Opinion

Heritage Village Church & Missionary Fellowship, Inc. v. State

  • 40 N.C. App. 429
  • 253 S.E.2d 473
  • 1979 N.C. App. LEXIS 2293
Court
Court of Appeals of North Carolina
Filed
Apr 3, 1979
Status
Published
Author
Mitchell
On the bench
Erwin, Mitchell, Martin
Cited by
7 cases
Authority
More cited than 6.2%

holding that statutory exemptions that make “an arbitrary and irrational distinction unrelated to the purposes of the statute” are “violative of the Equal Protection Clauses of the United States Constitution and of the North Carolina Constitution”

How later courts described this case

  • holding that statutory exemptions that make “an arbitrary and irrational distinction unrelated to the purposes of the statute” are “violative of the Equal Protection Clauses of the United States Constitution and of the North Carolina Constitution”

Written by the judges who cited it.

The opinion

Judge MITCHELL

concurring.

I completely concur in the well-reasoned and learned opinion of the majority with the single exception of that portion of the opinion in which the majority finds that the thirty-five percent limitation on solicitation and fund-raising expenditures of charitable organizations set forth in G.S. 108-75.18(6) constitutes a violation of the First Amendment to the Constitution of the United States. With regard to that part of the opinion of the majority relating to G.S. 108-75.18(6), I concur only in the result reached.

I do not think that subsection (6) of that statute violates the First Amendment. See National Foundation v. City of Fort Worth, 415 F. 2d 41 (5th Cir. 1969), cert. denied, 396 U.S. 1040 , 24 L.Ed. 2d 684 , 90 S.Ct. 688 (1970). I would instead hold that by permitting the Secretary of the North Carolina Department of Human Resources to waive the thirty-five percent limitation when “special facts or circumstances are presented” justifying greater expenses in connection with solicitation and fund-raising, subsection (6) constitutes an unconstitutional delegation of the legislative power of the General Assembly to the Secretary in violation of Article I, § 6 and Article II, § 1 of the Constitution of North Carolina. I would not find the offensive delegation of authority severable so as to save the remainder of the subsection (6), however, as it appears clear that the General Assembly would *456 not have enacted the subsection without the portion vesting discretion in the Secretary. See Hobbs v. Moore County, 267 N.C. 665 , 149 S.E. 2d 1 (1966). I would declare the entire subsection unconstitutional on these grounds rather than the ground relied upon by the majority.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.