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

> Court of Appeals of North Carolina · April 3, 1979 · 40 N.C. App. 429

URL: https://www.frixlaw.com/law-library/cases/9576553

## Case

- **Full name:** HERITAGE VILLAGE CHURCH AND MISSIONARY FELLOWSHIP, INC. Plaintiff, THE HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, Intervening Plaintiff v. THE STATE OF NORTH CAROLINA, RUFUS L. EDMISTEN, Attorney General of North Carolina; SARAH T. MORROW, Secretary of Human Resources of the State of North Carolina; And PETER S. GILCHRIST III, District Attorney for the 26th Prosecutorial District of North Carolina, Defendant-Appellants
- **Court:** Court of Appeals of North Carolina
- **Decided:** April 3, 1979
- **Citations:** 40 N.C. App. 429; 253 S.E.2d 473; 1979 N.C. App. LEXIS 2293
- **Precedential status:** Published
- **Opinion:** Concurrence by Mitchell
- **Judges:** Erwin, Mitchell, Martin
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9576553

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9576553. Public record. Not legal advice.