H 3848 Session 112 (1997-1998)
H 3848 General Bill, By L.H. Limbaugh and D. Smith
A BILL TO AMEND VARIOUS 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
04/09/97 House Introduced and read first time HJ-18
04/09/97 House Referred to Committee on Judiciary HJ-21
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, 5-5-10,
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, 7-13-72,
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, 12-49-90, AS AMENDED, 12-54-125,
12-54-240, 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, 33-44-101,
33-44-105, 33-44-106, 33-44-107, 33-44-109, 33-44-110, 33-44-111,
33-44-202, 33-44-204, 33-44-205, 33-44-206, 33-44-207, 33-44-208,
33-44-210, 33-44-211, 33-44-704, 33-44-805, 33-44-809, 33-44-810,
33-44-811, 33-44-812, 33-44-902, 33-44-904, 33-44-905, 33-44-906,
33-44-1002, 33-44-1004, 33-44-1005, 33-44-1006, 33-44-1007,
33-44-1008, 33-44-1204, 33-44-1206, 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, 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, 35-1-320, 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, 40-2-110, 40-11-30, 40-11-120, 40-22-40, 40-22-50,
40-22-90, 40-30-60, 40-33-270, 40-59-20, AS AMENDED,
40-59-110, 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, 59-40-40, 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, 61-6-60, 61-6-510, 61-9-1240, 61-10-250,
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� 381/2' ) 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 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 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 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. The last paragraph of Section 5-5-10 of the 1976
Code, as added by Act 338 of 1996, is amended to read:
"If a municipality failed to adopt one of the above forms of
government within fifteen months of December 31, 1977, it shall
be is considered to have forfeited its articles of
incorporation, until such time as the municipality adopts one of these
forms of government and certifies the adoption to the office of the
Secretary of State Governor. Upon certification by
the governing body of the municipality of the adoption of one of the
forms of government to the office of the Secretary of State
Governor, the articles of incorporation for the municipality
shall must be reinstated. All actions taken by the
governing body municipality during the period of forfeiture shall
be are deemed to have been ratified by the governing
body of the municipality upon reinstatement of the articles of
incorporation. The reinstating municipality must not be contiguous
to any existing municipality."
SECTION 55. 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 56. 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 57. 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 58. 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 59. 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 60. 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 61. 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 62. 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 63. 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 64. 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 65. 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 66. 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 67. 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 68. 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 Election
Commission prior to the State convention. The reports shall be
public record."
SECTION 69. 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 70. Section 7-13-70 of the 1976 Code, as last amended
by Act 465 of 1996, 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, must 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 must notify the State Election Commission
in writing of the appointments. The State Election Commission must
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. After their appointment the
commissioners must 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'.
The oath must be immediately filed in the office of the clerk of
court of common pleas of the county in which the commissioners are
appointed, or if there is no clerk of court, in the office of the
Secretary of State Election Commission.
Commissioners must complete, within eighteen months after their
appointment or reappointment, a training and certification program
conducted by the State Election Commission."
SECTION 71. The last paragraph of Section 7-13-72 of the 1976
Code, as added by Act 465 of 1996, is amended to read:
"The oath must be immediately filed in the office of the clerk of
court of common pleas of the county in which the managers and
clerks are appointed, or if there is no clerk of court, in the office of
the Secretary of State Election Commission. Before
opening the polls, the managers of election must 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 72. 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
Election Commission."
SECTION 73. 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
renumbered 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 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 74. 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 75. 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 76. 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 77. 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 78. 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 79. 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 80. 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 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 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 81. 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 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 82. 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 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 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 83. 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 ofState 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 84. 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 Election Commission."
SECTION 85. 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 86. 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 87. 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 88. 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 89. 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 90. 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 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 91. 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 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 92. 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
Treasurer. It shall be the duty of the Secretary of
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 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 93. 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 94. 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 95. 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 96. 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 97. 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 98. 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 99. 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 100. 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 101. 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 102. Section 12-54-(B)(17) of the 1976 Code, as added
by Act 343 of 1996, is amended to read:
"(17) disclosure of information to the Secretary of State
Department of Commerce regarding a taxpayer who failed
to pay a tax or fee or file a return, where the Secretary of
State Department of Commerce has the power to
administratively dissolve the taxpayer or to revoke the taxpayer's
authority to transact business in this State for failure to pay taxes,
fees, or file returns."
SECTION 103. 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 104. 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 105. 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 106. Section 14-11-20 of the 1976 Code, as last
amended by Section 5, Part V, Act 391 of 1996, 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 thirty-two years
upon his appointment, has not been a licensed attorney for at least
eight years upon his appointment, has not been a resident of this State
for five years immediately preceding his appointment, and has not
been found qualified by the Judicial Merit Selection Commission.
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 107. 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 108. 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 109. 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 110. 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 111. 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 112. 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 113. 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 114. 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 115. 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 116. Section 15-78-30(c) of the 1976 Code, as last
amended by Act 271 of 1996, 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 including, but not limited to, technical experts
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 117. 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 118. 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 119. 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 120. 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 121. 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 122. 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 123. 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 124. 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 125. 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 126. 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 127. 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 128. 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 129. 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 130. 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 131. 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 132. 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 133. 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 134. 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 135. 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 136. 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 137. 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 138. 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 139. 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 140. 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 141. 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 142. 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 143. 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 144. Section 27-19-310 of the 1976 Code is amended
to read:
"Section 27-19-310. The duties of escheat or are devolved upon
the Secretary of State Attorney General as agent of
the State Budget and Control Board and as escheat or 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 145. 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 146. 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 147. 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 148. 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 149. 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 150. 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 151. 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 152. 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 153. 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 154. 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 155. 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 156. 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 157. 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 158. 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 159. 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 160. 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 161. 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 162. 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 163. 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 164. 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 165. 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 166. 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 167. 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 168. 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 169. 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 170. 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 171. 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 172. 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 173. 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 174. 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 175. 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 176. 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 177. 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 178. 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 179. 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 180. 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 181. 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 182. 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 183. 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 184. 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 185. 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 186. 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 187. 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 188. 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 189. 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 190. 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 191. 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 192. 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 193. 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 194. 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 195. 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 196. 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 197. 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 198. 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 199. 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 200. 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 201. 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 202. 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 203. 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 204. 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 205. 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 206. 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 207. 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 208. 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 209. 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 210. 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 acknowledgment, 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 211. 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 212. 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 213. 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 214. 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 215. 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 216. 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 217. 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 218. 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 219. 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 220. 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 221. 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 222. 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 223. 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 224. 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 225. 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 226. 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 227. 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 228. 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 229. 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 230. 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 231. 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 232. 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 233. 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 234. 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 235. 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 236. 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 237. 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 238. 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 239. 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 240. 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 241. 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 242. 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 243. 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 244. 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 245. 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 246. 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 247. 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 248. 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 249. 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 250. 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 251. 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 252. 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:
(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 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, 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
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 253. 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 254. 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 255. 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 256. 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 257. 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 258. 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 259. 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 260. 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 261. 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 262. 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 263. 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 264. 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 265. 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 266. 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 267. 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 268. 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 269. 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 270. 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 271. 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 272. 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 273. 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 274. 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 275. 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 276. 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 277. 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 278. 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 279. 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 280. 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 281. 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 282. 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 283. 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 284. 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 285. 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 286. 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 287. 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 288. 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 289. 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 290. 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 291. 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 292. 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 293. 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 294. 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 295. 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 296. 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 297. 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 298. 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 299. 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 300. 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 301. 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 302. 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 303. 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 304. 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 305. 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 306. 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 307. 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 308. 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 309. 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 310. 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 311. 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 312. 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 313. 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 314. 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 315. 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 316. 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 317. 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 318. 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 319. 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 320. 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 321. 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 322. 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 323. 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 324. 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 325. 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 326. 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 327. 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 328. 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 329. 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 330. Section 33-44-101 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-101. In this chapter:
(1) 'Articles of organization' means initial, amended, and restated
articles of organization, and articles of merger. In the case of a
foreign limited liability company, the term includes all records
serving a similar function required to be filed in the Office of the
Secretary of State Department of Commerce or other
official having custody of company records in the State or country
under whose law it is organized.
(2) 'At-will company' means a limited liability company other
than a term company.
(3) 'Business' includes every trade, occupation, profession, and
other lawful purpose, whether or not carried on for profit.
(4) 'Debtor in bankruptcy' means a person who is the subject of an
order for relief under Title 11 of the United States Code or a
comparable order under a successor statute of general application or
a comparable order under federal, state, or foreign law governing
insolvency.
(5) 'Distribution' means a transfer of money, property, or other
benefit from a limited liability company to a member in the member's
capacity as a member or to a transferee of the member's distributional
interest.
(6) 'Distributional interest' means all of a member's interest in
distributions by the limited liability company.
(7) 'Entity' means a person other than an individual.
(8) 'Foreign limited liability company' means an unincorporated
entity organized under laws other than the laws of this State which
afford limited liability to its owners comparable to the liability under
Section 33-44-303 and is not required to obtain a certificate of
authority to transact business under any law of this State other than
this chapter.
(9) 'Limited liability company' means a limited liability company
organized under this chapter.
(10) 'Manager' means a person, whether or not a member of a
manager-managed company, who is vested with authority under
Section 33-44-301.
(11) 'Manager-managed company' means a limited liability
company which is so designated in its articles of organization.
(12) 'Member-managed company' means a limited liability
company other than a manager-managed company.
(13) 'Operating agreement' means the agreement under Section
33-44-103 concerning the relations among the members, managers,
and limited liability company. The term includes amendments to the
agreement.
(14) 'Person' means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association, joint
venture, government, governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.
(15) 'Principal office' means the office, whether or not in this State,
where the principal executive office of a domestic or foreign limited
liability company is located.
(16) 'Record' means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(17) 'Sign' means to identify a record by means of a signature,
mark, or other symbol, with intent to authenticate it.
(18) 'State' means a state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any territory or
insular possession subject to the jurisdiction of the United States.
(19) 'Term company' means a limited liability company in which
its members have agreed to remain members until the expiration of
a term specified in the articles of organization.
(20) 'Transfer' includes an assignment, conveyance, deed, bill of
sale, lease, mortgage, security interest, encumbrance, and gift."
SECTION 331. Section 33-44-105 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
Section 33-44-105. (a) The name of a limited liability company
must contain 'limited liability company' or 'limited company' or the
abbreviation 'L.L.C.', 'LLC', 'L.C.', or 'LC'. 'Limited' may be
abbreviated as 'Ltd.', and 'company' may be abbreviated as 'Co.'.
(b) Except as authorized by subsections (c) and (d), the name of
a limited liability company must be distinguishable upon the records
of the Secretary of State Department of Commerce
from:
(1) the name of any corporation, limited partnership, or
company incorporated, organized or authorized to transact business,
in this State;
(2) a name reserved or registered under Section 33-44-106 or
33-44-107;
(3) a fictitious name approved under Section 33-44-1005 for a
foreign company authorized to transact business in this State because
its real name is unavailable.
(c) A limited liability company may apply to the Secretary of
State Department of Commerce for authorization to use
a name that is not distinguishable upon the records of the
Secretary of State Department of Commerce 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 present user, registrant, or owner of a reserved name
consents to the use in a record and submits an undertaking in form
satisfactory to the Secretary of State Department of
Commerce to change the name to a name that is distinguishable
upon the records of the Secretary of State Department of
Commerce from the name applied for; 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 limited liability company may use the name, including a
fictitious name, of another domestic or foreign company which is
used in this State if the other company is organized or authorized to
transact business in this State and the company proposing to use the
name has:
(1) merged with the other company;
(2) been formed by reorganization with the other company; or
(3) acquired substantially all of the assets, including the name,
of the other company."
SECTION 332. Section 33-44-106 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-106. (a) A person may reserve the exclusive use
of the name of a limited liability company, including a fictitious
name for a foreign 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 name applied for is
available, it must be reserved for the applicant's exclusive use for a
nonrenewable one hundred twenty-day period.
(b) The owner of a name reserved for a limited liability company
may transfer the reservation to another person by delivering to the
Secretary of State Department of Commerce a signed
notice of the transfer which states the name and address of the
transferee."
SECTION 333. Section 33-44-107 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-107. (a) A foreign limited liability company may
register its name subject to the requirements of Section 33-44-1005,
if the name is distinguishable upon the records of the Secretary of
State Department of Commerce from names that are not
available under Section 33-44-105(b).
(b) A foreign limited liability company registers its name, or its
name with any addition required by Section 33-44-1005, by
delivering to the Secretary of State Department of
Commerce for filing an application:
(1) setting forth its name, or its name with any addition required
by Section 33-44-1005, 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 record of
similar import, from the State or country of organization.
(c) A foreign limited liability company whose registration is
effective may renew it for successive years by delivering for filing in
the office of the Secretary of State Department of
Commerce a renewal application complying with subsection (b)
between October first and December thirty-first of the preceding
year. The renewal application renews the registration for the
following calendar year.
(d) A foreign limited liability company whose registration is
effective may qualify as a foreign company under its name or consent
in writing to the use of its name by a limited liability company later
organized under this chapter or by another foreign company later
authorized to transact business in this State. The registered name
terminates when the limited liability company is organized or the
foreign company qualifies or consents to the qualification of another
foreign company under the registered name."
SECTION 334. Section 33-44-109 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-109. A limited liability company may change its
designated office or agent for service of process by delivering to the
Secretary of State Department of Commerce for
filing a statement of change which sets forth:
(1) the name of the company;
(2) the street address of its current designated office;
(3) if the current designated office is to be changed, the street
address of the new designated office;
(4) the name and address of its current agent for service of
process; and
(5) if the current agent for service of process or street address of
that agent is to be changed, the new address or the name and street
address of the new agent for service of process."
SECTION 335. Section 33-44-110 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-110. (a) An agent for service of process of a
limited liability company may resign by delivering to the
Secretary of State Department of Commerce for
filing a record of the statement of resignation.
(b) After filing a statement of resignation, the Secretary of
State Department of Commerce shall mail a copy to the
designated office and another copy to the limited liability company
at its principal office.
(c) An agency is terminated on the thirty-first day after the
statement is filed in the office of the Secretary of State
Department of Commerce."
SECTION 336. Section 33-44-111 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-111. (a) An agent for service of process
appointed by a limited liability company or a foreign limited liability
company is an agent of the company for service of any process,
notice, or demand required or permitted by law to be served upon the
company.
(b) If a limited liability company or foreign limited liability
company fails to appoint or maintain an agent for service of process
in this State or the agent for service of process cannot with reasonable
diligence be found at the agent's address, the Secretary of
State Department of Commerce is an agent of the
company upon whom process, notice, or demand may be served.
(c) Service of any process, notice, or demand on the Secretary
of State Department of Commerce may be made by
delivering to and leaving with the Secretary of State
Department of Commerce, or a clerk in the limited liability
company department of the Secretary of State Department
of Commerce's office 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
forward one of the copies by registered or certified mail, return
receipt requested, to the company at its designated office. Service is
effected under this subsection at the earliest of:
(1) the date the company receives the process, notice, or
demand;
(2) the date shown on the return receipt, if signed on behalf of
the company; or
(3) five days after its deposit in the mail, if mailed postpaid and
correctly addressed.
(d) The Secretary of State Department of
Commerce shall keep a record of all processes, notices, and
demands served pursuant to this section and record the time of and
the action taken regarding the service.
(e) This section does not affect the right to serve process, notice,
or demand in any manner otherwise provided by law."
SECTION 337. Section 33-44-202 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-202. (a) One or more persons may organize a
limited liability company, consisting of one or more members, by
delivering articles of organization to the office of the Secretary of
State Department of Commerce for filing.
(b) Unless a delayed effective date is specified, the existence of a
limited liability company begins when the articles of organization are
filed.
(c) The filing of the articles of organization by the Secretary
of State Department of Commerce is conclusive proof
that the organizers satisfied all conditions precedent to the creation
of a limited liability company."
SECTION 338. Section 33-44-204 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-204. (a) Articles of organization of a limited
liability company may be amended at any time by delivering articles
of amendment to the Secretary of State Department of
Commerce for filing. The articles of amendment must set forth
the:
(1) name of the limited liability company;
(2) date of filing of the articles of organization; and
(3) amendment to the articles.
(b) A limited liability company may restate its articles of
organization at any time. Restated articles of organization must be
signed and filed in the same manner as articles of amendment.
Restated articles of organization must be designated as such in the
heading and state 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 initial articles
of organization."
SECTION 339. Section 33-44-205 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-205. (a) Except as otherwise provided in this
chapter, a record to be filed by or on behalf of a limited liability
company in the office of the Secretary of State
Department of Commerce must be signed in the name of the
company by a:
(1) manager of a manager-managed company;
(2) member of a member-managed company;
(3) person organizing the company, if the company has not been
formed; or
(4) fiduciary, if the company is in the hands of a receiver,
trustee, or other court-appointed fiduciary.
(b) A record signed under subsection (a) must state adjacent to the
signature the name and capacity of the signer.
(c) Any person may sign a record to be filed under subsection (a)
by an attorney-in-fact. Powers of attorney relating to the signing of
records to be filed under subsection (a) by an attorney-in-fact need
not be filed in the office of the Secretary of State
Department of Commerce as evidence of authority by the
person filing but must be retained by the company."
SECTION 340. Section 33-44-206 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-206. (a) Articles of organization or any other
record authorized to be filed under this chapter must be in a medium
permitted by the Secretary of State Department of
Commerce and must be delivered to the office of the
Secretary of State Department of Commerce. Unless
the Secretary of State Department of Commerce
determines that a record fails to comply as to form with the filing
requirements of this chapter, and if all filing fees have been paid, the
Secretary of State Department of Commerce shall
file the record and send a receipt for the record and the fees to the
limited liability company or its representative.
(b) Upon request and payment of a fee, the Secretary of
State Department of Commerce shall send to the
requester a certified copy of the requested record.
(c) Except as otherwise provided in subsection (d) and Section
33-44-207(c), a record accepted for filing by the Secretary of
State Department of Commerce 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
date and time endorsement on the original record; or
(2) at the time specified in the record as its effective time on the
date it is filed.
(d) A record may specify a delayed effective time and date, and if
it does so the record becomes effective at the time and date specified.
If a delayed effective date but no time is specified, the record is
effective at the close of business on that date. If a delayed effective
date is later than the ninetieth day after the record is filed, the record
is effective on the ninetieth day."
SECTION 341. Section 33-44-207 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-207. (a) A limited liability company or foreign
limited liability company may correct a record filed by the
Secretary of State Department of Commerce if the
record contains a false or erroneous statement or was defectively
signed.
(b) A record is corrected:
(1) by preparing articles of correction that:
(i) describe the record, including its filing date, or attach a
copy of it to the articles of correction;
(ii) specify the incorrect statement and the reason it is
incorrect or the manner in which the signing was defective; and
(iii) correct the incorrect statement or defective signing; and
(2) by delivering the corrected record to the Secretary of
State Department of Commerce for filing.
(c) Articles of correction are effective retroactively on the
effective date of the record they correct except as to persons relying
on the uncorrected record and adversely affected by the correction.
As to those persons, articles of correction are effective when filed."
SECTION 342. Section 33-44-208 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-208. (a) A person may request the Secretary
of State Department of Commerce to furnish a certificate
of existence for a limited liability company or a certificate of
authorization for a foreign limited liability company.
(b) A certificate of existence for a limited liability company must
set forth:
(1) the company's name;
(2) that it is duly organized under the laws of this State, the date
of organization, whether its duration is at-will or for a specified term,
and, if the latter, the period specified;
(3) if payment is reflected in the records of the Secretary of
State Department of Commerce and if nonpayment
affects the existence of the company, that all fees, taxes, and penalties
owed to this State have been paid;
(4) whether its most recent annual report required by Section
33-44-211 has been filed with the Secretary of State
Department of Commerce;
(5) that articles of termination have not been filed; and
(6) other facts of record in the office of the Secretary of
State Department of Commerce which may be requested
by the applicant.
(c) A certificate of authorization for a foreign limited liability
company must set forth:
(1) the company's name used in this State;
(2) that it is authorized to transact business in this State;
(3) if payment is reflected in the records of the Secretary of
State Department of Commerce and if nonpayment
affects the authorization of the company, that all fees, taxes, and
penalties owed to this State have been paid;
(4) whether its most recent annual report required by Section
33-44-211 has been filed with the Secretary of State
Department of Commerce;
(5) that a certificate of cancellation has not been filed; and
(6) other facts of record in the office of the Secretary of
State Department of Commerce which may be requested
by the applicant.
(d) 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 limited liability
company is in existence or is authorized to transact business in this
State."
SECTION 343. Section 33-44-210 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-210. If a person required by Section 33-44-205 to
sign any record fails or refuses to do so, any other person who is
adversely affected by the failure or refusal may petition the circuit
court to direct the signing of the record. If the court finds that it is
proper for the record to be signed and that a person so designated has
failed or refused to sign the record, it shall order the Secretary of
State Department of Commerce to sign and file an
appropriate record."
SECTION 344. Section 33-44-211 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-211. (a) A limited liability company, and a
foreign limited liability company authorized to transact business in
this State, shall deliver to the Secretary of State
Department of Commerce for filing an annual report that
sets forth:
(1) the name of the company and the State or country under
whose law it is organized;
(2) the address of its designated office and the name and address
of its agent for service of process in this State;
(3) the address of its principal office; and
(4) the names and business addresses of any managers.
(b) Information in an annual report must be current as of the date
the annual report is signed on behalf of the limited liability company.
(c) The first annual report must be delivered to the Secretary
of State Department of Commerce between January first
and April first of the year following the calendar year in which a
limited liability company was organized or a foreign company was
authorized to transact business. Subsequent annual reports must be
delivered to the Secretary of State Department of
Commerce between January first and April first of the ensuing
calendar years.
(d) If an annual report does not contain the information required
in subsection (a), the Secretary of State Department of
Commerce shall promptly notify the reporting limited liability
company or foreign limited liability company and return the report to
it for correction. If the report is corrected to contain the information
required in subsection (a) and delivered to the Secretary of
State Department of Commerce within thirty days after
the effective date of the notice, it is timely filed."
SECTION 345. Section 33-44-704 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-704. (a) A dissociated member or a limited
liability company may file in the office of the Secretary of
State Department of Commerce a statement of
dissociation stating the name of the company and that the member is
dissociated from the company."
SECTION 346. Section 33-44-805 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-805. (a) At any time after dissolution and
winding up, a limited liability company may terminate its existence
by filing with the Secretary of State Department of
Commerce articles of termination stating:
(1) the name of the company;
(2) the date of the dissolution; and
(3) that the company's business has been wound up and the
legal existence of the company has been terminated.
(b) The existence of a limited liability company is terminated upon
the filing of the articles of termination, or upon a later effective date,
if specified in the articles of termination."
SECTION 347. Section 33-44-809 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-809. The Secretary of State
Department of Commerce may commence a proceeding to
dissolve a limited liability company administratively if the company
does not:
(1) pay any fees, taxes, or penalties imposed by this chapter or
other law within sixty days after they are due; or
(2) deliver its annual report to the Secretary of State
Department of Commerce within sixty days after it is due."
SECTION 348. Section 33-44-810 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-810. (a) If the Secretary of State
Department of Commerce determines that a ground exists
for administratively dissolving a limited liability company, the
Secretary of State Department of Commerce shall
enter a record of the determination and serve the company with a
copy of the record.
(b) If the 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 service of the
notice, the Secretary of State Department of
Commerce shall administratively dissolve the company by
signing a certification of the dissolution that recites the ground for
dissolution and its effective date. The Secretary of State
Department of Commerce shall file the original of the
certificate and serve the company with a copy of the certificate.
(c) A company administratively dissolved continues its existence
but may carry on only business necessary to wind up and liquidate its
business and affairs under Section 33-44-802 and to notify claimants
under Sections 33-44-807 and 33-44-808.
(d) The administrative dissolution of a company does not
terminate the authority of its agent for service of process."
SECTION 349. Section 33-44-811 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-811. (a) A limited liability company
administratively dissolved 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 company and the effective date of its
administrative dissolution;
(2) state that the ground for dissolution either did not exist or
has been eliminated;
(3) state that the company's name satisfies the requirements of
Section 33-44-105; and
(4) contain a certificate from the Department of Revenue
and Taxation reciting that all taxes owed by the company
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, the Secretary of State Department of
Commerce shall cancel the certificate of dissolution and prepare
a certificate of reinstatement that recites this determination and the
effective date of reinstatement, file the original of the certificate, and
serve the company with a copy of the certificate.
(c) When reinstatement is effective, it relates back to and takes
effect as of the effective date of the administrative dissolution, and
the company may resume its business as if the administrative
dissolution had never occurred."
SECTION 350. Section 33-44-812 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-812. (a) If the Secretary of State
Department of Commerce denies a limited liability
company's application for reinstatement following administrative
dissolution, the Secretary of State Department of
Commerce shall serve the company with a record that explains
the reason or reasons for denial.
(b) The company may appeal the denial of reinstatement to the
circuit court within 30 days after service of the notice of denial is
perfected. The 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 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 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 351. Section 33-44-902 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-902. (a) A partnership or limited partnership may
be converted to a limited liability company pursuant to this section.
(b) The terms and conditions of a conversion of a partnership or
limited partnership to a limited liability company must be approved
by all of the partners or by a number or percentage of the partners
required for conversion in the partnership agreement.
(c) An agreement of conversion must set forth the terms and
conditions of the conversion of the interests of partners of a
partnership or of a limited partnership, as the case may be, into
interests in the converted limited liability company or the cash or
other consideration to be paid or delivered as a result of the
conversion of the interests of the partners, or a combination thereof.
(d) After a conversion is approved under subsection (b), the
partnership or limited partnership shall file articles of organization in
the office of the Secretary of State Department of
Commerce which satisfy the requirements of Section 33-44-203
and contain:
(1) a statement that the partnership or limited partnership was
converted to a limited liability company from a partnership or limited
partnership, as the case may be;
(2) its former name;
(3) a statement of the number of votes cast by the partners
entitled to vote for and against the conversion and, if the vote is less
than unanimous, the number or percentage required to approve the
conversion under subsection (b); and
(4) in the case of a limited partnership, a statement that the
certificate of limited partnership is to be canceled as of the date the
conversion took effect.
(e) In the case of a limited partnership, the filing of articles of
organization under subsection (d) cancels its certificate of limited
partnership as of the date the conversion took effect.
(f) A conversion takes effect when the articles of organization are
filed in the office of the Secretary of State Department of
Commerce or at any later date specified in the articles of
organization.
(g) A general partner who becomes a member of a limited liability
company as a result of a conversion remains liable as a partner for an
obligation incurred by the partnership or limited partnership before
the conversion takes effect.
(h) A general partner's liability for all obligations of the limited
liability company incurred after the conversion takes effect is that of
a member of the company. A limited partner who becomes a member
as a result of a conversion remains liable only to the extent the
limited partner was liable for an obligation incurred by the limited
partnership before the conversion takes effect."
SECTION 352. Section 33-44-904 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-904. (a) Pursuant to a plan of merger approved
under subsection (c), a limited liability company may be merged with
or into one or more limited liability companies, foreign limited
liability companies, corporations, foreign corporations, partnerships,
foreign partnerships, limited partnerships, foreign limited
partnerships, or other domestic or foreign entities.
(b) A plan of merger must set forth:
(1) the name of each entity that is a party to the merger;
(2) the name of the surviving entity into which the other entities
will merge;
(3) the type of organization of the surviving entity;
(4) the terms and conditions of the merger;
(5) the manner and basis for converting the interests of each
party to the merger into interests or obligations of the surviving entity
or into money or other property in whole or in part; and
(6) the street address of the surviving entity's principal place of
business.
(c) A plan of merger must be approved:
(1) in the case of a limited liability company that is a party to
the merger, by all of the members or by a number or percentage of
members specified in the operating agreement;
(2) in the case of a foreign limited liability company that is a
party to the merger, by the vote required for approval of a merger by
the law of the State or foreign jurisdiction in which the foreign
limited liability company is organized;
(3) in the case of a partnership or domestic limited partnership
that is a party to the merger, by the vote required for approval of a
conversion under Section 33-44-902(b); and
(4) in the case of any other entities that are parties to the merger,
by the vote required for approval of a merger by the law of this State
or of the state or foreign jurisdiction in which the entity is organized
and, in the absence of such a requirement, by all the owners of
interests in the entity.
(d) After a plan of merger is approved and before the merger takes
effect, the plan may be amended or abandoned as provided in the
plan.
(e) The merger is effective upon the filing of the articles of merger
with the Secretary of State Department of Commerce
or at such later date as the articles may provide."
SECTION 353. Section 33-44-905 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-905. (a) After approval of the plan of merger
under Section 33-44-904(c), unless the merger is abandoned under
Section 33-44-904(d), articles of merger must be signed on behalf of
each limited liability company and other entity that is a party to the
merger and delivered to the Secretary of State Department
of Commerce for filing. The articles must set forth:
(1) the name and jurisdiction of formation or organization of
each of the limited liability companies and other entities that are
parties to the merger;
(2) for each limited liability company that is to merge, the date
its articles of organization were filed with the Secretary of
State Department of Commerce;
(3) that a plan of merger has been approved and signed by each
limited liability company and other entity that is to merge;
(4) the name and address of the surviving limited liability
company or other surviving entity;
(5) the effective date of the merger;
(6) if a limited liability company is the surviving entity, such
changes in its articles of organization as are necessary by reason of
the merger;
(7) if a party to a merger is a foreign limited liability company,
the jurisdiction and date of filing of its initial articles of organization
and the date when its application for authority was filed by the
Secretary of State Department of Commerce or, if an
application has not been filed, a statement to that effect; and
(8) if the surviving entity is not a limited liability company, an
agreement that the surviving entity may be served with process in this
State and is subject to liability in any action or proceeding for the
enforcement of any liability or obligation of any limited liability
company previously subject to suit in this State which is to merge,
and for the enforcement, as provided in this chapter, of the right of
members of any limited liability company to receive payment for
their interest against the surviving entity.
(b) If a foreign limited liability company is the surviving entity of
a merger, it may not do business in this State until an application for
that authority is filed with the Secretary of State
Department of Commerce.
(c) The surviving limited liability company or other entity shall
furnish a copy of the plan of merger, on request and without cost, to
any member of any limited liability company or any person holding
an interest in any other entity that is to merge.
(d) Articles of merger operate as an amendment to the limited
liability company's articles of organization."
SECTION 354. Section 33-44-906 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-906. (a) When a merger takes effect:
(1) the separate existence of each limited liability company and
other entity that is a party to the merger, other than the surviving
entity, terminates;
(2) all property owned by each of the limited liability
companies and other entities that are party to the merger vests in the
surviving entity;
(3) all debts, liabilities, and other obligations of each limited
liability company and other entity that is party to the merger become
the obligations of the surviving entity;
(4) an action or proceeding pending by or against a limited
liability company or other party to a merger may be continued as if
the merger had not occurred or the surviving entity may be
substituted as a party to the action or proceeding; and
(5) except as prohibited by other law, all the rights, privileges,
immunities, powers, and purposes of every limited liability company
and other entity that is a party to a merger vest in the surviving entity.
(b) The Secretary of State Department of
Commerce is an agent for service of process in an action or
proceeding against the surviving foreign entity to enforce an
obligation of any party to a merger if the surviving foreign entity fails
to appoint or maintain an agent designated for service of process in
this State or the agent for service of process cannot with reasonable
diligence be found at the designated office. Upon receipt of process,
the Secretary of State Department of Commerce shall
send a copy of the process by registered or certified mail, return
receipt requested, to the surviving entity at the address set forth in the
articles of merger. Service is effected under this subsection at the
earliest of:
(1) the date the company receives the process, notice, or
demand;
(2) the date shown on the return receipt, if signed on behalf of
the company; or
(3) five days after its deposit in the mail, if mailed postpaid and
correctly addressed.
(c) A member of the surviving limited liability company is liable
for all obligations of a party to the merger for which the member was
personally liable before the merger.
(d) Unless otherwise agreed, a merger of a limited liability
company that is not the surviving entity in the merger does not
require the limited liability company to wind up its business under
this chapter or pay its liabilities and distribute its assets pursuant to
this chapter.
(e) Articles of merger serve as articles of dissolution for a limited
liability company that is not the surviving entity in the merger."
SECTION 355. Section 33-44-1002 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1002. (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 company or, if its name is
unavailable for use in this State, a name that satisfies the
requirements of Section 33-44-1005;
(2) the name of the State or country under whose law it is
organized;
(3) the street address of its principal office;
(4) the address of its initial designated office in this State;
(5) the name and street address of its initial agent for service of
process in this State;
(6) whether the duration of the company is for a specified term
and, if so, the period specified;
(7) whether the company is manager-managed, and, if so, the
name and address of each initial manager; and
(8) whether the members of the company are to be liable for its
debts and obligations under a provision similar to Section
33-44-303(c).
(b) A foreign limited liability company shall deliver with the
completed application a certificate of existence or a record of similar
import authenticated by the Secretary of State Department
of Commerce or other official having custody of company
records in the State or country under whose law it is organized.
(c) 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. Applying for
a certificate of authority is not an admission of tax liability."
SECTION 356. Section 33-44-1004 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1004. Unless the Secretary of State
Department of Commerce determines that an application for
a certificate of authority fails to comply as to form with the filing
requirements of this chapter, the Secretary of State
Department of Commerce, upon payment of all filing fees,
shall file the application and send a receipt for it and the fees to the
limited liability company or its representative."
SECTION 357. Section 33-44-1005 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1005. (a) If the name of a foreign limited
liability company does not satisfy the requirements of Section
33-44-105, the company, to obtain or maintain a certificate of
authority to transact business in this State, must 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 managers, in
the case of a manager-managed company, or of its members, in the
case of a member-managed company, adopting the fictitious name.
(b) Except as authorized by subsections (c) and (d), the name,
including a fictitious name to be used to transact business in this
State, of a foreign limited liability company must be distinguishable
upon the records of the Secretary of State Department of
Commerce from:
(1) the name of any corporation, limited partnership, or
company incorporated, organized, or authorized to transact business
in this State;
(2) a name reserved or registered under Section 33-44-106 or
33-44-107; and
(3) the fictitious name of another foreign limited liability
company authorized to transact business in this State.
(c) A foreign limited liability company may apply to the
Secretary of State Department of Commerce for
authority to use in this State a name that is not distinguishable upon
the records of the Secretary of State Department of
Commerce from a name described in subsection (b). The
Secretary of State Department of Commerce shall
authorize use of the name applied for if:
(1) the present user, registrant, or owner of a reserved name
consents to the use in a record 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 foreign applying limited
liability company; or
(2) the applicant delivers to the Secretary of State
Department of Commerce a certified copy of a final
judgment of a court establishing the applicant's right to use the name
applied for in this State.
(d) A foreign limited liability company may use in this State the
name, including the fictitious name, of another domestic or foreign
entity that is used in this State if the other entity is incorporated,
organized, or authorized to transact business in this State and the
foreign limited liability company:
(1) has merged with the other entity;
(2) has been formed by reorganization of the other entity; or
(3) has acquired all or substantially all of the assets including
the name of the other entity.
(e) If a foreign limited liability company authorized to transact
business in this State changes its name to one that does not satisfy the
requirements of Section 33-44-105, it may not transact business in
this State under the name as changed until it adopts a name satisfying
the requirements of Section 33-44-105 and obtains an amended
certificate of authority."
SECTION 358. Section 33-44-1006 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1006. (a) A certificate of authority of a foreign
limited liability company to transact business in this State may be
revoked by the Secretary of State Department of
Commerce in the manner provided in subsection (b) if:
(1) the company fails to:
(i) pay any fees, taxes, and penalties owed to this State;
(ii) deliver its annual report required under Section 33-44-211
to the Secretary of State Department of Commerce
within sixty days after it is due;
(iii) appoint and maintain an agent for service of process as
required by this article; or
(iv) file a statement of a change in the name or business
address of the agent as required by this article; or
(2) a misrepresentation has been made of any material matter in
any application, report, affidavit, or other record submitted by the
company pursuant to this article.
(b) The Secretary of State Department of
Commerce may not revoke a certificate of authority of a foreign
limited liability company unless the Secretary of State
Department of Commerce sends the company notice of the
revocation, at least sixty days before its effective date, by a record
addressed to its agent for service of process in this State, or if the
company fails to appoint and maintain a proper agent in this State,
addressed to the office required to be maintained by Section
33-44-108. The notice must specify the cause for the revocation of
the certificate of authority. The authority of the company to transact
business in this State ceases on the effective date of the revocation
unless the foreign limited liability company cures the failure before
that date."
SECTION 359. Section 33-44-1007 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1007. A foreign limited liability company may
cancel its authority to transact business in this State by filing in the
office of the Secretary of State Department of
Commerce a certificate of cancellation. Cancellation does not
terminate the authority of the Secretary of State
Department of Commerce to accept service of process on the
company for claims for relief arising out of the transactions of
business in this State."
SECTION 360. Section 33-44-1008 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1008. (a) A foreign limited liability company
transacting business in this State may not maintain an action or
proceeding in this State unless it has a certificate of authority to
transact business in this State.
(b) The failure of a foreign limited liability company to have a
certificate of authority to transact business in this State does not
impair the validity of a contract or act of the company or prevent the
foreign limited liability company from defending an action or
proceeding in this State.
(c) Limitations on personal liability of managers, members, and
their transferees are not waived solely by transacting business in this
State without a certificate of authority.
(d) If a foreign limited liability company transacts business in this
State without a certificate of authority, it appoints the Secretary
of State Department of Commerce as its agent for
service of process for claims for relief arising out of the transaction
of business in this State."
SECTION 361. Section 33-44-1204 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1204. (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 limited liability company: one
hundred and ten dollars.
(2) Amendment or restatement of the articles of organization of
a 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 transact 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) Application for reservation of a limited liability company
name: twenty-five dollars.
(7) Notice of transfer of a reserved limited liability company
name: ten dollars.
(8) Annual application for registration (or renewal) of a foreign
limited liability company name: ten dollars.
(9) Annual report of a domestic or foreign limited liability
company: ten dollars.
(10) Statement of change of designated office or agent for the
service of process, or both: ten dollars.
(11) Articles of termination: ten dollars.
(12) Application for reinstatement after administrative
dissolution: twenty-five dollars.
(13) Application for certificate of cancellation: ten dollars.
(14) Application for certificate of existence or authorization: ten
dollars.
(15) Any other document required or permitted to be filed
pursuant to this chapter: 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 this chapter. 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 362. Section 33-44-1206 of the 1976 Code, as added by
Act 343 of 1996, is amended to read:
"Section 33-44-1206. (a) Before January 1, 2001, this chapter
governs only a limited liability company organized:
(1) after the effective date of this chapter, unless the company
is continuing the business of a dissolved limited liability company
under Section 33-43-901.3; and
(2) before the effective date of this chapter, which elects, as
provided by subsection (c), to be governed by this chapter.
(b) On and after January 1, 2001, this chapter governs all limited
liability companies.
(c) Before January 1, 2001, a limited liability company voluntarily
may elect, in the manner provided in its operating agreement or by
law for amending the operating agreement, to be governed by this
chapter.
(d) Before January 1, 2001, this chapter governs only a foreign
limited liability company which applies for a certificate of authority
(or amended certificate) to transact business in this State after the
effective date of this chapter, or which first transacts business in this
State after the effective date of this chapter.
(e) Notwithstanding any other provision of this chapter, after
January 1, 2001, the Secretary of State Department of
Commerce may commence a proceeding to dissolve a limited
liability company under Section 33-44-809, if the company was
formed prior to the effective date of this act and its articles of
organization are not in conformity with Section 33-44-203.
(f) Notwithstanding any other provision of this chapter, after
January 1, 2001, the Secretary of State Department of
Commerce may revoke a foreign limited liability company's
certificate of authority under Section 33-44-1006, if the company was
granted a certificate of authority prior to the effective date of this act
and its latest application for a certificate or amended certificate of
authority does not set forth the information required by Section
33-44-1002."
SECTION 363. 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 364. 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 365. 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 366. 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 367. 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 368. 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 369. 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 370. 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 371. 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 372. 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 373. 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 374. 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 375. 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 376. 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 377. 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 378. 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 379. 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 380. 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 381. 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 382. 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 383. 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 384. 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 385. 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 386. 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 387. 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 388. 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 389. 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 390. 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 391. 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 392. 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 393. 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 394. 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 395. 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 396. 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 397. 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 398. 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 399. 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 400. 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 401. 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 402. 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 403. 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 404. 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 405. 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 406. 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 407. 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 408. 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 409. 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 410. 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 411. 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 412. 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) hereof 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 413. 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 414. 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 415. 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 416. 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 417. 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 418. 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 419. 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 420. 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 421. 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 422. 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 423. 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 424. 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 425. 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 426. 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 427. 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 428. 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 429. 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 430. 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 431. 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 432. 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 433. 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 434. 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 435. 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 436. 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 437. 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 438. 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 439. 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 440. 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 441. 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 442. 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 443. 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 444. 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 445. 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 446. Section 40-2-110 of the 1976 Code, as added by
Act 453 of 1996, is amended to read:
"Section 40-2-110. 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 of this must 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 obtain a bond as the board directs."
SECTION 447. 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 448. 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 449. 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 450. 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 451. 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 452. Section 40-30-65(D) of the 1976 Code, as added
by Act 387 of 1996, is amended to read:
"(D) Before entering upon the discharge of the duties of the office,
a disciplinary panel member shall take and file with the Secretary
of State Governor in writing an oath to perform the
duties of the office as a member of the disciplinary panel and to
uphold the Constitution of this State and the United States."
SECTION 453. 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 454. 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 455. 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 456. 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 457. 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 458. 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 459. 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 460. 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 461. 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 462. 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 463. 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 464. 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 465. 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 466. 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 467. 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 468. 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 469. 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 470. 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 471. 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 472. 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 473. 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 474. 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 475. 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 476. 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 477. 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 478. 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 479. 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 480. 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 481. 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 482. 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 483. 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 484. 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 485. 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. 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 486. 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 487. 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 488. 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 489. 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 490. 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 491. 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 492. 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 493. 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 494. 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 495. 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 496. 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 497. 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 498. 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 499. 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 500. 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 501. 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. 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 502. Section 50-3-315 of the 1976 Code, as last
amended by Act 388 of 1996, is further amended to read:
"Section 50-3-315. (A) The director may appoint deputy
enforcement officers who serve at the pleasure of the director without
pay. The officers have statewide police power. However, the
director may restrict their territorial jurisdiction. No person may be
appointed as an officer who holds another public office. The
Secretary of State Governor shall transmit to the
director the commissions of all officers. The officers, except for
designated department employees, shall obtain the bonds required by
Section 50-3-330.
(B) Except for specially designated department employees, deputy
enforcement officers are volunteers covered by Chapter 25 of Title
8 and not employees entitled to coverage or benefits in Title 42.
(C) Except for specially designated department employees, deputy
enforcement officers shall furnish their own equipment but may not
equip privately owned vehicles with blue lights, sirens, or police-type
markings.
(D) Deputy enforcement officers must be of good character.
(E) The department shall administer the deputy enforcement
officers through its Natural Resources Enforcement Division.
(F) The number of deputy enforcement officers appointed is in the
discretion of the director.
(G) All deputy enforcement officers:
(1) must be certified by the South Carolina Criminal Justice
Academy or successfully shall complete the 'Basic State Constables
Course' at their own expense at one of the state technical schools;
(2) successfully shall complete required refresher training;
(3) promptly shall comply with all directives by the Deputy
Director of the Natural Resources Enforcement Division and the
supervisor of enforcement officers within whose area the officer is
acting.
(H) The department by regulation shall establish a training
program for deputy enforcement officers commissioned after July 1,
1980."
SECTION 503. 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 504. 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 505. 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 506. 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 507. 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 508. 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 509. 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 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 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 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 510. 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 511. 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 512. 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 513. 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 514. 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 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 515. 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 516. Section 57-5-180 of the 1976 Code, as last
amended by Section 1509, Act 181 of 1993, is further 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 517. 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 518. 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 519. 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 520. 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 521. 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 522. 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 523. 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 524. 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 525. 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 526. 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 527. 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 528. 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 529. 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 530. 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 531. 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 532. 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 533. 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 534. 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 535. 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 536. 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 537. 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 538. 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 539. 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 540. 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 541. 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 542. 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 543. 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 544. 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 545. 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 546. Section 59-40-40(3) of the 1976 Code, as added
by Act 447 of 1996, is amended to read:
"(3) 'Applicant' means the person who desires to form a charter
school and files the necessary application therefor with the local
school board of trustees. The applicant also must be the person who
applies to the Secretary of State Department of
Commerce to organize the charter school as a nonprofit
corporation."
SECTION 547. 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 548. 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 549. 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 550. 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 551. 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 552. 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 553. 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 554. 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 555. 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 556. 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 557. 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 558. 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 559. 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 560. Section 61-6-60 of the 1976 Code, as added by
Act 415 of 1996, is amended to read:
"Section 61-6-60. The division may employ inspectors or agents
necessary for the proper administration and enforcement of the
provisions of the ABC Act. The salaries of these inspectors or agents
must be fixed by the division. The Governor shall commission as
state constables inspectors or agents as are certified by the division
in order that they have adequate authority as peace officers to enforce
these provisions. An inspector or agent must, before entering upon
the discharge of his duties, take and subscribe the oath of office as
required by Article III, Section 2 of the Constitution of South
Carolina, and any additional oath required by law, and must give
bond payable to the State in a form approved by the Attorney
General, in the penal sum of five thousand dollars with some surety
or guaranty company authorized to do business in this State and
approved by the division, conditioned upon the faithful discharge of
his duties. The bonds must be filed with and preserved by the
Secretary of State Governor."
SECTION 561. Section 61-6-510 of the 1976 Code, as added by
Act 415 of 1996, is amended to read:
"Section 61-6-510. The department may issue a temporary permit
to allow the possession, sale, and consumption of alcoholic liquors.
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 before 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 must charge
a nonrefundable filing fee of thirty-five dollars for processing each
application. The department in its discretion must specify the terms
and conditions of the permit. For purposes of this section, 'nonprofit
organization' means an organization not open to the general public,
but with a limited membership and established for social, benevolent,
patriotic, recreational, or fraternal purposes."
SECTION 562. 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 563. Section 61-10-250 of the 1976 Code, as added by
Act 415 of 1996, is amended to read:
"Section 61-10-250. A person who manufactures alcohol under the
provisions of this article must, while the 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 a declaration setting forth the exact
location, description, and dimension of each warehouse used and to
be used for this purpose. It is unlawful to store or keep alcohol
manufactured under the provisions of this article in a place other than
that described in the declaration."
SECTION 564. 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 565. (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 566. 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 567. (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 568. 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 569. The amendments in this act to Sections 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, 33-43-1003, 33-43-1005,
33-43-1007(C), 33-43-1008(A), 33-43-1105, 33-43-1202,
33-43-1304, 33-43-1401, and 33-43-1402 are effective until January
1, 2001 at which time they are repealed as provided in Section 3 of
Act 343 of 1996.
SECTION 570. 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 571. This act takes effect January 1, 2003.
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