2) the limited liability company does not correct each alleged
violation, or demonstrate to the reasonable satisfaction of the
Secretary of State Department of Commerce or
licensing authority that this did not occur, within sixty days after
service of the notice is perfected; and
(3) the Secretary of State Department of
Commerce or licensing authority certifies to the Attorney
General a description of the violation, that it notified the limited
liability company of the violation, and that the limited liability
company did not correct it, or demonstrate that it did not occur,
within sixty days after service of notice."
SECTION 364. Section 33-43-1202 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1202. (A) The registered agent appointed
by a limited liability company or a foreign limited liability company
shall be an agent of a limited liability company or foreign limited
liability company upon whom any process, notice, or demand
required or permitted by law to be served upon the limited liability
company or foreign limited liability company may be served.
(B) If a limited liability company or foreign limited liability
company fails to appoint or maintain a registered agent in this State
or its registered agent cannot with reasonable diligence be found at
the registered office, the Secretary of State Department
of Commerce shall be an agent of such limited liability
company or foreign limited liability company upon whom any such
process, notice, or demand may be served. Service on the
Secretary of State Department of Commerce of any
process, notice, or demand shall be made by delivering to and
leaving with the Secretary of State Department of
Commerce duplicate copies of the process, notice, or demand.
If the process, notice, or demand is served on the Secretary of
State Department of Commerce, the Secretary of
State Department of Commerce shall immediately
forward one of the copies by registered mail to the limited liability
company or foreign limited liability company at its registered
office. Service on the Secretary of State Department of
Commerce shall be returnable in not less than thirty days.
(C) The Secretary of State Department of
Commerce shall keep a record of all process, notices, and
demands, served pursuant to this section and record the time and
the action taken regarding the services.
(D) This section shall not limit or affect the right to serve any
process, notice, or demand required or permitted by law to be
served upon a limited liability company or foreign limited liability
company in any other manner permitted by law."
SECTION 365. Section 33-43-1304 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1304. (A) The surviving limited liability
company shall deliver to the Secretary of State
Department of Commerce articles of merger executed by
each constituent limited liability company setting forth:
(1) the name and jurisdiction of formation or organization of
each limited liability company which is to merge;
(2) that an agreement of merger has been approved and
executed by each limited liability company which is a party to the
merger;
(3) the name of the surviving or resulting limited liability
company;
(4) the future effective date of the merger (which shall be a
date or time certain) if it is not to be effective upon the filing of the
articles of merger;
(5) that the agreement of merger is on file at a place of
business of the surviving limited liability company, and the address
of that place of business;
(6) that a copy of the agreement of merger will be furnished
by the surviving limited liability company, on request and without
cost, to any person holding an interest in any limited liability
company which is to merge; and
(7) if the surviving or resulting limited liability company is
not a limited liability company organized under the laws of this
State, a statement that such surviving limited liability company:
(a) agrees that it may be served with process in this State
in any proceeding for enforcement of any obligation of any limited
liability company party to the merger that was organized under the
laws of this State, as well as for enforcement of any obligation of
the surviving limited liability company or the new limited liability
company arising from the merger; and
(b) appoints the Secretary of State Department
of Commerce as its agent for service of process in any such
proceeding, and the surviving limited liability company or the new
limited liability company shall specify the address to which a copy
of the process shall be mailed to it by the Secretary of State
Department of Commerce.
(B) A merger takes effect upon the later of the effective date of
the filing of the articles of merger or the date set forth in the
articles of merger.
(C) The articles of merger shall be executed by a limited
liability company that is a party to the merger in the manner
provided for in Section 33-43-204 and shall be filed with the
Secretary of State Department of Commerce in the
manner provided for in Section 33-43-205.
(D) Articles of merger shall constitute articles of dissolution for
a limited liability company which is not the surviving limited
liability company in the merger.
(E) An agreement of merger approved in accordance with
Sections 33-43-1302 and 33-43-1303 may affect any amendment to
an operating agreement or affect the adoption of a new operating
agreement for a limited liability company if it is the surviving
limited liability company in the merger. An approved agreement of
merger may also provide that the operating agreement of any
constituent limited liability company to the merger (including a
limited liability company formed for the purpose of consummating
a merger) shall be the operating agreement of the surviving or
resulting limited liability company. Any amendment to an
operating agreement or adoption of a new operating agreement
made pursuant to this subsection (E) shall be effective at the
effective time or date of the merger.
(F) For purposes of this section, except with respect to
subsections (A)(7) and (D), the term `limited liability company'
shall include both domestic and foreign limited liability
companies."
SECTION 366. Section 33-43-1401 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1401. (A) The Secretary of State
Department of Commerce shall collect the following fees
when the following documents described in this subsection are
delivered to him for filing:
(1) Articles of organization of a domestic limited liability
company: one hundred and ten dollars.
(2) Articles of amendment to the articles of organization of a
domestic limited liability company: one hundred and ten dollars.
(3) Articles of merger involving a domestic or foreign limited
liability company: one hundred and ten dollars.
(4) Application by a foreign limited liability company for a
certificate of authority to do business in South Carolina: one
hundred and ten dollars.
(5) Amendment by a foreign limited liability company of its
certificate of authority: one hundred and ten dollars.
(6) Restated articles of organization of a limited liability
company filed with an amendment to the articles of organization:
ten dollars.
(7) Application for reservation of a limited liability company
name: twenty-five dollars.
(8) Notice of transfer of a reserved limited liability company
name: ten dollars.
(9) Annual application for registration (or renewal) of a
foreign limited liability company name: ten dollars.
(10) Statement of change of registered office or registered
agent, or both: ten dollars.
(11) Articles of dissolution: ten dollars.
(12) Articles of revocation of dissolution: ten dollars.
(13) Application for reinstatement after administrative
dissolution: twenty-five dollars.
(14) Application for certificate of withdrawal: ten dollars.
(15) Application for certificate of existence or authorization:
ten dollars.
(16) Any other document required or permitted to be filed
pursuant to Sections 33-43-101 through 33-43-1409: two dollars.
(B) The Secretary of State Department of
Commerce shall collect a fee of ten dollars each time process is
served on him under Sections 33-43-101 through 33-43-1409. The
party to a proceeding causing service of process is entitled to
recover this fee as costs if he prevails in the proceeding.
(C) The Secretary of State Department of
Commerce shall collect the following fees for copying and
certifying the copy of any filed document relating to a domestic or
foreign limited liability company:
(1) for copying, one dollar for the first page and fifty cents
for each additional page; and,
(2) two dollars for each certificate."
SECTION 367. Section 33-43-1402 of the 1976 Code, as added
by Act 448 of 1994, is amended to read:
"Section 33-43-1402. Any person who is adversely
affected by the failure or refusal of any person to execute and file
any articles or other documents to be filed under Sections
33-43-101 through 33-43-1409 may petition the court of common
pleas in the county where the registered office of the limited
liability company is located to direct the execution and filing of the
articles or other documents. If the court finds that it is proper for
the articles or other documents to be executed and filed and that
there has been failure or refusal to execute and file such documents,
it shall order the Secretary of State Department of
Commerce to file the appropriate articles or other
documents."
SECTION 368. Section 33-45-40 of the 1976 Code is amended
to read:
"Section 33-45-40. They shall file with the Secretary
of State Department of Commerce a written petition,
signed by themselves, setting forth:
(1) The names and residences of the petitioners;
(2) The name of the proposed corporation, which shall
include the word `cooperative';
(3) The place at which it proposes to have its principal place
of business;
(4) The general nature of the business which it proposes to
engage in;
(5) The amount of capital stock of the association and how
and when payable;
(6) The number of shares into which the capital stock is to be
divided and the par value of each share; and
(7) All other matters which it may be desirable to set
forth."
SECTION 369. Section 33-45-50 of the 1976 Code is amended
to read:
"Section 33-45-50. Upon the filing of the petition as
above and upon the payment of the fee for filing such petition the
Secretary of State Department of Commerce shall
issue to the petitioners a commission constituting them a board of
incorporators and authorizing them to open books of subscription to
the capital stock of the proposed association after such public
notice, not exceeding ten days, as he may require in such
commission."
SECTION 370. Section 33-45-140 of the 1976 Code is amended
to read:
"Section 33-45-140. Upon the payment to the treasurer or
the secretary-treasurer of the association of at least twenty per cent
of the aggregate amount of the capital subscribed payable in money
and also upon the delivery of at least twenty per cent of the
property subscribed to the aggregate amount of the capital stock or
upon its delivery being secured by such obligations of the
subscribers as the board of directors may approve, the board of
directors shall, over their own signatures, certify to the Secretary
of State Department of Commerce that all the
requirements for the formation of the corporation have been
complied with. Upon the filing of this return by the directors and
the payment of the required fee for filing such return and upon the
receipt of the charter fee as now provided by law the Secretary
of State Department of Commerce shall issue to the
board of incorporators a certificate of charter authorizing the
association to commence business under the name and for the
purposes indicated in the written declaration. The certificate of
charter granted by the Secretary of State Department of
Commerce shall be recorded in the office of the register of
mesne conveyances or the clerk for the county in which such
association shall have a business office. The board of incorporators
shall turn over to the proper officers of the association all
subscriptions, lists or other papers which they have taken as
incorporators and all such papers shall be as valid as if taken and
made by the corporation."
SECTION 371. Section 33-45-145 of the 1976 Code is amended
to read:
"Section 33-45-145. A cooperative may amend its articles
of incorporation by complying with the following requirements:
(1) The proposed amendment shall be first approved by the
board of directors and shall then be submitted to a vote of the
members at any annual or special meeting thereof. Notice of the
proposed amendments shall be mailed to each member not less than
ten days prior to the meeting at which it shall be voted upon. The
proposed amendment, with such changes as the members shall
choose to make therein, shall be deemed to be approved on the
affirmative vote of not less than two thirds of those members voting
thereon at such annual or special meeting.
(2) Upon such approval by the members, articles of
amendment shall be executed and acknowledged on behalf of the
cooperative by its president or vice-president and its corporate seal
shall be affixed thereto and attested by its secretary. The articles of
amendment shall recite in the caption that they are executed
pursuant to this chapter and shall state the:
(a) the name of the cooperative,;
(b) the address of its principal
office,;
(c) the date of the filing of its articles of
incorporation in the office of the Secretary of State
Department of Commerce; and
(d) the amendment to its articles of incorporation.
The president or vice-president executing such articles of
amendment shall also make and annex thereto an affidavit stating
that the provisions of this section were duly complied with. Such
articles of amendment and affidavit shall be submitted to the
Secretary of State Department of Commerce for
filing as provided in this chapter.
As used in this section `articles of incorporation' also means
`certificate of charter' as used elsewhere in this chapter."
SECTION 372. Section 33-45-200 of the 1976 Code is amended
to read:
"Section 33-45-200. All cooperative corporations,
associations or companies which were organized and doing business
under the corporation statutes of this State or had attempted so to
organize and so to do business prior to March 21, 1915 shall have
the benefit of all the provisions of this chapter and shall be bound
thereby on filing with the Secretary of State Department
of Commerce a written declaration signed and sworn to by the
president and secretary to the effect that such cooperative company
or association has, by a majority vote of its stockholders, decided to
accept the benefits of, and to be bound by, the provisions of this
chapter. No association organized under this chapter shall be
required to do or to perform anything not specially required herein
in order to become a corporation or to continue its business as
such."
SECTION 373. Section 33-46-90 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-90. Articles of incorporation,
amendments, consolidations,
mergers, conversions, or dissolutions and certificates of election to
dissolve and affidavits of compliance, as the case may be, when
executed and acknowledged and accompanied by such affidavits as
may be required by the provisions of this chapter, must be
presented to the Secretary of State Department of
Commerce for filing in the records of that office. If the
Secretary of State's Department of Commerce's
office finds that the articles presented conform to the requirements
of this chapter, it shall, upon payment of fees as prescribed in
Section 33-1-220, file the articles so presented in the records of the
office, and, upon such filing, the incorporation, amendment,
consolidation, merger, conversion, or dissolution provided for
therein is in effect."
SECTION 374. Section 33-46-230 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-230. The articles of incorporation shall
recite in the caption that they are executed pursuant to this chapter,
must be signed and acknowledged by each of the incorporators, and
shall state:
(1) the name of the telephone cooperative;
(2) the address of its principal office;
(3) the name and address of the incorporators;
(4) the name and address of the persons who shall constitute
its first board of directors; and
(5) any provisions not inconsistent with this chapter
considered necessary or advisable for the conduct of its business
and affairs.
Such articles of incorporation must be submitted to the
Secretary of State Department of Commerce for
filing as provided in this chapter. It is not necessary to set forth in
the articles of incorporation of a telephone cooperative the purpose
for which it is organized or any of the corporate powers vested in a
telephone cooperative under this chapter. Nothing in this chapter
shall be interpreted to require a corporation created pursuant to Title
33, Chapter 45 and existing before the enactment of this chapter to
amend its charter unless the corporation elects to convert pursuant
to Article 8."
SECTION 375. Section 33-46-240 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-240. The name of each telephone
cooperative shall include the words `Telephone' and `Cooperative'
and the abbreviation `Inc.'; provided, however, such limitations do
not apply if, from an affidavit made by the president or vice
president of a telephone cooperative and filed with the Secretary
of State Department of Commerce, it appears that the
telephone cooperative desires to transact business in another state
and is precluded therefrom by reason of its name."
SECTION 376. Section 33-46-600 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-600. A telephone cooperative may amend
its articles of incorporation by complying with the following
requirements:
(1) The proposed amendment must be first approved by the
board of directors and must then be submitted to a vote of the
members at any annual or special meeting thereof, the notice of
which shall set forth the proposed amendment. The proposed
amendment, with such changes as the members shall choose to
make therein, must be considered approved on the affirmative vote
of not less than two-thirds of those members voting thereon at the
meeting.
(2) Upon such approval by the members, articles of
amendment must be executed and acknowledged on behalf of the
telephone cooperative by the directors carrying out the duties
performed generally by the president or vice president and its
corporate seal must be affixed thereto and attested by the director
carrying out the duties of secretary. The articles of amendment
shall recite in the caption that they are executed pursuant to this
chapter and shall state:
(a) the name of the telephone cooperative;
(b) the address of the principal office;
(c) the date of the filing of its articles of incorporation in
the Office of the Secretary of State Department of
Commerce; and
(d) the amendment to its articles of incorporation.
The officers executing the articles of amendment shall also make
and annex thereto an affidavit stating that the provisions of this
section were complied with. The articles of amendment and
affidavit must be submitted to the Secretary of State
Department of Commerce for filing as provided in this
chapter."
SECTION 377. Section 33-46-610 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-610. A telephone cooperative may, without
amending its articles of incorporation, upon authorization of its
board of directors, change the location of its principal office by
filing a certificate of change of principal office, executed and
acknowledged on behalf of the telephone cooperative by the
director carrying out the duties performed generally by the president
or vice president under its seal attested by the director carrying out
the duties of secretary, with the Office of the Secretary of
State Department of Commerce and also in each county
office in which the articles of incorporation or any prior certificate
of change of principal office of such telephone cooperative has been
filed. Such telephone cooperative shall also within thirty days after
filing such certificate of change of principal office in any county
office file therein certified copies of its articles of incorporation and
all amendments thereto if the same are not already on file
therein."
SECTION 378. Section 33-46-620 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-620. Any two or more telephone
cooperatives, each of which is hereinafter designated a
`consolidating cooperative', may consolidate into a new telephone
cooperative, hereinafter designated the `new cooperative', by
complying with the following requirements:
(1) The proposition for the consolidation of the consolidating
cooperatives into the new cooperative and proposed articles of
consolidation to give effect thereto must be first approved by the
board of directors of each consolidating cooperative. The proposed
articles of consolidation shall recite in the caption that they are
executed pursuant to this chapter and shall state:
(a) the name of each consolidating telephone cooperative,
the address of its principal office, and the date of the filing of its
articles of incorporation in the Office of with the
Secretary of State Department of Commerce;
(b) the name of the new telephone cooperative and the
address of its principal office;
(c) the names and addresses of the persons who shall
constitute the first board of directors of the new cooperative;
(d) the terms and conditions of the consolidation and the
mode of carrying the same into effect, including the manner and
basis of converting memberships in each consolidating cooperative
into memberships in the new cooperative and the issuance of
certificates of membership or other evidence of membership in
respect of such converted memberships; and
(e) any provisions not inconsistent with this chapter
considered necessary or advisable for the conduct of the business
and affairs of the new telephone cooperative.
(2) The proposition for the consolidation of the consolidating
telephone cooperatives into the new telephone cooperative and the
proposed articles of consolidation approved by the board of
directors of each consolidating telephone cooperative must then be
submitted to a vote of the members of each consolidating
cooperative at any annual or special meeting thereof, the notice of
which shall set forth full particulars concerning the proposed
consolidation. The proposed consolidation and the proposed articles
of consolidation must be considered approved upon the affirmative
vote of not less than two-thirds of those members of each
consolidating telephone cooperative present and voting thereon at
such meeting.
(3) Upon such approval by the members of the respective
consolidating telephone cooperatives, articles of consolidation in the
form approved must be executed and acknowledged on behalf of
each consolidating cooperative by the director carrying out the
duties performed generally by the president or vice president, and
its seal must be affixed thereto and attested by the director carrying
out the duties of secretary. The director carrying out the duties
performed generally by the president or vice president of each
consolidating telephone cooperative executing such articles of
consolidation shall also make and annex thereto an affidavit stating
that the provisions of this section were complied with by such
telephone cooperative. The articles of consolidation and affidavits
must be submitted to the Secretary of State Department
of Commerce for filing as provided in this chapter."
SECTION 379. Section 33-46-630 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-630. Any one or more telephone
cooperatives, each of which is hereinafter designated a `merging
cooperative', may merge into another telephone cooperative,
hereinafter designated the `surviving cooperative', by complying
with the following requirements:
(1) The proposition for the merger of the merging
cooperatives into the surviving cooperative and proposed articles of
merger to give effect thereto must be first approved by the board of
directors of each merging cooperative and by the board of directors
of the surviving cooperative. The proposed articles of merger shall
recite in the caption that they are executed pursuant to this chapter
and shall state:
(a) the name of each merging cooperative, the address of
its principal office, and the date of the filing of its articles of
incorporation in the Office of with the Secretary
of State Department of Commerce;
(b) the name of the surviving cooperative and the address
of its principal office;
(c) a statement that the merging cooperative elects to be
merged into the surviving cooperative;
(d) the terms and conditions of the merger and the mode of
carrying the same into effect, including the manner and basis of
converting memberships in the merging cooperative or cooperatives
into memberships in the surviving cooperative and the issuance of
certificates of membership or other evidence of membership in
respect of such converted memberships; and
(e) any provisions not inconsistent with this chapter
considered necessary or advisable for the conduct of the business
and affairs of the new telephone cooperative.
(2) The proposition for the merger of the merging
cooperatives into the surviving cooperative and the proposed articles
of merger approved by the board of directors of the respective
telephone cooperatives, parties to the proposed merger, must then
be submitted to a vote of the members of each such telephone
cooperative at any annual or special meeting thereof, the notice of
which shall set forth full particulars concerning the proposed
merger. The proposed merger and the proposed articles of merger
must be considered approved upon the affirmative vote of not less
than two-thirds of those members of each telephone cooperative
present and voting thereon at such meeting.
(3) Upon such approval by the members of the respective
telephone cooperatives, parties to the proposed merger, articles of
merger in the form approved must be executed and acknowledged
on behalf of each such cooperative by the director carrying out the
duties generally of the president or vice president, and its seal must
be affixed thereto and attested by the director carrying out the
duties of secretary. The director carrying out the duties of president
or vice president of each telephone cooperative executing such
articles of merger shall also make and annex thereto an affidavit
stating that the provisions of this section were complied with by
such telephone cooperative. The articles of merger and affidavits
must be submitted to the Secretary of State Department
of Commerce for filing as provided in this chapter."
SECTION 380. Section 33-46-650 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-650. Any telephone cooperative may merge
into a corporation which is not another telephone cooperative by
complying with the following requirements:
(1) The proposition for the merger of the telephone
cooperative into the corporation and proposed articles of merger to
give effect thereto must be first approved by the board of directors
of the cooperative. The proposed articles of merger shall recite in
the caption that they are executed pursuant to this chapter and shall
state:
(a) the name of the telephone cooperative, the address of
its principal office, and the date of the filing of the articles of
incorporation in the Office of the Secretary of State;
(b) the name of the corporation and the address of its
principal office;
(c) a statement that the telephone cooperative elects to be
merged into the corporation;
(d) the terms and conditions of the merger and the mode of
carrying the same into effect, including the manner and basis of
converting memberships in the telephone cooperative into shares of
stock in the corporation; and
(e) any provisions not inconsistent with this chapter
considered necessary or advisable for the conduct of the business
and affairs of the new corporation.
(2) The proposition for the merger and the proposed articles
of merger approved by the board of directors of the telephone
cooperative must then be submitted to a vote of the members of
such telephone cooperative at any annual or special meeting thereof,
the notice of which shall set forth full particulars concerning the
proposed merger. The proposed merger and the proposed articles
of merger must be considered approved upon the affirmative vote
of not less than two-thirds of the members of the telephone
cooperative.
(3) Upon such approval by the members of the telephone
cooperative, articles of merger in the form approved must be
executed and acknowledged on behalf of the cooperative by the
director carrying out the duties generally of the president or vice
president, and its seal must be affixed thereto and attested by the
director carrying out the duties of secretary. The director carrying
out the duties of the president or vice president of the telephone
cooperative executing such articles of merger shall also make and
annex thereto an affidavit stating that the provisions of this section
were complied with by such telephone cooperative. The articles of
merger and affidavits must be submitted to the Secretary of
State Department of Commerce for filing as provided
in this chapter."
SECTION 381. Section 33-46-700 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-700. A telephone cooperative which has
not commenced business may dissolve voluntarily by delivering to
the Secretary of State Department of Commerce
articles of dissolution, executed and acknowledged on behalf of the
telephone cooperative by a majority of the incorporators, and shall
state:
(1) the name of the telephone cooperative;
(2) the address of its principal office;
(3) the date of its incorporation;
(4) that the telephone cooperative has not commenced any
business;
(5) that the amount, if any, actually paid in on account of
membership fees, less any part thereof disbursed for necessary
expenses, has been returned to those entitled thereto and that all
easements have been released to the grantors;
(6) that no debt of the telephone cooperative remains unpaid;
and
(7) that a majority of the incorporators elect that the
telephone cooperative be dissolved.
The articles of dissolution must be submitted to the Secretary
of State Department of Commerce for filing as
provided in this chapter."
SECTION 382. Section 33-46-740 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-740. Such certificate and affidavit must be
submitted to the Secretary of State Department of
Commerce for filing as provided in this chapter and thereupon
the telephone cooperative shall cease to carry on its business except
insofar as may be necessary for the winding up thereof, but its
corporate existence shall continue until articles of dissolution have
been filed by the Secretary of State Department of
Commerce."
SECTION 383. Section 33-46-750 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-750. After the filing of the certificate and
affidavit by the Secretary of State Department of
Commerce, the board of directors shall immediately cause
notice of the winding up proceedings to be mailed to each known
creditor and claimant and to be published once a week for two
successive weeks in a newspaper of general circulation in the
county in which the principal office of the telephone cooperative is
located."
SECTION 384. Section 33-46-770 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-770. When all debts, liabilities, and
obligations of the telephone cooperative have been paid and
discharged or adequate provisions have been made therefor, and all
the remaining property and assets of the telephone cooperative have
been distributed to the members pursuant to the provisions of
Section 33-46-460, the board of directors shall authorize the
execution of articles of dissolution, which must thereupon be
executed and acknowledged on behalf of the cooperative by the
director carrying out the duties generally of the president or vice
president, and its corporate seal must be affixed thereto and attested
by the director carrying out the duties of secretary. The articles of
dissolution shall recite in the caption that they are executed pursuant
to this chapter and shall state:
(1) the name of the telephone cooperative;
(2) the address of the principal office of the telephone
cooperative;
(3) that the telephone cooperative has theretofore delivered to
the Secretary of State Department of Commerce a
certificate of election to dissolve and the date on which the
certificate was filed by the Secretary of State
Department of Commerce in the records of his office;
(4) that all debts, obligations, and liabilities of the telephone
cooperative have been paid and discharged or that adequate
provisions have been made therefor;
(5) that all the remaining property and assets of the telephone
cooperative have been distributed among the members in
accordance with the provisions of Section 33-46-460; and
(6) that there are no actions or suits pending against the
telephone cooperative.
The director executing the articles of dissolution shall also make
and annex thereto an affidavit stating that the provisions of this
article have been complied with. The articles of dissolution and
affidavit accompanied by proof of the publication required in
Section 33-46-750 must be submitted to the Secretary of
State Department of Commerce for filing as provided
in this chapter."
SECTION 385. Section 33-46-810 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-810. The proposition for the conversion of
such corporation into a telephone cooperative and the proposed
articles of conversion to give effect thereto must be first approved
by the board of directors of such corporation. The proposed articles
of conversion shall recite in the caption that they are executed
pursuant to this chapter and shall state:
(1) the name of the corporation before its conversion into a
telephone cooperative;
(2) the address of the principal office of such corporation;
(3) the date of the filing of the articles of incorporation of
such corporation in the Office of with the
Secretary of State Department of Commerce;
(4) the statute or statutes under which such corporation was
organized;
(5) the name assumed by such corporation;
(6) a statement that such corporation elects to become a
telephone cooperative nonprofit membership corporation subject to
this chapter;
(7) the manner and basis of converting memberships or
shares of stock in such corporation into memberships in the
telephone cooperative after completion of the conversion; and
(8) any provision not inconsistent with this chapter
considered necessary or advisable for the conduct of the business
and affairs of such telephone cooperative."
SECTION 386. Section 33-46-830 of the 1976 Code, as added
by Act 392 of 1994, is amended to read:
"Section 33-46-830. Upon such approval by the members
or shareholders of such corporation, the articles of conversion in the
form approved by the board of directors must be executed and
acknowledged on behalf of such corporation by the director
carrying out the duties generally of the president or vice president,
and its corporate seal must be affixed thereto and attested by the
director carrying out the duties of secretary. The director executing
such articles of conversion on behalf of such corporation shall also
make and annex thereto an affidavit stating that the provisions of
this article with respect to the approval of its directors and its
members or shareholders of the proposition for the conversion of
such corporation into a telephone cooperative and such articles of
conversion were complied with. Such articles of conversion and
affidavit must be submitted to the Secretary of State
Department of Commerce for filing as provided in this
chapter."
SECTION 387. Section 33-47-90 of the 1976 Code is amended
to read:
"Section 33-47-90. Any corporation or association
organized under previously existing statutes may by a majority vote
of its stockholders or members be brought under the provisions of
this chapter by limiting its membership and adopting the other
restrictions as provided herein. It shall make out in duplicate a
statement signed and sworn to by its directors, upon forms supplied
by the Secretary of State Department of Commerce,
to the effect that the corporation or association has by a majority
vote of its stockholders or members decided to accept the benefits
and be bound by the provisions of this chapter. Articles of
incorporation shall be filed as required in Sections 33-47-210 and
33-47-220, except that they shall be signed by the members of the
board of directors. The filing fee shall be two and one-half
dollars."
SECTION 388. Section 33-49-80 of the 1976 Code is amended
to read:
"Section 33-49-80. Articles of incorporation, amendment,
consolidation, merger, conversion or dissolution and certificates of
election to dissolve and affidavits of compliance, as the case may
be, when executed and acknowledged and accompanied by such
affidavits as may be required by the applicable provisions of this
chapter shall be presented to the Secretary of State
Department of Commerce for filing in the records of his
office. If the Secretary of State Department of
Commerce shall find that the articles presented conform to the
requirements of this chapter, he shall, upon the payment of fees as
in this chapter provided, file the articles so presented in the records
of his office and upon such filing the incorporation, amendment,
consolidation, merger, conversion or dissolution provided for
therein shall be in effect."
SECTION 389. Section 33-49-90 of the 1976 Code is amended
to read:
"Section 33-49-90. The Secretary of State
Department of Commerce immediately upon the filing in
his office of any articles pursuant to this chapter shall transmit a
certified copy thereof to the county clerk of the county in which the
principal office of each cooperative or corporation affected by such
incorporation, amendment, consolidation, merger, conversion or
dissolution shall be located. Any such clerk, upon receipt of any
such certified copy, shall file and index the same in the records of
his office but the failure of the Secretary of State
Department of Commerce or of a clerk of a county to
comply with the provisions of this section shall not invalidate such
articles. In addition the Secretary of State Department of
Commerce shall forward to the clerk of court or register of
mesne conveyance of any county in which such cooperative owns
property affected a certified copy of any such document. The clerk
of court or register of mesne conveyance shall file such document
in an appropriate book or file to be provided for such
purpose."
SECTION 390. Section 33-49-100 of the 1976 Code is amended
to read:
"Section 33-49-100. The Secretary of State
Department of Commerce shall charge and collect for:
(1) Filing articles of incorporation, ten dollars;
(2) Filing articles of amendment, three dollars;
(3) Filing articles of consolidation or merger, five dollars;
(4) Filing articles of conversion, three dollars;
(5) Filing certificate of election to dissolve, three dollars;
(6) Filing articles of dissolution, five dollars; and
(7) Filing certificate of change of principal office, three
dollars."
SECTION 391. Section 33-49-110 of the 1976 Code is amended
to read:
"Section 33-49-110. All papers filed in the office
of with the Secretary of State Department
of Commerce pursuant to the provisions of this chapter shall be
filed in quadruplicate."
SECTION 392. Section 33-49-230 of the 1976 Code is amended
to read:
"Section 33-49-230. The articles of incorporation of a
cooperative shall recite in the caption that they are executed
pursuant to this chapter, shall be signed and acknowledged by each
of the incorporators and shall state:
(1) The name of the cooperative;
(2) The address of its principal office;
(3) The names and addresses of the incorporators;
(4) The names and addresses of the persons who shall
constitute its first board of trustees; and
(5) Any provisions not inconsistent with this chapter deemed
necessary or advisable for the conduct of its business and affairs.
Such articles of incorporation shall be submitted to the
Secretary of State Department of Commerce for
filing as provided in this chapter.
It shall not be necessary to set forth in the articles of
incorporation of a cooperative the purpose for which it is organized
or any of the corporate powers vested in a cooperative under this
chapter."
SECTION 393. Section 33-49-240 of the 1976 Code is amended
to read:
"Section 33-49-240. The name of each cooperative shall
include the words `electric' and `cooperative' and the abbreviation
`Inc.'; provided, however, such limitation shall not apply if, from
an affidavit made by the president or vice-president of a cooperative
and filed with the Secretary of State Department of
Commerce, it shall appear that the cooperative desires to
transact business in another state and is precluded therefrom by
reason of its name. The name of a cooperative shall distinguish it
from any other corporation organized under the laws of or
authorized to transact business in this State. The words `electric'
and `cooperative' shall not both be used in the name of any
corporation organized under the laws of or authorized to transact
business in this State, except a cooperative or a corporation
transacting business in this State pursuant to the provisions of this
chapter."
SECTION 394. Section 33-49-810 of the 1976 Code is amended
to read:
"Section 33-49-810. A cooperative may amend its articles
of incorporation by complying with the following requirements:
(1) The proposed amendment shall be first approved by the
board of trustees and shall then be submitted to a vote of the
members at any annual or special meeting thereof, the notice of
which shall set forth the proposed amendment. The proposed
amendment, with such changes as the members shall choose to
make therein, shall be deemed to be approved on the affirmative
vote of not less than two thirds of those members voting thereon at
such special meeting.
(2) Upon such approval by the members, articles of
amendment shall be executed and acknowledged on behalf of the
cooperative by its president or vice-president and its corporate seal
shall be affixed thereto and attested by its secretary. The articles of
amendment shall recite in the caption that they are executed
pursuant to this chapter and shall state
(a) the name of the cooperative,
(b) the address of its principal office,
(c) the date of the filing of its articles of incorporation
in the office of with the Secretary of State
Department of Commerce and
(d) the amendment to its articles of incorporation.
The president or vice-president executing such articles of
amendment shall also make and annex thereto an affidavit stating
that the provisions of this section were duly complied with. Such
articles of amendment and affidavit shall be submitted to the
Secretary of State Department of Commerce for
filing as provided in this chapter."
SECTION 395. Section 33-49-820 of the 1976 Code is amended
to read:
"Section 33-49-820. A cooperative may, without amending
its articles of incorporation, upon authorization of its board of
trustees, change the location of its principal office by filing a
certificate of change of principal office, executed and acknowledged
by its president or vice-president under its seal attested by its
secretary, in the office of with the Secretary of
State Department of Commerce and also in each county
office in which the articles of incorporation or any prior certificate
of change of principal office of such cooperative has been filed.
Such cooperative shall also, within thirty days after filing such
certificate of change of principal office in any county office, file
therein certified copies of its articles of incorporation and all
amendments thereto if the same are not already on file
therein."
SECTION 396. Section 33-49-830 of the 1976 Code is amended
to read:
"Section 33-49-830. Any two or more cooperatives, each
of which is hereinafter designated a `consolidating cooperative,'
may consolidate into a new cooperative, hereinafter designated the
`new cooperative,' by complying with the following requirements:
(1) The proposition for the consolidation of the consolidating
cooperatives into the new cooperative and proposed articles of
consolidation to give effect thereto shall be first approved by the
board of trustees of each consolidating cooperative. The proposed
articles of consolidation shall recite in the caption that they are
executed pursuant to this chapter and shall state
(a) the name of each consolidating cooperative, the address
of its principal office and the date of the filing of its articles of
incorporation in the office of the Secretary of State
Department of Commerce,
(b) the name of the new cooperative and the address of its
principal office,
(c) the names and addresses of the persons who shall
constitute the first board of trustees of the new cooperative,
(d) the terms and conditions of the consolidation and the
mode of carrying the same into effect, including the manner and
basis of converting memberships in each consolidating cooperative
into memberships in the new cooperative and the issuance of
certificates of membership in respect of such converted
memberships and
(e) any provisions not inconsistent with this chapter
deemed necessary or advisable for the conduct of the business and
affairs of the new cooperative.
(2) The proposition for the consolidation of the consolidating
cooperatives into the new cooperative and the proposed articles of
consolidation approved by the board of trustees of each
consolidating cooperative shall then be submitted to a vote of the
members of each consolidating cooperative at any annual or special
meeting thereof, the notice of which shall set forth full particulars
concerning the proposed consolidation. The proposed consolidation
and the proposed articles of consolidation shall be deemed to be
approved upon the affirmative vote of not less than two thirds of
those members of each consolidating cooperative voting thereon at
such meeting.
(3) Upon such approval by the members of the respective
consolidating cooperatives, articles of consolidation in the form
approved shall be executed and acknowledged on behalf of each
consolidating cooperative by its president or vice-president and its
seal shall be affixed thereto and attested by its secretary. The
president or vice-president of each consolidating cooperative
executing such articles of consolidation shall also make and annex
thereto an affidavit stating that the provisions of this section were
duly complied with by such cooperative. Such articles of
consolidation and affidavits shall be submitted to the Secretary
of State Department of Commerce for filing as
provided in this chapter."
SECTION 397. Section 33-49-840 of the 1976 Code is amended
to read:
"Section 33-49-840. Any one or more cooperatives, each
of which is hereinafter designated a `merging cooperative,' may
merge into another cooperative, hereinafter designated the
`surviving cooperative,' by complying with the following
requirements:
(1) The proposition for the merger of the merging
cooperatives into the surviving cooperative and proposed articles of
merger to give effect thereto shall be first approved by the board of
trustees of each merging cooperative and by the board of trustees of
the surviving cooperative. The proposed articles of merger shall
recite in the caption that they are executed pursuant to this chapter
and shall state
(a) the name of each merging cooperative, the address of
its principal office and the date of the filing of its articles of
incorporation in the office of with the Secretary
of State Department of Commerce,
(b) the name of the surviving cooperative and the address
of its principal office,
(c) a statement that the merging cooperative elects to be
merged into the surviving cooperative,
(d) the terms and conditions of the merger and the mode of
carrying the same into effect, including the manner and basis of
converting the memberships in the merging cooperative or
cooperatives into memberships in the surviving cooperative and the
issuance of certificates of membership in respect of such converted
memberships and
(e) any provisions not inconsistent with this chapter
deemed necessary or advisable for the conduct of the business and
affairs of the surviving cooperative.
(2) The proposition for the merger of the merging
cooperatives into the surviving cooperative and the proposed articles
of merger approved by the board of trustees of the respective
cooperatives, parties to the proposed merger, shall then be
submitted to a vote of the members of each such cooperative at any
annual or special meeting thereof, the notice of which shall set forth
full particulars concerning the proposed merger. The proposed
merger and the proposed articles of merger shall be deemed to be
approved upon the affirmative vote of not less than two thirds of
those members of each cooperative voting thereon at such meeting.
(3) Upon such approval by the members of the respective
cooperatives, parties to the proposed merger, articles of merger in
the form approved shall be executed and acknowledged on behalf of
each such cooperative by its president or vice-president and its seal
shall be affixed thereto and attested by its secretary. The president
or vice-president of each cooperative executing such articles of
merger shall also make and annex thereto an affidavit stating that
the provisions of this section were duly complied with by such
cooperative. Such articles of merger and affidavits shall be
submitted to the Secretary of State Department of
Commerce for filing as provided in this chapter."
SECTION 398. Section 33-49-1010 of the 1976 Code is
amended to read:
"Section 33-49-1010. A cooperative which has not
commenced business may dissolve voluntarily by delivering to the
Secretary of State Department of Commerce articles
of dissolution, executed and acknowledged on behalf of the
cooperative by a majority of the incorporators, which shall state:
(1) The name of the cooperative;
(2) The address of its principal office;
(3) The date of its incorporation;
(4) That the cooperative has not commenced business;
(5) That the amount, if any, actually paid in on account of
membership fees, less any part thereof disbursed for necessary
expenses, has been returned to those entitled thereto and that all
easements have been released to the grantors;
(6) That no debt of the cooperative remains unpaid; and
(7) That a majority of the incorporators elect that the
cooperative be dissolved.
Such articles of dissolution shall be submitted to the Secretary
of State Department of Commerce for filing as
provided in this chapter."
SECTION 399. Section 33-49-1050 of the 1976 Code is
amended to read:
"Section 33-49-1050. Such certificate and affidavit shall
be submitted to the Secretary of State Department of
Commerce for filing as provided in this chapter and thereupon
the cooperative shall cease to carry on its business except in so far
as may be necessary for the winding up thereof, but its corporate
existence shall continue until articles of dissolution have been filed
by the Secretary of State Department of
Commerce."
SECTION 400. Section 33-49-1060 of the 1976 Code is
amended to read:
"Section 33-49-1060. After the filing of the certificate
and affidavit by the Secretary of State Department of
Commerce the board of trustees shall immediately cause notice
of the winding up proceedings to be mailed to each known creditor
and claimant and to be published once a week for two successive
weeks in a newspaper of general circulation in the county in which
the principal office of the cooperative is located."
SECTION 401. Section 33-49-1080 of the 1976 Code is
amended to read:
"Section 33-49-1080. When all debts, liabilities and
obligations of the cooperative have been paid and discharged or
adequate provision shall have been made therefor and all the
remaining property and assets of the cooperative shall have been
distributed to the members pursuant to the provisions of Section
33-49-1070, the board of trustees shall authorize the execution of
articles of dissolution, which shall thereupon be executed and
acknowledged on behalf of the cooperative by its president or
vice-president and its corporate seal shall be affixed thereto and
attested by its secretary. Such articles of dissolution shall recite in
the caption that they are executed pursuant to this chapter and shall
state:
(1) The name of the cooperative;
(2) The address of the principal office of the cooperative;
(3) That the cooperative has theretofore delivered to the
Secretary of State Department of Commerce a
certificate of election to dissolve and the date on which the
certificate was filed by the Secretary of State
Department of Commerce in the records of his office;
(4) That all debts, obligations and liabilities of the
cooperative have been paid and discharged or that adequate
provision has been made therefor;
(5) That all the remaining property and assets of the
cooperative have been distributed among the members in
accordance with the provisions of Section 33-49-1070; and
(6) That there are no actions or suits pending against the
cooperative.
The president or vice-president executing the articles of
dissolution shall also make and annex thereto an affidavit stating
that the provisions of this article have been duly complied with.
Such articles of dissolution and affidavit accompanied by proof of
the publication required in Section 33-49-1060 shall be submitted to
the Secretary of State Department of Commerce for
filing as provided in this chapter."
SECTION 402. Section 33-49-1220 of the 1976 Code is
amended to read:
"Section 33-49-1220. The proposition for the conversion
of such corporation into a cooperative and the proposed articles of
conversion to give effect thereto shall be first approved by the
board of trustees or the board of directors, as the case may be, of
such corporation. The proposed articles of conversion shall recite in
the caption that they are executed pursuant to this chapter and shall
state:
(1) The name of the corporation prior to its conversion into a
cooperative;
(2) The address of the principal office of such corporation;
(3) The date of the filing of the articles of incorporation of
such corporation in the office of with the
Secretary of State Department of Commerce;
(4) The statute or statutes under which such corporation was
organized;
(5) The name assumed by such corporation;
(6) A statement that such corporation elects to become a
cooperative nonprofit membership corporation subject to this
chapter;
(7) The manner and basis of converting either memberships
in or shares of stock of such corporation into memberships therein
after completion of the conversion; and
(8) Any provisions not inconsistent with this chapter deemed
necessary or advisable for the conduct of the business and affairs of
such corporation."
SECTION 403. Section 33-49-1240 of the 1976 Code is
amended to read:
"Section 33-49-1240. Upon such approval by the
members or stockholders of such corporation, articles of conversion
in the form approved by such members or stockholders shall be
executed and acknowledged on behalf of such corporation by its
president or vice-president, and its corporate seal shall be affixed
thereto and attested by its secretary. The president or vice-president
executing such articles of conversion on behalf of such corporation
shall also make and annex thereto an affidavit stating that the
provisions of this article with respect to the approval of its trustees
or directors and its members or stockholders of the proposition for
the conversion of such corporation into a cooperative and such
articles of conversion were duly complied with. Such articles of
conversion and affidavit shall be submitted to the Secretary of
State Department of Commerce for filing as provided
in this chapter."
SECTION 404. Section 33-49-1320 of the 1976 Code is
amended to read:
"Section 33-49-1320. Any such foreign corporation, as a
prerequisite to the extension of its lines into and the transaction of
business in this State, shall by an instrument executed and
acknowledged in its behalf by its president or vice-president under
its corporate seal attested by its secretary designate the Secretary
of State Department of Commerce its agent to accept
service of process in its behalf."
SECTION 405. Section 33-53-10 of the 1976 Code is amended
to read:
"Section 33-53-10. Every business trust created at
common law in this State or doing business in this State under an
express trust instrument by which property is held and managed by
one or more trustees for the benefit and profit of such persons as
may be or may become holders of transferable certificates
evidencing beneficial interest in the trust estate shall record the trust
instrument creating such trust and any amendment thereto with the
register of mesne conveyances, or with the clerk of court in those
counties where the office of register of mesne conveyances has been
abolished, of the county in which it has its principal place of
business in this State, and shall also file a verified copy of such
instrument and any amendments thereto with the Secretary of
State Department of Commerce."
SECTION 406. Section 33-56-20 of the 1976 Code, as added
by Act 461 of 1994, is amended by deleting:
"(5) `Secretary' means the Secretary of State."
SECTION 407. Section 33-56-30 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-30. Except as otherwise provided in this
chapter, every charitable organization which intends to solicit
contributions within this State or have contributions solicited on its
behalf shall file a registration statement with the secretary
Attorney General on forms prescribed by the
secretary Attorney General by July first of each
year but in all cases prior to solicitation. It is the duty of the chief
executive officer or chief financial officer of each charitable
organization to file the statements required under this chapter. The
statements must be sworn to and contain:
(1) the name of the organization;
(2) the purpose for which it was organized;
(3) the principal address of the organization and the address
of any offices in this State. If the organization does not maintain an
office, the name and address of the person having custody of its
financial records;
(4) the names and addresses of the chief executive officer and
chief financial officer;
(5) the names and addresses of any chapters, branches, or
affiliates in this State;
(6) the place and date the organization was legally
established, the form of its organization, and a reference to any
determination of its tax exempt status under the Internal Revenue
Code;
(7) whether the organization intends to use professional
solicitors or hire individuals to solicit;
(8) whether it is certified as a tax exempt organization and is
authorized by any other governmental authority in this State to
solicit contributions;
(9) whether it is or has ever been enjoined by any court from
soliciting contributions; and
(10) the general purpose for which the contributions to be
solicited shall be used.
The registration forms and other documents prescribed by the
Secretary of State Attorney General must be signed
by the chief executive officer and chief financial officer of the
charitable organization and certified as true. Every charitable
organization which submits a registration to the secretary
Attorney General must pay an annual registration fee of
fifty dollars."
SECTION 408. Section 33-56-40 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-40. The Children's Trust Fund of South
Carolina as established by Section 20-7-5010 is required to register
with the Secretary of State Attorney General but is
not required to pay the annual registration fee provided for in
Section 33-56-30."
SECTION 409. Section 33-56-50 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-50. The following are not required to file
registration statements with the Secretary of State
Attorney General, provided none of its fund-raising
activities are carried on by professional solicitors:
(1) an educational institution which solicits contributions only
from its students and their families, alumni, faculty, friends and
other constituencies, trustees, corporations, foundations, and
individuals who are interested in and supportive of the programs of
the institution;
(2) persons requesting contributions for the relief of an
individual specified by name at the time of the solicitation when all
of the contributions collected without any deductions of any kind
are turned over to the named beneficiary for his use, provided that a
person soliciting the contributions is not a named beneficiary;
(3) charitable organizations which do not intend to solicit nor
receive contributions from the public in excess of five
twenty thousand dollars during a calendar year or do not
receive contributions from more than ten persons during a calendar
year, if all of their functions, including fund-raising activities, are
carried on by persons who are unpaid for their services and if no
part of their assets or income inures to the benefit of or is paid to
any officer or member. If the contributions raised from the public,
whether all of the contributions are or are not received by a
charitable organization during any calendar year, are in excess of
five twenty thousand dollars, within thirty days
after the date the contributions exceed five twenty
thousand dollars, it must register with and report to the department
as required by this chapter;
(4) organizations which solicit exclusively to their members,
including utility cooperatives; and
(5) any veteran's organization which has a congressional
charter.
Any charitable organization claiming to be exempt from the
registration provisions of this chapter and which will or does solicit
charitable contributions shall submit annually to the
secretary Attorney General on forms to be
prescribed by the secretary Attorney General, the
name, address, and purpose of the organization and a statement
setting forth the reason for the claim for exemption. If exempted,
the secretary Attorney General or his appropriate
division shall issue a letter of exemption which may be exhibited to
the public. No filing fee is required of an exempt organization.
SECTION 410. Section 33-56-60 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-60. (A) Each charitable organization
soliciting funds in this State and not exempt under Section
33-56-50, whether individually or collectively with other
organizations, shall file a report of its financial activities, on forms
prescribed by the Secretary of State Attorney
General, certified to be true by the chief executive officer and
the chief financial officer of it, in the office of the Secretary of
State Attorney General. The report must cover the
preceding fiscal year and must be filed within two and one-half
months of the close of the organization's fiscal year unless a written
extension has been granted by the secretary Attorney
General.
The report must include:
(1) specific and itemized support and revenue statements
disclosing direct public support from solicitation, indirect public
support, government grants, program service revenue, and any other
revenue. The report must disclose the amount of direct public
support received from direct mail solicitation, telephone solicitation,
commercial co-venturers, door-to-door solicitations, telethons, and
all other itemized sources;
(2) specific and itemized expense statements disclosing
program services, public information expenditures, fund-raising
costs, payments to affiliates, management costs, and salaries paid;
and
(3) balance sheet disclosures containing total assets and
liabilities.
(B) However, if a charitable organization is required to file
Internal Revenue Service Form 990 with the Internal Revenue
Service, the organization may file such form with the
secretary Attorney General in lieu of the report
required under subsection (A) of this section, provided that the form
may exclude such information which the Internal Revenue Service
would not release pursuant to a Freedom of Information request.
(C) An organization failing to file the report required by this
section may be enjoined from further solicitation of funds in this
State in an action brought by the Attorney General or
secretary. An organization failing to file a timely report
required by this section may be assessed by the secretary
Attorney General administrative fines not to exceed two
thousand dollars."
SECTION 411. Section 33-56-70 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-70. Every contract or agreement between
professional fund-raising counsel or professional solicitor and a
charitable organization must be in writing and filed with the
Secretary of State Attorney General within ten days
after the contract is made. Every agreement or written statement of
the nature of the arrangement to prevail in the absence of a contract
between a professional fund-raising counsel or solicitor and a
charitable organization must be filed with the Secretary of
State Attorney General within ten days after the
contract or written agreement is made. Every contract filed under
this section must disclose the amount of compensation the
professional fund-raising counsel or solicitor will receive, or if there
is no flat fee, the percentage of collected revenues the professional
fund-raising counsel or solicitor will receive. Every contract or
agreement filed under this section must disclose the name and
residence address of each person directing or supervising the
conduct of services. Every contract or agreement filed under this
section and involving telephone solicitation must disclose the
location and telephone numbers from which the soliciting will be
conducted.
Within ninety days after a solicitation campaign has been
completed, and on the anniversary of the commencement of a
solicitation campaign lasting more than one year, the professional
solicitor or the charitable organization must file with the
secretary Attorney General a joint financial report
for the campaign, including gross revenue and an itemization of
expenses. The report must be completed on a form prescribed by
the secretary Attorney General and signed by an
authorized official of the paid solicitor or an authorized official
from the charitable organization and certified to be true.
A professional fund-raising counsel, professional solicitor, or
charitable organization failing to comply with this section is liable
for an administrative fine not to exceed ten dollars for each day of
noncompliance, with a maximum fine under each nonregistered
agreement of two thousand dollars."
SECTION 412. Section 33-56-80 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-80. Registration statements and
applications, reports, professional fund-raising counsel contracts or
professional solicitor contracts, and all other documents and
information required to be filed under this chapter or by the
Secretary of State Attorney General are public
records in the office of the Secretary of State Attorney
General and are open to the general public for inspection at
such time and under such conditions as the secretary
Attorney General may prescribe. The secretary
Attorney General shall publish and make available to the
public and to persons subject to this chapter explanatory
information concerning this chapter, the duties imposed by this
chapter, and the means for enforcing this chapter."
SECTION 413. Section 33-56-90(4) of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"(4) Upon request, a professional solicitor shall display or
deliver to the solicited party a copy of his registration certification
from the secretary Attorney General."
SECTION 414. Section 33-56-100 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-100. In accordance with the regulations
promulgated by the secretary Attorney General,
every charitable organization and professional fundraiser subject to
the provisions of this chapter shall keep the true fiscal records as to
its activities in this State. The records must be retained for at least
three years after the end of the period of registration to which they
relate."
SECTION 415. Section 33-56-110 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-110. No person shall act as a professional
fund-raising counsel or professional solicitor for a charitable
organization subject to the provisions of this chapter, unless he has
first registered with the Secretary of State Attorney
General. Applications for registration must be in writing under
oath or affirmation in the form prescribed by the Secretary of
State Attorney General and contain that information as
the Secretary of State Attorney General may
require. The application for registration by professional
fund-raising counsel or professional solicitor must be accompanied
by an annual fee of fifty dollars.
At the time of making application, professional solicitors shall
file with and have approved by the Secretary of State
Attorney General a surety bond in which the applicant or
his employer shall be the principal obligor in the sum of fifteen
thousand dollars with one or more sureties satisfactory to the
Secretary of State Attorney General, whose liability
in the aggregate as such sureties will at least equal that sum and
maintain the bond in effect so long as a registration is in effect.
However, a deposit of cash in the amount of fifteen thousand
dollars may be accepted in lieu of the bond. The bond shall run to
the State of South Carolina for the use of the secretary
Attorney General or his appropriate division and any
person who may have a cause of action against the obligor of the
bonds for losses resulting from malfeasance, nonfeasance, or
misfeasance in the conduct of solicitation activities. A partnership
or corporation which is a professional solicitor may file a
consolidated bond on behalf of all its members, officers, and
employees.
Each registration is valid throughout the State for one year and
may be renewed for additional one-year periods upon written
application under oath in the form prescribed by the Secretary of
State Attorney General and the payment of the fee
prescribed in this chapter.
Professional fundraisers or professional fund-raising counsel who
fail to comply with the provisions of this section are liable for an
administrative fine not to exceed ten dollars for each day of
noncompliance, with a maximum fine under this paragraph of two
thousand dollars."
SECTION 416. Section 33-56-120(2) of the 1976 Code, as
added by Act 461 of 1994, is amended to read:
"(2) No charitable organization, professional fund-raising
counsel, or professional solicitor shall use or exploit the fact of
registration so as to lead the public to believe that the registration in
any way constitutes an endorsement or approval by the State.
However, the use of the following statement is not considered a
prohibited exploitation: `Registered with the Secretary of
State Attorney General as required by law. Registration
does not imply endorsement of a public solicitation for
contributions'."
SECTION 417. Section 33-56-130 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-130. If any charitable organization,
professional fund-raising counsel, or professional solicitor soliciting
contributions from people in this State and having a principal place
of business outside the State, or organized under and by virtue of
the laws of a foreign state, is subject to the provisions of this
chapter and does not otherwise appoint a registered agent for
service of process, then that charitable organization, professional
fund-raising counsel, or professional solicitor is considered to have
irrevocably appointed the secretary Attorney
General as an agent upon whom may be served summons,
subpoena, subpoena duces tecum, or other process directed to the
charitable organization, professional fund-raising counsel, or
professional solicitor or any partner, principal officer, or director of
it in any action or proceeding brought under the provisions of this
chapter. Service of process upon the secretary Attorney
General must be made by delivering to and leaving with him
personally a copy thereof at the office of the secretary
Attorney General and the service shall be sufficient service,
provided, that notice of the service and a copy of the process are
sent by the secretary Attorney General to the
charitable organization, professional fund-raising counsel, or
professional solicitor, by registered or certified mail with return
receipt requested, at the address set forth in the registration form
required to be filed with the secretary Attorney
General pursuant to this chapter or, in default of the filing of
such form, at the last address known to the secretary
Attorney General. Service of the process is complete ten
days after the receipt by the secretary Attorney
General of a return receipt purporting to be signed by the
addressee or a person qualified to receive the registered or certified
mail, in accordance with the accepted practices of the United States
Postal Service, or, if acceptance was refused by the addressee, ten
days after the return to the secretary Attorney
General of the original envelope bearing a notation by the
postal authorities that receipt thereof was refused."
SECTION 418. Section 33-56-140 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-140. (1) Upon his own motion or upon
complaint of any person, the secretary Attorney
General may investigate any charitable organization,
professional fund-raising counsel, or professional solicitor to
determine whether the charitable organization, professional
fund-raising counsel, or professional solicitor has violated the
provisions of this chapter or has filed an application or other
information required under this chapter which contains false or
misleading statements. The secretary Attorney
General may subpoena persons and require the production of
books, papers, and other documents to aid in the investigation of
alleged violations of this chapter.
(2) If any charitable organization, professional fund-raising
counsel, or professional solicitor fails to file a registration
application, statement, report, or other information required to be
filed with the secretary Attorney General under this
chapter, or violates the provisions of this chapter, the
secretary Attorney General shall notify the
delinquent charitable organization, professional fund-raising
counsel, or professional solicitor of this fact by mailing a notice by
registered or certified mail, with return receipt requested, to its last
known address. If the required registration application, statement,
annual report, assurance of voluntary compliance, or other
information is not filed or if the existing violation is not
discontinued within fifteen days after the formal notification or
receipt of the notice, the secretary Attorney General
may assess an administrative fine not to exceed two thousand
dollars against the delinquent organization.
(3) In addition to all other actions authorized by law, the
secretary or Attorney General, if they have he
has reason to believe that one or more of the following acts or
violations listed below has occurred, may bring an action to enjoin
the charitable organization, professional fund-raising counsel,
professional solicitor, or other person from continuing the act or
violation, doing any other acts in furtherance of it, and for
such other relief as to the court considers appropriate:
(a) a person is knowingly and wilfully operating in violation
of the provisions of this chapter;
(b) a person has knowingly and wilfully made any false
statement in any registration application, statement, report, or other
information required to be filed by this chapter;
(c) a person has failed to file a registration statement or
financial report required by this chapter;
(d) a person is employed or is about to be employed in any
solicitation or collection of contributions any device, scheme, or
artifice to defraud or to obtain money or property by means of false
pretense, representation, or promise;
(e) the officers or representatives of a charitable organization,
professional fund-raising counsel, or professional solicitor have
refused or failed after notice to produce any records of the
organization; or
(f) whenever the funds raised by solicitation activities are not
devoted or will not be devoted to the charitable purposes of the
charitable organization.
(4) In addition to the provisions of subsection (3), any person
who knowingly and wilfully violates the provisions of this chapter
or who knowingly and wilfully gives false or incorrect information
to the secretary Attorney General in filing
statements or reports required by this chapter, is guilty of a
misdemeanor and, upon conviction, for a first offense shall be fined
not more than one thousand dollars or be imprisoned for not more
than thirty days, and for a second or any subsequent offense shall
be fined not more than five thousand dollars or be imprisoned for
not more than one year, or both.
(5) Any registration application, statement, report, or other
information required to be filed with the Secretary of State
Attorney General under this chapter by a charitable
organization, professional fund-raising counsel, or professional
solicitor which contains false or misleading statements may be
rejected by the secretary Attorney General and
returned to the submitting party without being filed.
(6) If a person is assessed an administrative fine under this
chapter, the person has thirty days to pay the fine. After thirty
days, the secretary Attorney General shall give the
delinquent person thirty days' notice that he will seek to enjoin the
activities of the person. Before the secretary Attorney
General seeks an injunction, the person may pay the fines or
request a hearing before the secretary Attorney
General. A person who fails to remit fines after the required
notice is given may be enjoined from engaging in further charitable
solicitation activities until the fine is paid. A person assessed a fine
may request an evidentiary hearing before the secretary
Attorney General. A person may appeal an adverse ruling
by the secretary Attorney General to the circuit
court. An appeal to the circuit court shall be governed by the
standard of review provided in the Administrative Procedures Act
and the case law interpreting that provision.
(7) The secretary Attorney General may
exercise the authority granted in this section against a person who
operates under the guise or pretense of being an organization
exempted by the provisions of Section 33-56-40 or 33-56-50 and is
not in fact an organization entitled to such an exemption."
SECTION 419. Section 33-56-150 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-150. There shall be in the office of the
Secretary of State Attorney General a Division of
Public Charities which, under the direction and control of the
secretary Attorney General, shall perform the duties
imposed upon it by the provisions of this chapter. The executive
and administrative head of the division shall be the Director of
Public Charities designated by the secretary Attorney
General."
SECTION 420. Section 33-56-160 of the 1976 Code, as added
by Act 461 of 1994, is further amended to read:
"Section 33-56-160. All The first two hundred
thousand dollars in administrative fines fine
revenue imposed received pursuant to this
chapter in a fiscal year may be retained by the Attorney General
to offset the expenses of enforcing this chapter. All administrative
fines collected pursuant to this chapter in excess of two hundred
thousand dollars in a fiscal year must be transmitted to the
State Treasurer and deposited in the state general fund. All fees
collected under this chapter must be transmitted to the State
Treasurer and deposited in a fund separate and distinct from the
state general fund and used by the Secretary of State
Attorney General for the purpose of administering the
provisions of this chapter."
SECTION 421. Section 33-56-190 of the 1976 Code, as added
by Act 461 of 1994, is amended to read:
"Section 33-56-190. The secretary Attorney
General may enter into agreements with the appropriate
authority of any other state for the purpose of exchanging
information with respect to charitable organizations, professional
fund-raising counsel, and professional solicitors."
SECTION 422. Section 34-1-70 of the 1976 Code is amended
to read:
"Section 34-1-70. No bank, building and loan association,
savings and loan association, or savings bank may be granted a
charter by the Secretary of State Department of
Commerce unless and until the Board has approved the
application in writing. No branch bank, branch building and loan
association, branch savings and loan association, or branch savings
bank may be established without the approval in writing of the
Board. Before any application for the incorporation of a bank,
building and loan association, savings and loan association, or
savings bank, or the establishment of a branch thereof may be
approved, the Board shall make an investigation to determine
whether or not the applicants have complied with all the provisions
of law, whether in the judgment of the Board they are qualified to
operate the institution and whether the establishment of the bank,
building and loan association, savings and loan association, or
savings bank or of a branch thereof, would serve the public interest,
taking into consideration local circumstances and conditions at the
place where it proposes to do business. A remote service unit as
defined in Section 34-28-30 is not considered a branch of a bank,
building and loan association, savings and loan association, or a
savings bank and is not subject to any of the provisions of this
section applicable to branch applications."
SECTION 423. Section 34-3-810 of the 1976 Code is amended
to read:
"Section 34-3-810. Any banking corporation organized
under the laws of the United States and doing business in this State
may become an incorporated bank of this State with all the powers
and subject to all the obligations and duties of banks incorporated
under the laws of this State, provided such banking corporation has
authority by virtue of the laws of the United States to dissolve its
organization as a national banking corporation.
A national banking corporation desiring to become such an
incorporated bank under the laws of this State shall proceed in the
following manner:
(1) It shall take such action in the manner prescribed or
authorized by the laws of the United States as shall make its
dissolution as a national banking corporation effective at a
specified future date; and
(2) A majority of its directors shall thereafter and before the
time when its dissolution becomes effective execute under their
hands and seals in duplicate, upon the authority of a resolution
adopted by the owners of at least two thirds of its capital stock at a
meeting held after ten days' notice thereof given to each
stockholder by registered mail, a certificate setting forth the
following facts:
(a) its name and place of business as a national banking
association and the name that it proposes to use as its corporate
name after becoming a banking corporation under the laws of this
State,
(b) the amount of its capital stock and the number of
shares into which it is divided and the par value of each,
(c) the names of its directors and of its officers at the date
of its dissolution as a national bank and who will constitute its
directors and officers as a State bank and
(d) the date upon which its dissolution as a national
banking association shall become effective and upon which date it
shall commence business as a bank under the laws of this State.
Such certificate in duplicate shall be thereupon lodged with the
Secretary of State Department of Commerce, who
shall endorse on the certificate in duplicate the date of its filing in
his office. One duplicate of the certificate shall be filed in the office
of the Secretary of State Department of Commerce
and the other so endorsed shall be issued to the bank and be
recorded in the office of the register of mesne conveyances in the
county in which the principal place of business of the bank is
located."
SECTION 424. Section 34-3-820 of the 1976 Code is amended
to read:
"Section 34-3-820. After the issuance of such certificate
by the Secretary of State Department of Commerce
and the payment to him of the same fees as would be payable for
the incorporation of a bank under the laws of this State with a
similar capital stock, the corporate existence of such bank as a State
bank shall begin as soon as its dissolution as a national banking
corporation becomes effective."
SECTION 425. Section 34-9-60 of the 1976 Code is amended
to read:
"Section 34-9-60. In addition to all other requirements, no
bank or banking institution of any nature shall be granted a charter
by the Secretary of State Department of Commerce
unless and until the State Board of Bank Control has certified that
the paid-in capital of such bank or banking institution is sufficient
to qualify such bank or banking institution for membership in the
Federal Deposit Insurance Fund."
SECTION 426. Section 34-9-70 of the 1976 Code is amended
to read:
"Section 34-9-70. Notwithstanding the provisions of
Section 34-9-60 the existing charter of any bank, banking institution
or depository may be transferred to new owners proposing to
operate a bank, banking institution or depository at a new location
and with a new personnel. Operation by such transferees at such
new location shall be legal and the provisions of Section 34-9-60
shall not apply thereto if the State Board of Bank Control shall first
certify to the Secretary of State Department of
Commerce that the public interest will be promoted by the
transfer and operation of such institution under the transferred
charter at the proposed new location. In such instance the
Secretary of State Department of Commerce shall
record the transfer and the certificate of the Board and shall amend
the transferred charter as to the name and as to the principal place
of business if he is petitioned so to do."
SECTION 427. Section 34-27-40 of the 1976 Code is amended
to read:
"Section 34-27-40. Ten or more citizens of this State, all
who have a common bond of employment (includes employees of
organizations owned in the majority by the sponsoring employer),
association, churches or church-related organizations, who have
associated themselves by an agreement in writing for the purpose of
forming a cooperative credit union under the provisions of this
chapter may apply to the State Board of Financial Institutions for a
certificate certifying that it is satisfied that the proposed field of
operation is favorable to the success of such cooperative credit
union, and that the standing of the proposed members is such as to
give reasonable assurance that its affairs will be administered in
accordance with the spirit of this chapter; and upon the Board being
so satisfied it shall issue such certificate. Upon the filing of such
certificate in the office of the Secretary of State
Department of Commerce and the payment to him of a
charter fee of ten dollars, the Secretary of State
Department of Commerce shall thereupon issue to such
cooperative credit union a certificate of incorporation.
Provided, however, that when any federally chartered credit
union converts to a state chartered credit union pursuant to Section
34-27-270 and obtains a state charter under this section, it shall be
authorized to maintain its membership existing at the time of
conversion but thereafter shall be limited in any expansion of
membership by the common bond requirements of this
section."
SECTION 428. Section 34-28-100 of the 1976 Code is amended
to read:
"Section 34-28-100. (1) When authorized by the Board as
provided in this article, an association may be formed under the
laws of this State for the purpose of conducting a general savings
and loan business and having all the powers and purposes
authorized by this chapter and otherwise by Title 34.
(2) A written application for authority to organize an association
as provided in subsection (1) must be filed with the Board and
include:
(a) the proposed corporate name and evidence that the
proposed name has been reserved with the Secretary of State
Department of Commerce; however, evidence that an
association has reserved a corporate name with the Secretary of
State Department of Commerce does not preclude the
Board from disapproving the name on the grounds of potential
confusion with the name of an existing financial institution;
(b) detailed financial and biographical information as the
Board may require for each proposed director, chief executive
officer, and managing officer;
(c) the total amount of the savings account capital or capital
stock proposed to be issued, the amount subscribed by each
incorporator, and the method to be used to raise any remaining
capital required before the proposed association will be authorized
to begin business;
(d) the name and address of the proposed managing officer
and chief executive officer, if known;
(e) the community and the street and number, if available,
where the proposed association is to be located; and
(f) additional information as the Board may reasonably
require. The application for authority to organize must be filed with
the Board in triplicate and must be accompanied by a nonrefundable
filing fee established by the Board.
(3)(a) Upon the filing of an application, the Board shall make an
investigation of:
1. the character, reputation, financial standing, experience,
and business qualifications of the proposed officers and directors;
2. the character, reputation, financial standing, and motives
of the incorporator or incorporators in organizing the proposed
association;
3. the public need for an association or additional
association, as the case may be, in the primary service area where
the proposed association is to be located, giving particular
consideration to the ability of the primary service area to support
both the proposed and all other existing associations in the
community in the conduct of profitable operations and to the
benefits of competition to the public.
(b) Any applicant who files an application which requires an
investigation to be conducted outside the State shall reimburse the
Board for all costs incurred in the normal course of investigation,
which reimbursement must be in addition to the filing fee
authorized in this section.
(4) The Board shall approve the application unless it finds that
one or more of the conditions in (a) through (f) exist:
(a) Public convenience and advantage will not be promoted
by the establishment of the proposed association. In determining
whether an applicant meets this requirement, the Board shall
consider all materially relevant factors, including:
1. the location and services proposed to be offered by the
applicant and currently offered by existing associations in the
primary service area to be served by the applicant; and
2. the primary service area's general economic and
demographic characteristics.
(b) Local conditions do not indicate reasonable promise of
the successful operation of the proposed association and of those
associations already established in the primary service area
community. In determining whether an applicant meets this
requirement, the Board shall consider all materially relevant factors,
including:
1. Current economic conditions and the growth potential of
the primary service area in which the proposed association intends
to locate; and
2. The growth rate, size, financial strength, and operating
characteristics of other associations in the primary service area of
the proposed association.
(c) The proposed officers and directors do not have sufficient
experience, ability, standing, and responsibility to indicate
reasonable promise of the successful operation of the association.
(d) The applicant's proposed capital structure is inadequate.
In no event may the minimum capital required be less than three
million dollars or that larger amount as may be specified in a
regulation issued by the Board.
(e) The name of the proposed association does not comply
with Section 34-28-110.
(f) No provision has been made for suitable quarters at the
location specified in the application.
(5) The order approving an application may impose reasonable
conditions which must be met before a certificate of authorization
to transact business will be issued, which conditions may include
employment of suitable personnel, alterations to the proposed
capital structure, the obtaining of suitable quarters at the location
proposed, or those other matters as the Board may deem necessary.
If the Board approves the application for authority to organize, the
applicant shall file its articles of incorporation with the Secretary
of State Department of Commerce and apply for a
commitment for appropriate insurance of accounts. Upon approval
by the Board of the application for authority to organize, the Board
shall forward a copy of its final order to the Federal Savings and
Loan Insurance Corporation. The corporate existence of an
association begins on the date that the approved articles of
incorporation are filed with the Secretary of State
Department of Commerce, unless otherwise provided in the
articles of incorporation, but the association shall not commence
business before it is in possession of a certificate of authorization to
transact business as provided in Section 34-28-150. Prior to that
time, an association may perform only those acts as are necessary to
perfect its organization, raise capital, obtain and equip a place of
business, and otherwise prepare for a general savings association
business."
SECTION 429. Section 34-28-130 of the 1976 Code is amended
to read:
"Section 34-28-130. (1) The Articles of Incorporation of
an association shall contain:
(a) The name of the proposed association, which shall
comply with Section 34-28-110, and in the case of a stock-owned
association must contain the word `corporation', `incorporated',
`limited', or `company' or an abbreviation thereof sufficient to
distinguish a stock-owned association from a mutual association;
(b) The address of the principal office of the association in
South Carolina, including the county and municipality where it is
located, together with a registered agent for receiving service of
process and the address of the agent if it differs from that of the
principal office of the association;
(c) The period of duration of the corporation which is
deemed perpetual unless otherwise stated;
(d) The general nature of the business to be transacted or a
statement that the association may engage in any activity or
business permitted to associations under this chapter and other
provisions of Title 34. This statement shall authorize all those
activities and business by the association;
(e) With respect to a stock-owned association, the amount of
capital stock authorized, showing the maximum number of shares of
par value common stock and of preferred stock, and of every kind,
class, or series of each, together with the distinguishing
characteristics and the par value of all shares;
(f) The amount of capital with which the association will
begin business;
(g) The number of directors, which may not be fewer than
five, and the names and street addresses of the members of the first
board of directors who, unless otherwise provided by the Articles of
Incorporation, the bylaws, or this chapter, shall hold office for the
term set forth in Section 34-28-420(4) or until their successors are
elected or appointed and have qualified;
(h) The names, and addresses of all the incorporators, not less
than ten in number;
(i) Any other provisions authorized or permitted to be in the
Articles of Incorporation of a corporation by Chapters 1 to 25 of
Title 33 which the incorporators elect to include therein.
(2) The Articles of Incorporation must be in writing, signed by
all the incorporators, and submitted to the Board for its approval.
Upon approval, the Board shall place the following legend upon the
Articles of Incorporation `Approved by the Board of Financial
Institutions this ___ day of ___, ___ (herein the name and signature
of the Chairman of the Board)'. Thereafter, the Articles of
Incorporation must be filed with the Secretary of State
Department of Commerce.
(3) An association shall not amend its Articles of Incorporation
without the prior written approval of the Board."
SECTION 430. Section 34-28-200 of the 1976 Code is amended
to read:
"Section 34-28-200. (1) At an annual meeting or at any
special meeting of the members or stockholders called to consider
the action, any state-chartered association may convert itself into a
federal savings association, federal savings and loan association, or
federal savings bank, hereinafter called `federal association', in
accordance with the laws of the United States, as now or hereafter
amended, upon a vote of a majority or more of the total number of
votes of the members or stockholders eligible to cast votes at the
meeting. A copy of the minutes of the proceedings of the meeting
of the members or stockholders, verified by the affidavit of the
secretary or an assistant secretary, must be filed with the Board
within ten days after the date of the meeting. A sworn copy of the
proceedings of the meeting, when so filed, is presumptive evidence
of the holding and action of the meeting. Within three months after
the date of the meeting, the association shall commence that action
in the manner prescribed and authorized by the laws of the United
States as shall make it a federal association. There must be filed
with the Board a copy of the charter issued to the federal
association by the Federal Home Loan Bank Board or a certificate
showing the organization of the association as a federal association,
certified by the secretary or assistant secretary of the Federal Home
Loan Bank Board. A similar copy of the charter, or of the
certificate, must be filed by the association with the Secretary of
State Department of Commerce. No failure to file any
of these instruments with either the Board or the Secretary of
State Department of Commerce shall affect the validity
of the conversion. Upon the grant to any association of a charter
by the Federal Home Loan Bank Board, the association receiving
the charter shall cease to be an association incorporated under this
chapter and is no longer subject to the supervision and control of
the Board. Upon the conversion of any association into a federal
association, the corporate existence of the association shall not
terminate, but the federal association is considered to be a
continuation of the entity of the association so converted, and all
property of the converted association, including its right, title, and
interest in all and to all property of whatever kind, whether real,
personal, or mixed, and things in action, and every right, privilege,
interest, and asset of any conceivable value or benefit then existing,
pertaining to it, or which would inure to it, shall immediately by
operation of law and without any conveyance or transfer and
without any further act or deed remain and be vested in and
continue to be the property of the federal association into which the
state association has converted itself, and the federal association
shall have, hold, and enjoy the same in its own right as fully and
to the same extent as if the same were possessed, held, and enjoyed
by the converting association. The federal association as of the
time of the taking effect of the conversion shall continue to have
and succeed to all the rights, obligations, and relations of the
converting association. All pending actions and other judicial
proceedings to which the converting state association is a party are
not considered to have abated or to have discontinued by reason of
the conversion, but may be prosecuted to final judgment, order, or
decree in the same manner as if the conversion into the federal
association had not been made, and the federal association resulting
from the conversion may continue those actions in its corporate
name as a federal association; and any judgment, order, or decree
may be rendered for or against it which might have been rendered
for or against the converting state association involved in the
judicial proceedings.
(2) Any association or corporation which has converted itself
into a federal association under the provisions of the laws of the
United States and has received a charter from the Federal Home
Loan Bank Board is thereafter recognized as a federal association,
and its federal charter must be given full recognition by the courts
of this State to the same extent as if the conversion had taken place
under the provisions of this section; provided, there must have been
compliance with the foregoing requirements with respect to the
filing with the Board of a copy of the federal charter or a certificate
showing the organization of the association as a federal association.
All these conversions are hereby ratified and confirmed, and all the
obligations of an association which has so converted shall continue
as valid and subsisting obligations of the federal association, and
the title to all of the property of the association is considered to
have continued and vested, as of the date of issuance of the federal
charter, in the federal association as fully and completely as if the
conversion had taken place pursuant to this section since the
effective date of this chapter."
SECTION 431. Section 34-28-220 of the 1976 Code is amended
to read:
"Section 34-28-220. (1) Any state or federal mutual
association may apply to the Board for permission to convert itself
into a stock association operated under the provisions of this chapter
in accordance with the following procedures and regulations
promulgated by the Board:
(a) The Board of Directors shall approve a plan of conversion
by resolution adopted by a majority vote of all the directors present
at the meeting at which the plan is considered. The plan shall
include, among other terms:
1. Financial statements of the association as of the last day
of the month preceding adoption of the plan;
2. Financial data as may be required to determine
compliance with applicable regulatory requirements respecting
financial condition;
3. A provision that each savings account holder of the
mutual association will receive a withdrawable account in the stock
association equal in amount to and having the same terms as his
withdrawable account in the mutual association;
4. A provision for the establishment and maintenance of a
liquidation account for the benefit of savings account holders of the
mutual association in the event of the liquidation of the association
after its conversion which account shall meet all the requirements
established by regulation promulgated by the Board;
5. A provision that each member of record will be entitled
to receive rights to purchase voting common stock and the terms
and conditions of these rights;
6. Pro forma financial statements of the association as a
capital stock association, which shall include data required to
determine compliance with applicable regulatory requirements
respecting financial condition; and
7. Other information as the Board may by regulation
require.
(b) The plan of conversion must be executed by a majority of
the board of directors and submitted to the Board for approval prior
to any vote on conversion by the members.
(c) The Board may approve or disapprove the plan in its
discretion, but it shall not approve the plan unless it finds that the
association will comply sufficiently with the requirements of this
chapter after conversion to entitle it to become an association
operating under this chapter and the regulations of the Board. The
Board may deny any application from any federal association that is
subject to any cease and desist order or other supervisory restriction
or order imposed by a federal supervisory authority or insurer.
(d) If the Board approves the plan of conversion, the question
of the conversion may be submitted to the members at a meeting of
voting members called to consider the action. A vote of a majority
or more of the total number of votes eligible to be cast at the
meeting, unless federal law permits a lesser percentage of votes for
a federal mutual association to convert, in which case that
percentage shall control for conversions of both state and federal
mutual associations, is required for approval. Notice of the
meeting, giving the time, place, and purpose, together with a proxy
statement and proxy form meeting the requirements in Section
33-11-140 and any applicable federal regulations approved by the
Board covering all matters to be brought before the meeting, must
be mailed at least thirty days prior to the Board and to each voting
member at his last address as shown on the books of the
association.
(e) Copies of the minutes of the meeting of members,
verified by the affidavit of the secretary or assistant secretary of the
association, must be filed with the Board, and with the Federal
Home Loan Bank Board if applicable, within ten days after the
meeting. When so filed, the verified copies of the minutes are
presumptive evidence of the holding of the meeting and of the
action taken.
(f) The directors of the association shall execute and file with
the Board proposed Articles of Incorporation as provided for in
Section 34-28-130, together with the application for conversion,
and a statement showing that requisite capital required in the
conversion plan approved by the Board has been paid to the
association in cash, that all other conditions imposed by the Board
or specified in the plan of conversion have been satisfied, and that a
firm commitment for, or evidence of, insurance of deposits and
other accounts of a withdrawable type from the Federal Savings and
Loan Insurance Corporation has been obtained. The Articles of
Incorporation of the converted association shall contain a statement
that the association resulted from the conversion of a state or
federal mutual association to a capital stock association. Approval
by the Board must be affixed to the Articles of Incorporation. The
original copy of the Articles of Incorporation must be filed with the
Secretary of State Department of Commerce and a
certified copy of the Articles of Incorporation must be filed with the
Board, provided that failure to file a certified copy of the Articles
of Incorporation with the Board shall not affect the validity of the
conversion. The association shall cease to be a mutual association at
the time and on the date specified in the approved Articles of
Incorporation or the date the Articles of Incorporation are filed in
the office of the Secretary of State Department of
Commerce, whichever is later.
(2) Upon conversion of a mutual association to a state-chartered
stock association, the legal existence of the association shall not
terminate, but the capital stock association is a continuation of the
entity of the mutual association, and all property of the mutual
association, including its right, title, and interests in and to all
property of whatever kind, whether real, personal, or mixed, things
in action, and every right, privilege, interest, and asset of every
conceivable value or benefit then existing or pertaining to it, or
which would inure to it, immediately, by act of law and without
any conveyance or transfer and without any further act or deed,
shall vest and remain in the stock association into which the mutual
association has converted itself. The capital stock association shall
have, hold, and enjoy the same in its own right as fully and to the
same extent as if the same were possessed, held, and enjoyed by the
mutual association. The capital stock association, upon the effective
date of the conversion, shall continue to have and succeed to all the
rights, obligations, and relations of the mutual association. All
pending actions and other judicial proceedings to which the mutual
association is a party are not abated or discontinued by reason of
the conversion but may be prosecuted to final judgment, order, or
decree in the same manner as if the conversion had not been made;
and the stock association resulting from the conversion may
continue the actions in its corporate name as a mutual association.
Any judgment, order, or decree may be rendered for or against the
stock association which might have been rendered for or against
the mutual association involved in the proceedings.
(3) The application for conversion from a state or federal
mutual to a state stock association must be accompanied by a
nonrefundable filing fee established by the Board."
SECTION 432. Section 34-28-270 of the 1976 Code is amended
to read:
"Section 34-28-270. (1) Any association may, at any
special meeting of the members or stockholders called to consider
the action, terminate its existence in accordance with the provisions
of this section upon a vote of more than a majority of the total
number of votes of members or shareholders eligible to be cast at
the meeting.
(2) Upon the vote, three copies of a statement of interest to
dissolve, which shall state the vote cast in favor of dissolution, must
be filed with the Board, which shall examine the association, and, if
it finds that the association is not in an impaired condition, it shall
so note, together with its approval of the dissolution, upon all the
copies of the certificate of dissolution. The Board shall place a
copy in its permanent files, file a copy with the Secretary of
State Department of Commerce, and return the
remaining copy to the parties who filed it.
(3) Upon this approval, the association is dissolved and shall
cease to carry on business but nevertheless shall continue as a
corporate entity for the sole purpose of paying, satisfying, and
discharging existing liabilities and obligations, collecting and
distributing assets, and doing all other acts required to adjust, wind
up, and dissolve its business and affairs.
(4) The board of directors in office at the time of the vote of
dissolution shall act as trustees for the liquidation. The board of
directors shall proceed as quickly as may be practicable to wind up
the affairs of the association and, to the extent necessary or
expedient to that end, shall exercise all the powers of the dissolved
association and, without prejudice to the general nature of this
authority, may fill vacancies, elect officers, carry out contracts,
make new contracts, borrow money, mortgage or pledge property,
sell its assets at public or private sale, compromise claims in favor
of or against the association, apply assets to the discharge of
liabilities, distribute assets either in cash or in kind among savings
account members of a mutual association or stockholders of a
capital stock association according to their respective pro rata
interests after paying or adequately providing for the payment of
other liabilities, and perform all acts necessary or expedient to the
winding up of the association. All deeds or other instruments must
be in the name of the association and executed by the president or a
vice president and the secretary or an assistant secretary. The board
of directors shall also have power to exchange or otherwise dispose
of or put in trust all, substantially all, or any part of the assets,
upon those terms and conditions and for that consideration as the
board of directors may consider reasonable or expedient, and may
distribute the consideration or the proceeds, trust receipts, or
certificates of beneficial interest among the savings account
members of a mutual association or stockholders of a stock
association in proportion to their pro rata interests. In the absence
of fraud, any determination of value made by the board of directors
for any of these purposes is conclusive.
(5) The association, during the liquidation of the assets of the
association by its board of directors, shall continue to be subject to
the supervision of the Board, and the board of directors shall report
the progress of the liquidation to the Board as the Board may
require. Upon completion of the liquidation, the board of directors
shall file with the Board a final report and accounting of the
liquidation. The approval of the report by the Board shall operate
as a complete and final discharge of the board of directors and each
member or stockholder thereof in connection with the liquidation
of the association. No dissolution or any action of the board of
directors in connection with it shall impair any contract right
between the association and any borrower to other person or
persons or the vested rights of any member or savings account
holder of the association."
SECTION 433. Section 34-28-800 of the 1976 Code is amended
to read:
"Section 34-28-800. (1) For the purpose of this section,
`foreign association' includes any person, firm, company,
association, fiduciary, partnership, or corporation, or whatever name
called, actually engaged in the business of a savings association,
which is not organized under the provisions of this chapter or the
laws of the United States, and the principal business office of which
is located outside the territorial limits of this State.
(2) No foreign association shall do any business of a savings
association within this State or maintain an office in this State for
the purpose of doing business including, but not limited to,
establishment of a branch office except as otherwise authorized by
this chapter or otherwise by law. The origination of real estate
mortgages covering real property located in this State or acquiring
a participation interest in any mortgage is considered doing business
as a savings association if the state of domicile of the principal
business office of the foreign association does not permit
associations from this State to originate real estate mortgages
covering real property located in that state, unless an association
having an authorized office in this State is either the originator of
the mortgage or is a partner or joint venturer in the company that
originates the mortgages.
(3) The Board is authorized and required to obtain an injunction
or to take any other action necessary to prevent any foreign
association from doing any business of an association in this State.
(4) Except as otherwise provided in subsection (2), for the
purpose of this section and any other law of this State prohibiting,
limiting, or regulating the doing of business in this State by foreign
associations or foreign corporations of any type, any federal
association the principal office of which is located outside this
State, and any foreign association which is subject to state or
federal supervision which by law are subject to periodic
examination by these supervisory authorities and to a requirement
of periodic audit, are not considered to be doing business in this
State by reason of engaging in any of the following activities:
(a) The purchase, acquisition, holding, sale, assignment,
transfer, collecting, and enforcement of obligations or any interest
therein secured by real estate mortgages or other instruments in the
nature of a mortgage, covering real property located in this State, or
the foreclosure of these instruments, or the acquisition of title to the
property at foreclosure, or otherwise, as a result of default under
these instruments, or the holding, protection, rental, maintenance,
and operation of the property so acquired, or the disposition
thereof; provided the associations shall not hold, own, or operate
property for a period exceeding five years without securing the
approval of the Board.
(b) The advertising or solicitation of savings accounts or the
making of any representations with respect thereto in this State
through the medium of the mail, radio, television, magazines, or
newspapers or any other medium which is published or circulated
within this State provided that the advertising, solicitation, or the
making of these representations is accurately descriptive of the
facts.
(5) Any foreign association or federal association described in
subsection (4) which engages in any of the activities described in
paragraph (a) thereof pursuant to the provisions of this section is
subject to suit in the courts of this State by this State and the
citizens of this State. Service on the association must be effected
by serving the Secretary of State Department of
Commerce of this State, except that the provisions of this
section shall have no other application to the questions of whether
any foreign association or federal association is subject to service of
process and suit in this State as a result of the transaction of
business or other activities in this State."
SECTION 434. Section 34-29-110 of the 1976 Code is amended
to read:
"Section 34-29-110. (a) The Board shall have the power
and authority to make rules and regulations which interpret or
explain any section or sections of this chapter, as it may deem
necessary. Such regulations shall be referenced to the section or
sections of this chapter which set forth the legislative standards
which they interpret or explain. When promulgated and made, the
rules and regulations shall be filed with the Secretary of
State Department of Commerce and the Board shall
otherwise comply fully with the provisions of Sections 1-1-210
through 1-1-240.
(b) On application of any person and payment of the cost
thereof, the Board shall furnish under its seal and duly signed, a
certified copy of any license, regulation or order. Such copy shall
be prima facie evidence of the fact of the issuance of such license,
regulation or order in any court or proceeding."
SECTION 435. Section 35-1-20(1) of the 1976 Code, as last
amended by Act 455 of 1992, is further amended to read:
"(1) `Securities Commissioner' means Secretary of
State Attorney General, who shall be ex officio
Securities Commissioner."
SECTION 436. Section 35-1-30 of the 1976 Code is amended
to read:
"Section 35-1-30. This chapter shall be administered by
the Secretary of State Attorney General, who shall
be ex officio the Securities Commissioner and who may employ
such additional assistants at such salaries as may be authorized by
the General Assembly."
SECTION 437. Section 35-1-320(10) of the 1976 Code is
amended to read:
" (10) Limited preorganization subscriptions. -Any offer
or sale of a preorganization certificate or subscription if (a) no
commission or other remuneration is paid or given directly or
indirectly for soliciting any prospective subscriber, (b) the number
of subscribers does not exceed twenty-five and (c) no payment is
made by any subscriber prior to filing of the articles of
incorporation with the Secretary of State Attorney
General;"
SECTION 438. Section 35-1-485 of the 1976 Code, as added
by Part II, Act 501 of 1992, is amended to read:
"Section 35-1-485. (A) Licenses required by Chapter 1
of Title 35 to be registered biennially must be assigned registration
periods as provided in this section.
(1) Upon the first reregistration of the licenses by the
South Carolina Secretary of State's Attorney
General's office after the effective date of the implementation
of biennial licensure, a biennial registration period must be
implemented as follows:
(a) Licensees whose license numbers end in:
(i) an even number and expire between July 1, 1992,
and December 31, 1992, shall obtain a biennial registration;
(ii) an even number and expire between January 1, 1993,
and June 30, 1993, shall reregister their license for one year. At the
end of this time they shall reregister their license for two years and
biennially after that time;
(iii) an odd number and expire between July 1, 1992, and
December 31, 1992, shall register their licenses for one year. At the
end of that time they shall register their license for two years and
biennially after that time;
(iv) an odd number and expire between January 1, 1993,
and June 30, 1993, shall obtain a biennial registration;
(v) `A' through `L' and expire between July 1, 1992,
and June 30, 1993, shall obtain a biennial registration;
(vi) `M' through `Z' and expire between July 1, 1992,
and June 30, 1993, shall obtain a one-year registration and a
biennial registration after that time.
(b) Licenses issued in South Carolina for the first time
between:
(i) July 1, 1992, and December 31, 1992, which end in
an even number must be issued biennially;
(ii) July 1, 1992, and December 31, 1992, which end in
an odd number must be issued for one year. At the end of this time
the license must be renewed for two years and biennially after that
time;
(iii) January 1, 1993, and June 30, 1993, which end in an
even number must be issued for one year. At the end of that time
the license must be renewed for two years and biennially after that
time;
(iv) January 1, 1993, and June 30, 1993, which end in an
odd number must be issued biennially;
(v) July 1, 1992, and June 30, 1993, and are issued
license numbers which end in `A' through `L' shall obtain a
biennial registration;
(vi) July 1, 1992, and June 30, 1993, and which end in
`M' through `Z' must be issued for one year and renewed biennially
after that time.
(2) Registrations are valid until the last day of the month in
which the registration expires. The license fees charged during the
conversion process must be prorated for the length of the license
issued.
(B) After June 30, 1993, all licensees must be registered and
licensed for twenty-four consecutive months, and registrations
expire on the last day of the twenty-fourth month. The registration
and licensing of every licensee must be renewed biennially upon
application by the holder and by payment of fees required by law to
take effect on the first day of the month following the expiration of
the registration and licensing to be renewed. This section does not
prevent the Secretary of State's Attorney General's
office from refusing to issue a license."
SECTION 439. Section 36-9-401 of the 1976 Code, as last
amended by Act 494 of 1988, is further amended to read:
"Section 36-9-401. (1) The proper place to file in order
to perfect a security interest is as follows:
(a) when the collateral is equipment used in farming
operations, or farm products, or accounts or general intangibles
arising from or relating to the sale of farm products by a farmer, or
consumer goods, then in the office of the register of mesne
conveyances or the clerk of court in the county of the debtor's
residence or if the debtor is not a resident of this State then in the
office of the register of mesne conveyances or the clerk of court in
the county where the goods are kept, and in addition when the
collateral is crops growing or to be grown in the office of the
register of mesne conveyances or the clerk of court in the county
where the land is located;
(b) when the collateral is timber to be cut or is minerals or
the like (including oil and gas) or accounts subject to subsection (5)
of Section 36-9-103, or when the financing statement is filed as a
fixture filing (Section 36-9-313) and the collateral is goods which
are or are to become fixtures, then in the office where a mortgage
on the real estate would be filed or recorded;
(c) in all other cases, in the office of the Secretary of
State Department of Commerce.
(2) A filing which is made in good faith in an improper place
or not in all of the places required by this section is nevertheless
effective with regard to any collateral as to which the filing
complied with the requirements of this chapter and is also effective
with regard to collateral covered by the financing statement against
any person who has knowledge of the contents of the financing
statement.
(3) A filing which is made in the proper place in this State
continues effective even though the debtor's residence or place of
business or the location of the collateral or its use, whichever
controlled the original filing, is thereafter changed.
(4) The rules stated in Section 36-9-103 determine whether
filing is necessary in this State.
(5) Notwithstanding the preceding subsections, and subject to
subsection (3) of Section 36-9-302, the proper place to file in order
to perfect a security interest in collateral including fixtures of a
transmitting utility is the office of the Secretary of State
Department of Commerce. This filing constitutes a fixture
filing (Section 36-9-313) as to the collateral described which is or is
to become fixtures.
(6) For the purposes of this section, the residence of an
organization is its place of business if it has one or its chief
executive office if it has more than one place of business."
SECTION 440. Section 36-9-403(5) of the 1976 Code, as last
amended by Act 494 of 1988, is further amended to read:
"(5) The uniform fee for filing and indexing and for
stamping a copy furnished by the secured party to show the date
and place of filing for an original financing statement or for a
continuation statement is eight dollars if the statement is in the
standard form prescribed by the Secretary of State
Department of Commerce and otherwise is ten dollars,
plus in each case, if the financing statement is subject to subsection
(5) of Section 36-9-402, two dollars. The uniform fee for each
name more than one required to be indexed is two dollars. The
secured party may at his option show a trade name for any person
and an extra uniform indexing fee of two dollars must be paid with
respect thereto."
SECTION 441. Section 36-9-404(3) of the 1976 Code, as last
amended by Act 494 of 1988, is further amended to read:
"(3) If the termination statement is in the standard form
prescribed by the Secretary of State Department of
Commerce, the uniform fee for filing and indexing the
termination statement is eight dollars, and otherwise is ten dollars,
plus in each case an additional fee of two dollars for each name
more than one against which the termination statement is required
to be indexed."
SECTION 442. Section 36-9-405 of the 1976 Code, as last
amended by Act 494 of 1988, is further amended to read:
"Section 36-9-405. (1) A financing statement may
disclose an assignment of a security interest in the collateral
described in the financing statement by indication in the financing
statement of the name and address of the assignee or by an
assignment itself or a copy of the assignment on the face or back of
the statement. On presentation to the filing officer of the financing
statement, the filing officer shall mark the financing statement as
provided in Section 36-9-403(4). The uniform fee for filing,
indexing, and furnishing filing data for a financing statement so
indicating an assignment is eight dollars if the statement is in the
standard form prescribed by the Secretary of State
Department of Commerce and otherwise is ten dollars, plus
in each case an additional fee of two dollars for each name more
than one against which the financing statement is required to be
indexed.
(2) A secured party of record may assign all or part of his rights
under a financing statement by the filing in the place where the
original financing statement was filed of a separate written
statement of assignment signed by the secured party of record and
setting forth the name of the secured party of record and the debtor,
the file number, and the date of filing of the financing statement
and the name and address of the assignee and containing a
description of the collateral assigned. A copy of the assignment is
sufficient as a separate statement if it complies with the preceding
sentence. On presentation to the filing officer of a separate
statement, the filing officer shall mark the separate statement with
the date and hour of the filing. He shall note the assignment on the
index of the financing statement, or in the case of a fixture filing,
or a filing covering timber to be cut, or covering minerals or the
like (including oil and gas) or accounts subject to subsection (5) of
Section 36-9-103, he shall index the assignment under the name of
the assignor as grantor and, to the extent that the law of this State
provides for indexing the assignment of a mortgage under the name
of the assignee, he shall index the assignment of the financing
statement under the name of the assignee. The uniform fee for
filing, indexing, and furnishing filing data about a separate
statement of assignment is eight dollars if the statement is in the
standard form prescribed by the Secretary of State
Department of Commerce and otherwise is ten dollars, plus
in each case an additional fee of two dollars for each name more
than one against which the statement of assignment is required to be
indexed. Notwithstanding the provisions of this subsection, an
assignment of record of a security interest in a fixture contained in
a mortgage effective as a fixture filing (subsection (6) of Section
36-9-402) may be made only by an assignment of the mortgage in
the manner provided by the law of this State other than this title.
(3) After the disclosure or filing of an assignment under this
section, the assignee is the secured party of record."
SECTION 443. Section 36-9-406 of the 1976 Code, as last
amended by Act 494 of 1988, is further amended to read:
"Section 36-9-406. A secured party of record may by his
signed statement release all or a part of any collateral described in a
filed financing statement. The statement of release is sufficient if it
contains a description of the collateral being released, the name and
address of the debtor, the name and address of the secured party,
and the file number of the financing statement. A statement of
release signed by a person other than the secured party of record
must be accompanied by a separate written statement of assignment
signed by the secured party of record and complying with
subsection (2) of Section 36-9-405, including payment of the
required fee. Upon presentation of a statement of release to the
filing officer he shall mark the statement with the hour and date of
filing and shall note the same upon the margin of the index of the
filing of the financing statement. The uniform fee for filing and
noting a statement of release is eight dollars if the statement is in
the standard form prescribed by the Secretary of State
Department of Commerce and otherwise is ten dollars, plus
in each case an additional fee of two dollars for each name more
than one against which the statement of release is required to be
indexed."
SECTION 444. Section 36-9-407 of the 1976 Code, as last
amended by Act 494 of 1988, is further amended to read:
"Section 36-9-407. (1) If the person filing any financing
statement, termination statement, statement of assignment, or
statement of release, furnishes the filing officer a copy of the
statement, the filing officer shall upon request note upon the copy
the file number and date and hour of the filing of the original and
deliver or send the copy to the person.
(2) Upon request of any person, the filing officer shall issue his
certificate showing whether there is on file on the date and hour
stated in the certificate, any presently effective financing statement
naming a particular debtor and any statement of assignment thereof
and if there is, giving the date and hour of filing of each statement
and the names and addresses of each secured party in the statement.
The uniform fee for the certificate is five dollars if the request for
the certificate is in the standard form prescribed by the Secretary
of State Department of Commerce and otherwise is
eight dollars plus one dollar for each financing statement and for
each statement of assignment reported therein. Upon request the
filing officer shall furnish a copy of any filed financing statement
or statement of assignment for a uniform fee of one dollar per page
plus two dollars for certifying the copy."
SECTION 445. Section 37-1-203 of the 1976 Code is amended
to read:
"Section 37-1-203. (1) Subject to constitutional and
statutory jurisdictional limitations the courts of this State may
exercise jurisdiction over any creditor with respect to any conduct
in this State governed by this title or with respect to any claim
arising from a transaction subject to this title. In addition to any
other method provided by statute, personal jurisdiction over a
creditor may be acquired in a civil action or proceeding instituted in
a court by the service of process in the manner provided by this
section.
(2) If a creditor is not a resident of this State or is a corporation
not authorized to do business in this State and engages in any
conduct in this State governed by this title, or engages in a
transaction subject to this title, he may designate an agent upon
whom service of process may be made in this State. The agent
shall be a resident of this State or a corporation authorized to do
business in this State. The designation shall be in writing and filed
with the Secretary of State Department of
Commerce. If no designation is made and filed or if process
cannot be served in this State upon the designated agent, process
may be served upon the Secretary of State Department
of Commerce, but service upon him is not effective unless the
plaintiff or petitioner forthwith mails a copy of the process and
pleading by registered or certified mail to the defendant or
respondent at his last reasonably ascertainable address. An affidavit
of compliance with this section shall be filed with the clerk of the
court on or before the return day of the process, if any, or within
any further time the court allows."
SECTION 446. Section 37-6-405 of the 1976 Code is amended
to read:
"Section 37-6-405. (1) The Administrator shall file in
the office of the Secretary of State Department of
Consumer Affairs a certified copy of each rule adopted by him.
The Secretary of State Department of Consumer
Affairs shall keep a permanent register of the rules open to
public inspection.
(2) Each rule hereafter adopted is effective twenty days after
filing, except that, if a later date is specified in the rule, the later
date is the effective date."
SECTION 447. Section 37-6-406 of the 1976 Code is amended
to read:
"Section 37-6-406. (1) The Secretary of State
Department of Consumer Affairs shall compile, index, and
publish all effective rules adopted by the Administrator.
Compilations shall be supplemented or revised as often as
necessary.
(2) Compilations shall be made available upon request to
agencies and officials of this State free of charge and to other
persons at prices fixed by the Secretary of State
Department of Consumer Affairs to cover mailing and
publication costs."
SECTION 448. Section 37-6-502 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 37-6-502. The Commission on Consumer
Affairs shall be composed of nine members, one of whom shall be
the Secretary of State Lieutenant Governor as an ex
officio member; four members shall be appointed by the Governor
with advice and consent of the Senate and the remaining four
members shall be elected by the General Assembly. Members of the
Commission shall elect a Chairman. Terms of the members shall be
four years unless otherwise stipulated in this section, and upon the
expiration of the terms, the Governor shall appoint a member and
the General Assembly shall elect one member respectively. With the
exception of the ex officio member, any vacancy in the office of a
member shall be filled by the Governor by appointment for the
unexpired term. Members of the Commission shall be eligible for
reappointment. No person associated with any businesses regulated
by the Commission on Consumer Affairs shall be eligible to serve
on the Commission as defined by Section 8-13-20 of the Code of
Laws of South Carolina."
SECTION 449. Section 38-3-80 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-3-80. The department shall have a seal with a
suitable inscription, an impression of which must be filed with
the Secretary of State."
SECTION 450. Section 38-5-110 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-5-110. It is unlawful for the Secretary of
State Department of Commerce to issue any charter or
grant any amendments of charter to any insurer or permit any
foreign or alien insurer to do business within this State without the
written approval of the director or his designee."
SECTION 451. Section 38-25-510 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-25-510. (a) Any act of transacting an
insurance business as set forth in Section 38-25-110 by an
unauthorized insurer is equivalent to and constitutes an irrevocable
appointment by the insurer, binding upon him, his executor or
administrator, or successor in interest if a corporation, of the
Secretary of State Attorney General or his successor
in office to be the true and lawful attorney of the insurer upon
whom may be served all lawful process in any action, suit, or
proceeding in any court by the director or his designee or by the
state and upon whom may be served any notice, order, pleading, or
process in any proceeding before the director or his designee and
which arises out of transacting an insurance business in this State
by the insurer. Any act of transacting an insurance business in this
State by an unauthorized insurer is signification of its agreement
that any lawful process in the court action, suit, or proceeding and
any notice, order, pleading, or process in the administrative
proceeding before the director or his designee so served is of the
same legal force and validity as personal service of process in this
State upon the insurer.
(b) Service of process in the action must be made by delivering
to and leaving with the Secretary of State Attorney
General, or some person in apparent charge of his office, two
copies thereof and by payment to the Secretary of State
Attorney General of the fee prescribed by law. Service
upon the Secretary of State as attorney is service upon the
principal.
(c) The Secretary of State Attorney General
shall immediately forward by certified mail one of the copies of the
process or the notice, order, pleading, or process in proceedings
before the director or his designee to the defendant in the court
proceeding or to whom the notice, order, pleading, or process in the
administrative proceeding is addressed or directed at its last known
principal place of business and shall keep a record of all process so
served on him which shall show the day and hour of service. The
service is sufficient if:
(1) Notice of the service and a copy of the court process or
the notice, order, pleading, or process in the administrative
proceeding are sent within ten days thereafter by certified mail by
the plaintiff or the plaintiff's attorney in the court proceeding or by
the director or his designee in the administrative proceeding to the
defendant in the court proceeding or to whom the notice, order,
pleading, or process in the administrative proceeding is addressed or
directed at the last known principal place of business of the
defendant in the court or administrative proceeding.
(2) The defendant's receipt or receipts issued by the post
office with which the letter is registered, showing the name of the
sender of the letter and the name and address of the person or
insurer to whom the letter is addressed, and an affidavit of the
plaintiff or the plaintiff's attorney in a court proceeding or of the
director or his designee in an administrative proceeding, showing
compliance therewith, are filed with the clerk of court in which the
action, suit, or proceeding is pending or with the director or his
designee in administrative proceedings, by the date the defendant in
the court or administrative proceeding is required to appear or
respond thereto, or within any further time as the court or director
or his designee may allow.
(d) No plaintiff is entitled to a judgment by default, a judgment
with leave to prove damages, or a judgment pro confesso in any
court or administrative proceeding in which court process or
notice, order, pleading, or process in proceedings before the director
or his designee is served under this section until the expiration of
thirty days from the date of filing of the affidavit of compliance.
(e) Nothing in this section limits or affects the right to serve
any process, notice, order, or demand upon any person or insurer in
any other manner permitted by law."
SECTION 452. Section 38-87-110 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-87-110. (A) The director or his designee is
authorized to use any power established under this title to enforce
the insurance laws of this State not specifically preempted by the
Liability Risk Retention Act of 1986, including, but without
limitation, the administrative authority of the director or his
designee to investigate, issue subpoenas, conduct depositions and
hearings, issue orders, impose monetary penalties, and seek
injunctive relief. With regard to any investigation, administrative
proceedings, or litigation, the director or his designee may rely on
the procedural laws of this State.
(B) Whenever the director or his designee determines that any
person, risk retention group, purchasing group, or insurer of a
purchasing group has violated, is violating, or is about to violate
any provision of this chapter or any other insurance law of this
State applicable to such person or entity, or has failed to comply
with a lawful order of his, he may, in addition to any other lawful
remedies or penalties, cause a complaint to be filed in the Court of
Common Pleas for Richland County to enjoin and restrain such
person, risk retention group, purchasing group, or insurer from
engaging in such violation, or to compel compliance with such
order of the director or his designee. The court has jurisdiction of
the proceeding and has the power to enter a judgment and order for
injunctive or other relief. In any action by the director or his
designee under this subsection, service of process must be made
upon the Secretary of State Attorney General, who
shall forward the order, pleadings, or other process to the person,
risk retention group, purchasing group, or insurer in accordance
with the procedures specified in Section 38-25-510. Nothing herein
may be construed to limit or abridge the authority of the director or
his designee to seek injunctive relief in any district court of the
United States as provided in Section 38-87-130."
SECTION 453. Section 39-3-160 of the 1976 Code is amended
to read:
"Section 39-3-160. Any corporation created or organized
by or under the laws of this State which shall violate any of the
provisions of this article shall forfeit its corporate rights and
franchises and its corporate existence shall, upon the proper proof
being made thereof in any court of competent jurisdiction in the
State, be by the court declared forfeited, void and of none effect
and shall thereupon cease and determine. The clerk of such court
shall certify the decree thereof to the Secretary of State
Department of Commerce."
SECTION 454. Section 39-3-170 of the 1976 Code is amended
to read:
"Section 39-3-170. Any corporation created or organized
by or under the law of any other state or country which shall
violate any of the provisions of this article shall thereby forfeit its
right and privilege thereafter to do any business in this State and
upon proper proof being made thereof in any court of competent
jurisdiction in this State its rights and privileges to do business in
this State shall be declared forfeited. In all proceedings to have such
forfeiture declared, proof that any person who has been acting as
agent of such foreign corporation in transacting its business in this
State has been, while acting as such agent and in the name, behalf
or interest of such foreign corporation, violating any provisions of
this article shall be received as prima facie proof of the fact of the
act of the corporation itself; and it shall be the duty of the clerk of
such court to certify the decree thereof to the Secretary of
State Department of Commerce."
SECTION 455. Section 39-15-420 of the 1976 Code is amended
to read:
"Section 39-15-420. Any person desiring to avail himself
of the benefits of this article may make application to the
Secretary of State Department of Commerce, and
shall file with the Secretary a true copy and description of such
identifying mark or brand, which, if entitled thereto under the
provisions of this article shall be filed and recorded by the
Secretary in a book to be provided and kept by him for that purpose
and the name of the owner of such brand or mark shall be likewise
entered into such record and the Secretary shall then assign or
designate a permanent registered number to the owner of such
brand or mark, such numbers to be assigned progressively as marks
and brands are received and recorded. The registered number so
assigned shall then become a part of the registered brand or mark
and shall plainly and distinctly be made to appear on such field
boxes, crates, receptacles and containers, together with the
identifying mark or brand referred to in Section 39-15-410. The
Secretary of State Department of Commerce shall
determine if such brand or mark so applied for is not a duplication
of any brand or mark previously recorded by him or does not so
closely resemble any such brand or mark as to be misleading or
deceiving. If the brand or mark applied for does so resemble or is
such a duplication of a previously recorded brand or mark as to be
misleading or deceiving, the application shall be denied and the
applicant may file some other brand or mark in the manner
described above."
SECTION 456. Section 39-15-430 of the 1976 Code is amended
to read:
"Section 39-15-430. Such application for filing and
recording shall be accompanied by a fee of two dollars and
thereupon, if consistent with the provisions of this article, the
Secretary of State Department of Commerce shall
issue to the person applying for registration and recordation of such
mark or brand a certificate of such recordation and of the registered
number assigned thereto and thereafter he shall issue such
certificates, in any number, to any person applying therefor, upon
the payment of a fee of one dollar for each certificate so issued.
Any such certificate shall, in all proceedings in all the courts of this
State, be taken and held as proof of the adoption and recordation of
such identifying mark or brand."
SECTION 457. Section 39-15-440 of the 1976 Code is amended
to read:
"Section 39-15-440. The owner of any such registered
mark or brand may transfer, release or sell it by an instrument in
writing evidencing such transfer, release or sale and, upon
application to the Secretary of State Department of
Commerce when such mark or brand is registered for the
recordation of such instrument in writing and upon the filing of it
with the Secretary and the payment of a fee of two dollars, the
Secretary shall cause such instrument of transfer, release or sale to
be placed on record in a book provided and kept by him for that
purpose and certificates of such transfer, upon application therefor,
shall be issued by him in like manner, upon the payment of like
fees, as provided for the issuance of certificates under the
provisions of Section 39-15-430."
SECTION 458. Section 39-15-450 of the 1976 Code is amended
to read:
"Section 39-15-450. The presence of such identifying mark
or brand on any field box, crate, container or receptacle, whenever
a copy or description thereof shall have been filed and recorded in
the office of the Secretary of State Department of
Commerce as provided in Section 39-15-420, shall, in any
court and in any proceedings in this State, be prima facie evidence
of the ownership of such boxes, crates, containers or receptacles by
the person in whose name such mark or brand may have been
recorded, provided that such mark or brand shall bear the registered
number provided for in Section 39-15-420."
SECTION 459. Section 39-15-490 of the 1976 Code is amended
to read:
"Section 39-15-490. The refusal of any person in
possession thereof to deliver any field box, crate, container or
receptacle so marked or branded and registered as provided in this
article to the registered owner thereof or his duly authorized agent,
upon the demand of such registered owner or authorized agent,
when such demand is accompanied with a display of the certificate
of recordation and number thereof, as furnished to the registered
owner by the Secretary of State Department of
Commerce, shall be prima facie evidence in any court of this
State of a fraudulent intent to convert such field box, crate,
container or receptacle to the use of the person so in possession
thereof and to deprive the registered owner thereof and any person
convicted of a violation of the provisions of this section shall be
subject to the penalty provided in Section 39-15-480."
SECTION 460. Section 39-15-1105(6) of the 1976 Code, as last
amended by Act 27 of 1995, is further amended to read:
"(6) `Secretary' means the Secretary of State
Department of Commerce or the designee of the secretary
charged with the administration of this article."
SECTION 461. Section 39-15-1115(E) of the 1976 Code, as
added by Act 486 of 1994, is further amended to read:
"(E) The application must be accompanied by three
specimens showing the mark as actually used and accompanied by
the application fee payable to the Secretary of State
Department of Commerce."
SECTION 462. Section 39-15-1190 of the 1976 Code, as added
by Act 486 of 1994, is amended to read:
"Section 39-15-1190. (A) Whoever intentionally traffics
or attempts to traffic in goods or services and knowingly uses or
should have known a counterfeit mark on or in connection with
such goods or services shall be deemed guilty of a misdemeanor, if
an individual, be fined not more than five thousand dollars or
imprisoned not more than one year, or both, and, if a person other
than an individual, be fined not more than twenty thousand dollars.
(B) The term `counterfeit mark' in this section means:
(1) a spurious mark:
(a) that is used in connection with trafficking goods or
services;
(b) that is identical with, or substantially indistinguishable
from, a mark registered for those goods or services with the
Secretary of State Department of Commerce under
this chapter and in use, whether or not the defendant knew such
mark was so registered; and
(c) the use of which is likely to cause confusion, to cause
mistake, or to deceive.
(2) `Counterfeit mark' does not include any mark or
designation used in connection with goods or services of which the
manufacturer or producer was, at the time of the manufacture or
production in question, authorized to use the mark for designation
for the type of goods or services so manufactured or produced, by
the holder of the right to use such mark or designation.
(C) `Traffic' means transport, transfer, or otherwise dispose of,
to another, as consideration for anything of value, or make or
obtain control of with intent so to transport, transfer, or dispose
of."
SECTION 463. Section 39-19-20 of the 1976 Code is amended
to read:
"Section 39-19-20. Every person or corporation
authorized to become a public warehouseman shall give bond in a
surety company authorized to do business in this State in an amount
equal to ten per cent of the estimated value of the goods for which
such warehouseman will provide storage, such bond to be
conditioned for the faithful performance of the duties of a public
warehouseman and to be given to the Secretary of State
Governor, who shall cause a copy of it to be filed with the
clerk of the court in each county in which such warehouseman
proposes to maintain a warehouse. Any such bond may extend over
a limited period not less than one year from its date and may
provide for a continuation thereof upon payment and acceptance of
the annual premium in advance. But any such limitation shall not
affect liabilities under the bond incurred while it was in
force."
SECTION 464. Section 39-57-50 of the 1976 Code, as last
amended by Part II, Act 501 of 1992, is further amended to read:
"Section 39-57-50. (A) The seller of every business
opportunity shall file with the Secretary of State
Department of Commerce a copy of the disclosure
statement required by Section 39-57-30 before placing an
advertisement or making other representations to prospective
purchasers in this State and shall update this filing as a material
change in the required information occurs, but no less than
biennially. If the seller is required by Section 39-57-40 to provide a
bond or establish a trust account, he contemporaneously shall file
with the Secretary of State Department of
Commerce a copy of the bond or a copy of the formal
notification by the depository that the trust account is established.
The Secretary of State Department of Commerce
shall charge a nonrefundable filing fee of one hundred dollars for
processing and maintaining the information filed by the seller.
(B) The Secretary of State Department of
Commerce shall maintain a record of all sellers registering
under this chapter and shall assign a registration number to each.
The seller must be advised in writing of the assigned registration
number, and advertisements, pamphlets, or brochures used in the
promotion of the business opportunity by the seller must include the
assigned registration number in the following manner: `S.S. Reg.
No. __'.
(C) A person who fails to file is guilty of a misdemeanor and,
upon conviction, must be fined not more than two hundred dollars
or imprisoned not more than thirty days. Each day a person fails to
file constitutes a separate offense."
SECTION 465. Section 39-57-55 of the 1976 Code, as added
by Part II, Act 501 of 1992, is amended to read:
"Section 39-57-55. (A) Licenses required by Chapter 57
of Title 39 to be registered biennially must be assigned registration
periods as provided in this section.
(1) Upon the first reregistration of the licenses by the
South Carolina Secretary of State's Department of
Commerce's office after the effective date of biennial licensure,
a biennial registration period must be implemented as follows:
(a) Licensees whose license numbers end in:
(i) an even number and expire between July 1, 1992,
and December 31, 1992, shall obtain a biennial registration;
(ii) an even number and expire between January 1, 1993,
and June 30, 1993, shall reregister their licenses for one year. At
the end of that time they shall reregister their license for two years
and biennially after that time;
(iii) an odd number and expire between July 1, 1992, and
December 31, 1992, shall register their licenses for one year. At the
end of that time they shall register their license for two years and
biennially after that time;
(iv) an odd number and expire between January 1, 1993,
and June 30, 1993, shall obtain a biennial registration;
(v) `A' through `L' and expire between July 1, 1992,
and June 30, 1993, shall obtain a biennial registration;
(vi) `M' through `Z' and expire between July 1, 1992,
and June 30, 1993, shall obtain a one-year registration and obtain a
biennial registration after that time.
(b) Licenses issued in South Carolina for the first time
between:
(i) July 1, 1992, and December 31, 1992, which end in
an even number must be issued for a biennial registration period;
(ii) between July 1, 1992, and December 31, 1992,
which end in an odd number must be issued for one year. At the
end of that time the license must be renewed for two years and
biennially after that time;
(iii) January 1, 1993, and June 30, 1993, which end in an
even number must be issued for one year. At the end of that time
the license must be renewed for two years and biennially after that
time;
(iv) January 1, 1993, and June 30, 1993, which end in an
odd number must be issued biennially;
(v) July 1, 1992, and June 30, 1993, and issued license
numbers which end in `A' through `L' must be issued biennially;
(vi) between July 1, 1992, and June 30, 1993, and which
end in `M' through `Z' must be issued for one year and renewed
biennially after that time.
(2) Registrations are valid until the last day of the month in
which the registration expires. The license fees charged during the
conversion process must be prorated for the length of the license
issued.
(B) After June 30, 1993, licensees must be registered and
licensed for twenty-four consecutive months, and the registrations
expire on the last day of the twenty-fourth month. The registration
and licensing of every licensee must be renewed biennially upon
application by the holder and by payment of fees required by law to
take effect on the first day of the month following the expiration of
the registration and licensing to be renewed. This section does not
prevent the Secretary of State's Department of
Commerce's office from refusing to issue a license."
SECTION 466. Section 39-61-70 of the 1976 Code, as added
by Act 155 of 1987, is amended to read:
"Section 39-61-70. (a) No club may offer, issue, or
renew a motor club service contract in this State without first
obtaining from the Administrator a certificate of authority so to act.
A certificate of authority must be issued by the Administrator to the
club upon submission of items (1) through (6) of this subsection (a)
in a form satisfactory to the Administrator. The applicant shall
submit:
(1) A formal application for the certificate in the form and
detail the Administrator requires, executed under oath by its
president and secretary or two other principal officers of the club or
other persons the Administrator may require.
(2) A certified copy of its charter or articles of incorporation
and its bylaws, if any.
(3) If a corporation, a certified copy of the certificate of
authority or good standing certificate from the Secretary of
State Department of Commerce.
(4) A copy of its most recent financial statement prepared in
accordance with generally accepted accounting principles and
certified by two principal officers of the applicant or, in the event
the applicant is not a corporation, other persons as the
Administrator may require.
(5) An explanation of its plan of doing business and copies of
the following:
(i) Its application for membership.
(ii) The proposed membership certificate or identification
card and any proposed addendum thereto.
(iii) Any individual insurance policy or group certificate to
be offered.
(iv) Any service contract to be issued.
(6) Any other relevant information requested by the
Administrator.
(b) No certificate of authority may be issued by the
Administrator until the club has paid an initial certificate of
authority fee of five hundred dollars."
SECTION 467. Section 39-73-10(1) of the 1976 Code, as added
by Act 68 of 1993, is amended to read:
"(1) `Administrator' means the South Carolina
Secretary of State Attorney General."
SECTION 468. Section 39-73-330 of the 1976 Code, as added
by Act 68 of 1993, is amended to read:
"Section 39-73-330. (A) This chapter must be
administered by the South Carolina Secretary of State
Attorney General.
(B) The administrator and his employees may not use
information filed with or obtained by the administrator which is not
public information for personal gain or benefit and may not conduct
securities or commodity dealings based upon the information, even
though public, if there has not been sufficient time for the securities
or commodity markets to assimilate the information.
(C)(1) Except as provided in item (2), all information collected,
assembled, or maintained by the administrator is public information
and is available for examination by the public.
(2) The following information is confidential and an
exception to item (1):
(a) information obtained in private investigations pursuant
to Section 39-73-310;
(b) information made confidential by the Freedom of
Information Act;
(c) information obtained from federal agencies which must
not be disclosed under federal law.
(3) The administrator in his discretion may disclose
information made confidential under subsection (C)(2)(a) to
persons identified in Section 39-73-335(A).
(4) This chapter does not create or derogate a privilege which
exists at common law, by statute, or otherwise when documentary
or other evidence is sought under subpoena directed to the
administrator or his employees."
SECTION 469. Section 40-1-110 of the 1976 Code is amended
to read:
"Section 40-1-110. The members of the Board shall
qualify by taking the oath of office before a notary public or other
officer empowered to administer oaths and a record thereof shall be
filed in the office of the Secretary of State
Governor. At the first meeting of the Board after each
annual appointment the Board shall elect a chairman, a
vice-chairman and a secretary-treasurer. The secretary-treasurer
shall give such bond as the Board shall from time to time
direct."
SECTION 470. Section 40-11-30 of the 1976 Code is amended
to read:
"Section 40-11-30. Each member of the Board shall,
before entering upon the discharge of the duties of his office, take
and file with the Secretary of State Governor an
oath in writing to perform properly the duties of his office as a
member of the Board and to uphold the Constitution of South
Carolina and the Constitution of the United States."
SECTION 471. Section 40-11-120 of the 1976 Code is amended
to read:
"Section 40-11-120. On or before the first day of April of
each year the Board shall submit to the Governor a report of its
transactions for the preceding year and shall file with the
Secretary of State Governor a copy of such report,
together with a complete statement of the receipts and expenditures
of the Board, attested by the affidavits of the chairman and the
secretary, and a copy of the roster of licensed general and
mechanical contractors."
SECTION 472. Section 40-22-40(C) of the 1976 Code, as
added by Act 99 of 1991, is amended to read:
"(C) Firms seeking to incorporate or register to do
business in this State under provisions of this section shall apply
and obtain approval from the board before filing their articles of
incorporation or revisions to their article with the Secretary of
State Governor. Issuance of a certificate of
authorization by the board is contingent upon official notification of
approval of the charter or sanction by the Secretary of State
Governor."
SECTION 473. Section 40-22-50(B) of the 1976 Code, as
added by Act 99 of 1991, is amended to read:
"(B) Upon approval by the board and payment of the fee
provided by regulation, the board shall grant a temporary certificate
of authorization for work on one specified project in this State for a
period not to exceed one year. This temporary certificate may be
granted only to an out-of-state corporation, professional corporation,
partnership, or similar entity, and provided that at least one of the
principal officers of the corporation or professional corporation, one
of the partners of the partnership, or one of the principals in any
other entity is registered under this chapter or has obtained a
temporary registration as provided by this chapter. The approval of
a temporary certificate of authorization constitutes appointment of
the Secretary of State Governor as an agent of the
applicant for service of process in an action or proceeding against
the applicant arising out of any transaction or operation connected
with or incidental to the practice of engineering."
SECTION 474. Section 40-22-90 of the 1976 Code, as added
by Act 99 of 1991, is amended to read:
"Section 40-22-90. A member of the board shall receive a
certificate of his appointment from the Governor and before
beginning his term of office shall file with the Secretary of
State Governor his written oath or affirmation for the
faithful discharge of his official duty."
SECTION 475. Section 40-33-270 of the 1976 Code is amended
to read:
"Section 40-33-270. The Board may have and use an
official seal bearing the words: `State Board of Nursing for South
Carolina'. It may make such rules and regulations as it may deem
necessary for the purposes of carrying out the provisions of this
chapter and shall fix such fees as it may deem necessary, and when
such rules have been adopted, a copy of same shall be filed with
the Secretary of State pursuant to the Administrative
Procedures Act (Chapter 23, Title 1). Upon their adoption, they
shall have the full force and effect of law."
SECTION 476. Section 40-59-20 of the 1976 Code, as last
amended by Act 595 of 1990, is further amended to read:
"Section 40-59-20. There is hereby created the South
Carolina Residential Builders Commission, hereinafter referred to as
the commission. The commission must be composed of seven
persons who shall have been residents of the State for at least five
years and two of whom must be consumers not engaged in the
business of residential building, four of whom have been actively
engaged in residential building for a period of at least five years
prior to the date of their appointment, and one of whom has been
actively engaged in residential specialty contracting for a period of
at least five years prior to the date of his appointment. One member
must be appointed from each congressional district and one must be
appointed from the State at large. Members of the commission
must be appointed by the Governor with the advice and consent of
the Senate for a term of four years or until their successors are
appointed and qualify. Any vacancy occurring by reason of death,
resignation, removal for cause, or otherwise must be filled for the
remainder of the unexpired term in the same manner as provided
for the original appointments. The Governor may remove any
member of the commission for misconduct, incompetency, or
neglect of duty.
Each member of the commission shall, before entering upon the
discharge of the duties of his office, take and file with the
Secretary of State Governor's Office, in writing, an
oath to perform properly the duties of his office as a member of the
commission and to uphold the Constitution of this State and the
United States."
SECTION 477. Section 40-59-110 of the 1976 Code, as last
amended by Act 72 of 1993, is further amended to read:
"Section 40-59-110. The commission shall annually submit
to the Governor and the General Assembly a report of its
transactions for the preceding year, including a complete statement
of the receipts and expenditures of the commission, a roster of all
the residential builders licensed for that year, all the residential
specialty contractors registered for that year, and a list of the
residential builders and residential specialty contractors whose
license was revoked, suspended, or restricted by the commission
during the preceding year. The commission shall also annually file
with the Secretary of State Governor's Office a
certified copy of the report at the same time the report is submitted
to the Governor and the General Assembly."
SECTION 478. Section 40-73-20 of the 1976 Code, as last
amended by Act 324 of 1994, is further amended to read:
"Section 40-73-20. All occupational and professional
licensing boards of this State are required to file an annual report
with the Budget and Control Board Governor's
Office at the time the board he specifies. The
board Governor's Office is charged with the
responsibility of coordinating and compiling these reports to a
consolidated report. The board Governor's Office is
also charged with the responsibility of printing the consolidated
report which must be made available on or before January first to
each member of the General Assembly at his request and to the
State Library. All licensing boards shall prepare the reports in
conformity with the provisions of this act. Copies of each report
must be maintained at all times and must be available for public
inspection, within the offices of the Budget and Control
Board Governor's Office."
SECTION 479. Section 40-77-50 of the 1976 Code is amended
to read:
"Section 40-77-50. Every member of the board shall
receive a certificate of his appointment from the Governor and
before beginning his term of office shall file with the Secretary
of State Governor's Office his written oath or
affirmation for the faithful discharge of his official duty."
SECTION 480. Section 40-77-130 of the 1976 Code is amended
to read:
"Section 40-77-130. A roster showing the names and
places of business of all registered professional geologists must be
published during the month of August of each year. Copies of this
roster must be mailed to each person registered, placed on file with
the Secretary of State Governor's Office, and
furnished to the public upon request."
SECTION 481. Section 41-25-20(a) of the 1976 Code is
amended to read:
"(a) `Secretary' means the Secretary of State
Department of Commerce or his designated
representative."
SECTION 482. Section 41-25-35 of the 1976 Code, as added
by Section 9, Part II, Act 501 of 1992, is amended to read:
"Section 41-25-35. (A) Licenses required by this chapter
to be registered biennially must be assigned registration periods as
provided in this section.
(1) Upon the first reregistration of the licenses by the
South Carolina Secretary of State's Office Department
of Commerce after the effective date of biennial licensure, a
biennial registration period must be implemented as follows:
(a) Licenses whose license numbers end in:
(i) an even number and expire between July 1, 1992,
and December 31, 1992, shall obtain a biennial registration;
(ii) an even number and expire between January 1, 1993,
and June 30, 1993, shall reregister their licenses for one year. At
the end of that time they shall reregister their license for two years
and biennially;
(iii) an odd number and expire between July 1, 1992, and
December 31, 1992, shall register their licenses for one year. At the
end of that time they shall register their license for two years and
biennially;
(iv) an odd number and expire between January 1, 1993,
and June 30, 1993, shall obtain a biennial registration;
(v) `A' through `L' and expire between July 1, 1992,
and June 30, 1993, shall obtain a biennial registration;
(vi) `M' through `Z' and expire between July 1, 1992,
and June 30, 1993, shall obtain a one-year registration and obtain a
biennial registration after that time;
(b) Licenses issued in South Carolina for the first time
between:
(i) July 1, 1992, and December 31, 1992, which end in
an even number must be issued biennially;
(ii) July 1, 1992, and December 31, 1992, which end in
an odd number must be issued for one year. At the end of that time
the license must be renewed for two years and biennially after that
time;
(iii) January 1, 1993, and June 30, 1993, which end in an
even number must be issued for one year. At the end of that time
the license must be renewed for two years and biennially after that
time;
(iv) January 1, 1993, and June 30, 1993, which end in an
odd number must be issued biennially;
(v) July 1, 1992, and June 30, 1993, and issued license
numbers which end in 'A' through 'L' must be issued biennially;
(vi) July 1, 1992, and June 30, 1993, and which end in
`M' through `Z' must be issued for one year and renewed biennially
after that time.
(2) Registrations are valid until the last day of the month in
which the registration expires. The license fees charged during the
conversion process must be prorated for the length of the license
issued.
(B) After June 30, 1993, all licensees must be registered and
licensed for twenty-four consecutive months, and the registrations
expire on the last day of the twenty-fourth month. The registration
and licensing of every licensee must be renewed biennially upon
application by the holder and by payment of fees required by law to
take effect on the first day of the month following the expiration of
the registration and licensing to be renewed. This section does not
prevent the Secretary of State's Office Department of
Commerce from refusing to issue a license."
SECTION 483. Section 41-25-110 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 41-25-110. The provisions of this chapter may be
enforced by any state agency having jurisdiction and authority to
enforce this chapter, including, but not limited to:
(a) Secretary of State
(b) Division of Labor
(c)(b) Attorney General
(d)(c) Department of Consumer Affairs
(e)(d) South Carolina Law Enforcement Division
(f)(e) Circuit solicitors
(g)(f) Local law enforcement agencies
(h)(g) Any person who has been damaged by
or has knowledge of any violation of the provisions of this
chapter."
SECTION 484. Section 41-29-130 of the 1976 Code is amended
to read:
"Section 41-29-130. General and special rules may be
adopted, amended or rescinded by the Commission only after public
hearing or opportunity to be heard thereon, of which proper notice
has been given. Such notice shall be given by mail to the secretaries
of the various commercial, business and trade organizations of the
State who keep on file with the Commission their names and
addresses for the purpose of receiving such notices. General rules
shall become effective ten days after filing with the Secretary of
State pursuant to the Administrative Procedures Act
(Chapter 23, Title 1) and publication in one or more
newspapers of general circulation in this State. Special rules shall
become effective ten days after notification to or mailing to the last
known address of the individuals or concerns affected thereby.
Regulations may be adopted, amended or rescinded by the
Commission and shall become effective in the manner and at the
time prescribed by the Commission."
SECTION 485. Section 41-43-40 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 41-43-40. The Governor shall appoint, upon the
advice and consent of the Senate, one director from each
congressional district and one from the State at large, who serves as
chairman. Directors must have experience in the fields of business,
commerce, finance, banking, real estate, or foreign trade. At least
two directors must have direct commercial lending experience. The
Governor and the Chairman of the State Development Board shall
serve ex officio and may designate persons to represent them at
meetings of the authority.
Directors serve for terms of three years; however, directors
initially appointed from the first and sixth congressional districts
and the State at large serve for three years; directors initially
appointed from the second and fifth congressional districts serve for
two years; and directors initially appointed from the third and
fourth congressional districts serve for one year. Thereafter, all
directors serve for a term of three years and until their successors
are appointed and qualify. All vacancies must be filled for the
unexpired term in the manner of the original appointment. Directors
are not personally liable for losses unless the losses are occasioned
by the wilful misconduct of the directors. Directors may be
removed by the Governor for cause or at will. A certificate of the
appointment or reappointment of any director must be filed in the
offices of the Secretary of State Governor and the
authority. The certificate is conclusive evidence of the due and
proper appointment of a director."
SECTION 486. Section 42-7-200 of the 1976 Code, as last
amended by Act 459 of 1994, is further amended to read:
"Section 42-7-200. (A) There is established within the
office of the Second Injury Fund the South Carolina Workers'
Compensation Uninsured Employers' Fund to ensure payment of
workers' compensation benefits to injured employees whose
employers have failed to acquire necessary coverage for employees.
The fund must be administered by the director of the Second Injury
Fund who shall establish procedures to implement this section.
When an employee makes a claim for benefits pursuant to Title
42 and the State Workers' Compensation Commission determines
that the employer is subject to Title 42 and is operating without
insurance or as an unqualified self-insurer, the commission shall
notify the fund of the claim. The fund shall pay or defend the
claim as it considers necessary in accordance with the provisions of
Title 42.
When the fund is notified of a claim, the fund may place a lien
on the assets of the employer by way of lis pendens or otherwise so
as to protect the fund from payments of costs and benefits. If the
fund is required to incur costs or expenses or to pay benefits, the
fund has a lien against the assets of the employer to the full extent
of all costs, expenses, and benefits paid and may file notice of the
lien with the clerk of court or register of mesne conveyances of any
county in which the employer has assets in the same manner as the
filing of South Carolina tax liens and with the Secretary of
State Department of Commerce in the same manner as
utilized under Title 36 (Uniform Commercial Code). Any of the
employer's assets sold or conveyed during the litigation of the
claim must be sold or conveyed subject to the lien.
The fund has all rights of attachment set forth in Section
15-19-10 and has the right to proceed otherwise in the collection of
its lien in the same manner as the Department of Revenue and
Taxation is allowed to enforce a collection of taxes generally
pursuant to Section 12-49-10, et seq. When all benefits due the
claimant, as well as all expenses and costs of litigation, have been
paid, the fund shall file notice of the total of all monies paid with
the clerk of court in any county in which the employer has assets
and with the Secretary of State Department of
Commerce. This notice constitutes a judgment against the
employer and has priority as a first lien in the same manner as liens
of the Department of Revenue and Taxation, subject only to the lien
of the Department of Revenue and Taxation pursuant to Section
12-49-10, et seq. If the employer files for bankruptcy or otherwise
is placed into receivership, the fund becomes a secured creditor to
the assets of the employer in the same manner as the Department
of Revenue and Taxation has priority for unpaid taxes, subject only
to the lien of the Department of Revenue and Taxation. The fund
otherwise has all rights and remedies afforded the Department of
Revenue and Taxation as set forth in Section 12-54-10, et seq.
(B) Nothing in this section precludes the South Carolina
Workers' Compensation Uninsured Employers' Fund from entering
into an agreement for the reimbursement of expenses, costs, or
benefits paid by the fund. If an agreement is entered into
subsequent to the filing of a lien, the lien may be canceled by the
fund. Provided, however, an agreement between the fund and an
employer under this section may provide that in the event the
employer breaches the terms or conditions of the agreement, the
fund may file or reinstate a lien, as the case may be. For purposes
of this section, the term "costs' includes reasonable
administrative costs which must be set by the director of the
Second Injury Fund, subject to the approval of the Workers'
Compensation Commission.
(C) To establish and maintain the South Carolina Workers'
Compensation Uninsured Employers' Fund, there must be
earmarked from the collections of the tax on insurance carriers and
self-insured persons provided for in Sections 38-7-50 and 42-5-190
an amount sufficient to establish and annually maintain the fund at
a level of not less than two hundred thousand dollars.
(D) When an employee makes a claim for benefits pursuant to
Title 42 and the records of the South Carolina Workers'
Compensation Commission indicate that the employer is operating
without insurance, the South Carolina Workers' Compensation
Uninsured Employers' Fund or any person designated by the
director may subpoena the employer or its agents and require the
production of any documents or records which the fund considers
relevant to its investigation of the claim. The subpoena shall be
returnable at the office of the fund or any place designated by it.
In the case of refusal to obey a subpoena issued to any person or
agent of any employer, a court of common pleas upon application
of the fund may issue an order requiring the person or agent of an
employer to appear at the fund and produce documentary evidence
or give other evidence concerning the matter under inquiry."
SECTION 487. Section 44-7-1830 of the 1976 Code is amended
to read:
"Section 44-7-1830. The term of office of the members of
the board shall be six years. The initial terms however shall be
adjusted in the following manner:
At the first meeting of the board, the initial terms of the eighteen
representatives from the six counties shall be determined by lot with
six of the members to serve a term of six years, six of the members
to serve a term of four years, and six of the members to serve a
term of two years. The Secretary of State Governor's
Office shall be notified as to the terms established by lot.
The term of each member shall expire on the January first nearest
to the end of the term of years for which he is appointed or as
otherwise provided in the foregoing provisions; provided, that each
member shall serve until his successor is appointed and
qualified."
SECTION 488. Section 44-7-2030 of the 1976 Code is amended
to read:
"Section 44-7-2030. The terms of office of the members of
the board are for the length of time set forth in the enactment of the
health services district but not to exceed six years. Initial terms
must be established so that the terms of members of the board must
expire on a staggered basis. Terms of board members must expire
on a uniform date set forth in the enactment creating the health
services district, provided, that each member shall serve until his
successor is appointed and qualifies. Any vacancy shall be filled in
the same manner as the original appointment for the unexpired
portion of the term. A copy of the enactments of the respective
counties or municipalities creating a health services district must be
filed with the Secretary of State Governor's Office.
The Secretary of State Governor's Office must be
notified of the method established for staggering the terms of
members of the board."
SECTION 489. Section 44-7-2120 of the 1976 Code is amended
to read:
"Section 44-7-2120. All properties owned by a district,
whether real, personal, or mixed, and the income from the
properties, all securities issued by a district and the indentures and
other instruments executed as security therefor, all leases made
pursuant to the provisions of this article, and all revenues derived
from these leases, and all deeds and other documents executed by
or delivered to a district, are exempt from any and all taxation by
the State or by any county, municipality, or other political
subdivision of the State, including, but without limitation, license
excise taxes imposed in respect of the privilege of engaging in any
of the activities in which a district may engage. A district is not
obligated to pay or allow any fees, taxes, or costs to the clerk of
court, the Secretary of State, or the register of mesne
conveyances in any county in respect of its incorporation, the
amendment of its certificate of incorporation, or the recording of
any document. The gross proceeds of the sale of any property
owned by the district and used in the construction and equipment of
any health care facilities for a district is exempt from all other and
similar excise or sales taxes. It is the express intent of this section
that any district authorized under this article incurs no tax liability
to the State or any of its political subdivisions except to the extent
that sales and use taxes may be payable on the purchases of goods
or equipment by the district."
SECTION 490. Section 44-7-2153 of the 1976 Code is amended
to read:
"Section 44-7-2153. (1) Within forty days following the
adoption of the authorizing resolution, the applicant shall proceed to
incorporate the district by filing for record in the office of the
Secretary of State Governor a certificate of
incorporation which shall comply with the requirements of this
article and must be in the form and executed in the manner
provided in this article.
(2) In addition to any other provisions required by this article,
the certificate of incorporation of the district shall state:
(a) all information ordinarily included in the application for
incorporation of corporations incorporated in this State;
(b) the name of each authorizing subdivision together with
the date on which the governing body of the subdivision adopted
the authorizing resolutions;
(c) the method by which the district may be dissolved and
provisions relating to the vesting of title to its assets and properties
upon its dissolution;
(d) any matters relating to the district that the incorporators
may choose to insert that are not inconsistent with this article or
with the laws of this State.
(3) The certificate of incorporation must be signed and
acknowledged by each of the incorporators before a notary public.
(4) When the certificate of incorporation is filed for record,
there must be attached to it:
(a) a certified copy of each authorizing resolution;
(b) a certificate by the Secretary of State
Governor's Office that the name of the district is not
identical to that of any other corporation organized under the laws
of the State or so nearly similar thereto as to lead to confusion or
uncertainty.
(5) Upon filing for record the certificate of incorporation and,
the documents required by subsection (4), the district is
incorporated and constitutes a public corporation under the name set
forth in its certificate of incorporation. The Secretary of
State Governor's Office shall record the certificate of
incorporation in an appropriate manner.
(6) The Secretary of State Governor's Office,
subject to the requirements of this article, shall prescribe the exact
form of the certificate of incorporation."
SECTION 491. Section 44-7-2154 of the 1976 Code is amended
to read:
"Section 44-7-2154. The certificate of incorporation of any
district incorporated under the provisions of this article, as well as
that of any public hospital or corporation reincorporated under the
provisions of this article, may be amended only upon the board of
the district adopting a resolution proposing an amendment which
amendment is subject to approval of the governing body of each
authorizing subdivision or may be amended upon the initiative of
the governing body of each authorizing subdivision. All these duly
approved amendments must be filed with the Secretary of
State Governor's Office in the same manner as with the
original certificate of incorporation."
SECTION 492. Section 44-61-70 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 44-61-70. (a) The appropriate official of the
department having authority over emergency services shall have
authority to recommend suspension of the license, certificate or
permit of any person, firm, corporation, association, county, district,
municipality or metropolitan government or agency for
noncompliance with this chapter or the standards or the rules and
regulations promulgated pursuant thereto.
The department official, if he has reason to believe that
reasonable grounds exist, shall recommend to the board the
suspension or revocation of the authorization, license, permit or
certification of the licensee and shall notify the licensee of his
recommendation not less than thirty days before the board shall
consider such recommendation. The notice shall specify the alleged
grounds therefor and the licensee shall be offered an opportunity to
be heard at the hearing of the board in answer thereto. The board,
at a full evidentiary hearing, shall determine whether or not the
authorization, license, permit or certification shall be suspended or
revoked. The decision to suspend or revoke shall be by majority
vote of the total membership of the board. Such decision shall
constitute final administrative action and shall be subject to review
by the Circuit Court upon petition filed with the court and a copy
thereof served upon the secretary of the board within thirty days
from the date of delivery of the decision of the board from which
such person is appealing.
No suspension or revocation of a license, authorization, permit or
certification shall be effective until such time as the question of
suspension or revocation has been finally resolved and if a decision
of the board is appealed in court, no such suspension or revocation
shall be effective until a final court determination is made.
Provided, however, that if the Director of the Department of Health
and Environmental Control determines that a clear and present
danger would exist to the public health, safety or welfare if the
license, authorization, permit or certification were not immediately
suspended or revoked, the suspension or revocation shall be
immediate.
(b) Grounds for revocation or suspension of an authorization,
license, permit or certification shall exist for violation of any rule or
regulation prescribed by the Board if such rule or regulation has
been duly filed with the Secretary of State pursuant to
the Administrative Procedures Act (Chapter 23, Title 1).
(c) Whoever hinders, obstructs or interferes with an officer,
inspector or duly authorized agent of the Department while in the
performance of his duties or violates any provision of this chapter
or rule or regulation of the Board promulgated pursuant thereto
shall be deemed guilty of a misdemeanor and, upon conviction,
shall be punished by a fine of not less than fifty dollars nor more
than two thousand dollars or by imprisonment for not less than ten
days nor more than six months for each offense. Any certificate of
the Department in regard to the records of the Department shall be
admissible in evidence in all prosecutions under this chapter."
SECTION 493. Section 44-61-150 of the 1976 Code is amended
to read:
"Section 44-61-150. All rules and regulations promulgated
by the Board shall be filed with the Secretary of State
pursuant to the Administrative Procedures Act (Chapter 23,
Title 1)."
SECTION 494. Section 44-79-80(4)(c) of the 1976 Code is
amended to read:
"(c) If a corporation, a certified copy of the certificate of
authority or good standing certificate from the Secretary of
State Department of Commerce of South
Carolina."
SECTION 495. Section 46-5-10 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 46-5-10. There is created the Agriculture
Commission of South Carolina, to be composed of one member
from each judicial circuit and one member from the State at large
who shall be designated chairman. The Commissioner of
Agriculture shall be a member, ex officio, but without the power to
vote. All terms shall be for four years, except that of the chairman,
who shall be appointed by the Governor and whose term shall be
coterminous with the office of the Governor appointing. The
chairman shall be an agricultural producer or grower of agricultural
products. The member representing a judicial circuit shall be elected
by the legislative delegations representing the circuit. Representation
on the Commission shall be rotated among the counties of the
circuit except by unanimous consent of all members of the
legislative delegation representing the circuit. The Commissioner of
Agriculture shall serve as secretary to the Commission. No one
shall be appointed or elected who should attain the mandatory
retirement age prior to the expiration of his term.
The legislative delegations representing the counties of each
judicial circuit shall meet upon written call of a majority of the
members of the delegations of each judicial circuit at a time and
place to be designated in such call for the purpose of electing a
member of the Commission to represent such circuit. A majority
present, either in person or by written proxy, of the members of the
county legislative delegations from a given circuit shall constitute a
quorum for the purpose of electing a member, but no person shall
be declared elected who shall fail to receive a majority vote of all
the members of the county legislative delegations from the circuit.
The joint county legislative delegations of each circuit shall be
organized by the election of a chairman and a secretary and such
joint legislative delegations shall, subject to the provisions herein,
adopt such rules as they deem proper to govern the election. Any
absentee may vote by written proxy. When the election is
completed, the chairman and secretary of the joint county legislative
delegations of each circuit shall immediately transmit the name of
the person elected to the Secretary of State
Governor who shall forthwith issue to such person, after he
has taken the usual oath of office, a certificate of election as a
member of the Agriculture Commission of South Carolina. The
Governor shall thereupon issue a commission to such person and
pending such issuance the certificate of election shall be a sufficient
warrant to such person to perform all of the duties and functions of
his office.
Any vacancy shall be filled in the manner as prescribed herein
by election by the legislative delegations of the judicial circuit for
the unexpired portion of the term.
The Commission shall meet on the call of the chairman or a
majority of the members."
SECTION 496. Section 46-13-60(2)(a)(iii) of the 1976 Code, as
last amended by Act 491 of 1990, is further amended to read:
"(iii) the name and address of a person, who may be the
Secretary of State Attorney General, whose
domicile is in the State, and who is authorized to receive and accept
services of summons and legal notice of all kinds for the
applicant;"
SECTION 497. Section 46-15-30 of the 1976 Code is amended
to read:
"Section 46-15-30. Any rules and regulations made and
promulgated under the provisions of paragraph (12) of Section
46-15-20 shall be filed with the Secretary of State
pursuant to the Administrative Procedures Act (Chapter 23,
Title 1) and shall be posted in a conspicuous place in each
market. When so filed and posted such rules and regulations shall
have the force and effect of law."
SECTION 498. Section 46-17-260 of the 1976 Code is amended
to read:
"Section 46-17-260. Each commodity board is authorized
to accept donations, gifts, and other property to be used for
commodity board purposes. Each commodity board may exercise
the powers and authority conferred by law upon corporations. It
shall be the duty of the Commission to certify to the Secretary
of State Governor the status and changes in the
membership of each commodity board. All marketing orders and
agreements receiving assent in referendum and all bylaws and rules
and regulations pertaining thereto shall be filed in the office of the
Secretary of State Governor."
SECTION 499. Section 46-19-20 of the 1976 Code is amended
to read:
"Section 46-19-20. The Department shall investigate and
consider all petitions for local marketing authorities filed with it
and, if a need for such local authority and reasonable chances for
success shall appear, the department shall certify such facts to the
Secretary of State Department of Commerce who,
without charge, shall issue a certificate of incorporation to the local
marketing authority."
SECTION 500. Section 46-33-40 of the 1976 Code is amended
to read:
"Section 46-33-40. As a further condition precedent for
doing business in this State any person to whom the provisions of
Section 46-33-10 apply shall appoint the Secretary of State
Attorney General as his agent to accept service in any suit
brought against him for the violation of the conditions of the bond
required by Section 46-33-20."
SECTION 501. Section 46-39-30 of the 1976 Code is amended
to read:
"Section 46-39-30. They shall file with the Secretary
of State Department of Commerce a written petition
signed by themselves setting forth:
(1) The names and residences of the petitioners;
(2) The name of the proposed association which shall include
the words `Farmers Association';
(3) The place at which it proposes to have its principal place
of business;
(4) The amount of capital stock of the association and how
and when payable;
(5) The number of shares into which the capital stock is to be
divided and the par value of each share; and
(6) All other matters which may be desirable to set forth or
which the Secretary of State Department of
Commerce may require."
SECTION 502. Section 46-39-40 of the 1976 Code is amended
to read:
"Section 46-39-40. Upon the filing of the petition as
above and upon the payment of the fee for filing such petition, the
Secretary of State Department of Commerce shall
issue to the petitioners a commission constituting them a board of
incorporators and authorizing them to open books of subscription to
the capital stock of the proposed association after such public
notice, not exceeding ten days, as he may require in such
commission."
SECTION 503. Section 46-39-130 of the 1976 Code is amended
to read:
"Section 46-39-130. Upon the payment to the treasurer or
the secretary-treasurer of the association of at least twenty per cent
of the aggregate amount of the capital subscribed payable in money
and also upon the delivery of at least twenty per cent of the
property subscribed to the aggregate amount of the capital stock or
upon its delivery being secured by such obligations of the
subscribers as the board of directors may approve the board of
directors shall, over their own signatures, certify to the Secretary
of State Department of Commerce that all the
requirements for the formation of the association have been
complied with.
Upon the filing of this return by the directors and the payment of
the required fee for filing such return and upon the receipt of the
charter fee as now provided by law the Secretary of State
Department of Commerce shall issue to the board of
incorporators a certificate of charter authorizing the association to
commence business under the name and for the purposes indicated
in the written declaration. The certificate of charter granted by the
Secretary of State Department of Commerce shall
be recorded in the office of the register of mesne conveyances or
the clerk for the county in which such association shall have a
business office. The board of incorporators shall turn over to the
proper officers of the association all subscriptions, lists and other
papers which they have taken as incorporators and all such papers
shall be as valid as if taken and made by the association."
SECTION 504. Section 46-39-150 of the 1976 Code is amended
to read:
"Section 46-39-150. Any association organized for the
purposes aforesaid which shall have accomplished the purpose for
which it has been organized or which may desire to wind up its
affairs may do so upon a vote of a two-thirds majority of its
members at a meeting of which published notice or written notice
mailed to each member shall be given. Such notice shall state the
purpose of the proposed meeting. A certificate stating such facts
shall be filed with the Secretary of State Department of
Commerce."
SECTION 505. Section 46-39-160 of the 1976 Code is amended
to read:
"Section 46-39-160. A certified copy of the charter and
any amendment thereof from the Secretary of State
Department of Commerce or from the clerk of the court or
register of mesne conveyances of the county in which such charter
is required to be recorded shall be sufficient evidence of the
incorporation of any association chartered under this chapter and of
any amendment to its certificate of incorporation."
SECTION 506. Section 46-39-170 of the 1976 Code is amended
to read:
"Section 46-39-170. All papers required to be filed
hereunder and all charters or amendments thereof that may be
granted shall be filed under proper numbers and indexed by the
Secretary of State Department of Commerce. The
charter or amendments shall be recorded within thirty days after its
receipt in the office of the clerk of court or register of mesne
conveyances in the county in which the corporation is
organized."
SECTION 507. Section 48-4-30 of the 1976 Code, as added by
Section 1174, Act 181 of 1993, is amended to read:
"Section 48-4-30. The department shall be governed by a
board consisting of seven non-salaried board members. Board
members of the former Department of Wildlife and Marine
Resources shall serve as board members for the Department of
Natural Resources until their terms expire and their successors are
appointed and qualify. All board members shall be appointed by
the Governor with the advice and consent of the Senate. One
member shall be appointed from each congressional district of the
state and one shall be appointed from the state at-large. In making
appointments, race, gender, and other demographic factors should
be considered to assure nondiscrimination, inclusion, and
representation to the greatest extent possible of all segments of the
population of the State; however, consideration of these factors in
making an appointment in no way creates a cause of action or basis
for an employee grievance for a person appointed or for a person
who fails to be appointed. Board members must possess sound
moral character, superior knowledge in the fields of wildlife,
marine, and natural resource management, and proven
administrative ability.
The Governor may remove any board member pursuant to the
provisions of Section 1-3-240.
Terms of the members shall be for four years and until their
successors are appointed and qualify. If a vacancy occurs when the
General Assembly is not in session, it must be filled by the
Governor's appointment for the unexpired term, subject to
confirmation by the Senate at the next session of the General
Assembly.
Each board member, within thirty days after notice of
appointment and before taking office, shall take and file with the
Secretary of State Governor the oath of office
prescribed by the State Constitution.
One of the members of the board shall be designated by the
Governor to serve as chairman."
SECTION 508. Section 48-9-620 of the 1976 Code, as last
amended by Section 1188, Act 181 of 1993, is further amended to
read:
"Section 48-9-620. [From and after July 1, 1994, this
section reads as follows:] The two appointed commissioners shall
present to the Secretary of State Governor an
application signed by them, which shall set forth (and such
application need contain no detail other than the mere recitals) that:
(1) A petition for the creation of the district was filed with the
department pursuant to the provisions of this chapter and that the
proceedings specified in this chapter were taken pursuant to such
petition;
(2) The application is being filed in order to complete the
organization of the district under this chapter and the department
has appointed the signers as commissioners;
(3) The name and official residence of each of the
commissioners, together with a certified copy of the appointments
evidencing their right to office;
(4) The term of office of each of the commissioners;
(5) The name which is proposed for the district; and
(6) The location of the principal office of the commissioners of
the district.
The application shall be subscribed and sworn to by each of the
commissioners before an officer authorized by the laws of this State
to take and certify oaths, who shall certify upon the application that
he personally knows the commissioners and knows them to be the
officers as affirmed in the application and that each has subscribed
thereto in the officer's presence. The application shall be
accompanied by a statement by the department which shall certify
(and such statement need contain no detail other than the mere
recitals) that a petition was filed, notice issued and hearing held as
provided in Sections 48-9-510 and 48-9-540; that the department
did duly determine that there is need, in the interest of the public
health, safety and welfare, for a soil and water conservation district
to function in the proposed territory and did define the boundaries
thereof; that notice was given and a referendum held on the
question of the creation of such district and that the result of such
referendum showed a majority of the votes cast in such referendum
to be in favor of the creation of the district; and that thereafter the
department did duly determine that the operation of the proposed
district is administratively practicable and feasible. Such statement
shall set forth the boundaries of the district as defined by the
department."
SECTION 509. Section 48-9-630 of the 1976 Code, as last
amended by Section 1188, Act 181 of 1993, is further amended to
read:
"Section 48-9-630. [From and after July 1, 1994, this
section reads as follows:] The Secretary of State
Governor shall examine the application and statement and,
if he finds that the name proposed for the district is not identical
with that of any other soil and water conservation district of this
State or so nearly similar as to lead to confusion or uncertainty, he
shall receive and file them and shall record them in an appropriate
book of record in his office. If the Secretary of State
Governor shall find that the name proposed for the district
is identical with that of any other soil and water conservation
district of this State or so nearly similar as to lead to confusion and
uncertainty, he shall certify such fact to the department, which shall
thereupon submit to the Secretary of State Governor
a new name for the district, which shall not be subject to such
defects. Upon receipt of such new name, free of such defects, the
Secretary of State Governor shall record the
application and statement, with the name so modified, in an
appropriate book of record in his office. When the application and
statement have been made, filed and recorded, as provided in
Section 48-9-620 and this section, the district shall constitute a
governmental subdivision of this State and a public body corporate
and politic exercising public powers. The Secretary of State
Governor shall make and issue to the commissioners a
certificate, under the seal of the State, of the due organization of the
district and shall record such certificate with the application and
statement."
SECTION 510. Section 48-9-650 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-650. In any suit, action or proceeding
involving the validity or enforcement of, or relating to, any
contract, proceeding or action of the district, the district shall be
deemed to have been established in accordance with the provisions
of this chapter upon proof of the issuance of the certificate by the
Secretary of State Governor as provided in Section
48-9-630. A copy of such certificate duly certified by the
Secretary of State Governor shall be admissible in
evidence in any such suit, action or proceeding and shall be proof
of the filing and contents thereof."
SECTION 511. Section 48-9-850 of the 1976 Code, as last
amended by Section 1189, Act 181 of 1993, is further amended to
read:
"Section 48-9-850. The department shall then proceed in
accordance with Sections 48-9-610 to 48-9-630 to organize the
subdivision into a district and to inform the Secretary of
State Governor of the change in the boundaries of the
remaining district and to complete the organization of the governing
body of the remaining district."
SECTION 512. Section 48-9-1040 of the 1976 Code, as last
amended by Section 1190, Act 181 of 1993, is further amended to
read:
"Section 48-9-1040. Upon receipt from the department of
a certification that the department has determined that the continued
operation of the district is not administratively practicable and
feasible, pursuant to the provisions of this article, the
commissioners shall forthwith proceed to terminate the affairs of the
district. The commissioners shall dispose of all property belonging
to the district at public auction and shall pay over the proceeds of
such sale to be converted into the State Treasury. The
commissioners shall thereupon file an application, duly verified,
with the Secretary of State Governor for the
discontinuance of such district and shall transmit with such
application the certificate of the department setting forth the
determination of the department that the continued operation of
such district is not administratively practicable and feasible. The
application shall recite that the property of the district has been
disposed of and the proceeds paid over as in this section provided
and shall set forth a full accounting of such properties and proceeds
of the sale. The Secretary of State Governor shall
issue to the commissioners a certificate of dissolution and shall
record such certificate in an appropriate book of record in his
office."
SECTION 513. Section 48-27-20 of the 1976 Code is amended
to read:
"Section 48-27-20. A State Board of Registration for
Foresters is created whose duty it is to administer the provisions of
this chapter. The Board shall consist of five registered foresters,
recommended by the Foresters Council of South Carolina and two
nonforester members recommended by the South Carolina Forestry
Association, appointed by the Governor. The Governor shall also
consider nominations from any other individual, group, or
association. Each member of the Board must be commissioned by
the Governor and, before beginning his term of office, shall file
with the Secretary of State Governor his written
oath or affirmation for the faithful discharge of his official duty. On
the expiration of the term of any member of the Board, three
nominees for each position recommended by the designated group
must be submitted to the Governor from which he shall appoint for
a term of five years a Board member having the qualifications
required by Section 48-27-30 to take the place of each member
whose term on the Board is expiring. Any vacancy occurring for a
reason other than the expiration of office must be filled by the
Governor from three nominees recommended by the designated
group to fill the unexpired term of the member. If the Governor
fails to make appointment in ninety days after expiration of any
term, the Board shall make the necessary appointment. Each
member shall hold office until the expiration of the term for which
he is appointed and until a successor is duly appointed and
qualifies."
SECTION 514. Section 48-27-220 of the 1976 Code is amended
to read:
"Section 48-27-220. A roster, showing the names and
places of business of all registered foresters qualified according to
the provisions of this chapter, shall be prepared by the secretary of
the board during the month of July of each year. Copies of this
roster shall be mailed to each person so registered, placed on file
with the Secretary of State Governor, and furnished
to the public on request."
SECTION 515. Section 48-37-30 of the 1976 Code is amended
to read:
"Section 48-37-30. When the Governor shall have
executed such compact on behalf of this State and shall have caused
a verified copy thereof to be filed with the Secretary of
State in his office, and when such compact shall have
been ratified by one or more of the states named in Section
48-37-10, then such compact shall become operative and effective
as between this State and such other state or states. The Governor
shall take such action as may be necessary to complete the
exchange of official documents as between this State and any other
state ratifying such compact."
SECTION 516. Section 48-43-40(D) of the 1976 Code, as last
amended by Section 1236, Act 181 of 1993, is further amended to
read:
"(D) All rules, regulations, and orders made by
the Department of Health and Environmental Control shall be in
writing, shall be entered in full and indexed in books to be kept by
the department for that purpose, and shall be public records open
for inspection at all times during office hours. In addition, all rules
and regulations shall be filed with the Secretary of State
pursuant to the Administrative Procedures Act (Chapter 23,
Title 1). A copy of any rule, regulation or order, certified by
any member of the department or the department, under its seal,
shall be received in evidence in all courts of this State with the
same effect as the original."
SECTION 517. Section 49-7-120 of the 1976 Code is amended
to read:
"Section 49-7-120. The Authority shall conduct its affairs
on the fiscal year basis employed by the State, viz., its fiscal year
shall begin on July first of each year and shall end on June thirtieth
of the succeeding year. As shortly after the close of its fiscal year
as may be practicable, an audit of its affairs shall be made by
certified public accountants of good standing, to be designated by
the Authority. Copies of such audits, incorporated into an annual
report of the Authority, shall be filed with the treasurer of Berkeley
County, the clerk of the city council of Charleston, in the offices of
the clerks of court for Berkeley and Charleston Counties, and with
the Secretary of State Governor."
SECTION 518. Section 49-19-320 of the 1976 Code is amended
to read:
"Section 49-19-320. Immediately after the district has been
declared a corporation by the court the clerk thereof shall transmit
to the Secretary of State Governor a certified copy
of the findings and decree of the court incorporating the district and
such copy shall be filed in the office of the Secretary of
State Governor. A copy of such findings and decree
together with a plat of the district showing the outside boundary
lines shall also be filed in the office of the clerk of the court of
common pleas in each of the counties having land in the district,
where such copy shall become a permanent record, and each such
clerk shall receive a fee of one dollar for filing and preserving
it."
SECTION 519. Section 49-19-2540 of the 1976 Code is
amended to read:
"Section 49-19-2540. The clerk of the court shall, within
ten days after the granting of such decree, transmit a certified copy
of the petition to the secretary of the board of supervisors and also
a copy to each of the clerks of the courts of common pleas of the
counties having land in the district and to the Secretary of
State Governor. Each such clerk shall file and preserve
the copy in his office and for such filing and preserving he shall
receive a fee of one dollar."
SECTION 520. Section 49-19-2580 of the 1976 Code is
amended to read:
"Section 49-19-2580. When the petition has been filed
the clerk of the court shall give notice of such filing in the manner
provided for giving notice in Section 49-19-250, the notice to state
substantially the contents of the petition and the objects sought and
the term of court at which the matter is to be heard. Any person
owning land in either of the districts may, on or before the first day
of such term of court, file objections to the regularity or sufficiency
of any of the proceedings had in the premises and if such objections
are overruled or if no objections are made the court shall make an
order that any two or more of the several districts so asking to be
united shall be united and consolidated as one district, under some
appropriate designation, with all the rights, powers and privileges of
such districts organized under this chapter. All orders made in
regard to extension of time, boundaries or uniting districts shall be
spread on the records of the court of common pleas and a certified
copy thereof shall be filed with the clerk of the court of common
pleas of each county in which any of such lands is located and also
with the Secretary of State Governor and such clerk
shall receive a fee of one dollar for filing and preserving such
certificates."
SECTION 521. Section 49-19-2610 of the 1976 Code is
amended to read:
"Section 49-19-2610. If a majority of the acreage
represented at such meeting shall vote in favor of such extension
the board of supervisors shall, not less than ten days before the next
term of the court of common pleas, file a petition with the clerk of
such court, praying for the extension of the corporate existence of
the district. After filing the petition the same proceedings shall be
had as is provided for in this chapter relating to the incorporation of
the district. If such petition be granted by the court within ten days
thereafter the clerk shall transmit a copy of the decree to the
secretary of the board of supervisors, a copy to the Secretary of
State Governor and a copy to the clerk of the court of
common pleas of each county having land in the district. Such
clerks shall file and preserve the copies in their respective offices
and for such service shall each receive a fee of one dollar. In case
the court should find that such extension should not be allowed the
petition shall be dismissed and the cost incurred in the case be paid
by the district."
SECTION 522. Section 49-27-70 of the 1976 Code, as last
amended by Section 1253, Act 181 of 1993, is further amended to
read:
"Section 49-27-70. (A) A copy of the joint ordinance
creating the commission and of any joint ordinance amending or
repealing the joint ordinance creating the commission must be filed
with the Executive Director of the North Carolina Wildlife
Resources Commission and the Director of the South Carolina
Department of Natural Resources. When the directors receive
ordinances that are in substance identical from all three counties
concerned, they, in accordance with procedures agreed upon, shall,
within ten days, certify this fact and distribute a certified single
ordinance text to the following:
(1) the Secretary of State of North Carolina and the
Secretary of State Governor of South Carolina;
(2) the clerk to the governing board of each of the three
counties;
(3) the clerk of superior court of Mecklenburg and Gaston
Counties and the clerk of court of York County. Upon request, the
directors also shall send a certified single copy of any and all
applicable joint ordinances to the chairman of the commission;
(4) a newspaper of general circulation in the three counties.
(B) Unless a joint ordinance specifies a later date, it shall take
effect when the directors' certified text has been submitted to the
Secretaries of State named officials for filing.
Certifications of the directors under the seal of the commission as
to the text or amended text of any joint ordinance and of the date or
dates of submission to the Secretaries of State named
officials is admissible in evidence in any court. Certifications
by any clerk of superior court or county clerk of court of the text of
any certified ordinance filed with him by the directors is admissible
in evidence and the directors' submission of the ordinance for filing
to the clerk shall constitute prima facie evidence that the ordinance
was on the date of submission also submitted for filing with the
Secretary of State Governor of South Carolina.
Except for the certificate of a clerk as to receipt and date of
submission, no evidence may be admitted in court concerning the
submission of the certified text of any ordinance by the directors to
any person other than the Secretary of State Governor of
South Carolina."
SECTION 523. Section 49-27-80 of the 1976 Code, as last
amended by Section 1254, Act 181 of 1993, is further amended to
read:
"Section 49-27-80. (A) Except as limited in subsection
(B) of this section, by restrictions in any joint ordinance, and by
other supervening provisions of law, the commission may make
regulations applicable to Lake Wylie and its shoreline area
concerning all matters relating to or affecting the use of Lake
Wylie. These regulations may not conflict with or supersede
provisions of general or special acts or of regulations of state
agencies promulgated under the authority of general law. No
regulations adopted under the provisions of this section may be
adopted by the commission except after public hearing, with
publication of notice of the hearing in a newspaper of general
circulation in the three counties at least ten days before the
hearing. In lieu of or in addition to passing regulations
supplementary to state law and regulations concerning the operation
of vessels on Lake Wylie, the commission may, after public notice,
request that the North Carolina Wildlife Resources Commission and
the South Carolina Department of Natural Resources pass local
regulations on this subject in accordance with the procedure
established by appropriate state law.
(B) Violation of any regulation of the commission commanding
or prohibiting an act is a misdemeanor punishable by a fine not to
exceed two hundred dollars or thirty days' imprisonment.
(C) The regulations promulgated under this section take effect
upon passage or upon such dates as may be stipulated in the
regulations except that no regulation may be enforced unless
adequate notice of the regulation has been posted in or on Lake
Wylie or its shoreline area. Adequate notice as to a regulation
affecting only a particular location may be by a sign, uniform
waterway marker, posted notice, or other effective method of
communicating the essential provisions of the regulation in the
immediate vicinity of the location in question. Where a regulation
applies generally as to Lake Wylie or its shoreline area, or both,
there must be a posting of notices, signs, or markers communicating
the essential provisions in at least three different places throughout
the area and it must be printed in a newspaper of general circulation
in the three counties.
(D) A copy of each regulation promulgated under this section
must be filed by the commission with the following persons:
(1) the Secretaries of State of North and South
Carolina Secretary of State of North Carolina and the
Governor of South Carolina;
(2) the clerk of superior court of Mecklenburg and Gaston
Counties and the clerk of court of York County;
(3) the Directors of the Wildlife Resources Commission of
North Carolina and the South Carolina Department of Natural
Resources.
(E) Any official designated in subsection (D) above may issue
certified copies of regulations filed with him under the seal of his
office. These certified copies may be received in evidence in any
proceeding.
(F) Publication and filing of regulations promulgated under this
section as required above is for informational purposes and is not a
prerequisite to their validity if they in fact have been duly
promulgated, the public has been notified as to the substance of
regulations, a copy of the text of all regulations is in fact available
to any person who may be affected, and no party to any
proceeding has been prejudiced by any defect that may exist with
respect to publication and filing. Rules and regulations
promulgated by the commission under the provisions of other
sections of this chapter relating to internal governance of the
commission need not be filed or published. Where posting of any
sign, notice, or marker or the making of other communication is
essential to the validity of a regulation duly promulgated, it is
presumed in any proceeding that prior notice was given and
maintained and the burden lies upon the party asserting to the
contrary to prove lack of adequate notice of any regulation."
SECTION 524. Section 50-3-140 of the 1976 Code, as last
amended by Section 1258, Act 181 of 1993, is further amended to
read:
"Section 50-3-140. [From and after July 1, 1994, this
section reads as follows:] The department shall file with the
Secretary of State and Legislative Council for publication in
the State Register a description and illustration of the uniform and
emblems of the official enforcement officers' uniforms and motor
vehicles and a description of the color of such uniforms and
vehicles."
SECTION 525. Section 50-3-315 of the 1976 Code, as last
amended by Section 1258, Act 181 of 1993, is further amended to
read:
"Section 50-3-315. (A) The director may appoint deputy
enforcement officers to serve without pay and shall establish their
territorial jurisdiction. The officers, when acting in their official
capacity, may enforce all laws and regulations relating to wildlife,
marine, or natural resources within their territorial jurisdiction. The
powers and duties of the officers must be established by regulations
of the department. Deputy enforcement officers serve at the
pleasure of the director. The Secretary of State
Governor shall transmit to the director the commissions of
all officers. The director shall transmit each commission to the
office of the clerk of court for the county in which the officer
resides only after he files the oaths and bonds required by Section
50-3-330.
(B) Deputy enforcement officers commissioned by the director
are volunteers covered by Chapter 25 of Title 8 and not employees
entitled to coverage or benefits in Title 42.
(C) Every two years the department shall conduct a criminal
records check on each deputy enforcement officer."
SECTION 526. Section 50-3-320 of the 1976 Code, as last
amended by Section 1258, Act 181 of 1993, is further amended to
read:
"Section 50-3-320. The Secretary of State
Governor shall transmit to the board the commissions of all
enforcement officers and the director shall deliver such
commissions to the enforcement officers only after the enforcement
officers have filed oaths and bonds as required by Section
50-3-330."
SECTION 527. Section 50-19-2240 of the 1976 Code, as last
amended by Section 1267, Act 181 of 1993, is further amended to
read:
"Section 50-19-2240. The department shall also negotiate
for and enter into a reciprocal agreement with the authorized
officials of the state of Georgia, adopting rules and regulations for
the preservation and propagation of fish and game within the area
described in Section 50-19-2220, the recognition of the licenses and
permits of one state by the other and the enforcement of the laws of
the two states over the area involved. If necessary to reach such an
agreement or it is deemed advisable for the better protection and
management of the game and fish of this area, the department may
increase the bag limit to not more than twelve bass and thirty other
game fish in possession at one time and may make and agree to
other reasonable rules and regulations with the Georgia authorities,
not inconsistent with the laws of this State, and may change or
alter them from time to time. Any rules and regulations so adopted
by the authorized officials of the two states on the above subjects
and not inconsistent with the laws of this State shall have the force
and effect of law, after being published in newspapers circulating in
the area at least once a week for three weeks and after copies
thereof have been filed with the Secretary of State
Governor, as provided by law. Any reciprocal agreement
so entered into shall contain a provision that either party thereto
may cancel it upon ninety days' written notice to the other
party."
SECTION 528. Section 50-19-2640 of the 1976 Code is
amended to read:
"Section 50-19-2640. The Department shall also negotiate
for and enter into a reciprocal agreement with the authorized
officials of the state of Georgia, adopting rules and regulations for
the preservation and propagation of fish and game within the area,
the recognition of the licenses and permits of one state by the other
and the enforcement of the laws of the two states over the area
involved. If necessary to reach such agreement or it is deemed
advisable for the better protection and management of the game and
fish of this area, the Department may increase the bag limit
prescribed by item (1) of Section 50-19-2620 to not more than
twelve bass and thirty other game fish in possession at one time and
may make and agree to other reasonable rules and regulations with
the Georgia authorities, not inconsistent with the laws of this State,
and may change or alter them from time to time. Any rules and
regulations so adopted by the authorized officials of the two states,
on the above subjects and not inconsistent with the laws of this
State, shall have the force and effect of law after being published in
newspapers circulating in the area at least once a week for three
weeks and after copies thereof have been filed with the
Secretary of State Governor, as provided by law.
Any reciprocal agreement so entered into shall contain a provision
that either party thereto may cancel it upon ninety days' written
notice to the other party."
SECTION 529. Section 51-11-40 of the 1976 Code, as last
amended by Section 1278, Act 181 of 1993, is further amended to
read:
"Section 51-11-40. The department shall file a copy of its
South Carolina Outdoor Recreation Plan of 1970 with the
Secretary of State Governor. The plan, and
amendments thereto, and such formulas and priorities promulgated
by the department for the purpose of administering it, shall serve as
a guide for the expenditure of these funds."
SECTION 530. Section 51-13-750 of the 1976 Code is amended
to read:
"Section 51-13-750. The Authority shall have jurisdiction
over the lands, waters, shores, spoil areas and marshes of that area
in Charleston harbor in Charleston County consisting of lands,
shores and marshes known as Hog Island and lands, shores, marshes
and spoil areas immediately adjacent to said Island; being bounded
on the north by the rights-of-way of U.S. Highway 17 and of the
Cooper River bridges, on the northeast by a creek running from
said right-of-way to Shem Creek, on the east by Shem Creek, on
the south by Hog Island channel, and on the west by the Cooper
River, all of which area is hereby designated as Patriot's Point and
shall be known and described as such; and the Authority may take,
exclusively occupy, use and possess, to the extent necessary for
carrying out the provisions of this article, any lands owned by the
State within the area hereinabove described, including shores,
waters, marshes, swamps and overflowed lands, bottoms of streams,
and bays within the area, and the riparian rights pertaining thereto;
excluding the adjacent navigation channels of Charleston harbor;
provided such use may be limited by navigation rights or other
easements reserved by the State or the United States and by
operation and maintenance of the harbor, channels and port of
Charleston by the State Ports Authority. When so taken and
occupied, due notice of such taking and occupancy having been
filed with the Secretary of State Governor, such
areas are hereby granted to and shall be the property of the
Authority, subject to the limitations for navigation and harbor and
port uses above provided, and the laws of the United States with
respect to navigable waters. For the purposes of this section, the
meaning of the term `use' shall include the removal of material,
including spoil or fill material, from and the placing of such
material on any part of the lands, shores, marshes and areas
hereinabove described. In the event it shall be held by a court of
competent jurisdiction that there is any property in the above
described areas which may not be so granted by the State, the
provisions of this section shall continue of full force and effect as
to all other areas so granted to the Authority, and the remainder
may be purchased or condemned by the Authority in the manner
hereinafter provided."
SECTION 531. Section 51-15-520 of the 1976 Code is amended
to read:
"Section 51-15-520. Any such city or municipality may
create corporations, own stock therein and name directors and
officers for the management thereof, for the purpose of having the
corporations acquire properties in like manner as provided in
Section 51-15-510 for the uses set out therein. The Secretary of
State Department of Commerce may issue charters for
such corporations just as charters are now issued for business
corporations and such corporations when formed shall have the
powers of usual business corporations, with special authority to buy,
sell, own, lease or mortgage the real and personal property so
acquired."
SECTION 532. Section 53-1-160 of the 1976 Code, as added
by Act 134 of 1995, is amended to read:
"Section 53-1-160. (A) In addition to other exemptions
provided by statute, the county governing body may by ordinance
suspend the application of the Sunday work prohibitions provided in
Chapter 1 of Title 53 in a county which does not qualify for the
exemption provided in Section 53-1-150. If the county governing
body suspends the application of Sunday work prohibitions, any
employee of any business which operates on Sunday under the
provisions of this section has the option of refusing to work in
accordance with Section 53-1-100. Any employer who dismisses or
demotes an employee because he is a conscientious objector to
Sunday work is subject to a civil penalty of treble the damages
found by the court or the jury plus court costs and the employee's
attorney's fees. The court may order the employer to rehire or
reinstate the employee in the same position he was in prior to the
dismissal or demotion without forfeiture of compensation, rank, or
grade. No proprietor of a retail establishment who is opposed to
working on Sunday may be forced by his lessor or franchisor to
open his establishment on Sunday nor may there be discrimination
against persons whose regular day of worship is Saturday.
(B) In addition to other exemptions provided by statute, the
Sunday work prohibitions provided in Chapter 1 of Title 53 may
only be continued:
(1) in a county which does not qualify for the exemption
provided in Section 53-1-150 within ninety days before the 1996
general election; or
(2) in a county in which the county governing body has not
suspended application of the Sunday work prohibitions by ordinance
as provided in subsection (A) within ninety days before the 1996
general election; if a majority of the qualified electors of that
county voting in a referendum at the time of the 1996 general
election vote in favor of the continued prohibition on Sunday work.
(C) The county election commission shall place the question in
subsection (G) on the ballot in November 1996 in a county:
(1) which does not qualify for the exemption provided in
Section 53-1-150 within ninety days before the 1996 general
election; or
(2) in which the county governing body has not suspended
application of the Sunday work prohibitions by ordinance as
provided in subsection (A) within ninety days before the 1996
general election.
(D) The state election laws shall apply to the referendum,
mutatis mutandis. The State Board of Canvassers shall publish the
results of the referendum within each county and certify them to the
Secretary of State State Election Commission.
(E) If a county in which the referendum is to be held qualifies
for the exemption provided in Section 53-1-150 after September 1,
1996, and before November 5, 1996, the county governing body
shall direct the county election commission not to place the question
on the ballot and not to hold the referendum.
(F) If the result of this referendum is not in favor of a
continuation of the prohibition on Sunday work within the county,
Chapter 1 of Title 53 shall not apply within such county after the
result of the referendum is certified to the Secretary of State
State Election Commission. Any employee of any business
which operates on Sunday under the provisions of this section has
the option of refusing to work in accordance with Section 53-1-100.
Any employer who dismisses or demotes an employee because he is
a conscientious objector to Sunday work is subject to a civil penalty
of treble the damages found by the court or the jury plus court costs
and the employee's attorney's fees. The court may order the
employer to rehire or reinstate the employee in the same position he
was in prior to the dismissal or demotion without forfeiture of
compensation, rank, or grade. No proprietor of a retail
establishment who is opposed to working on Sunday may be forced
by his lessor or franchisor to open his establishment on Sunday nor
may there be discrimination against persons whose regular day of
worship is Saturday.
(G) The question put before the voters shall read as follows:
`Shall the prohibition on Sunday work continue in this county
subject to an employee's right to elect not to work on Sunday if
the prohibition is not continued after certification of the result of
this referendum to the Secretary of State State Election
Commission?
Yes []
No [] '
(H) Notwithstanding the provisions of subsections (A) through
(G), the referendum provided by subsection (B) must be held in a
county which qualified for the exemption provided in Section
53-1-150 after May 8, 1985."
SECTION 533. Section 54-3-170 of the 1976 Code is amended
to read:
"Section 54-3-170. The Authority may take, exclusively
occupy, use and possess, in so far as may be necessary for carrying
out the provisions of this chapter, any areas of land owned by the
State and within the counties of Beaufort, Charleston and
Georgetown, not in use for State purposes, including swamps and
overflowed lands, bottoms of streams, lakes, rivers, bays, the sea
and arms thereof and other waters of the State and the riparian
rights thereto pertaining. When so taken and occupied, due notice of
such taking and occupancy having been filed with the Secretary
of State Governor, such areas of land are hereby
granted to and shall be the property of the Authority. For the
purposes of this section, the meaning of the term `use' shall
include the removal of material from and the placing of material on
any such land. In case it shall be held by any court of competent
jurisdiction that there are any lands owned by the State which may
not be so granted, then the provisions of this section shall continue
in full force and effect as to all other lands owned by the State. The
provisions of this section are subject to all laws and regulations of
the United States with respect to navigable waters."
SECTION 534. Section 55-5-180 of the 1976 Code, as last
amended by Section 1289, Act 181 of 1993, is further amended to
read:
"Section 55-5-180. The division shall keep on file with
the Secretary of State Governor and at the principal
office of the division for public inspection a copy of all its rules
and regulations. On or before December thirty-first, in each year,
the division shall make to the Governor a full report of its
proceedings for the year ending December first in each year and
may submit with such report such recommendations pertaining to its
affairs as seem to it to be desirable."
SECTION 535. Section 55-11-210 of the 1976 Code is amended
to read:
"Section 55-11-210. The commission is authorized to
adopt and promulgate rules and regulations governing the use of
roads, streets and parking facilities on lands of the
Greenville-Spartanburg Airport District. Such rules and regulations
shall not be in conflict with any state law and all state laws shall be
applicable to the roads, streets and parking facilities under the
control of the commission. Rules and regulations of the commission
shall become effective when filed with the Executive Secretary of
the Greenville-Spartanburg Airport and in the office of the
Secretary of State in accordance with Section 1-1-210.
The commission is authorized to employ police officers
commissioned by the Governor to enforce all laws and the rules
and regulations authorized in this section, and such officers shall be
authorized to issue summonses for violations in the manner
authorized for state highway patrolmen. Violations of any law or
any rule or regulation of the commission within the jurisdiction of
the Civil and Criminal Court of Spartanburg shall be tried in that
court. Violations not within the jurisdiction of that court shall be
tried by any magistrate or other court of competent jurisdiction.
Any person violating the rules and regulations of the commission
shall be deemed guilty of a misdemeanor and upon conviction shall
be fined not more than one hundred dollars or be imprisoned for
not more than thirty days.
All fines and forfeitures collected pursuant to the provisions of
this section shall be forwarded weekly to the
Greenville-Spartanburg Airport Commission by the enforcing court
for deposit in the general operating fund of the district."
SECTION 536. Section 56-21-70 of the 1976 Code is amended
to read:
"Section 56-21-70. The South Carolina Department of
Mental Health may adopt and promulgate rules and regulations
governing and controlling use of the roads, streets and parking
facilities by operators of vehicles within the area and lands of the
State Hospital and Midlands Center. No such rules and regulations
shall be in conflict with any State law on the subject, all of such
State laws being hereby declared in force and applicable to the
roads, streets and parking facilities under the control and authority
of the Department. Copies of the rules and regulations shall be filed
with the administrative heads of both institutions, the Secretary
of State, the Code Commissioner, the city of Columbia and the
magistrate's office in Upper township in Richland County."
SECTION 537. Section 57-1-325 of the 1976 Code, as added
by Section 1504, Act 181 of 1993, is amended to read:
"Section 57-1-325. Legislators residing in the
congressional district shall meet upon written call of a majority of
the members of the delegation of each district at a time and place to
be designated in the call for the purpose of electing a commissioner
to represent the district. A majority present, either in person or by
written proxy, of the delegation from a given congressional district
constitute a quorum for the purpose of electing a district
commissioner. No person may be elected commissioner who fails
to receive a majority vote of the members of the delegation.
The delegation must be organized by the election of a chairman
and a secretary, and the delegations of each congressional district
shall adopt such rules as they consider proper to govern the
election. Any absentee may vote by written proxy. When the
election is completed, the chairman and the secretary of the
delegation shall immediately transmit the name of the person
elected to the Secretary of State State Election
Commission who shall issue to the person, after he has taken
the usual oath of office, a certificate of election as commissioner.
The Governor shall thereupon issue a commission to the person,
and pending the issuance of the commission the certificate of
election is sufficient warrant to the person to perform all of the
duties and functions of his office as commissioner. Each
commissioner shall serve until his successor is elected and
qualified."
SECTION 538. Section 57-1-340 of the 1976 Code, as added
by Section 1504, Act 181 of 1993, is amended to read:
"Section 57-1-340. Each commission member, within
thirty days after his election or appointment, and before entering
upon the discharge of the duties of his office, shall take, subscribe,
and file with the Secretary of State Governor the
oath of office prescribed by the Constitution of the State."
SECTION 539. Section 57-5-180 of the 1976 Code, as amended
by Section 1509, Act 181 of 1993, is amended to read:
"Section 57-5-180. Upon execution of an agreement with
the Atomic Energy Commission, the Department of Transportation
shall file with the Secretary of State Governor a
copy of the agreement and shall publicly declare the date on which
the highway shall be a part of the state highway system. After such
execution, the terms of the agreement shall have full force
notwithstanding any other provisions of law relating to highways in
this State."
SECTION 540. Section 57-5-1410 of the 1976 Code is amended
to read:
"Section 57-5-1410. All turnpike bonds must be executed
in the name of and on behalf of the State of South Carolina and
must be signed by the Governor and the State Treasurer. The
Great Seal of the State must be affixed to, impressed, or reproduced
upon each of them and they must be attested by the Secretary of
State. If approved by the State Board, any one or two of the
officers may, in lieu of manually signing, employ the use of the
facsimile of their signatures in executing any turnpike bonds."
SECTION 541. Section 57-15-10 of the 1976 Code is amended
to read:
"Section 57-15-10. The governing body of every county
may grant charters for ferries and establish ferries under the
provisions of this chapter and shall report all such charters to the
Secretary of State Governor immediately after they
are granted."
SECTION 542. Section 57-21-20 of the 1976 Code is amended
to read:
"Section 57-21-20. Any area in any such county which
contains unimproved roads and streets aggregating not less than
one-half mile and not more than ten miles may be constituted,
created and established a paving district, in the following manner:
(1) A petition signed by a majority in number of the owners of
record of the property lying within the area proposed to be included
in the district shall be filed with the governing body of the county.
The petition shall contain a brief statement requesting that the area
be constituted a paving district and giving the boundaries of the
same and the type of paving desired and requesting that a special
election be held in such paving district to vote upon the question
whether an ad valorem tax shall be levied upon the property in the
proposed paving district to provide a special fund to repay the cost
of improving and paving the streets and roadways in the proposed
paving district.
(2) Upon the filing of such petition, the governing body of the
county shall cause a survey and plat to be made of the proposed
paving district and shall obtain estimates of the cost of improving
and paving the streets and roadways which it is proposed to
improve and pave in the district and, from such estimates, shall
determine the approximate cost of such paving. The estimates and
plat shall be filed with the governing body of the county.
(3) Within thirty days after the filing of the petition with the
governing body of the county, the governing body shall hold a
meeting to consider the petition, and if the governing body shall, in
its judgment, determine that the public interest would be promoted
by the paving of the streets and roadways in the proposed paving
district, it shall adopt a resolution approving the petition; or if, in
its judgment, it should determine that the public interest would not
be promoted by paving such streets and roadways, it shall adopt a
resolution disapproving the petition. If the governing body of the
county shall disapprove of the petition, the proposed paving district
shall not be created.
(4) Upon the adoption by the governing body of the county of a
resolution approving the petition, the governing body shall
forthwith transmit a certified copy of such resolution to the
Governor of the State, who shall thereupon, upon the
recommendation of a majority of the legislative delegation of such
county, appoint three qualified electors or owners of record of
property residing in the proposed paving district, who shall
constitute the paving district commission of the district.
(5) Upon the appointment of the three commissioners by the
Governor, he shall forthwith file a notice of such appointment
with the Secretary of State, and from the time of the filing of
such notice such paving district shall be created and shall constitute
a body politic and corporate with perpetual succession and shall
exercise and enjoy all the rights, privileges and immunities of such
and be subject to the rules and regulations herein imposed."
SECTION 543. Section 58-11-260 of the 1976 Code is amended
to read:
"Section 58-11-260. If the articles of incorporation of any
radio common carrier are revoked by the Secretary of State
Department of Commerce, the Public Service Commission
shall immediately revoke the certificate of authorization granted to
such carrier. Whenever such certificate is revoked for any cause, the
appropriate bureau of the Federal Communications Commission
shall be promptly notified of such revocation by the Public Service
Commission."
SECTION 544. Section 58-15-10 of the 1976 Code is amended
to read:
"Section 58-15-10. Three or more persons desiring to
form themselves into a corporation for the purpose of building and
operating a railroad or for the purpose of carrying on a street
railway, steamboat or canal business may file with the Secretary
of State Department of Commerce a written declaration
and petition, signed by themselves, setting forth:
(1) The names and residences of the declarants;
(2) The name of the proposed corporation;
(3) The place at which it proposes to have its principal place of
business;
(4) The general nature of the business it proposes to do, giving
in detail all the powers and privileges which it proposes to assume
or claim under the provisions of the Constitution and laws of the
State and
(a) in case of a railroad corporation, its termini and route and
the counties, townships, cities and towns through which the
proposed road shall pass; the total length of the road; whether any
portion of it has already been constructed and, if so, how much; the
motive power proposed to be used, whether steam or electricity; the
gauge of the road, whether standard or narrow; whether the
proposed road will be altogether within the limits of this State or
will be extended into some other state and, if it is proposed that
such road shall be constructed to a point without the State, whether
the corporation organizing expects to operate the line as an
independent corporation or to consolidate with some other
established railroad or company; and any other matter which the
declarants may deem important,
(b) in case of steamboat companies, the termini of the line;
the nature of the proposed equipment and whether it is proposed to
operate a passenger or freight line or both,
(c) in case of a street railway, the city or town it proposes to
do business in and the motive power and
(d) in the case of a canal company, the termini of the canal
proposed to be constructed; the river or rivers, stream or streams or
body or bodies of water to be used or connected; and whether the
canal is to be used for navigation, hydroelectric power and lighting
or water supply, or for any or all such purposes;
(5) The minimum amount of the capital stock upon which the
corporation may organize and the maximum amount to which such
capital stock may thereafter be increased and the par value thereof
and how payable, if subscriptions are to be payable in installments
and the date of payment and amount of installments; and
(6) That it is proposed to organize such corporation under the
provisions of this chapter, naming it by its title."
SECTION 545. Section 58-15-30 of the 1976 Code is amended
to read:
"Section 58-15-30. Any person desiring to oppose the
application may appear and oppose it, setting forth such facts as
may sustain his reasons for such opposition, by affidavit or
otherwise. The Secretary of State Department of
Commerce may, on such showing, refuse to grant such charter
or may grant it according to his judgment in the matter."
SECTION 546. Section 58-15-40 of the 1976 Code is amended
to read:
"Section 58-15-40. Upon the filing of the declaration of
the petitioners and the payment of a fee of three dollars for filing
and indexing it, the Secretary of State Department of
Commerce shall file the declaration under a proper number and
index it and shall issue to any two or more of the petitioners a
commission constituting them a board of incorporators and
authorizing them to open books of subscription to the capital stock
of such proposed company, after such public notice, not less than
thirty days, as he may require in such commission. Such notice to
be published in some newspaper in each of the counties through
which the proposed road shall pass and, in the case of steamboat
companies, such notice shall be given at the termini only."
SECTION 547. Section 58-15-70 of the 1976 Code is amended
to read:
"Section 58-15-70. Upon the completion of the
organization of any such corporation, the incorporators shall
immediately file in the office of the Secretary of State
Department of Commerce a return, under their hands and
seals, duly attested, sworn to or acknowledged before some officer
qualified to administer an oath, that the requirements of Sections
58-15-10 to 58-15-60 have been complied with, that at least fifty
per cent of the capital stock has been subscribed, that at least
twenty per cent of the amount subscribed has been paid in or
secured and, in the case of a railroad company, that at least five
hundred dollars per mile has been subscribed and at least twenty per
cent of the amount subscribed has been paid or secured. In the
event that a survey of the proposed route of a railroad company
shall have been made a copy of the profile map of such route shall
be filed with such return and in case no survey shall have been
made the return shall aver an intention to file such map within one
year from the date of such return. Such return shall further show
the names and residences of the subscribers, the amount subscribed
by each and the names and residences of the members of the board
of directors, the president and the secretary of the company."
SECTION 548. Section 58-15-80 of the 1976 Code is amended
to read:
"Section 58-15-80. Should no return as herein provided
be made to the Secretary of State Department of
Commerce within twelve months from the granting of the
incorporators' commission, all proceedings hereunder shall be void
and the incorporators shall be deemed to have waived all rights
acquired under their declaration and such commission."
SECTION 549. Section 58-15-90 of the 1976 Code is amended
to read:
"Section 58-15-90. Upon the filing of the return and the
payment of charter fees required by Chapter 29 of Title 33 the
Secretary of State Department of Commerce shall
issue to the board of directors a certificate, to be known as a
charter, that the corporation has been fully organized, according to
the laws of this State under the name and for the purpose indicated
in the written declaration; that it is fully authorized to commence
business under its charter; that it is a body politic and corporate and
as such may sue and be sued in any of the courts of this State; and,
in the case of a railroad corporation, that it is entitled to all the
rights and privileges and subject to all the liabilities of railroad
corporations under the laws of this State."
SECTION 550. Section 58-15-100 of the 1976 Code is amended
to read:
"Section 58-15-100. The charter of any such corporation
shall be recorded in the office of the register of mesne conveyances
or clerk of the court in each county in which such corporation shall
have a business office. In case of street railway and steamboat
companies, such charter shall be recorded in the office of the
register of mesne conveyances or clerk of the court of the county in
which their respective termini shall be or in which such street
railway may be. The declaration, commission, corporators' return
and charter shall be filed or recorded by the Secretary of
State Department of Commerce and properly indexed
in books kept by him for that purpose as required by law with
respect to the organization of business corporations."
SECTION 551. Section 58-15-120 of the 1976 Code is amended
to read:
"Section 58-15-120. Upon the issuance of a charter by the
Secretary of State Department of Commerce, the
board of incorporators shall turn over to the proper officers of the
corporation all subscription lists or other papers they have taken as
incorporators and all such papers shall be as valid as if taken and
made by the corporation."
SECTION 552. Section 58-15-130 of the 1976 Code is amended
to read:
"Section 58-15-130. A railroad, street railway or canal
company organized under this chapter shall be deemed to have
waived its charter rights, franchises and privileges unless it shall
begin the construction of the proposed road within two years from
the date of the issuance of its charter and complete it within a
period to be fixed by the Secretary of State Department
of Commerce in his certificate of incorporation, which shall in
no case exceed fifteen years. A steamboat company organized under
this chapter shall commence operating its line within two years
from the date of issuance of its charter or its charter rights shall be
deemed forfeited."
SECTION 553. Section 58-15-160 of the 1976 Code is amended
to read:
"Section 58-15-160. Any corporation organized under the
provisions of this article or chartered by the General Assembly prior
to February 28, 1899 may have its charter amended by the
Secretary of State Department of Commerce, by
filing with the Secretary of State Department of
Commerce a written declaration showing the desired changes in
its charter and paying a fee of five dollars to cover the issuance,
filing and indexing of the amended charter. After such notice as the
Secretary of State Department of Commerce may
prescribe, upon a proper showing being made, the Secretary of
State Department of Commerce shall issue to any such
corporation a certificate as a supplement to its charter, which shall
be recorded and filed as charters are required to be under Section
58-15-100 and shall embody the changes, additions or alterations
sought."
SECTION 554. Section 58-15-170 of the 1976 Code is amended
to read:
"Section 58-15-170. Any railroad, steamboat, street
railway or canal company in this State desiring to increase or
decrease its capital stock, have its name changed or have its charter
otherwise amended shall call a stockholders' meeting, giving at
least thirty days' notice of the time, place and purpose of the
meeting, and, if a majority of the stock of the corporation be
present in person or by proxy, a resolution embodying the proposed
changes, alterations or amendments be adopted, such resolution
shall be attached to the petition filed with the Secretary of
State Department of Commerce under the provisions of
Section 58-15-160."
SECTION 555. Section 58-15-200 of the 1976 Code is amended
to read:
"Section 58-15-200. All fees collected by the Secretary
of State Department of Commerce in accordance with
the provisions of this article shall be paid into the State
Treasury."
SECTION 556. Section 58-17-340 of the 1976 Code is amended
to read:
"Section 58-17-340. In case of the sale of any railroad
situated wholly or partly within this State, by virtue of any
mortgage or deed of trust, whether under foreclosure or other
judicial proceeding or pursuant to any power contained in such
mortgage or deed of trust, the purchaser thereof or his survivor
representatives or assigns may, together with his associates, if any,
form a corporation for the purpose of owning, possessing,
maintaining and operating such railroad, or such portion thereof as
may be situated within this State, by filing in the office of the
Secretary of State Department of Commerce a
certificate specifying the name and style of such corporation, the
number of its directors, the names of its directors and the period of
their services, not exceeding one year, the amount of the capital
stock of such corporation and the number of shares into which it is
to be divided.
But nothing herein contained shall be construed to authorize in
any manner the purchase or lease of such railroad by any railroad
corporation or steamship company chartered either by this or any
other state except as herein provided."
SECTION 557. Section 58-17-430 of the 1976 Code is amended
to read:
"Section 58-17-430. A copy of such certificate, attested by
the Secretary of State Department of Commerce or
his deputy, shall, in all courts and places, be evidence of the due
organization and existence of such corporation and of the matters
specified in such certificate."
SECTION 558. Section 58-17-620 of the 1976 Code, as last
amended by Act 479 of 1994, is further amended to read:
"Section 58-17-620. Any consolidation of railroad
companies must be made under the conditions, provisions, and
restrictions and with the powers in this article mentioned and
contained, that is to say:
(1) The directors of the several corporations proposing to
consolidate may enter into a joint agreement, under the corporate
seal of each company, for the consolidation of such companies and
railroads and prescribing the terms and conditions of them, the
mode of carrying it into effect, the name of the new corporation,
the number and names of the directors and other officers of it who
shall be the first directors and officers and their places of residence,
the number of shares of the capital stock, the amount of par value
of each share, the manner of converting the capital stock of each of
the companies into that of the new corporation and how and when
directors and officers must be chosen, with such other details as
they shall consider necessary to perfect such new organization and
the consolidation of such companies;
(2) Such agreement must be submitted to the stockholders of
each of the companies at a meeting thereof, called separately, for
the purpose of taking it into consideration; due notice of the time
and place of holding such meeting and the object of it must be
given by a general notice published in some newspaper in the city,
town, or county in which the company has its principal office or
place of business; at the meeting of stockholders the agreement of
the directors must be considered and a vote, by ballot, taken for the
adoption or rejection of it, each share entitling the holder of it to
one vote; the ballots must be cast in person or by proxy; if a
majority of all the votes of all the stockholders are for the adoption
of the agreement that fact must be certified thereon by the secretary
of the respective companies, under the seal of it; and the agreement
so adopted, or a certified copy of it, must be filed in the office of
the Secretary of State Governor, and must from
thence be deemed and taken to be the agreement and the act of
consolidation of the companies and a copy of the agreement and act
of consolidation, duly certified by the Secretary of State
Governor under the seal of it, must be evidence of the
existence of such new corporation."
SECTION 559. Section 58-17-630 of the 1976 Code is amended
to read:
"Section 58-17-630. Upon the consolidation of any
railroad company there shall be paid to the Secretary of
State Department of Commerce a fee upon the capital
stock of the combined company as in the organization of a new
company; provided, that credit shall be given thereon for any
charter fees paid by companies forming the consolidated
company."
SECTION 560. Section 58-17-660 of the 1976 Code is amended
to read:
"Section 58-17-660. Upon the making and perfecting the
agreement and act of consolidation, as provided in Section
58-17-620, and filing it, or a copy, with the Secretary of
State Governor as aforesaid, the several corporations
parties thereto shall be deemed and taken to be one corporation by
the name provided in such agreement and act, possessing within this
State all the rights, privileges and franchises and subject to all the
restrictions, disabilities and duties of each of such corporations so
consolidated."
SECTION 561. Section 58-31-20 of the 1976 Code is amended
to read:
"Section 58-31-20. Such Public Service Authority shall
consist of a board of eleven directors to be appointed by the
Governor with the advice and consent of the Senate as follows: One
from each congressional district of the State; one from each of the
counties of Horry, Berkeley and Georgetown and two shall be from
the State at large, one of whom shall be chairman and the other of
whom shall have had experience with the operations of rural electric
cooperatives. Each director shall serve for a term of seven years and
until his successor is appointed and qualifies, except that the present
directors, including the chairman, shall serve until their terms of
office expire and the directors first appointed from Horry, Berkeley
and Georgetown Counties shall be appointed for terms of five, six
and seven years respectively as determined by lot, such terms to
commence May 19, 1974. At the expiration of the term of each
director and of each succeeding director the Governor shall appoint
with the advice and consent of the Senate a successor, who shall
hold office for a term of seven years, or until his successor has
been appointed and qualified. In the event of a vacancy occurring in
the office of a director by death, resignation or otherwise, the
Governor shall appoint his successor, only with the advice and
consent of the Senate and he shall hold office for the unexpired
term. No director shall receive a salary for services as director until
the Authority is in funds, but each director shall be paid his actual
expense in the performance of his duties hereunder, the same to be
advanced from the contingent fund of the Governor until such time
as the Public Service Authority is in funds, at which time the
contingent fund shall be reimbursed. After the Public Service
Authority is in funds, the compensation and expenses of each
member of the board shall be paid from such funds, and the same
shall be fixed by the advisory board hereinafter established.
Members of the board of directors may be removed for cause by
the advisory board or a majority thereof. No member of the General
Assembly of the State of South Carolina shall be eligible for
appointment as director of the Public Service Authority during the
term of his office. Not more than two members from the same
county shall serve as directors at any time.
For the assistance of the board of directors of said Public Service
Authority, there is hereby established an advisory board to be
known as the advisory board of the South Carolina Public Service
Authority, to be composed of the Governor of the State, the
Attorney General, the State Treasurer, and the Comptroller
General and the Secretary of State, as ex officio members,
who shall serve without extra compensation other than necessary
traveling expenses. Said advisory board shall perform any duties
imposed on them under this chapter, and shall consult and advise
with the board of directors on any and all matters which by the
board of directors may be referred to the advisory board. The board
of directors shall make annual reports to the advisory board, which
reports shall be submitted to the General Assembly by the
Governor, in which full information as to all of the acts of said
board of directors shall be given, together with financial statement
and full information as to the work of the Authority. The advisory
board shall on July first of each year, designate some reputable
certified public accountant or accountants, resident in the State for
the purpose of making a complete audit of the affairs of said
Authority, which said audit shall be filed with the annual report of
the board of directors."
SECTION 562. Section 58-31-50 of the 1976 Code, as last
amended by Act 173 of 1987, is further amended to read:
"Section 58-31-50. The Public Service Authority may
acquire by purchase, gift, condemnation, or in any other manner,
any lands, waters, water rights, riparian rights, flowage rights,
easements, licenses, franchises, engineering data, construction plans,
or estimates prepared for the development of the Cooper River and
Santee River or any other real or personal property necessary or
useful in carrying out any of its purposes or exercising any of its
powers; but before the board of directors may acquire and pay for,
without condemnation any plans, specifications, franchises, or any
kind of property, belonging to or to belong to any private
corporation previously chartered by this State or any other state for
the purpose of developing the Santee-Cooper project, a full report
of the proposed purchase must be submitted in writing to the
advisory board, which shall order a public hearing on the proposed
purchase and due notice of the hearing must be given by
advertisement to be published in at least three daily papers
published in the State twice each week for two consecutive weeks.
The advisory board shall carefully investigate the proposed
purchase, and shall file its report in writing with the Secretary of
State Governor and the board of directors of the Public
Service Authority. If the report recommends a price for the
proposed purchase, the board of directors may enter into a contract
for the purchase; if the report disapproves the proposed purchase,
the board of directors may submit any amended proposed
agreement, which must be heard by the advisory board in the same
manner, or shall proceed with condemnation; the price to be paid to
any private corporation for any of its property is subject to the
approval of the original purchaser of the first notes, bonds, or other
evidence of indebtedness issued under this chapter. The Public
Service Authority shall have the right of eminent domain to carry
out the purposes of this chapter."
SECTION 563. Section 58-31-340 of the 1976 Code is amended
to read:
"Section 58-31-340. Each of the drawings referred to in
Section 58-31-330 must be filed in the place provided by law for
recording the real estate records of the county concerned, and a
certified copy of each drawing must be filed in the office of the
Secretary of State Governor. Certified copies of the
drawing must be kept available for examination by the public in the
principal office of the Public Service Authority, and must be
furnished to the electrical utility or electric cooperative concerned.
Inaccuracies in the drawings discovered after certification and
filing must be corrected by preparing revised drawings and
approving and filing the revised drawings in the same manner as
provided for original drawings.
Nothing contained in Sections 58-31-310 through 58-31-370 may
be construed to prevent the Public Service Authority from
acquiring, by purchase, the electric facilities, or any part of them,
owned by another electrical utility and located in any of the
crosshatched areas described in Section 58-31-330. The areas served
by facilities purchased by the Public Service Authority shall become
a part of the present service area of the Public Service Authority
and must be evidenced by revised drawings approved and filed as
provided in this section."
SECTION 564. Section 59-3-10 of the 1976 Code is amended
to read:
"Section 59-3-10. The State Superintendent of Education
shall be elected at each general election in the same manner as other
State officers and shall enter upon the duties of his office at the
time prescribed by law. Before entering upon the duties of his
office he shall give bond for the use of the State in the penal sum
of five thousand dollars, with good and sufficient sureties, to be
approved by the Governor, conditioned for the faithful and
impartial performance of the duties of his office, and he shall also,
at the time of giving bond, take and subscribe the oath prescribed in
Section 26 of Article III of the Constitution of the State, which
shall be endorsed upon the back of the bond. The bond shall be
filed with the Secretary of State Governor, and by
him recorded and, when so recorded, shall be filed with the State
Treasurer. The Superintendent of Education shall receive as
compensation for his services such sum as the General Assembly
shall by law provide, payable monthly out of the State Treasury,
and his traveling expenses, not exceeding three hundred dollars,
shall be paid out of the State Treasury upon duly itemized accounts
rendered by him."
SECTION 565. Section 59-5-10 of the 1976 Code is amended
to read:
"Section 59-5-10. The State Board of Education shall be
composed of one member from each judicial circuit. The members
shall serve terms of four years and until their successors are elected
and qualify, except of those first elected, the members from the
fifth, tenth and fourteenth circuits shall serve terms of one year; the
members from the first, sixth, eighth and twelfth circuits shall serve
terms of two years and the members from the fourth, seventh, ninth
and eleventh circuits shall serve terms of three years. The terms of
all members shall commence on January first following their
election.
The legislative delegations representing the counties of each
judicial circuit shall meet upon written call of a majority of the
members of the delegations of each judicial circuit at a time and
place to be designated in such call for the purpose of electing a
member of the Board to represent such circuit. A majority present,
either in person or by written proxy, of the members of the county
legislative delegations from a given circuit shall constitute a quorum
for the purpose of electing a member, but no person shall be
declared elected who shall fail to receive a majority vote of all the
members of the county legislative delegations from the circuit. The
joint county legislative delegations of each circuit shall be organized
by the election of a chairman and a secretary and such joint
legislative delegations shall, subject to the provisions herein, adopt
such rules as they deem proper to govern the election. Any absentee
may vote by written proxy. When the election is completed, the
chairman and secretary of the joint county legislative delegations of
each circuit shall immediately transmit the name of the person
elected to the Secretary of State Governor who shall
forthwith issue to such person, after he has taken the usual oath of
office, a certificate of election as a member of the State Board of
Education. The Governor shall thereupon issue a commission to
such person and pending such issuance the certificate of election
shall be a sufficient warrant to such person to perform all of the
duties and functions of his office.
Any vacancy shall be filled in the same manner as the original
appointment for the unexpired portion of the term.
Representation of a given judicial circuit on the State Board of
Education shall be rotated among the counties of the circuit, except
by unanimous consent of all members of the county legislative
delegations from the circuit. No member shall succeed himself in
office except by unanimous consent of the members of the county
legislative delegations from the circuit. Members of the legislative
delegation of any county entitled to a member of the Board shall
nominate persons for the office, one of whom shall be elected to the
Board.
The Board shall select its chairman and other officers to serve for
such terms as the Board may designate. Provided, the
Superintendent of Education shall serve as secretary and
administrative officer to the Board. The Board shall adopt its own
rules and procedures. The chairman and other officers shall have
such powers and duties as may be determined by the Board not
inconsistent with the law.
At the initial meeting of the legislative delegations representing
the counties of each circuit, it shall be determined by lot the
sequence in which each county shall be entitled to nominate persons
for the office."
SECTION 566. Section 59-11-30 of the 1976 Code is amended
to read:
"Section 59-11-30. Pursuant to Article III (I) of the
compact, the Commission shall file a copy of its bylaws and any
amendment thereto with the Secretary of State
Governor."
SECTION 567. Section 59-13-10 of the 1976 Code is amended
to read:
"Section 59-13-10. Except as otherwise expressly
provided, there shall be elected by the qualified electors of the
county a county superintendent of education for each county, who
shall, except as otherwise expressly provided, hold his office for a
term of four years and until his successor is elected and qualified.
He shall, before being commissioned and entering upon the duties
of his office, give bond to the State for the use of the county in
which he is elected, for educational purposes, in the penal sum of
one thousand dollars, except as otherwise provided, with good and
sufficient sureties, to be approved by the governing body of the
county, conditioned for the faithful and impartial discharge of the
duties of his office, and he shall take and subscribe the oath of
office prescribed in Section 26, article III of the Constitution of
this State, which he shall file in the office of the Secretary of
State Governor. When commissioned he shall
immediately enter upon the discharge of his duties. His failure to
qualify within thirty days after notice of his election shall create a
vacancy."
SECTION 568. Section 59-27-30 of the 1976 Code is amended
to read:
"Section 59-27-30. True copies of all contracts made on
behalf of this State pursuant to the agreement shall be kept on file
in the office of the State Superintendent of Education and in the
office of the Secretary of State Governor."
SECTION 569. Section 59-49-90 of the 1976 Code is amended
to read:
"Section 59-49-90. All of the members of the board and
the superintendent of the school shall, before entering upon the
discharge of their duties, take an oath faithfully to perform any and
all duties imposed upon them under this chapter. The superintendent
shall execute a bond payable to the State in such sum as shall be
required by the board, with sufficient security, which shall be filed
in the office of the Secretary of State
Governor."
SECTION 570. Section 59-103-120 of the 1976 Code is
amended to read:
"Section 59-103-120. One hundred and eighty days from
the effective date of this act, the State Commission on Higher
Education shall publish a list of the accrediting agency or agencies,
which may include itself, approved by it for accreditation of
chiropractic colleges or schools doing business in this State. Any
chiropractic college or school doing business in this State shall,
upon publication of said list of such accrediting agency or agencies,
forthwith apply for such accreditation or candidate status and
furnish the State Commission on Higher Education documented
evidence of such application.
Failure to obtain such accreditation or candidate status within
nineteen months after publication of the list of approved agencies
shall result in the Commission on Higher Education revoking the
status of such college or school as a recognized college or school of
chiropractic.
Provided, further, any college of chiropractic applying for a
South Carolina charter must furnish the Commission on Higher
Education with sufficient evidence that such school will qualify for
required accreditation. Upon certification by the Commission on
Higher Education to the Secretary of State
Governor, the Secretary of State Governor
may issue a charter; provided, further, however, that any college
now chartered must attain required licensure before one hundred
eighty days after the effective date of this act or have its charter
revoked upon a finding by the Attorney General that such licensure
has not been attained by such date. In addition to other existing
criteria, licensure of all chiropractic colleges shall be renewable
annually contingent upon supplying semiannual reports as to the
progress of accreditation to the Commission on Higher Education
and the Commission shall make a determination if such progress is
satisfactory."
SECTION 571. Section 59-115-100 of the 1976 Code is
amended to read:
"Section 59-115-100. The authority is authorized to fix
and collect fees, charges, interest and premiums for making,
insuring or guaranteeing student loans, purchasing, endorsing or
guaranteeing obligations and any other services performed under
this chapter. The authority is further authorized to contract with the
United States of America or any agency or officer thereof and with
any person, partnership, association, banking institution or other
corporation respecting the carrying out of the authority's functions
under this chapter. The authority shall at all times endeavor to fix
and collect such fees, charges, receipts, premiums and other income
so as to have available in the sinking fund at all times an amount
which, together with any other funds made available therefor, shall
be sufficient to pay the principal of and interest on such bonds as
they shall become due and payable and to create reserves for such
purposes. Money in the sinking fund, except such part thereof as
may be necessary to provide such reserves for the bonds as may be
provided for in the resolution authorizing the issuance of such
bonds, shall be set aside in the sinking fund at such regular
intervals as may be provided in such resolution and is hereby
pledged to, and charged with, the payment of the principal of and
interest on such bonds as they shall become due and the redemption
price or the purchase price of bonds retired by call or purchase as
therein provided. Such pledge shall be valid and binding from the
time when the pledge is made. The fees, charges, receipts, proceeds
and other revenues and moneys so pledged and thereafter received
by the authority shall immediately be subject to the lien of such
pledge without any physical delivery thereof or further act, and the
lien of any such pledge shall be valid and binding as against all
parties having claims of any kind in tort, contract or otherwise
against the authority, irrespective of whether such parties have
notice thereof. The resolution by which a pledge is created need not
be filed or recorded except that a record of the proceedings
covering the issuance of the bonds shall be filed in the office of the
Secretary Treasurer of State of South Carolina, as
required by Section 11-15-20. The use and disposition of money to
the credit of the sinking fund shall be subject to the provisions of
the resolution authorizing the issuance of such bonds. Any such
resolution may, in the discretion of the authority, provide for the
transfer of surplus money in the sinking fund to the credit of the
loan fund. Except as may otherwise be provided in such resolution,
such sinking fund shall be a fund for all such bonds without
distinction or priority."
SECTION 572. Section 59-117-20 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-117-20. The regular term of office of each
trustee elected by the General Assembly is four years; however, the
trustee shall continue to function as a trustee after his term has
expired until his successor is elected and qualifies. Trustees from
the first, third, fifth, seventh, ninth, eleventh, twelfth, and thirteenth
judicial circuits whose terms expire March 31, 1982, must next be
elected for terms commencing on April 1, 1982, and those terms
expire on June 30, 1986. Trustees from the second, fourth, sixth,
eighth, tenth, fourteenth, fifteenth, and sixteenth judicial circuits
elected for terms to commence April 1, 1984, shall have their terms
extended to June 30, 1988, and must next be elected for terms
commencing on July 1, 1988. Thereafter, the General Assembly
shall hold elections every two years for the purpose of selecting
successors of those trustees whose terms are then expiring. The
term of office of an elective trustee commences on the first day of
July of the year in which the trustee under this plan is scheduled to
be elected and the term continues until the thirtieth day of June of
the year in which the term is scheduled to expire. After its 1984
session, the General Assembly shall elect successors to those
elective trustees whose terms are expiring not earlier than the first
day of April of the year the term expires. In electing members of
the board, the General Assembly shall elect members based on
merit regardless of race, color, creed, or gender and shall strive to
assure that the membership of the board is representative of all
citizens of the State of South Carolina.
The term of office of the at-large trustee appointed by the
Governor is effective upon certification to by the
Secretary of State Governor and is four years. If the
Governor, chooses to designate a member to serve in his stead as
permitted by Section 59-117-10, the appointment is effective upon
certification to by the Secretary of State
Governor and shall continue, at the pleasure of the
Governor making the appointment, so long as he continues to hold
the specified office.
The term of the President of the Greater University of South
Carolina Alumni Association is for the active term of office as
president."
SECTION 573. Section 59-121-10 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-121-10. The board of visitors of The Citadel,
the Military College of South Carolina, shall be composed of the
Governor, the Adjutant General and the State Superintendent of
Education, who shall be members ex officio of the board, and
eleven others who shall be graduates of the college, seven of whom
are to be elected by joint vote of the General Assembly as
hereinafter provided, three of whom are to be elected by such
means and methods as may be determined by the Association of
Citadel Men or any succeeding organization of Citadel men, the
result of election to be certified by the president of the association
to the Secretary of State Governor, and one of
whom shall be appointed by the Governor. The Governor shall
make the appointment based on merit regardless of race or
economic status and shall strive to assure that the membership of
the board is representative of all citizens of the State of South
Carolina."
SECTION 574. Section 59-121-20 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-121-20. The regular terms of office of the
elected members in office on April 18, 1947, who are still in office
shall end on the last day of June in the years stated in the table in
Act 108 of the regular session of 1947 (Acts 1947, p. 144). The
regular terms of office of the elected members who were not in
office on that date and of all members hereafter elected shall be six
years; provided, that the third member authorized to be elected by
the Association of Citadel Men shall serve an initial term of four
years. All elected terms shall begin on the first day of July and end
on the last day of June; provided, however, that each incumbent
shall be entitled to hold office until his successor is duly elected. In
electing members of the board, the General Assembly shall elect
members based on merit regardless of race or economic status and
shall strive to assure that the membership of the board is
representative of all citizens of the State of Carolina.
The term of office of the at-large trustee appointed by the
Governor shall be effective upon certification to by
the Secretary of State Governor and shall be six
years."
SECTION 575. Section 59-123-50 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-123-50. The present members of the board of
trustees shall continue to serve until July 1, 1966, at which time
their terms shall terminate and the members of the board to succeed
the present members, and to fill the additional membership provided
in Section 59-123-40, must be elected at a joint session of the
General Assembly on the following dates: On the first Wednesday
in February 1966, members representing the medical profession
(medical doctor, dentist, registered nurse, or licensed pharmacist)
and on the second Wednesday in February 1966, lay members or
nonmedical members. One member of the medical profession from
each congressional district and one layman or member of a
nonmedical profession from each congressional district must be
elected. The terms of all members elected commence on July 1,
1966. Of those first elected, the member who represents the medical
profession from the first, second, and third congressional districts
and lay members or members of the nonmedical profession from
the fourth, fifth, and sixth congressional districts must be elected
for terms of four years or until their successors are elected and
qualify. The member of the board of trustees who represents the
medical profession from the fourth, fifth, and sixth congressional
districts and the members who are laymen or members of
nonmedical professions from the first, second, and third
congressional districts must be elected for terms of two years or
until their successors are elected and qualify. Their successors must
be elected for terms of four years or until their successors are
elected and qualify. After its 1984 session, the General Assembly
shall elect successors to those members it elects not earlier than the
first day of April for a term to begin the following July first.
Elections to fill vacancies on the board which are caused by the
death, resignation, or removal of an elective trustee may be held
earlier than the first day of April of the year in which the unexpired
term terminates, but the term of the person elected to succeed the
member expires on the last day of June of the year in which the
term of the former member would have expired. In electing
members of the board, the General Assembly shall elect members
based on merit regardless of race, color, creed, or gender and shall
strive to assure that the membership of the board is representative
of all citizens of the State of South Carolina.
The term of the at-large trustee appointed by the Governor is
effective upon certification to by the Secretary
of State Governor and is four years. Any vacancy in
the office of the member appointed by the Governor must be filled
by appointment for the unexpired term in the same manner of
original appointment. If the Governor chooses to designate a
member to serve in his stead, as permitted by Section 59-123-40,
the appointment is effective upon certification to by
the Secretary of State Governor and shall continue,
at the pleasure of the Governor making the appointment, so long as
he continues to hold the specified office."
SECTION 576. Section 59-125-30 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-125-30. The regular term of office of the
elective members of the board of trustees is six years with the
members first elected being elected two for two years, two for four
years, and three for six years. In electing members of the board, the
General Assembly shall elect members based on merit regardless of
race, color, creed, or gender and shall strive to assure that the
membership of the board is representative of all citizens of the State
of South Carolina. The General Assembly shall hold elections every
even-numbered year to fill vacancies as they occur in the board by
the expiration of terms of office. The present elective members of
the board of trustees shall continue to serve until the thirtieth day of
June of the year in which their terms are scheduled to expire. After
its 1984 session, the General Assembly shall elect successors to
those trustees whose terms are expiring not earlier than the first day
of April for a term to begin the following July first. Elections to fill
vacancies which are caused by the death, resignation, or removal of
an elective trustee may be held earlier than the first day of April of
the year in which the unexpired term terminates, but the term of the
person elected to fill the vacancy expires on the last day of June of
the year in which the term of the former member would have
expired. When there is a vacancy otherwise occurring in the board
of trustees among the elected members, the Governor may fill it by
appointment until the next session of the General Assembly. The
successors to the two present members who are graduates of
Winthrop College appointed by the Winthrop College Alumnae
Association or its successors must be elected by the members of the
Winthrop College Alumnae Association at its annual meeting held
at Winthrop College during commencement week in 1958 and they
shall serve for a term of four years and their successors must be
elected at the similar annual meeting every four years thereafter.
The names of the two so elected must be certified to the
Secretary of State Governor by the president and
secretary of the association and they shall take office immediately
after the certification. The term of the at-large trustee appointed by
the Governor is effective upon certification to the Secretary of
State Governor and is six years. Any vacancy in the
office of the member appointed by the Governor must be filled by
appointment of the Governor for the unexpired term in the same
manner of original appointment."
SECTION 577. Section 59-125-50 of the 1976 Code is amended
to read:
"Section 59-125-50. The Secretary of State
Governor shall furnish a certificate to each trustee within
ten days after his election notifying him that he has been so elected
and if any trustee fail for the space of thirty days to inform the
Governor of his acceptance then his election shall be void and his
place shall be filled as heretofore provided in cases of
vacancy."
SECTION 578. Section 59-130-10 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-130-10. The board of trustees for the College
of Charleston is composed of the Governor of the State or his
designee, who is an ex officio of the board, and sixteen members,
with fifteen of these members to be elected by the General
Assembly and one member to be appointed from the State at large
by the Governor. The General Assembly shall elect and the
Governor shall appoint these members based on merit regardless of
race, color, creed, or gender and shall strive to assure that the
membership of the board is representative of all citizens of this
State.
Of the fifteen members to be elected, two members must be
elected from each congressional district and the remaining three
members must be elected by the General Assembly from the State
at large.
The term of office of the at-large trustee appointed by the
Governor is effective upon certification to by the
Secretary of State Governor and is coterminous
with the term of the Governor appointing him. He shall serve after
his term has expired until his successor is appointed and qualifies.
Each position on the board constitutes a separate office and the
seats on the board are numbered consecutively as follows: for the
First Congressional District, Seats One and Two; for the Second
Congressional District, Seats Three and Four; for the Third
Congressional District, Seats Five and Six; for the Fourth
Congressional District, Seats Seven and Eight; for the Fifth
Congressional District, Seats Nine and Ten; for the Sixth
Congressional District, Seats Eleven and Twelve; for the at-large
positions elected by the General Assembly, Seats Thirteen,
Fourteen, and Fifteen. The member appointed by the Governor shall
occupy Seat Sixteen.
Any person who, as of July 1, 1988, is serving as president of
the State College Board of Trustees or is serving on the Planning
Committee for the College of Charleston within the State College
Board of Trustees has the option of serving as a trustee on the
board of trustees for the College of Charleston for an appropriate
two-year term expiring June 30, 1990. Such option must be
exercised on the first day of the filing period. If two such members
file for the same seat, the General Assembly shall elect the board
member from those so filing.
Effective July 1, 1988, the even-numbered seats of those
members elected by the General Assembly must be filled for
four-year terms expiring June 30, 1992. The remaining elective
odd-numbered seats on the board must be filled for two-year terms
beginning July 1, 1988, and expiring June 30, 1990. The trustees
for the odd-numbered seats must then be elected for four-year terms
beginning July 1, 1990, and expiring June 30, 1994. The General
Assembly shall hold elections every two years to select successors
of the trustees whose four-year terms are then expiring. Except as
otherwise provided in this chapter, no election may be held before
April first of the year in which the successor's term is to
commence. The term of office of an elective trustee commences on
the first day of July of the year in which the trustee is elected.
If an elective office becomes vacant, the Governor may fill it by
appointment until the next session of the General Assembly. The
General Assembly shall hold an election at any time during the
session to fill the vacancy for the unexpired portion of the term. A
vacancy occurring in the appointed office on the board must be
filled for the remainder of the unexpired term by appointment in
the same manner of the original appointment."
SECTION 579. Section 59-133-10 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-133-10. The board of trustees for Francis
Marion College is composed of the Governor of the State or his
designee, who is an ex officio of the board, and sixteen members,
with fifteen of these members to be elected by the General
Assembly and one member to be appointed from the State at large
by the Governor. The General Assembly shall elect and the
Governor shall appoint these members based on merit regardless of
race, color, creed, or gender and shall strive to assure that the
membership of the board is representative of all citizens of this
State.
Of the fifteen members to be elected, two members must be
elected from each congressional district and the remaining three
members must be elected by the General Assembly from the State
at large.
The term of office of the at-large trustee appointed by the
Governor is effective upon certification to by the
Secretary of State Governor and is coterminous
with the term of the Governor appointing him. He shall serve after
his term has expired until his successor is appointed and qualifies.
Each position on the board constitutes a separate office and the
seats on the board are numbered consecutively as follows: for the
First Congressional District, Seats One and Two; for the Second
Congressional District, Seats Three and Four; for the Third
Congressional District, Seats Five and Six; for the Fourth
Congressional District, Seats Seven and Eight; for the Fifth
Congressional District, Seats Nine and Ten; for the Sixth
Congressional District, Seats Eleven and Twelve; for the at-large
positions elected by the General Assembly, Seats Thirteen,
Fourteen, and Fifteen. The member appointed by the Governor shall
occupy Seat Sixteen.
Any person who, as of July 1, 1988, is serving as president of
the State College Board of Trustees or is serving on the Planning
Committee for Francis Marion College within the State College
Board of Trustees has the option of serving as a trustee on the
board of trustees for Francis Marion College for an appropriate
two-year term expiring June 30, 1990. Such option must be
exercised on the first day of the filing period. If two such members
file for the same seat, the General Assembly shall elect the board
member from those so filing.
Effective July 1, 1988, the even-numbered seats of those
members elected by the General Assembly must be filled for
four-year terms expiring June 30, 1992. The remaining elective
odd-numbered seats on the board must be filled for two-year terms
beginning July 1, 1988, and expiring June 30, 1990. The trustees
for the odd-numbered seats must then be elected for four-year terms
beginning July 1, 1990, and expiring June 30, 1994. The General
Assembly shall hold elections every two years to select successors
of the trustees whose four-year terms are then expiring. Except as
otherwise provided in this chapter, no election may be held before
April first of the year in which the successor's term is to
commence. The term of office of an elective trustee commences on
the first day of July of the year in which the trustee is elected.
If an elective office becomes vacant, the Governor may fill it by
appointment until the next session of the General Assembly. The
General Assembly shall hold an election at any time during the
session to fill the vacancy for the unexpired portion of the term. A
vacancy occurring in the appointed office on the board must be
filled for the remainder of the unexpired term by appointment in
the same manner of the original appointment."
SECTION 580. Section 59-135-10 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 59-135-10. The board of trustees for Lander
College is composed of the Governor of the State or his designee,
who is an ex officio of the board, and sixteen members, with fifteen
of these members to be elected by the General Assembly and one
member to be appointed from the State at large by the Governor.
The General Assembly shall elect and the Governor shall appoint
these members based on merit regardless of race, color, creed, or
gender and shall strive to assure that the membership of the board is
representative of all citizens of this State.
Of the fifteen members to be elected, two members must be
elected from each congressional district and the remaining three
members must be elected by the General Assembly from the State
at large.
The term of office of the at-large trustee appointed by the
Governor is effective upon certification to by the
Secretary of State Governor and is coterminous
with the term of the Governor appointing him. He shall serve after
his term has expired until his successor is appointed and qualifies.
Each position on the board constitutes a separate office and the
seats on the board are numbered consecutively as follows: for the
First Congressional District, Seats One and Two; for the Second
Congressional District, Seats Three and Four; for the Third
Congressional District, Seats Five and Six; for the Fourth
Congressional District, Seats Seven and Eight; for the Fifth
Congressional District, Seats Nine and Ten; for the Sixth
Congressional District, Seats Eleven and Twelve; for the at-large
positions elected by the General Assembly, Seats Thirteen,
Fourteen, and Fifteen. The member appointed by the Governor
shall occupy Seat Sixteen.
Any person who, as of July 1, 1988, is serving as president of
the State College Board of Trustees or is serving on the Planning
Committee for Lander College within the State College Board of
Trustees has the option of serving as a trustee on the board of
trustees for Lander College for an appropriate two-year term
expiring June 30, 1990. Such option must be exercised on the first
day of the filing period. If two such members file for the same seat,
the General Assembly shall elect the board member from those so
filing.
Effective July 1, 1988, the even-numbered seats of those
members elected by the General Assembly must be filled for
four-year terms expiring June 30, 1992. The remaining elective
odd-numbered seats on the board must be filled for two-year terms
beginning July 1, 1988, and expiring June 30, 1990. The trustees
for the odd-numbered seats must then be elected for four-year terms
beginning July 1, 1990, and expiring June 30, 1994. The General
Assembly shall hold elections every two years to select successors
of the trustees whose four-year terms are then expiring. Except as
otherwise provided in this chapter, no election may be held before
April first of the year in which the successor's term is to
commence. The term of office of an elective trustee commences on
the first day of July of the year in which the trustee is elected.
If an elective office becomes vacant, the Governor may fill it by
appointment until the next session of the General Assembly. The
General Assembly shall hold an election at any time during the
session to fill the vacancy for the unexpired portion of the term. A
vacancy occurring in the appointed office on the board must be
filled for the remainder of the unexpired term by appointment in the
same manner of the original appointment."
SECTION 581. Section 59-136-110 of the 1976 Code, as added
by Act 69 of 1993, is amended to read:
"Section 59-136-110. The board of trustees for Coastal
Carolina University is composed of the Governor of the State or his
designee, who is an ex officio member of the board, and sixteen
members, with fifteen of these members to be elected by the
General Assembly and one member to be appointed from the State
at large by the Governor. The General Assembly shall elect and the
Governor shall appoint these members based on merit regardless of
race, color, creed, or gender and shall strive to assure that the
membership of the board is representative of all citizens of this
State.
Of the fifteen members to be elected by the General Assembly,
two members must be elected from each congressional district and
the remaining three members must be elected from the State at
large.
The term of office of the at-large trustee appointed by the
Governor is effective upon certification to by the
Secretary of State Governor and is coterminous
with the term of the Governor appointing him.
Each position on the board constitutes a separate office and the
seats on the board are numbered consecutively as follows: for the
First Congressional District, Seats One and Two; for the Second
Congressional District, Seats Three and Four; for the Third
Congressional District, Seats Five and Six; for the Fourth
Congressional District, Seats Seven and Eight; for the Fifth
Congressional District, Seats Nine and Ten; for the Sixth
Congressional District, Seats Eleven and Twelve; for the at-large
positions elected by the General Assembly, Seats Thirteen,
Fourteen, and Fifteen. The member appointed by the Governor shall
occupy Seat Sixteen.
The General Assembly shall elect those members of the board of
trustees it elects during its 1993 Session. Members initially elected
from Seats One, Three, Five, Seven, Nine, Eleven, Thirteen, and
Fifteen shall be elected for two-year terms and members initially
elected from Seats Two, Four, Six, Eight, Ten, Twelve, and
Fourteen shall be elected for four-year terms. Thereafter, their
successors shall each be elected for four-year terms.
The General Assembly shall hold elections every two years to
select successors of the trustees whose terms are expiring in that
year. Except as otherwise provided in this chapter, no election may
be held before April first of the year in which the successor's term
is to commence. The term of office of an elective trustee
commences on the first day of July of the year in which the trustee
is elected and all members shall serve until their successors are
elected or appointed and qualify.
If an elective office becomes vacant, the Governor may fill it by
appointment until the next session of the General Assembly. The
General Assembly shall hold an election at any time during the
session to fill the vacancy for the unexpired portion of the term. A
vacancy occurring in the appointed office on the board must be
filled for the remainder of the unexpired term by appointment in the
same manner of the original appointment."
SECTION 582. Section 61-3-220 of the 1976 Code, as last
amended by Section 1583, Act 181 of 1993, is further amended to
read:
"Section 61-3-220. The division may employ such
inspectors or agents as may be necessary for the proper
administration and enforcement of the provisions of this chapter,
Chapter 7, and Article 3 of Chapter 13 and Chapter 33 of Title 12.
The salaries of said inspectors or agents shall be fixed by the
division and shall be payable as an expense of the administration of
this chapter, Chapter 7, and Article 3 of Chapter 13. The Governor
shall commission as state constables such inspectors or agents as are
certified to him by the division in order that they shall have
adequate authority as peace officers to enforce the provisions of this
chapter, Chapter 7, and Article 3 of Chapter 13 and Chapter 33 of
Title 12. Each inspector or agent shall, before entering upon the
discharge of his duties, take and subscribe the oath of office as
required by Article III, Section 26, of the Constitution of South
Carolina, and also any additional oath required by law and shall
give bond payable to the State, in form approved by the Attorney
General, in the penal sum of five thousand dollars with some surety
or guaranty company duly authorized to do business in South
Carolina and approved by the division, as surety, conditioned upon
the faithful discharge of his duties. The premiums on such bonds
shall be paid as an expense of the administration of this chapter,
Chapter 7, and Article 3 of Chapter 13 and the bonds shall be filed
with and preserved by the Secretary of State
Governor."
SECTION 583. Section 61-5-170 of the 1976 Code, as last
amended by Section 1584, Act 181 of 1993, is further amended to
read:
"Section 61-5-170. In addition to the provisions of
Section 61-5-85, the department may issue a temporary permit to
allow the possession, sale, and consumption of alcoholic liquor and
beverages. This permit is valid for a period not to exceed
twenty-four hours, and may be issued only to bona fide nonprofit
organizations that have been in existence and operating for at least
twelve months prior to the date of application, to nonprofit
educational foundations, and to political parties and their affiliates
duly certified by the Secretary of State Attorney
General. The department shall charge a nonrefundable filing
fee of thirty-five dollars for processing each application. The
department in its sole discretion shall specify the terms and
conditions of the permit."
SECTION 584. Section 61-9-1240 of the 1976 Code, as last
amended by Section 1586, Act 181 of 1993, is further amended to
read:
"Section 61-9-1240. The department and the division shall
make rules and regulations for the operation of breweries and
commercial wineries authorized under this article. Such rules and
regulations after they are reduced to writing, filed with the
Secretary of State pursuant to the Administrative Procedures
Act (Chapter 23, Title 1) as required by law and mailed or
otherwise delivered to a person operating a brewery or winery shall
have the force and effect of law and upon violation of any such
rules and regulations the license or permit provided for herein shall
be forthwith canceled and become null and void."
SECTION 585. Section 61-11-260 of the 1976 Code is amended
to read:
"Section 61-11-260. Any person manufacturing any
alcohol under the provisions of this article shall, while such alcohol
remains in this State, store and keep it in a general United States
bonded warehouse or in another warehouse and file with the
Secretary of State Department of Revenue and
Taxation a declaration setting forth the exact location,
description and dimension of each and every such warehouse used
and to be used for such purpose. It shall be unlawful to store or
keep any alcohol manufactured under the provisions of this article
in any other place than such as may be described in the declaration
above provided for."
SECTION 586. Section 62-5-620 of the 1976 Code is amended
to read:
"Section 62-5-620. The Administrator or his successor is
and shall be a party in interest (a) in any proceeding brought under
any law of this State for the appointment, confirmation, recognition,
or removal of any guardian of a minor, or of a mentally
incompetent person, to whom or on whose behalf benefits have
been paid or are payable by the Veterans' Administration, its
predecessor or successor, (b) in any guardianship proceeding
involving such person or his estate, (c) in any suit or other
proceeding arising out of the administration of such person's estate
or assets and (d) in any proceeding the purpose of which is the
removal of the disability of minority or of mental incompetency of
such person. In any case or proceeding involving property or funds
of such minor or mentally incompetent person not derived from the
Veterans' Administration, the Veterans' Administration shall not be
a necessary party but may be a proper party to such proceedings.
This section shall not apply unless the Veterans' Administration
shall designate in writing filed with the Secretary of State
Attorney General, its chief attorney, acting chief attorney
or other agent within this State as a person authorized to accept
service of process or upon whom process may be served."
SECTION 587. (A) Where the provisions of this act transfer
the Office of the Secretary of State to another state agency,
department, division, or entity or make them a part of another
department or division (receiving departments), the employees,
authorized appropriations, bonded indebtedness if applicable, and
real and personal property of the Office of the Secretary of State
are also transferred to and become part of the receiving department
or division unless otherwise specifically provided. All classified or
unclassified personnel of the Office of the Secretary of State or
position employed by the Office of the Secretary of State on the
effective date of this act, either by contract or by employment at
will, shall become employees of the receiving department or
division, with the same compensation, classification, and grade
level, as applicable. The Budget and Control Board shall cause all
necessary actions to be taken to accomplish this transfer and shall
prescribe, in consultation with the Secretary of State and receiving
agencies, the manner in which the transfer provided for in this
section must be accomplished. The boards' action in facilitating the
provisions of this section are ministerial in nature and may not be
construed as an approval process over any of the transfers.
(B) Where the Office of the Secretary of State is transferred to
or consolidated with another agency, department, division, entity or
official, regulations promulgated by the Office of the Secretary of
State under the authority of former provisions of law pertaining to
it are continued and are considered to be promulgated under the
authority of present provisions of law pertaining to it.
(C) References to the names of agencies, departments, entities,
or public officials changed by this act, to their duties or functions
devolved pursuant to the provisions of this act upon other agencies,
departments, entities, or officials, or to provisions of law
consolidated with or transferred to other parts of the 1976 Code are
considered to be and must be construed to mean appropriate
references.
(D) Employees or personnel of the Office of the Secretary of
State, or sections, divisions, or portions of it, transferred to or made
a part of another agency, department, division, or official pursuant
to the terms of this act shall continue to occupy the same office
locations and facilities which they now occupy unless or until
otherwise changed by appropriate action and authorization. The
rent and physical plant operating costs of these offices and facilities,
if any, shall continue to be paid by the Office of the Secretary of
State until otherwise provided by the General Assembly. The
records and files of the agencies which formerly employed these
personnel shall continue to remain the property of these transferring
agencies, except that these personnel shall have complete access to
these records and files in the performance of their duties as new
employees of the receiving agency.
(E) Unless otherwise provided for in this act or by other
provisions of law, all fines, fees, forfeitures, or revenues imposed or
levied by the Office of the Secretary of State transferred pursuant to
the provisions of this act to other agencies or departments must
continue to be used and expended for those purposes provided prior
to the effective date of this act. If a portion of these fines, fees,
forfeitures, or revenues were required to be used for the support,
benefit, or expense of personnel transferred, those funds must
continue to be used for these purposes.
(F) The Budget and Control Board, in consultation with the
appropriate standing committees of the General Assembly as
designated by the President Pro Tempore of the Senate and the
Speaker of the House of Representatives and the other affected
agencies, shall prescribe the manner in which the provisions of
subsections (A), (D), and (E) must be implemented where
agreement between the affected agencies cannot be obtained.
(G) The Budget and Control Board shall provide for a
consolidated employee employment application process to be used
by all state agencies or departments including those affected by the
provisions of this act.
(H) Where the functions of the Office of the Secretary of State
have been devolved on more than one department or departmental
division, the general support services of the Office of the Secretary
of State must be transferred to the restructured departments or
departmental divisions as provided by the General Assembly in the
annual general appropriations act.
(I) The Code Commissioner shall make changes to the 1976
Code as contained in this act to be printed in replacement volumes
or in cumulative supplements as he considers practical and
economical.
SECTION 588. Notwithstanding any permanent or temporary
provision of law, any enactment, or portion of it, of the General
Assembly in 1996 in conflict with any provision of this act is
suspended as to its force and effect until March 1, 1996. Where
there is no conflict the provisions of any other enactments shall
supersede the provisions of this act. For the purposes of this
section, `conflict' does not include:
(1) where provisions of the Code of Laws of 1976, as amended,
are repeated in this act so as to incorporate only changes in the
names of agencies, divisions, or departments, except so far as such
change in name conflicts with another enactment or a portion of
another enactment, or
(2) where provisions of the Code of Laws of 1976, as amended,
are repeated in this act so as to incorporate only changes in the
governance or structure of an agency, division, or department
except so far as the governance or structure is in conflict with
another enactment or some portion of another enactment.
SECTION 589. (A) The repeal or amendment by this act of
any law, whether temporary or permanent or civil or criminal, does
not affect pending actions, rights, duties, or liabilities founded on it,
or alter, discharge, release, or extinguish any penalty, forfeiture, or
liability incurred under the repealed or amended law, unless the
repealed or amended provision expressly provides it. After the
effective date of this act, all laws repealed or amended by this act
must be taken and treated as remaining in full force and effect for
the purpose of sustaining any pending or vested right, civil action,
special proceeding, criminal prosecution, or appeal existing as of
the effective date of this act, and for the enforcement of rights,
duties, penalties, forfeitures, and liabilities as they stood under the
repealed or amended laws. Any department to which are
transferred the powers, duties, and functions of any agency relating
to the pending proceeding must be substituted as a party in interest.
(B) Any statute enacted and any rule or regulation made in
respect to any agency or function transferred to, or consolidated,
coordinated, or combined with any other agency or function under
the provisions of this act before the effective date of the transfer,
consolidation, coordination, or combination, except to the extent
repealed, modified, superseded, or made inapplicable by or under
the authority of law, shall have the same effect as if the transfer,
consolidation, coordination, or combination had not been made.
But when any such statute, rule, or regulation has vested functions
in the agency from which the transfer is made under the act, the
functions, insofar as they are to be exercised after the transfer, must
be considered as vested in the agency to which the transfer is made
under the act.
(C) No suit, action, or other proceeding lawfully commenced by
or against any agency or officer of the State in its or his official
capacity or in relation to the discharge of its or his official duties
shall abate by reason of the taking effect of this act but the court
may allow, on motion or supplemental complaint filed at any time
within twelve months after this act takes effect, showing a necessity
for a survival of such suit, action, or other proceeding to obtain an
adjudication of the questions involved, the same to be maintained
by or against the successor of the agency or officer under the act or,
if there be no such successor, against such agency or officer as the
Governor shall designate.
SECTION 590. If any section, subsection, paragraph,
subparagraph, sentence, clause, phrase, or word of this act is for
any reason held to be unconstitutional or invalid, such holding shall
not affect the constitutionality or validity of the remaining portions
of this act, the General Assembly by this act declaring that it would
have passed this act, and each and every section, subsection,
paragraph, subparagraph, sentence, clause, phrase, and word of it,
irrespective of the fact that any one or more other sections,
subsections, paragraphs, subparagraphs, sentences, clauses, phrases,
or words of this act may be declared to be unconstitutional, invalid,
or otherwise ineffective.
SECTION 591. Sections 1-5-10, 1-5-20, 8-21-110, 12-4-40,
23-29-50, 23-29-60, 23-29-70, 23-29-80, 30-11-10, 30-11-20,
30-11-30, 30-11-40, 30-11-50, 47-9-260, 47-9-270, 47-9-280,
47-9-310, 47-9-320, 47-9-330, 47-9-340, 47-9-380, 47-9-390, and
47-9-400 of the 1976 Code are repealed.
SECTION 592. This act takes effect July 1, 1997.
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