McIntyre v. Clarkson

THE IN SUPREME COURT. v. Clarkson. jury to the sufficient to determine the issues submitted pleadings. issues of fact raised (other Boger than paid The costs will be defendants R. S. wife).

In the trial of the case we find

No error. taxpayer McINTYRE, WILLIAM C. Charlotte, a resident citizen of Mecklenburg County, Carolina, on his own behalf North on v. HONORABLE F. O. taxpayers County, behalf other said CLARKSON, SENIOR RESIDENT JUDGE OF THE 26TH JUDICIAL CAROLINA, SMITH, DISTRICT NORTH OF JESSIE CALDWELL COUNTY, CAROLINA, TREASURER OF MECKLENBURG NORTH BUSBY, and WALKER H. MECKLENBURG COUNTY AUDITOR ACCOUNTANT. (Filed May, 1961.) Law Constitutional 4: Statutes 4— § § taxpayer may 'by injunction constitutionality A test of a statute payment compensation county, expenditure of the of in the since such statute involves the public funds and also relates to an office which affects the business county. and social life of each citizen of the 2. Constitutional Law 6—§ legislative powers All of the State are vested in the General As- sembly may powers specifically prohibited and it exercise all such unless provision Constitution, or limited some the wisdom and ex- legislation pediency being exclusively province. within its S. Constitutional Law 10—§ constitutionality While all doubt as to the of a statute will be resolved powers representatives in favor of the lawful exercise their people, duty the in it is the courts to' declare a statute unconstitutional proper clearly transgresses cases when the statute constitutional limitations. 4. Statutes 1—§ regard prescribed by to' the limitations Art. Sec. 29 of the Con- Carolina, dealing subjects speci- stitution of North all statutes with the local, private, special acts, fied must be classified either as which are void, general laws, power pass. which the General has 5. Same— test whether a statute is local is not the amount of TERM,

JVIcIntyee v. Glakkson. territory ap- applies, it is of which it but whether state-wide prescribed plication coming persons toas all and localities within classi- Legislature fications, prohibit from since the does not the Constitution provided upon prescribing classifications are based classifications such need, population, situation, condition, rational differences of and the coming operates uniformly persons, things, statute as to all or localities particular within each classification. 6. Same— applicable only specified locality A statute to a or localities will not be

held to contravene Art. statute Sec. 29 the if the of State Constitution merely supplements general subject, on in laws the offers aid administering financing policies by general law, especially established when the unit is administrative local nature. Same: Courts § 17— 7. authorizing adopt machinery Art. 14A G.S. certain counties to its tenure, appointment, payment justices for the of of the indivisible, provisions depend upon power since all its of the exclusive appointment provided. therein Same— 14A, peace appointment G.S. Art. local is a statute the justices proscribed Constitution, of the Art. Sec. 29 of the exempts coverage large since the statute from its number of counties logical need, without real or basis of classification either population, topography or otherwise. 8. Same— may upheld being supplementary G.S. Art. 14A granting judges Superior authority 1955 Act the resident Court appoint justices peace, supplementary since statute is not providing to Act but is direct conflict therewith in exclusive

authority appoint justices peace. of the J., concurs. Higgins, J.

Bobbitt, dissenting. Campbell, J., Appeal by plaintiff at Chambers November MeoKleNbueg. 1960 in appointment of, Civil action to payment restrain of salaries to, County for Mecklenburg provisions under the 14A, Chapter of Article Statutes of North Carolina. admit allegations complaint. Defendants the factual judicially ours): stipulated facts' thus admitted are (numbering resident, is a taxpayer 1. Plaintiff citizen and of Mecklenburg County on “his own behalf as a taxpayer, sues the benefit taxpayers County.” of Mecklenburg other Clarkson, Superior

2. Defendants are: F. 0. senior Resident Court COURT. IN THE SUPREME v„

McIntxbe Clabkson. Judge (Mecklenburg County); of the 26th District and Jessie Cald- Busby, well Treasurer and Auditor of Meck- Smith and Walker H. lenburg respectively. County, County 7 March 1960 the Board of Commissioners Meck- On Mecklenburg

lenburg County adopted accepting a resolution Coun- ty of Article 14A of the General “all Statutes providing for the of Justices of Peace North Carolina system.” the fee Judge the Resident and the abolition of provided peace: for 41 for service resolution county police rural Court, 12 for service Recorder’s City police force, in the for service force, 13 for service Charlotte in the Relations City Court, 3 for service Domestic Recorder’s Mecklenburg County. trial service in Court, general and 8 for years, begin 2 in December 1960. were fixed at terms of office adopted by was July budget resolution Board 4. On County’s general $33,995.00 from appropriating of Commissioners expenses justices payment of salaries fund for 1960 to June inclusive. authorized months, December for 7 was reduced from 8 to justices with trial number of appear held to 3 unless it the number be that that recommendation justices for trial were Salaries fixed number is needed. greater at $6,000 each. appoint- that he will make the has announced Judge Clarkson

5. conformity with the resolutions. ments 14A, Chapter 7, of the General alleges complaint inclusive) (G.S. 7-120.11, 7-120.1 to G.S. Carolina of North Statutes peace pursuant unconstitutional, appointment payment of their salaries from the unlawful, would be this article unauthorized and unlawful ex- an fund would constitute general injure irreparably plaintiff and funds and would public penditure Mecklenburg County. prays Plaintiff for in- taxpayers of the other junctive relief. plaintiff’s motion for Craven, J., denied S. September

28On restraining order. temporary J., 18 November defendants’ Campbell, hearing before At the excepted. Then, after Defendants tenus was overruled. ore demurrer judge denying plain- an order counsel, made hearing arguments injunction. for motion tiff’s appealed.

Plaintiff restraining pend- for order Supreme Court motion filed Plaintiff granted 14 December 1960. The motion appeal. ing TERM, 1961. McIntyee v. Clarkson. J. Flowers and Blankenship plaintiff. F. Mercer J. for E. Currie McA. F. 0. Clarkson. for defendant n &Cobb Dockery, Buff, Perry, Bond Busby for defendants

Smith. Blakeney S. Twenty-Sixth District Bar Whiteford District, Judicial as Amicus Curiae. Moobe, J. In this Court defendants plaintiff’s demur ore tenus to complaint on grounds that it does not state facts sufficient to con- stitute a cause of action, and does not show plaintiff has legal sufficient interest to maintain the action.

Defendants contend resident, that a citizen and taxpayer, as such, does not have sufficient interest in the controversy to maintain an action, for himself and on behalf similarly of others situated, to- chal- lenge the constitutionality of providing a statute for the of the peace county in which he resides and for payment their salaries fund of the county. “ ‘Courts will not declare void an Legislature Act of the unless- question constitutionality of its presently -presented and it is- found to necessary protect do so in order to rights guaranteed by the Constitution.’ Fox Commissioners, v. 94 S.E. 2d injured Only may party validity assail the of a statute. Yar borough Park Commission, v. 145 S.E. Carringer 563.” Alverson, ante, 204,

But this Court has in numerous cases determined the constitutionali- ty injunctive upon of statutes suit for relief taxpayers where the expenditure public of funds is involved. Dennis v. Raleigh, 253 N.C. 923; Freeman v. Comrs. Madison, S.E. 217 N.C. 209, of 2d 354. Here, Mecklenburg County the Commissioners of have an made appropriation general county from the fund of the payment of justices peace of -purported salaries of the under the authority of 14A, Chapter 7, the Article of General Statutes of North Carolina. Court argued the was this it was When case admitted that the resi- justices judge appointed peace had of the dent Mecklenburg Coun- conformity with the resolution of the ty Commissioners putting appointments 14A into effect. were Article made before the inter- injunction issued locutory The present Court. suit calls appointments of legality the question the and the into resolutions of adopting the of the Commissioners Article 14A and ap- expenses and other justices funds for salaries propriating of of serious concern matters are peace. These citizens and tax- Mecklenburg and of the large. State at payers of It is es- 17 —254 IN THE COURT. SUPREME V. CLARKSON.

JMColNTTBE Mecklenburg orderly sential the government effective -and of Coun- ty that the the be had on merits. immediate determination of case adjudication In of addition to the issuance and the certain of warrants many peace civil official actions, justices and criminal have performing marriage duties the ceremonies powers, including and of the taking of trust. Their acknowledgments of of deeds and deeds vitally life the State. It activities affect the business and social of stretching procedural breaking point would be rule to the to hold a criminal a con- taxpayer law, citizen and must violate a breach a marriage tract, tort, questionable commit a or make doubt- contract part acknowledgment may, ful he on his own of a deed before county, his invoke the taxpayers on of behalf other citizens and validity of equitable jurisdiction of to have determined the courts the vitally public public affects the welfare and statute which so funds. terms demurrer ore is overruled. 14A, Chapter 7, the

Prior the of Article General enactment (G.S. 7-120.11), were 7-120.1 to there Statutes of North Carolina G.S. (1) peace: popular elections selecting justices four methods of (2) township (G.S. 7-113); appointments Governor (G.S. (3) 7-115); appointments by the General 7-114 and (4) (In 717); filling re of vacancies Bill,” 227 N.C. “Omnibus 7-114). (G.S. all These methods were superior court clerks application. statewide on this Assembly passed question the law — referred to as the 1949

appeal 14A, Chapter 7, hereinafter particular county in a only, It and becomes effective permissive Act. county commissioners of adopted if and resolution when fix number of the commissioners to county. impowers judge resident and authorizes the appointed to be appointments and to remove to make superior court two-year serve terms hearing. appointees cause, office for after county fund in lieu of fees. from the paid and are salaries daily deposits fees, of all and make They required give bond required to The commissioners are and forfeitures collected. fines justice places where each designate place officesand provide purports repeal G.S. 7-113 regularly. The Act sit shall 7-115, thereby of G. S. 7-114 G.S. two sentences last methods election all other abrogate except adopting county, that vacancies particular in the the of exempted 73 superior court. Act counties of by clerk are filled the pres- Hoke was added. There are 1957 operation. its from exempted counties. ently 72 TERM, 1961. 515 v. Clarkson.

In 1955 the Assembly General rewrote hereinafter re- 7-115, G.S. ferred to as the provides Act. It now 1955 that in case of need resident judges may, their time time, discretion from appoint one persons more fit justice of county the or counties with- in their respective The term of office is years two and the districts. appointees may removed judge cause, be the resident after hearing. This Act is “In addition provided by to other methods law justice or election of peace.” of This Act is a statewide law exempted. and no counties are (A) firmly

“. . . doctrine established in the law is that a State Con- stitution is grant in no matter a All power. power of which is not limited the people, Constitution inheres in an and act of a legislature legal State prohibition is when the Constitution contains no against 102, it.” Lassiter v. Board 248 Elections, 112, 102 N.C. 2d S.E. 853. Assembly members representatives General people. The expediency legislative wisdom and of a statute are for the department, acting entirely when within constitutional limits. law-making body courts will not disturb act of the unless it runs prohibition. counter a constitutional limitation or Finance Co. v. 550, Pittman, 423; 253 117 2d v. Warren, N.C. S.E. 252 690, 696, 660; Lilly N.C. Co. Saunders, S.E. & N.C. v. 170, 4 S.E. 2d 528.

“It is well in this settled State that Courts the power, have duty proper cases, it is and their to declare an act of General — Assembly plainly unconstitutional but it must be clearly and If reasonable it will doubt, case. be resolved favor of there their powers representatives the lawful exercise people.” Education, Glenn v. Board N.C. 529-30, 187 S.E. Moore, 714, 717, 781. See also State 143.

Plaintiff contends 1949 Act contravenes Article section Carolina, special North that it Constitution is a applicable Act local Act and entire State. — amendments were In 1916 three constitutional ratified Article They VIII, became 29; effective 10 January sec. ss. designed to remove some They were sixteen or more subjects local, private special legislation. the field of proponents argued by amendments that they It was the membership essential for that necessary were knowledge local, private had little Assembly as a whole conditions, permitted the General should needs general legislation attention to more time and statewide devote concern, self-government strengthened local should be interest 516 IN THE SUPREME COURT.

MclNTYRE v. Clarkson. delegating general officials, legis- by local matters to local laws lation single should relate to the united State “as a commonwealth rather than conglomeration as a of innumerable discordant com- munities.” the adoption large percentage Prior to of the amendments a of the Legislature special”: “local, private laws enacted — — — — 85%; Session) 1911 (Special 84%; 1913 1913 1915 87%; During private period 1917, local, were 225 1868 to there 81%. and special relating appointment justices peace. of of Acts Popular Government, Street, Idol v. February-March, issue of 730, 732, 2d 313. S.E. II, Carolina, it

Article section of the Constitution North Assembly appeal, relates to this as follows: “The General shall is pass any special resolution . local, private or act or .. justices . appointment peace of the . . nor shall the General special repeal Assembly local, private partial enact such or act general special act or resolution Any local, private of a . . . law be void. passed of this section shall violation pass general regu- laws Assembly power The General shall have lating matters set out in this section.” be hereinafter re- will section of the Constitution ferred as the 1917 Amendment. appointment of directly relates to the 1949 Act ap- all other methods of It excludes adopting counties. judge. made the resident

pointment Appointments election. places sitting. is two-year It provides terms, salaries inter-dependent. Prior to parts are legislation; its several indivisible provision had been no 'its enactment there judges. by superior court or not the 1949 is clearly is whether Act presented The question “general.” it is legislation rather than If special'” “local, private the 1917 Amendment and special,” it contravenes “local, private or . . ground. There is no middle “. valid. “general,” it is void. If is in Art. sec. legislation described (A)s types particular are to be classified legislative enactments Constitution, all 29, of our special’ which are ‘local, private or acts (1) two classes: in one of ‘power has (2) which laws’ ‘general ‘void,’ or ” 215 N.C. S.E. Dixon, pass.’ State v. is that the 1949 Act local plaintiff’s contention The substance majority of the counties less than a applies ority maj it affects a if law reasons He State. majority. support to less than a applies if it counties, local 633, Harris, In re he cites proposition supra. Dixon, TERM, 1961. v. Clarkson. Defendants direct, contend that “prohibits 1917 Amendment explicit mandatory action Assembly; the General that it does prohibit setting by not the Assembly’s up machinery General which groups may They rely local undertake certain on Harris action.” also particularly the following Kornegay and cite 180 Goldsboro, cases: v. 187; 441, Huneycutt 319, 105 N.C. v. 182 N.C. Commissioners, S.E. 4; Hill 154; 109 v. N.C. Commissioners, 123, S.E. 129 Reed S.E. Engineering Company, v. 39, 123 S.E. 479;Fletcher Comrs. N.C. Buncombe, 9 S.E. 606. parties find comfort respective in their from contentions lan- guage found in the cases relied on them. the However, clauses of limiting, Constitution the restricting prohibiting local, private or and legislation vary in special purpose, scope application. In determin- the ing effect of one these particular constitutional in a regard had must be to purpose terms and case the of the statute in object question and to the scope the prohibition. constitutional factors are so variable that no exact capable rule or formula application can be for determining every constant devised in case private is local, a law special general. whether or or whether This quarters led to the has comment some fact the decisions of line of consistency this Court cases lack uniformity apparent “in state of flux.” That a there are are inconsistencies we do analysis dispute, but a careful cases regard not with due to will generally factors involved disclose a application harmonious principles. “ impossible any to fix ‘It seems definite rule which to solve a law question general, whether is local or and it has been found matter, extent, to leave the to a open, considerable to expedient be ” upon special circumstances of determined each case.’ re supra, 635. Harris, inadequate to determine, given definitions in a situ- the distinction between local and

ation, legislation, as wit- following. Special laws are those made for cases, individual ness place. to Commissioners, Mills v. laws are local A local operating only act is one limited a locality. specified Street, supra. private territory or Idol v. A law particular individuals, corpo- which is confined associations or is one Yarborough v. N.C. Park Commission, supra. General laws rations. subject of a and are of the whole common interest to embrace Statutory on Construction, Ed., State. Sutherland Vol. whole p. s. matter, summation of the following however, clearly seems to applied which must in the principles instant case: “The state IN THE SUPREME COURT. v. Clarkson. phrase means, ‘local primarily least, fact, law’ a law if at form, confined within that of territorial limits other than whole state, applies or political subdivision subdivisions or the state of a whole, property persons less than the or portion limited state, comparatively portion or small to a state, specific locality distinguished spot, is directed operates law, from a law generally throughout which the state. Such legislature, portion territory, enacted a state touches but a of its part of its people, property or a of its With- fraction of the citizens. in the meaning against laws, a law prohibitions constitutional local arbitrarily sepa- is local where, limitation, force of an inherent it limitation, rates some others it places upon which, but such places would operate, where less than the class of embraces entire necessary having legislation appropriate which such would be regard legislation designed, purpose which distinguishing where the classification does not rest on circumstances law places words, the from those In other a local included excluded. any real, proper, or discriminates between different localities without (cid:127)— necessity necessity springing from manifest reasonable basis or a peculiarities of one from each clearly distinguishing those class demanding for each imperatively legislation the other classes, and to the others. separately class would be useless detrimental or in the con- However, does not render law local mere classification enough every portion stitutional a law broad reach sense. Where is aof of the its all localities state, and to embrace within im- sufficiently marked and by class distinguished characteristics the portant clearly by themselves, or to reach them make a class pur- for legitimately created whole of a class of localities legislative affected the conditions poses general places or all legislation, throughout uniformly operates to be so that statute remedied, is reasonable circumstances, and its classification the state like under condition, it is situation or difference of upon and based a rational actually parts apply not to all though it does not a local even law, or only places, there are a few indeed, though even or state, Statutes, Am. s. Jur., operates." statute place, one on which pp. 24-26. objects only required that it is general “For a to be law persons things when the or reasonably . . . classified. operation

its be excluded, from reasonably different those subject to the law are Kentucky (1935-1936), Law Journal special.” or the statute is local long those are reason- so “Universality is immaterial affected p. 364. purpose there of the act excluded and for those ably different different manner. treating them in a When logical is a basis TERM, 519' 1961. v. Clarkson. operation presence is limited or law absence features — which obj inconsequential to the ect which statute creates — artificial class those it ibid, p. affected is or local.” (T)he “. legislature . . establishing has broad discretion in (U)ltimately class . . . .” ibid, p. problem . is resolved .“. into the question sufficiently what facts in case are important each justify p. ibid, making exclusions and inclusions.” 379. In classi- fications, in population geographical of municipalities, differences differences, and relative business activities of different types certain bases, localities held have been as valid pp. ibid. 380, 381.

A law general “if it applies operates uniformly to and on all of any members class of or persons, places things requiring legis- peculiar lation to itself in covered matters law.” Classification must be germane the law. It must be based on reasonable reasonable and tangible operate distinction and on parts same all of the state under the same conditions and circumstances. Classi- fication must not arbitrary be discriminatory, capricious. While substantial distinctions which are inherent are essential in classi- fication, the need distinctions not be The Legis- scientific exact. lature has wide making discretion in classifications. Crawford: Statu- tory Construction, ss. 82, pp. 115-119.

A law is not because general, operates every person it on in the State, every person but brought because within the relations and circumstances provided the Act is affected. Statutes persons things as a general class are The test whether laws. the classification is reasonable all and whether embraces class which it relates. must Classifications within the subject limits of They matter. must be reasonable and statute uniformly. must affect all within the class Classifications must not arbitrary capricious, be or but must be natural and intrinsic and based on substantial differences. have been sustained on Classifications Statutory ground Construction, Ed., on Sutherland Yol. need. 2102-2106, pp. ss. 6-22. proper

Whether or not 1949 Act is on a based classification of subject with be question matter dealt is the that must answered validity. determining its is the first involving The instant which has reached this Court case “relating Amendment to the the 1917 clause nearly The most akin to the one peace.” case sub already Harris, supra. indicated, is judice is In re it cited and As and The plaintiff both of defendants. discussed the brief General system establish “An Act to a uniform passed in 1919 municipalities Forty- counties in and this State.” courts for recorders’ IN THE SUPREME COURT. v. Clarkson. four counties exempted were from its provisions. Harris was tried and convicted in organized a court pursuant to this Act. Our Court held that the Act did not prohibiting violate the 1917 Amendment local, private special or legislation “relating to the establishment courts inferior Superior short, Court.” In the Act was held to “general.” opinion The length, quotes discusses at considerable and from, an 1881 New People Newburgh York opinion, ex rel. Clauson v. and Shawangunk (the Plank Road Co., page in the N.Y. citation report error). state of Harris Apparently is our the view Court took that the number of counties involved took it category from the of local law, explained: (T)he “... statute designed pro- is and intended to vide for many as as 56 out of the 100 counties of the could State, and in no sense be regarded any or or special a local law within usual ordinary meaning of these terms.” took However, cognizance the Court classification test brought clearly the case within that principle, which, it seems us, was the basis for the sound decision. opinion continues: “It is well known that at the time this law already there enacted were or 25 of these recorders’ courts doing satisfactory work, remaining excepted established and and in the regular counties it was estimated that the were then so fixed courts adequate in time and number as to afford facilities for the adminis- justice always presumed public tration of in those counties. It proper motives, Legislature rightly a classi- acts by them, kind, fication of when made should be disturbed manifestly arbitrary unless it is and invalid.” Based on a classification general and the correct result was reached. of “need” the Act was majority opinion was delivered Dixon, supra, (later (later C.J.), concurred; Devin, C.J.), Barnhill, J. J. Clarkson, J. j in the Seawell, JJ., oined dissent. In 1937 dissented, and Schenck regulate Assembly passed purporting act real estate thirty-six counties. act was declared salesmen brokers and concurring opinion from the seem following quotations be local. extremely pertinent: (A) general distinguished law or local

“. . from a . subjects places it law that is a embraces a class of law is subject any naturally belonging to place does not omit A in the law constitutional sense when such class. operates uniformly on all members of class to and applies to it- things requiring legislation peculiar places persons, by . . . covered law. in matters self not special statute is one which does hand, the other “On less given relates to persons class, within a but all of the include TERM, 1961. MCINTYRE V. CLARKSON. particular applies to relates and class,

than all the or one which particularized class, either particular members or a section any method of express separated of the act or the terms might but to which the law from the whole class selection applicable. be . . . such limitation terms in its general legislation

“The under consideration class. . . as a applies to estate brokers and salesmen . and real regulate the of the act is Thus, appears purpose it the legis- salesmen, and that trade real estate brokers as a whole of the State grouped the real estate brokers lature to make sufficiently distinguished characteristics into a class the de- notwithstanding subject However, legislation. brokers to deal with real estate Legislature intent of the clared exempts . . . throughout State, the act class and salesmen as a therefore, that appears, operation thereof 64 from the counties. through- brokers and salesmen apply to real estate does not the act notwithstanding purpose the declared class, as a out the State body reasonable classi- lawmaking made a Legislature. express act, terms of then, of citizens fication my of the class. To large portion operation a from its excluded special, brings it within legislation as stamps the alone mind, this Constitution, Art. sec. prohibitive it invalid.” makes maj ority opinion classification, not but the does discuss principle stated in the opinion consistent with that tenor of concurring opinion. jurisdiction clearly applying the of the cases in this few

For a Currie, Comr., ante, 129, Finance Co. principle see: v. classification Lilly Saunders, supra; Durham, Roach v. 543; & Co. v. 118 S.E. 149; Lockey, v. 198 N.C. 587, 169 S.E. 204 N.C. S.E. 517. Call,

693; State by the cited and relied on defendants particularly other cases controversy. But a brief reference to to the instant pertinent distinguishing may to show features. themof serve a few royal “A Goldsboro, supra, split it was said: battle Kornegay v. Of Government, February-March, issue Popular court.” authorizing cities, towns, passed town 11. In 1920 Act p. Wayne County to sell less districts of bonds at than school ships theretofore incurred and due or soon to of debts payment par VIII, ss. 1 & of the provisions of Article Constitution Here due. application held that section 1 no The Court has were involved. only private relates corporations corporations, municipal 522 IN THE SUPREME COURT. V. CLARKSON.

MclNTYRE that section prohibit 4 does not local, private special legislation and imposes but on Legislature the obligation” provide a “moral for to the matters by general therein listed laws. In those situations in county which the the established and designated unit the general, administration of a law statewide or policy, a statute, having application one or more counties, which merely supplements the general policy, law or or in the ad- aids according ministration to local needs, primarily designed finance the operation, is directly if it unconstitutional does not specifically prohibition against pri- violate a constitutional local, special vate or legislation; this is true even if and the statute inci- dentally or indirectly relates prohibited subject. examples A few follow. Most of bridges during cases arose the the roads and

period bridges when were, part, responsi roads and for the most the bility of the counties and the counties were the units for adminis purposes. tration In Brown v. Commissioners, 173 S.E. 92 N.C. 502 (1917), plaintiffs sought enjoin the Commissioners Mc Dowell County issuing levying bonds and road taxes for purposes pursuant an applying Act to North Cove Township. 1917 prohibits authorizing laying open Amendment local acts the out, ing, altering, maintaining, discontinuing of highways, streets or alleys. The Court held that the Amendment violated, 1917 was not only provided constructing that the Act the maintaining means for and Bank, roads. 181 Accordant: Commissioners v. 107 S.E. (1921); 245 v. Pruden, Commissioners 178 N.C. 695 S.E. (1919); 26, 100 v. Trust Co., (1919); Martin 178 N.C. S.E. 134 supra. Huneycutt Mills v. Commissioners, Commissioners, supra, v. “creating Stanly involves Act board of road commissioners of County, management them the giving entire control public bridges County.” sustaining roads in said Act explained violated, Court the 1917 Amendment had not been that ways legislation for the purpose provide was “to and means County might work general which the road of the entire be success fully took carried on maintained.” In a similar Court case position authority question the Act in conferred was Hill Commissioners, supplemental to the law and valid. supra. building bridge statute which directed of a hand, the other a

On between two counties au- specified place at across stream levying purpose of a tax thorized of bonds and the issuance Day v. Commissioners, the 1917 Amendment. was held to contravene (1926). took After over TERM, 1961. McIntyke v. ClakksoN. State, maintaining roads of

responsibility constructing construction counties for the limiting territory a statute to five law and declared a local bridges by private corporation of toll Highway v. Turn void as Amendment. Coastal violative (1953). pike 2d 310 Authority, 237 N.C. 74 S.E. municipality applicable single city, An Act to which authorized a against thereof improvements

to and assess the cost make street therefor, was held to be petition abutting property owners without powers merely declaratory of the the Act was constitutional since purport to law and did not given municipality under In re As- street or streets. laying particular out of a authorize (1956). Goldsboro v. 243 2d 171 See also sessments, N.C. 91 S.E. (1954). 85 S.E. 2d 125 R.R., N.C. special legis- prohibits local, private Amendment

The 1917 change the boundaries undertaking to establish or lation proscribe the provision But does not General school district. county, as setting up machinery under which a Assembly from making pro- general law with charged unit in a the administrative may school districts or necessary capital outlay, create vision for provide capital county within the to special bond tax districts supra. Buncombe, outlay. Fletcher v. Commissioners of prohibited, by Amendment, is The the 1917 any local, special passing private health, act to Act, applicable and the abatement of nuisance. An sanitation authorizing sanitary sewerage the formation of county, districts one county, the boundaries to be fixed des throughout certain specified manner, does not violate authorities ignated local regu provision. purpose The of the Act is not to the constitutional sanitary or to Reed v. En matters abate nuisances. health late City Wilming supra. authorizing But a statute gineering Co., provision hospitali make for the Hanover and New ton indigent of the sick without a vote of the medical care zation and Managers Wilmington, Board people was void. (1953). by City-County Also, adopted ordinance 74 S.E. 2d for and sale of milk regulating production sale board of health purporting authority county, and the statute to confer within the Street, supra. Idol v. unconstitutional. therefor, are holdings suffice to illustrate the preceding The references directly not contravene the 1917 Amendment but which do statutes policy, administering or aid in or fi- supplement general laws and law, unconstitutional, nancing policy by general established are not They unit is local in nature. also especially when the administrative IN THE SUPREME COURT. v. Clarkson. contain examples they of statutes which are unconstitutional because directly offend the 1917 Amendment. justice office of origin is constitutional existence. justices Provision is made in each town- —

ship of the State provision mandatory whether this not does arise here. Their jurisdiction, limitations, obligations duties and are throughout uniform judicial the State. It is a officeand as such subject a true supervision many sense local executive agencies. The prohibits local, private Constitution void and renders all legislation relating appointment. to their directly 1949 Act relates the peace. The Act is appointive power, indivisible. Without exclusive the provisions relating salaries, limitation the number to appointed, be designation sitting, of places giving bonds, requirements other impracticable would and would also be discriminatory. authority appoint essential, exclusive is the primary controlling feature of the Act. applicable only

The Act is Do the counties. peace, or the appointment, essential method of their in the 28 counties constitute an inherent and reasonable class classification as distinct justices from the in peace appointive of the methods the other counties? think not. The counties are scattered from We counties, Currituck to Three are mountain sixteen are eastern Graham. They counties, piedmont. among coastal nine are in the have population property valuation, them some of the smallest in largest categories. and some of the in these Some of the counties largely completely rural, illustrate, are almost others are urban. To Mecklenburg, Bun- following some of the included counties: are perceivable There is no combe, Columbus, Orange, Dare, Camden. justice peace of the to the officeof which serves circumstance related their activities in of these officials and a basis classification justices of distinguishing them from the counties, are, among As matter of fact there of the 72 counties. excluded geography, business, industry, counties, vast differences included proportions, differences exist population. In the same wealth and of respect with volume work countries between the included As each of the counties included by justices peace. of the done aspects relating counties, in all to the comparable Act, there are among instance, those excluded. For we justice peace, office that makes the 1949 Act more no circumstance can conceive County Mecklenburg than for Guilford or necessary for practical — none. Nor does certainly the record discloses it Forsyth less appointment desirable other methods appear TERM, MCINTYRE V. OliARKSON.

28 than for the 72 counties. The conclusion is inescapable that there is no reasonable, inherent and distinctive feature which makes the 28 counties a group apart from the 72 excluded counties so that can be said that the applies 1949 Act justices alike of the all of the State similarly situated. Application of principles of reasonable classification here- inbefore discussed is essential in proper particularly cases. It appli- cable to the instant case. If the “general” 1949 Act is a law in the constitutional sense, it follows that North Carolina could -have indefinite permissive number of statutes relating appointment to the justices peace, subject each adoption in a limited number of counties, each providing the exclusive method of adopting county or counties, all conflicting appoint- as to method ment, many or all overlapping applicable territory. as to As a result there could be a different method of appointment nearly every locality of the State regard without to need or other rational basis for classification. This is what the designed 1917 Amendment was prohibit. do not We now decide whether a classification of peace based on population, business, or other factors selected counties would be reasonable given and valid in In the situation. case, instant the crux of the nothing matter is that is “well known” or even “estimated” which makes real distinction between the 28 and 72 counties with justice peace. reference to the officeof Herein lies the difference between this and the Hams case. (Article

The 1949 Act 14A, Chapter 7, General Statutes of North Carolina) is local and and contravenes the clause of the 1917 (N.C. 29) Constitution, Amendment ap- Art. s. pointment peace. judges justice

The 1955 Act authorized resident to make peace appointments throughout suggested the It is that the State. might ground merely be sustained on the is supple- 1949 Act that contradictory of the agree. mental to and 1955 Act. We do not purport repeal abrogate does not and The 1955 Act the other justices electing appointing peace. of of the general methods provides ap- that it is in addition to all other methods specifically hand, purports the 1949 Act pointment. the other exclude all On territory in the for election and of its other filling course, the vacancies clerks of (except, application court). Acts in direct conflict. It is the The two superior purports to be the 1949 Act exclusive and supplemental; that Act other enactments. abrogate all unconstitutional, the Act is we do not Having decided COURT. IN THE SUPREME V. MCINTYRE CLARKSON. repealed the 1955 not it was question reach the as to whether or with conflict and deal May general which are direct Act. two laws subject unimpaired? subsist identical matter also that provides Amendment The 1917 ap- special statute may local, private or not enact a general of a peace “by partial repeal justices of the pointment of would it un- “general,” not be the 1949 Act Quaere: If law.” 7-113, repeal of G.S. 7- partial of the G.S. by reason constitutional only operative in limited terri- rendering them 7-115, 114 and G.S. question. this reach tory? we do not But of North 7, of the General Statutes Carolina 14A, Chapter appointments Therefore, purported void. is unconstitutional County by Judge Mecklenburg Clarkson peace justices proposed pursuant All acts done are void. thereto pursuant Mecklenburg Commissioners of the Board resolutions appropriating funds for the statute and the said adopting County, justices of peace, are un- expenses of salaries payment nullity. and a lawful below judgment

Reversed. result.

Higgins, J., Concurs challenged provides 1949 Act that sala- dissenting. J., Bobbitt, pursuant appointed to its terms “shall con- justices of ried respect law with provided as are to crimi- such fees tinue to collect general county.” them into fund of the pay cases and or civil nal allegation that the fees to be no collected and There is 7-120.4. G.S. county the three salaried general fund paid into the period, December, 1960, through months for the seven $33,995.00 appropriated be less than 1961, will June, payment county for of their salaries fund of the and ex- having allege failed to plaintiff, facts sufficient to show penses. Hence injury taxpayer, to him as a is not entitled irreparable to main- injunctive relief. an action for tain plaintiff attempts question present constitutional casts a validity every upon the act of each of the

cloud three salaried peace. urgency This creates a situation of such importance should, public power Court the exercise of its necessary give general supervision “to issue remedial writs it a (N.C. proceedings over the of the inferior courts” control Consti- tution, IV, 8), proceed pass upon Sec. now to Art. constitutional question. TERM, v. Clarkson. (G.S. Chapter as Act, 7, now codified G.S. 14A Is the 1949 (cid:127) —(cid:127) 7-120.11, inclusive), ground unconstitutional on the it

7-120.1 G.S. is a local act 29, violative of Article Section

and therefore Constitution North Carolina? is county Plaintiff contends the 1949 Act a local act because the only twenty-eight commissioners in named counties are authorized provisions. Dixon, to invoke its Citing State v. 1 S.E. applicable he contends an act to less than half of the counties local act. of North Carolina is a accept plaintiff’s not said contention. The basis of

The Court does decision, it, as I understand that 1949 Act cannot be sus- is law because there is no substantial basis for tained as a category counties in one twenty-eight covered placing seventy-two category. in another excepted counties “(i)n prior decisions, of our and mindful that light

In the every constitutionality statute, presumption is considering the validity,” Lueders, indulged in favor of its to be Act, my opinion, not be the 1949 should ground. on either declared unconstitutional membership

Admittedly, the realization that local, private Assembly knowledge whole had little as a advocacy adoption of Article conditions, influenced needs and enabling Act, being an vests act, 29. The 1949 Section county authority, after of each covered county commissioners conditions, needs to determine whether appraisal of its local their self-operative. The 1949 Act is not provisions should be invoked. its county may, twenty-eight counties, the commissioners In the covered governing provisions. Hence, its required, but are to invoke knowledge of its local needs body county, of a covered which has conditions, is to determine whether the county appointed compensated provided by such are to be Act. unlawfully discriminates be- A the 1949 Act contention In the excepted counties unrealistic. covered counties tween prohibiting discrimination doctrine place, the constitutional first and not as between as between citizens refers to discrimination knowledge county ex- each Moreover, common counties. excepted of the 1949 Act was so because from the cepted requested. Any so in the General representatives own its county readily made a covered if its would be excepted county now THE SUPREME COURT. IN McIntyre v. Clarkson. Assembly fit to introduce should see in the General representatives purpose. accomplish this a bill that, respect jurisdiction, procedure, in emphasis, noted,

It is with superior the resident court peace appointed etc., justices of the by salary provided Act, in the 1949 have compensated judge and excepted in counties. justices of the exactly the same status legal rights way affects the liabilities The 1949 Act in no justice peace appoint- a of the or criminal action before party a civil provisions, with whether such in accordance its compensated ed county excepted resident of an a resident of a covered party be a Dixon, v. Moreover, unlike the statute considered State county. bearing upon the law- the 1949 Act has no supra, below, discussed county or in persons either in a covered fulness of the conduct county. excepted an “(t)he As- provided 29, it is General

In Article Section or resolution private, act sembly pass any local, not shall but “shall peace,” of the appointment relating to the . . . regulating matters set out in this general laws power pass have section.” general laws Assembly to enact power of the General Article peace is not derived justices of the prohibition or some mandate an act contravenes II, Section 29. Unless powers with or is conflict Constitution of North Carolina

of the the Constitution United granted the Federal Government Assembly plenary legislative power. Lassiter has States, the General dissenting 102 S.E. 2d 853. See Elections, Board v. (later C.J.), Dixon, p. Devin, supra, State opinion of J. act, not is whether the 1949 Act is a local question for decision Obviously, general law in the it is general it is law. whether county every provides that it sense would it exactly the same manner. Nor shall be selected if excepted. Even no county if were law in this sense no county provisions might be invoked excepted, its county were county. only one commissioners act, of which enabling is whether question any one or all of county commissioners of by the

may be invoked total It is noted: the State’s counties, is a local act. Of twenty-eight twenty-eight counties. reside in these 4,556,155,1,366,352 population census) (1960 including Section amendments,

The 1916 constitutional January 10,1917. 29, became effective Appoint “An Act to Justices the General enacted TERM, v. Clarkson. Public of North Carolina.” Counties for the Several the Peace referred to as the statute, A Chapter 99. similar

Laws of succeeding at each Act, has been enacted of the Peace Justice Omnibus Act, in Assembly. To The 1919 illustrate: session of the peace in the justices of the appoints as Alleghany County, respect of are set forth whose names designated townships the individuals below.

“ALLEGHANY COUNTY. — Coy Township Bryan, A. J. McCann. “Cherry Lane — Edwards, Joseph Wagoner. Township T. A. Whitehead — Township W. Belvins. J. Glade Creek — Cranberry Township Upchurch.” L.C. justices appoints individuals as manner, like the 1919 Act eighty-eight in other counties. designated townships in peace justice appointing a individual mind, act named as my To an particular county is designated township in a peace for Ap- justice peace. of the relating appointment to the of a local act might circum- 29, Article Section suggested II, it was that parently, (omnibus) local in one statute. inclusion of all such acts by the vented judicial determination presented No has been to Court case constitutionality such Justice of the Peace to the Omnibus Act, of said However, prior to the enactment the General Act. by resolution, requested this Court for advice as Assembly, any II, would provision “there is Article section which whether enacting justice an omnibus prohibit Assembly General peace appears Court, It further that this in a “MESSAGE” bill.” Assembly signed (apparently to the addressed General Court) Assembly the General Clark, Justice advised Chief opinion that the bill is this Court was “of the constitutional and not amendment, II, contravention of recent section any local, private enactment of prohibits which act appointment peace, etc., of the but authorizes regulating this and other matters laws contained Advisory Opinions, section referred to.” (unstated) comprehend is difficult for me legal basis Advisory Opinion. said It seems me each such is in changed

fact and in law a local act that its essential nature not by bracketing multiple device of acts single local in a statute. Indeed, deference, my with opinion appointment by due it is that designated individuals to serve as precisely what Article II, Section intended THE IN SUPREME COURT. CLARKSON.

MclNTYBE V. prohibit. present purposes, this For comment is sufficient: If such Omnibus Justice Peace Act is not violative of Article 29, certainly there is no holding Section substantial basis for enabling challenged, act such as that here appoint any which does not person justice township or county, unconsti- tutional as violative of Article Section 29. (Public 277)

A 1919 Act Laws of entitled “AN c. ACT TO A ESTABLISPI UNIFORM SYSTEM OF' RECORDERS’ COURTS

FOR MUNICIPALITIES AND COUNTIES IN THE STATE OF CAROLINA,” authority NORTH conferred for the establishment of provided such courts. Section 64 thereof the 1919 Act “shall apply” forty-seven designated counties. Section 64 of the 1919 (Public Act was codified as A C.S. 1608. 1921 Act Laws of c. 16) 110, s. amended by striking Granville, C.S. 1608 Iredell and Cherokee from the excepted thereby list of counties, increasing the number of counties under fifty-three fifty- the 1919 Act from Thereafter, County six. the Iredell Recorder’s Court was established in the prescribed by manner the 1919 Act.

One Sherrill Harris, corpus proceedings, habeas asserted he was unlawfully imprisoned pursuant purported judgment to a Ire- said dell Court, Recorder’s judgment that the was invalid be- cause the purporting statutes to authorize its establishment were unconstitutional violative the provision as of Art. 29, Sec. “(t)he Constitution of Carolina, North that General pass any shall not local, private, act or resolution to the Superior establishment of courts to the inferior Court.”

This (1922), Court In re Harris 633, 425, 183 N.C. 112 S.E. held that neither the 1919 Act nor the 1921 violated said Act provision Primary of Art. Sec. 29. consideration was devoted to the constitutionality (later Hoke, 1919 J., J.), Act. C. a unani- mous Court, stressed the fact that the term “local act” had no generally accepted meaning. fixed Hence, reasoned, he whether a particular act should be considered determined, “local” must be a considerable extent, with reference to its nature purpose with reference to the locality nature and extent which it applies. Act, amended, as is now 7, codified as G.S. Ch. Sub-

chapter VI, COURTS,” comprising “RECORDERS’ Articles 24-29, 7-264, amended, inclusive. G.S. provides “(t)his that subchapter apply” twenty-two shall not designated applicable counties. It is seventy-eight counties. (S.L.

A 1953, 998) 1953 Act c. amended G.S. 7-264 striking TERM,

MclWTYEE V. CLARKSON. County excepted by providing Johnston from the list of counties and specifically 7, applicable that Ch. Art. 24 G.S. should be to munici- County. palities Thereafter, in Johnston Recorder’s Court provided 7, was in the manner Benson established said Ch. G.S. Subchapter VI. Ballenger (1957), 351,

In State v. Ballen- ger legally asserted that the Court of Benson Recorder’s court, power it lacked the constituted to issue the warrant on superior which he was tried in said court and in the court, and that superior jurisdiction try court had no him on such warrant. He ground attacked the Recorder’s Court of Benson on the that the authorizing statutes its establishment were vio- unconstitutional as of Art. II, lative Sec. 29. Court, Ballenger, basing

This supra, directly S. v. its decision on In re Harris, upheld validity supra, of the Recorder’s Court of Benson and held constitutional the statutes under it was which Denny, J., established. Court, “Consequently, a unanimous said: we hold Chapter 1953, eliminating 998 of the Session Laws of excepted Johnston from the list of counties in G.S. 7-264 and making Subchapter Chapter of Article 24 of VI of Statutes, amended, applicable municipalities County, in Johnston was tantamount to a re-enactment making italics) it applicable County.” (My Obviously, law to Johnston authority supra, did of In re Court not consider had Harris, impaired by Dixon, supra, been State v. other decision of this Court. directly involved, appropriate

While not it seems to advert to following statutory provisions. consisting 7, Subchapter VIII,

1. G.S. of Articles Ch. authority for the establishment “CIVIL COUNTY confers COURTS.” Art. applicable thirty- et is not seq., 7-308 G.S. seq., et designated seven counties. G.S. 7-331. Art. G.S. 7-332 applicable designated is not to nine 7-350. counties. G.S. 7, Subchapter IX, consisting 36,

2. 7-384 G.S. Ch. Art. G.S. authority seq., for the establishment of “COUNTY et which confers designated applicable sixty-two COURTS,” is not to CRIMINAL counties. G.S. 7-404. Subchapter X, consisting 37, of Art. 7-405 et 7,

3. Ch. G.S. G.S. seq., authority which for the establishment of “SPECIAL confers COURTS,” applicable sixty designated is counties. COUNTY to G.S. 7-446.

Presumably, enabling adopted by these were all of acts COURT. IN THE SUPREME v. Clakkson.

MCINTYRE upon In in reliance the decision this Court General supra. Harris, re diversity, respect geography,

Emphasis placed upon is twenty- population, as between the business, industry, wealth and diversity to eight by say, the 1949 Suffice such counties covered Act. enabling counties covered each acts exists between Subchapters VIII, X. These 7, VI, IX and now codified as G.S. Ch. are noted: facts inclusive, seventy-eight 24-29, Articles

1. The counties which Mecklenburg populous, and applies (272,111), now the most include when Tyrrell Moreover, 7-264. populous. (4,520), least G.S. applied to Harris, supra, in In re 1919 Act was held constitutional inclusive, Tyrrell. Articles constitute codi- Mecklenburg 24-29, Harris, supra, re fication Act, of said as amended. When decided, seventy-eight counties fifty-six Now, counties were covered. are covered. sixty-three applies Article include

2. The counties which Tyrrell. Mecklenburg 7-331. G.S. ninety-one applies Article 34 include

3. The counties which Tyrrell. Mecklenburg and 7-350. G.S. Article 36 include thirty-eight applies counties which Tyrrell.

Mecklenburg 7-404. G.S. forty applies which Article 37 include Guilford counties to Tyrrell.

(246,520) 7-446. G.S. assigned, If the is for the reason it would 1949 Act vulnerable enabling codified Ch. 7, seem each of acts now as G.S. Subchapters VIII, is VI, X, equally IX and vulnerable on same Harris, our in In followed ground. supra, In view of decision re Ballenger, unwilling I am to cast supra, decision in State v. our upon inferior courts validity past cloud and future acts of enabling pursuant established these acts.

I 57, am Williams, advertent Article unconstitutional, II, where held as violative of this Court 286) (Public-Local pur- Laws of Section a 1925 Act c. porting County to authorize Board of Commissioners of Cabarrus agree I township recorders’ courts. that such an to establish single (enabling) act, applicable county, to a be considered must Indeed, above, a local it was so considered act. indicated Assembly. provision against noted: Section superior inferior the establishment courts local, court private act. Article Section did not uproot dis- 533 TERM, 1961. V. CLARKSON.

MclNTYBE More local acts. under established inferior courts turb theretofore prohibit 29, did Section held that over, it was pre-existing such act) under which of local acts (by local amendment 190 Company Daves, v. Provision inferior had been courts established. 753; 131 Wil S.E. 593; Horne, v. 191 N.C. 7, 128 N.C. S.E. State v. Managers Board 484; 24 2d Cooper, v. N.C. liams S.E. Wingler, N.C. 749; In re 179, 188, 74 S.E. 2d Wilmington, 237 N.C. 2d 205, 210, 74 S.E. Norman, 560, 565, 372; 2d Hence, 616, 619, 109 S.E. 602; State v. Furmage, have inferior courts adoption Section our since the of Article acts, (1) local pre-existing inferior courts established consisted (2) under established number, a considerable inferior courts local Chapter 7. As to enabling one of the acts now in codified G.S. county, the purporting respect particular acts in of a modify, say that provisions of it is sufficient to enabling act, such an validity this Court. such local acts has not been determined four to Court, by majority

In State v. Dixon, supra, this three, held REAL ESTATE BRO- invalid “AN ACT DEFINE TO THE REGULA- SALESMEN; KERS AND FOR TO PROVIDE TION, THEREOF; TO CRE- AND SUPERVISION LICENSING ATE A REAL THE COMMISSION, ESTATE PRESCRIBING AND THE THEREOF; AND POWERS DUTIES PROVIDE FOR TO THE ENFORCEMENT SAID ACT AND PENALTIES FOR OF 1937, Chapter 292. VIOLATION THEREOF.” Public Laws of summary, engage in the business of provided: 1937 Act To provisions real estate its was de- broker or salesman violation of misdemeanor, punishable provided. clared a therein created Only persons licensed “North Carolina Estate Real Commission.” Applications, engage Commission could such business. license qualifications prescribed. fees and were No for such license applicant passed would be unless until had an exami- issued nation conducted all the Commission. While other purported authority to vest “North Real statewide Carolina (section 17^) provided Estate Commission,” a final section “this Act apply” sixty-four shall not named counties.

The 1937 separate grounds, Act was held on two viz.: invalid 1. It was regulating held unconstitutional as act trade a local violation of Article II, Section 29.

2. It was held invalid provision because in conflict with the Revenue providing Act that real brokers and salesmen “shall estate apply for and obtain from the of Revenue a Commissioner State-wide license for privilege of engaging profession.” business or such IN THE SUPREME COURT.

McIntyre v. Clarkson. indi- Clarkson, opinion Court, by excerpt This from the “All ground of decision: emphasis placed upon cates the the second privilege required pay real estate in the State brokers State of their subject general tax in the conduct and all are to the same laws upheld, real estate trade; yet, if the of the instant act be a privilege paid deprived broker who had his tax would be State carrying on his in more of the counties trade than one-third in two seeking lying State. For broker to sell a farm example, a conducting counties merely would be an honest business man legitimate business if the on one corner completed transaction were farm, completed but would be it were another criminal if at point on the same farm. the 1927 Real shortcoming The fatal Estate Brokers’ Act much local act as it was not so it was a was that the class, act discriminated within a to wit: the real estate brokers licensed to throughout do business the State.”

With ground reference to the v. decision, first the Court State Dixon, supra, supra. Indeed, does purport Harris, to overrule In re opinion quotes only approval Harris, supra. with from In re ground on which distinguished the Harris case is in this: In Harris fifty-six forty-four excepted. counties were In covered and were Dixon, thirty-six sixty-four counties were were covered and counties excepted.

Two supra: further observations in Dixon, relation to State v. ground The second decision, uphold sufficient standing was alone, the lower judgment. court’s Dixon’s allowance of motion for arrest of my In view, (enabling) applies whether more or less than act half of the proper total number is not a of North Carolina counties test for determining local act particular whether a statute within the meaning of Article Section 29. Dixon, supra,

The converse situation State v. of the factual where it Felton, considered State v. legalize gambling was held that in Currituck purporting an act criminal laws of the State contravention of the was invalid. provisions of rather than the statutory provisions, noted that Carolina, now Constitution of North VII, 5, of the Section are to be

govern the manner in which selected. 7-112. G.S. summary: challenged upon any statute as uncon- passed

1. This has not Court ground it was local under Article Section on stitutional peace. (Apparently, relating act TERM, v. Clarkson. Advisory Opinion recognizes the Court as authoritative the said Act.) Justice the Peace Omnibus constitutionality upheld 2. This Court of the statute now has Chapter 7, inclusive, codified as G.S. in In re 24-29, Harris, Articles supra, Ballanger, supra, notwithstanding diversity and State v. extreme as between excepted covered counties and as between It has counties. enabling declared unconstitutional an providing act creation township County. recorders’ courts in v. Williams, Oar-barrus State supra. Dixon, supra,

3. In challenged statute undertook declare criminal in certain counties conduct that was authorized and lawful under the laws of the State.

4. This Court has declared unconstitutional statutes to or regulating matters other than courts as local acts of Article violative II, Section 29. statutes, principally, single county, These relate to a e.g., Idol v. 233 Street, 730, 313, N.C. 65 2d and cases S.E. cited.

In Coastal Highway v. Turnpike Authority, 52, five were In case, pur- counties involved. that a 1949 Statute ported Municipal to authorize the Board of to “enter an order Control creating corporation.” a municipal This 1949 Statute was held in- valid attempt delegate legislative as an power authority to con- trary to the of II, Article Section of the Constitution alleged of North corporate Carolina. of Since status Coastal Highway Municipal was based an of Control, on order said of Board this plaintiff Court held legal corporate had no status. Thereafter, proceeded Court to declare on the ground unconstitutional vio- II, lated Article amendatory Section Act under which Coastal Highway’s authority “(t)o therein construct, defined was repair maintain, operate the toll road, bridge turnpike toll at such location within the North Carolina Counties Currituck, Dare, Tyrrell, Plyde, adopted and Carteret as shall be the munici- pal corporation.” Highway noted that Coastal case involved particular project. (later supra, C.J.), J. Harris, Hoke, fully

In In re advertent to conflicting juris- text courts other definitions writers and dictions, reached the conclusion term “local act” used in II, generally meaning. Article Section accepted had no fixed If it accepted meaning had no fixed or Article generally when Section adopted, I unwilling attempt am to now define the term with In exactitude. short, then, particular now as whether act should be considered local be determined, must to a considerable extent, with reference its purpose nature and and with reference COURT. THE IN SUPREME v. Gas Co. Commission

Utilities light In the applies. locality to which it extent nature and enabling act Act, an say the 1949 I cannot prior decisions, our 1,356,352, population with a twenty-eight counties applicable meaning Section is a local act within reasonable all established rule that recognizes well The Court act of the validity of an doubt is be resolved favor unconsti- will be declared and that such act clearly application of my opinion, tutional unless it is so. requires constitutionality up- Act be principle the 1949 Hence, Campbell’s judgment. held. I Judge vote to affirm CAROLINA, OF NORTH STATE NORTH CAROLINA UTILITIES ex rel COMPANY, PIEDMONT NATURAL INC. COMMISSION v. GAS

(Filed May, 1961.) 1— Commission Utilities § purpose regulation protect public utilities the interest public adequate provided of tbe able end service is at reason- rates, fixing and in such rates the Utilities must be Commission producer fair to both to the consumer. 2. Utilities Commission 3: 3— Gas § § fixing utility, public In the rate for a Utilities Commission property providing must first ascertain the value used service, may produce and it then the rate will fair calculate which upon return base. such rate 3. Same— determining utility the value investment of used services, providing its the Utilities Commission must take into con- replacement present sideration costs in order to determine the value facilities, utility’s evidence of such trended costs deserves weight proportion accuracy intelligent the tests and their application. Same: Utilities Commission 5— § utility testimony expert replacement aWhere introduces as to costs upon of its facilities based charts and indexes of utilities other of like territory, weigh same classification the Utilities must Commission light testimony accuracy such tests and their in- telligent application, it is error of law the Commission to dis- regard give only such minimal evidence consideration. Same— apply average is error Utilities for the Commission the national

Case Details

Case Name: McIntyre v. Clarkson

Court Name: Supreme Court of North Carolina

Date Published: May 3, 1961

Citation: 119 S.E.2d 888

Docket Number: 239

Court Abbreviation: N.C.