McIntyre v. Clarkson

Bobbitt, J.,

dissenting. The challenged 1949 Act provides that salaried justices of the peace appointed pursuant to its terms “shall continue to collect such fees as are provided by law with respect to criminal or civil cases and pay them into the general fund of the county.” G.S. 7-120.4. There is no allegation that the fees to be collected and paid into the general fund of the county by the three salaried justices of the peace for the seven months period, December, 1960, through June, 1961, will be less than the $33,995.00 appropriated from the general fund of the county for the payment of their salaries and expenses. Hence plaintiff, having failed to allege facts sufficient to show irreparable injury to him as a taxpayer, is not entitled to maintain an action for injunctive relief.

The constitutional question plaintiff attempts to present casts a cloud upon the validity of every act of each of the three salaried justices of the peace. This creates a situation of such urgency and public importance that this Court should, in the exercise of its power “to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts” (N.C. Constitution, Art. IV, Sec. 8), proceed now to pass upon the constitutional question.

*527 Is the 1949 Act, now codified as G.S. Chapter 7, Article 14A (G.S. 7-120.1 • — • G.S. 7-120.11, inclusive), unconstitutional on the ground it is a local act relating to the appointment of justices of the peace and therefore violative of Article II, Section 29, of the Constitution of North Carolina?

Plaintiff contends the 1949 Act is a local act because the county commissioners in only twenty-eight named counties are authorized to invoke its provisions. Citing State v. Dixon, 215 N.C. 161 , 1 S.E. 2d 521 , he contends an act applicable to less than half of the counties of North Carolina is a local act.

The Court does not accept plaintiff’s said contention. The basis of decision, as I understand it, is that the 1949 Act cannot be sustained as a general law because there is no substantial basis for placing the twenty-eight covered counties in one category and the seventy-two excepted counties in another category.

In the light of our prior decisions, and mindful that “(i)n considering the constitutionality of a statute, every presumption is to be indulged in favor of its validity,” State v. Lueders, 214 N.C. 558, 561 , 200 S.E. 22 , the 1949 Act, in my opinion, should not be declared unconstitutional on either ground.

Admittedly, the realization that the membership of the General Assembly as a whole had little knowledge of local, private or special needs and conditions, influenced the advocacy and adoption of Article II, Section 29. The 1949 Act, being an enabling act, vests in the county commissioners of each covered county the authority, after their appraisal of its local needs and conditions, to determine whether its provisions should be invoked. The 1949 Act is not self-operative. In the twenty-eight covered counties, the county commissioners may, but are not required, to invoke its provisions. Hence, the governing body of a covered county, which has knowledge of its local needs and conditions, is to determine whether the justices of the peace in such county are to be appointed and compensated as provided by the 1949 Act.

A contention that the 1949 Act unlawfully discriminates as between covered counties and excepted counties is unrealistic. In the first place, the constitutional doctrine prohibiting discrimination refers to discrimination as between citizens and not as between counties. Moreover, it is common knowledge that each county excepted from the provisions of the 1949 Act was so excepted because its own representatives in the General Assembly so requested. Any county now excepted would be readily made a covered county if its *528 representatives in the General Assembly should see fit to introduce a bill to accomplish this purpose.

It is noted, with emphasis, that, in respect of jurisdiction, procedure, etc., justices of the peace appointed by the resident superior court judge and compensated by salary as provided in the 1949 Act, have exactly the same status as justices of the peace in excepted counties. The 1949 Act in no way affects the legal rights or liabilities of any party to a civil or criminal action before a justice of the peace appointed and compensated in accordance with its provisions, whether such party be a resident of a covered county or a resident of an excepted county. Moreover, unlike the statute considered in State v. Dixon, supra, discussed below, the 1949 Act has no bearing upon the lawfulness of the conduct of persons either in a covered county or in an excepted county.

In Article II, Section 29, it is provided that “(t)he General Assembly shall not pass any local, private, or special act or resolution . . . relating to the appointment of justices of the peace,” but “shall have power to pass general laws regulating matters set out in this section.”

The power of the General Assembly to enact general laws relating to the appointment of justices of the peace is not derived from Article II, Section 29. Unless an act contravenes some prohibition or mandate of the Constitution of North Carolina or is in conflict with powers granted the Federal Government by the Constitution of the United States, the General Assembly has plenary legislative power. Lassiter v. Board of Elections, 248 N.C. 102 , 102 S.E. 2d 853 . See dissenting opinion of Devin, J. (later C.J.), in State v. Dixon, supra, p. 173. The question for decision is whether the 1949 Act is a local act, not whether it is a general law. Obviously, it is not a general law in the sense that it provides that justices of the peace in every county of the State shall be selected in exactly the same manner. Nor would it be a general law in this sense if no county were excepted. Even if no county were excepted, its provisions might be invoked by the county commissioners of only one county.

The question is whether an enabling act, the provisions of which may be invoked by the county commissioners of any one or all of twenty-eight counties, is a local act. It is noted: Of the State’s total population of 4,556,155,1,366,352 reside in these twenty-eight counties. (1960 census)

The 1916 constitutional amendments, including Article II, Section 29, became effective January 10,1917.

In 1919, the General Assembly enacted “An Act to Appoint Justices *529 of the Peace for the Several Counties of North Carolina.” Public Laws of 1919, Chapter 99. A similar statute, referred to as the Omnibus Justice of the Peace Act, has been enacted at each succeeding session of the General Assembly. To illustrate: The 1919 Act, in respect of Alleghany County, appoints as justices of the peace in the designated townships the individuals whose names are set forth below.

“ALLEGHANY COUNTY.

“Cherry Lane Township — A. J. Bryan, Coy McCann.

Whitehead Township — T. A. Edwards, Joseph Wagoner.

Glade Creek Township — J. W. Belvins.

Cranberry Township — C. L. Upchurch.”

In like manner, the 1919 Act appoints individuals as justices of the peace in designated townships in eighty-eight other counties.

To my mind, an act appointing a named individual as a justice of the peace for a designated township in a particular county is a local act relating to the appointment of a justice of the peace. Apparently, it was suggested that Article II, Section 29, might be circumvented by the inclusion of all such local acts in one (omnibus) statute.

No case has been presented to this Court for judicial determination as to the constitutionality of such Omnibus Justice of the Peace Act. However, prior to the enactment of said 1919 Act, the General Assembly, by resolution, requested this Court for advice as to whether “there is any provision in Article II, section 29, which would prohibit the General Assembly from enacting an omnibus justice of the peace bill.” It appears further that this Court, in a “MESSAGE” addressed to the General Assembly and signed (apparently for the Court) by Chief Justice Clark, advised the General Assembly that this Court was “of the opinion that the bill is constitutional and not in contravention of the recent amendment, Article II, section 29, which prohibits the enactment of any local, private or special act relating to the appointment of justices of the peace, etc., but authorizes general laws regulating this and other matters contained in the section referred to.” Advisory Opinions, 227 N.C. 717 .

It is difficult for me to comprehend the (unstated) legal basis of said Advisory Opinion. It seems to me each such appointment is in fact and in law a local act and that its essential nature is not changed by the device of bracketing multiple local acts in a single statute. Indeed, with due deference, it is my opinion that the appointment by the General Assembly of designated individuals to serve as justices of the peace is precisely what Article II, Section 29, was intended to *530 prohibit. For present purposes, this comment is sufficient: If such Omnibus Justice of the Peace Act is not violative of Article II, Section 29, certainly there is no substantial basis for holding an enabling act such as that here challenged, which does not appoint any person as justice of the peace in any township or county, unconstitutional as violative of Article II, Section 29.

A 1919 Act (Public Laws of 1919, c. 277) entitled “AN ACT TO ESTABLISPI A UNIFORM SYSTEM OF' RECORDERS’ COURTS FOR MUNICIPALITIES AND COUNTIES IN THE STATE OF NORTH CAROLINA,” conferred authority for the establishment of such courts. Section 64 thereof provided that the 1919 Act “shall not apply” to forty-seven designated counties. Section 64 of the 1919 Act was codified as C.S. 1608. A 1921 Act (Public Laws of 1921, c. 110, s. 16) amended C.S. 1608 by striking Granville, Iredell and Cherokee from the list of excepted counties, thereby increasing the number of counties under the 1919 Act from fifty-three to fifty-six. Thereafter, the Iredell County Recorder’s Court was established in the manner prescribed by the 1919 Act.

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

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

The 1919 Act, as amended, is now codified as G.S. Ch. 7, Sub-chapter VI, “RECORDERS’ COURTS,” comprising Articles 24-29, inclusive. G.S. 7-264, as amended, provides that “(t)his subchapter shall not apply” to twenty-two designated counties. It is applicable to seventy-eight counties.

A 1953 Act (S.L. 1953, c. 998) amended G.S. 7-264 by striking *531 Johnston County from the list of excepted counties and by providing specifically that G.S. Ch. 7, Art. 24 should be applicable to municipalities in Johnston County. Thereafter, the Recorder’s Court of Benson was established in the manner provided in said G.S. Ch. 7, Subchapter VI.

In State v. Ballenger (1957), 247 N.C. 216 , 100 S.E. 2d 351 , Ballen-ger asserted that the Recorder’s Court of Benson was not a legally constituted court, that it lacked the power to issue the warrant on which he was tried in said court and in the superior court, and that the superior court had no jurisdiction to try him on such warrant. He attacked the Recorder’s Court of Benson on the ground that the statutes authorizing its establishment were unconstitutional as vio-lative of Art. II, Sec. 29.

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

While not directly involved, it seems appropriate to advert to the following statutory provisions.

1. G.S. Ch. 7, Subchapter VIII, consisting of Articles 33, 34 and 35, confers authority for the establishment of “CIVIL COUNTY COURTS.” Art. 33, G.S. 7-308 et seq., is not applicable to thirty-seven designated counties. G.S. 7-331. Art. 34, G.S. 7-332 et seq., is not applicable to nine designated counties. G.S. 7-350.

2. G.S. Ch. 7, Subchapter IX, consisting of Art. 36, G.S. 7-384 et seq., which confers authority for the establishment of “COUNTY CRIMINAL COURTS,” is not applicable to sixty-two designated counties. G.S. 7-404.

3. G.S. Ch. 7, Subchapter X, consisting of Art. 37, G.S. 7-405 et seq., which confers authority for the establishment of “SPECIAL COUNTY COURTS,” is not applicable to sixty designated counties. G.S. 7-446.

Presumably, all of these enabling acts were adopted by the *532 General Assembly in reliance upon the decision of this Court in In re Harris, supra.

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

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

2. The sixty-three counties to which Article 33 applies include Mecklenburg and Tyrrell. G.S. 7-331.

3. The ninety-one counties to which Article 34 applies include Mecklenburg and Tyrrell. G.S. 7-350.

4. The thirty-eight counties to which Article 36 applies include Mecklenburg and Tyrrell. G.S. 7-404.

5. The forty counties to which Article 37 applies include Guilford (246,520) and Tyrrell. G.S. 7-446.

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

I am advertent to State v. Williams, 209 N.C. 57 , 182 S.E. 711 , where this Court held unconstitutional, as violative of Article II, Section 29, a 1925 Act (Public-Local Laws of 1925, c. 286) purporting to authorize the Board of County Commissioners of Cabarrus County to establish township recorders’ courts. I agree that such an (enabling) act, applicable to a single county, must be considered a local act. Indeed, as indicated above, it was so considered by the General Assembly.

It is noted: The provision in Article II, Section 29, is against the establishment of courts inferior to the superior court by local, private or special act. Article II, Section 29, did not uproot or dis *533 turb inferior courts theretofore established under local acts. Moreover, it was held that Article II, Section 29, did not prohibit the amendment (by local act) of local acts under which such pre-existing inferior courts had been established. Provision Company v. Daves, 190 N.C. 7 , 128 S.E. 593 ; State v. Horne, 191 N.C. 375 , 131 S.E. 753 ; Williams v. Cooper, 222 N.C. 589 , 24 S.E. 2d 484 ; Board of Managers v. Wilmington, 237 N.C. 179, 188 , 74 S.E. 2d 749 ; In re Wingler, 231 N.C. 560, 565 , 58 S.E. 2d 372 ; State v. Norman, 237 N.C. 205, 210 , 74 S.E. 2d 602 ; State v. Furmage, 250 N.C. 616, 619 , 109 S.E. 2d 563 . Hence, since the adoption of Article II, Section 29, our inferior courts have consisted of (1) pre-existing inferior courts established by local acts, a considerable number, and (2) inferior courts established under one of the enabling acts now codified in G.S. Chapter 7. As to local acts purporting to modify, in respect of a particular county, the provisions of such an enabling act, it is sufficient to say that the validity of such local acts has not been determined by this Court.

In State v. Dixon, supra, this Court, by a majority of four to three, held invalid “AN ACT TO DEFINE REAL ESTATE BROKERS AND SALESMEN; TO PROVIDE FOR THE REGULATION, SUPERVISION AND LICENSING THEREOF; TO CREATE A REAL ESTATE COMMISSION, AND PRESCRIBING THE POWERS AND DUTIES THEREOF; TO PROVIDE FOR THE ENFORCEMENT OF SAID ACT AND PENALTIES FOR THE VIOLATION THEREOF.” Public Laws of 1937, Chapter 292.

In summary, this 1937 Act provided: To engage in the business of real estate broker or salesman in violation of its provisions was declared a misdemeanor, punishable as therein provided. It created the “North Carolina Real Estate Commission.” Only persons licensed by the Commission could engage in such business. Applications, fees and qualifications for such license were prescribed. No license would be issued unless and until the applicant had passed an examination conducted by the Commission. While all other provisions purported to vest statewide authority in the “North Carolina Real Estate Commission,” a final section (section 17^) provided that “this Act shall not apply” to sixty-four named counties.

The 1937 Act was held invalid on two separate grounds, viz.:

1. It was held unconstitutional as a local act regulating trade in violation of Article II, Section 29.

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

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

With reference to the first ground of decision, the Court in State v. Dixon, supra, does not purport to overrule In re Harris, supra. Indeed, the opinion quotes with approval from In re Harris, supra. The only ground on which the Harris case is distinguished in this: In Harris fifty-six counties were covered and forty-four were excepted. In Dixon, thirty-six counties were covered and sixty-four counties were excepted.

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

The converse of the factual situation in State v. Dixon, supra, was considered in State v. Felton, 239 N.C. 575 , 80 S.E. 2d 625 , where it was held that an act purporting to legalize gambling in Currituck County in contravention of the general criminal laws of the State was invalid.

It is noted that statutory provisions, rather than the provisions of Article VII, Section 5, of the Constitution of North Carolina, now govern the manner in which justices of the peace are to be selected. G.S. 7-112.

In summary:

1. This Court has not passed upon any statute challenged as unconstitutional under Article II, Section 29, on the ground it was a local act relating to the appointment of justices of the peace. (Apparently, *535 the Court recognizes as authoritative the said 1919 Advisory Opinion relating to the 1919 Omnibus Justice of the Peace Act.)

2. This Court has upheld the constitutionality of the statute now codified as G.S. Chapter 7, Articles 24-29, inclusive, in In re Harris, supra, and State v. Ballanger, supra, notwithstanding extreme diversity as between covered counties and as between excepted counties. It has declared unconstitutional an enabling act providing for the creation of township recorders’ courts in Oar-barrus County. State v. Williams, supra.

3. In State v. Dixon, supra, the challenged statute undertook to declare criminal in certain counties conduct that was authorized and lawful under the general laws of the State.

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

In Coastal Highway v. Turnpike Authority, 237 N.C. 52 , 74 S.E. 2d 310 , five counties were involved. In that case, a 1949 Statute purported to authorize the Municipal Board of Control to “enter an order creating a municipal corporation.” This 1949 Statute was held invalid as an attempt to delegate legislative power and authority contrary to the provisions of Article II, Section 1, of the Constitution of North Carolina. Since the alleged corporate status of Coastal Highway was based on an order of said Municipal Board of Control, this Court held plaintiff had no legal corporate status. Thereafter, the Court proceeded to declare unconstitutional on the ground it violated Article II, Section 29, an amendatory 1951 Act under which Coastal Highway’s authority as therein defined was “(t)o construct, maintain, repair and operate the toll road, toll bridge or turnpike at such location within the North Carolina Counties of Currituck, Dare, Tyrrell, Plyde, and Carteret as shall be adopted by the municipal corporation.” It is noted that the Coastal Highway case involved a particular project.

In In re Harris, supra, Hoke, J. (later C.J.), fully advertent to conflicting definitions by text writers and by courts of other jurisdictions, reached the conclusion the term “local act” as used in Article II, Section 29, had no fixed or generally accepted meaning. If it had no fixed or generally accepted meaning when Article II, Section 29, was adopted, I am unwilling to attempt now to define the term with exactitude. In short, now as then, whether a particular act should be considered local must be determined, to a considerable extent, with reference to its nature and purpose and with reference *536 to the nature and extent of the locality to which it applies. In the light of our prior decisions, I cannot say the 1949 Act, an enabling act applicable to twenty-eight counties with a population of 1,356,352, is a local act within the meaning of Article II, Section 29.

The Court recognizes the well established rule that all reasonable doubt is to be resolved in favor of the validity of an act of the General Assembly and that such act will not be declared unconstitutional unless it is clearly so. In my opinion, application of this principle requires that the constitutionality of the 1949 Act be upheld. Hence, I vote to affirm Judge Campbell’s judgment.