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Constitution of North Carolina

ARTICLE II Legislative

Section 1. Legislative power.

The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives.

History Note. - The provisions of this section are similar to those of Art. II, § 1, Const. 1868.

Legal Periodicals. - For note on delegation of legislative authority to individuals, see 31 N.C.L. Rev. 308 (1953).

For case law survey as to separation of powers, see 44 N.C.L. Rev. 947 (1966).

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For comment on sectarian education and the State, see 1980 Duke L.J. 801.

For survey of 1982 law relating to constitutional law, see 61 N.C.L. Rev. 1052 (1983).

For article, "Defining Lawmaking Power," see 51 Wake Forest L. Rev. 881 (2016).

CASE NOTES





I. In General.

II. Delegation.

III. Local Power.

IV. Zoning.



I. IN GENERAL.



Editor's Note. - Some of the cases cited below were decided under former Art. II, § 1, Const. 1868.

All legislative power in this State rests in the General Assembly under this section, except as authorized by the Constitution, as in cases of municipal corporations. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960).

Legislative power vests exclusively in the General Assembly, and except as authorized by the Constitution, as in case of municipal corporations, may not be delegated. State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80, 84 S.E.2d 390 (1954); Gardner v. City of Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967).

General Assembly Is Possessed of Full Legislative Powers. - Under the North Carolina Constitution, the General Assembly, so far as that instrument is concerned, is possessed of full legislative powers unless restrained by express constitutional provision or necessary implication therefrom. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).

To Legislate for Protection of Health, Safety, Morals and General Welfare. - The General Assembly, exercising the police power of the State, may legislate for the protection of the public health, safety, morals and general welfare of the people. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970); In re Denial of Approval to Issue Hous. Bonds, 307 N.C. 52, 296 S.E.2d 281 (1982).

Questions of Public Policy Are for Legislative Determination. - Absent constitutional restraint, questions as to public policy are for legislative determination. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).

The wisdom of an enactment is a legislative and not a judicial question. The General Assembly has the right to experiment with new modes of dealing with old evils, except as prevented by the Constitution. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).

Only Legislature May Amend Statute. - Only the General Assembly may amend or rewrite a statute. Ramsey v. North Carolina Veterans Comm'n, 261 N.C. 645, 135 S.E.2d 659 (1964).

Legislature Cannot Restrict Power of Succeeding Legislature. - An act of the General Assembly is legal unless the Constitution contains a prohibition against it. However, one legislature cannot restrict or limit by statute the right of a succeeding legislature to exercise its constitutional power to legislate in its own way. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1971).

Distinction between Delegating Power to Make Law and Conferring Authority as to Its Execution. - There is a distinction generally recognized between a delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. State v. Lisk, 21 N.C. App. 474, 204 S.E.2d 868, cert. denied, 285 N.C. 666, 207 S.E.2d 759 (1974).

Trial court did not err in granting summary judgment to the governor, state public safety agency, state highway patrol, and certain unidentified persons, and denying the wrecker service owner's motion for summary judgment on the wrecker service owner's declaratory judgment action seeking a determination that regulations used to remove his wrecker service business from the state's Wrecker Rotation Services List were illegal and that the regulations were preempted by federal law; the trial court had the authority to declare that the regulations were not illegal because the General Assembly granted to the state public safety agency the power to direct the state highway patrol to establish regulations for private wrecker services. Ramey v. Easley, 178 N.C. App. 197, 632 S.E.2d 178 (2006).

Legislature Must Declare Policy, Fix Legal Principles and Provide Adequate Standards. - The legislative body must declare the policy of the law, fix legal principles which are to control in given cases, and provide adequate standards for the guidance of the administrative body or officer empowered to execute the law. Carolina-Virginia Coastal Hwy. v. Coastal Tpk. Auth., 237 N.C. 52, 74 S.E.2d 310 (1953); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); Bulova Watch Co. v. Brand Distrib. of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974); State v. Lisk, 21 N.C. App. 474, 204 S.E.2d 868, cert. denied, 285 N.C. 666, 207 S.E.2d 759 (1974); State ex rel. Dorothea Dix Hosp. v. Davis, 27 N.C. App. 479, 219 S.E.2d 660 (1975), aff'd, 292 N.C. 147, 232 S.E.2d 698 (1977).

For case upholding the former North Carolina Turnpike Authority Act, see North Carolina Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965).

Section § 97-31, authorizing the Industrial Commission to award compensation for bodily disfigurement, is not void as a delegation of legislative authority. Baxter v. W.H. Arthur Co., 216 N.C. 276, 4 S.E.2d 621 (1939).

Session Laws 1967, c. 1177, authorizing the State Education Assistance Authority to issue revenue bonds and to use the proceeds therefrom for the making of loans to "residents of this State to enable them to obtain an education in an eligible institution," as set forth in G.S. § 116-209.2, when supplemented by federal legislation, provides sufficient legislative standards whereby the Authority can determine to which students the loans should be made, since it is implicit in c. 1177 that all loans made from the bond proceeds shall be made in compliance with the standards of federal legislation which supplement the loan program of the Authority. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970).

For case upholding the validity of the former Hospital Facilities Finance Act (former G.S. § 131-138 et seq.), see Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973).

For case holding that former G.S. § 90-57.1 was unconstitutional, see Revco Southeast Drug Centers, Inc. v. North Carolina Bd. of Pharmacy, 21 N.C. App. 156, 204 S.E.2d 38 (1974).

As to the adequacy of the legislative guidelines in G.S. § 90-88, see State v. Lisk, 21 N.C. App. 474, 204 S.E.2d 868, cert. denied, 285 N.C. 666, 207 S.E.2d 759 (1974).

The burden of proof provision of the Rules Governing Admission to the Practice of Law provides for the orderly determination of an applicant's moral character, so the provision is within the legitimate rule-making power constitutionally delegated to the Board of Law Examiners in G.S. § 84-24. In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975), appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1976).

As to the constitutionality of Chapter 143, Article 7 (G.S. § 143-117 et seq.), see State ex rel. Dorothea Dix Hosp. v. Davis, 27 N.C. App. 479, 219 S.E.2d 660 (1975), aff'd, 292 N.C. 147, 232 S.E.2d 698 (1977).

The Coastal Area Management Act of 1974 (G.S. § 113A-100 et seq.) properly delegates authority to the Coastal Resources Commission to develop, adopt and amend State guidelines for the coastal area. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Discretion to Determine Whether Commissioners Should Be Elected or Appointed. - Discretion provided by G.S. § 156-81(a) and (i) to the clerks of superior court to determine whether drainage commissioners should be elected or appointed is an unconstitutional delegation of legislative powers. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).

Exchange of Land by Board of Education. - There is nothing in the Constitution which prohibits a board of education from exchanging land which it owns for other land for school purposes. Painter v. Wake County Bd. of Educ., 288 N.C. 165, 217 S.E.2d 650 (1975).

Delegation of Authority to Plan and Construct Interstate Highway. - The delegation of authority to the North Carolina Department of Transportation and the Board of Transportation to plan and construct an interstate highway did not constitute an unlawful delegation of legislative authority to an administrative body, unrestrained by legislative standards or sufficient procedural safeguards or political accountability. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890 (1980).

Rate Freeze Statute Proper Exercise of Legislative Power. - Enactment of G.S. § 62-133.6 was an exercise by the legislature of the power granted to it under the North Carolina Constitution to alter electricity rates for investor-owned utilities for the next five years while the utilities seek to comply with new air emission standards, and simply allows the legislature to preempt the North Carolina Utilities Commission's ability to compel a general rate case by freezing rates until 31 December 2007; the North Carolina Utilities Commission properly dismissed a complaint regarding rates and a petition to initiate a general rate proceeding filed against an energy corporation by a customers association. State ex rel. Utils. Comm'n v. Carolina Util. Customers Ass'n, 163 N.C. App. 46, 592 S.E.2d 221 (2004), cert. denied, 358 N.C. 739, - S.E.2d - (2004), cert. dismissed, 358 N.C. 739, 602 S.E.2d 682 (2004).

Party Benefitting From Agency Action May Not Later Challenge It On Separation of Powers Grounds. - As a taxpayer sought, received, and benefitted from a variance from G.S. § 105-130.4(t)'s tax allocation formula, it could not challenge, on separation-of-powers grounds, orders of the augmented North Carolina Tax Review Board that granted the variance. Philip Morris USA, Inc. v. Tolson, 176 N.C. App. 509, 626 S.E.2d 853 (2006), cert. denied, appeal dismissed, 361 N.C. 356, 644 S.E.2d 231 (2007).

Agency Did Not Violate Separation of Powers Doctrine. - Augmented North Carolina Tax Review Board did not violate the separation of powers doctrine by creating a special tax allocation formula for a multi-state corporation, because in so doing, it only exercised the powers expressly reserved for it by the general assembly under G.S. § 105-130.4(t). Philip Morris USA, Inc. v. Tolson, 176 N.C. App. 509, 626 S.E.2d 853 (2006), cert. denied, appeal dismissed, 361 N.C. 356, 644 S.E.2d 231 (2007).

Because the General Assembly did not intend, in passing G.S. § 105-113.4C, to retroactively limit the procedures and standard for review governing the question of diligent enforcement of an escrow statute, a business court's order compelling arbitration does not violate the separation of powers doctrine in N.C. Const., Art. I, § 6; Art. II, §§ 1 and 20; and Art. IV, § 1. State v. Philip Morris USA, Inc., 193 N.C. App. 1, 666 S.E.2d 783 (2008), review denied, stay denied, 363 N.C. 136, 676 S.E.2d 54 (2009).

II. DELEGATION.

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Legislative function cannot be delegated. Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940).

To Any Other Branch, Department or Agency. - The legislature may not abdicate its power to make laws nor delegate its supreme legislative power to any other coordinate branch or to any agency which it may create. North Carolina Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965); State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

This section inhibits the General Assembly from delegating its legislative powers to any other department or body. Jackson v. Guilford County Bd. of Adjustment, 2 N.C. App. 408, 163 S.E.2d 265 (1968).

Not Even an Administrative Agency. - The legislature may not delegate its power to make laws even to an administrative agency of the government. Bulova Watch Co. v. Brand Distrib. of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974).

But the Legislature May Delegate Portion of Its Power Under Prescribed Standards. - As to some specific subject matter, the legislature may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers. North Carolina Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965); State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970); In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975), appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1976).

A modern legislature must be able to delegate, in proper instances, a limited portion of its legislative powers to administrative bodies which are equipped to adapt legislation to complex conditions involving numerous details with which the legislature cannot deal directly. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Although It Cannot Delegate Absolute Discretion to Apply or Withhold Application of Law. - The legislature cannot vest in a subordinate agency the power to apply or withhold the application of the law in its absolute or unguided discretion. Carolina-Virginia Coastal Hwy. v. Coastal Tpk. Auth., 237 N.C. 52, 74 S.E.2d 310 (1953); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); Bulova Watch Co. v. Brand Distrib. of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974); State v. Lisk, 21 N.C. App. 474, 204 S.E.2d 868, cert. denied, 285 N.C. 666, 207 S.E.2d 759 (1974).

Section Elucidates when Delegation Is Permissible. - The effect of N.C. Const., Art. I, § 6 and this section is to elucidate the circumstances in which delegation of legislative powers is permissible. Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d 726 (1980).

Adequate Guiding Standards Are Required. - The constitutional inhibition against delegating legislative authority does not preclude the legislature from transferring adjudicative and rule-making powers to administrative bodies provided such transfers are accompanied by adequate guiding standards to govern the exercise of the delegated powers. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The people, in this section, have conferred their legislative power upon the General Assembly, which may not transfer it to another officer or agency without the establishment of such standards for guidance as to retain in its own hands the supreme legislative power. Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert. denied, 406 U.S. 920, 92 S. Ct. 1774, 32 L. Ed. 2d 119 (1972).

Purpose of Adequate Guiding Standards Test. - The purpose of the adequate guiding standards test is to reconcile the legislative need to delegate authority with the constitutional mandate that the legislature retain in its own hands the supreme legislative power. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Application of Adequate Guiding Standards Test. - The key to an intelligent application of the adequate guiding standards test is an understanding that, while delegations of power to administrative agencies are necessary, such transfers of power should be closely monitored to insure that the decision-making by the agency is not arbitrary and unreasoned and that the agency is not asked to make important policy choices which might just as easily be made by the elected representatives in the legislature. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Determining Adequacy of Standards by Existence of Procedural Safeguards. - In determining whether a particular delegation of authority is supported by adequate guiding standards, it is permissible to consider whether the authority vested in the agency is subject to procedural safeguards. A key purpose of the adequate guiding standards test is to insure that the decision-making by the agency is not arbitrary and unreasoned. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Procedural safeguards tend to encourage adherence to legislative standards by the agency to which power has been delegated. The presence or absence of procedural safeguards is relevant to the broader question of whether a delegation of authority is accompanied by adequate guiding standards. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Provision of Direction to Administrative Body with Expertise. - When there is an obvious need for expertise in the achievement of legislative goals, the General Assembly is not required to lay down a detailed agenda covering every conceivable problem which might arise in the implementation of the legislation. It is enough if general policies and standards have been articulated which are sufficient to provide direction to an administrative body possessing the expertise to adapt the legislative goals to varying circumstances. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Source of Standards. - In the search for adequate guiding standards, the primary sources of legislative guidance are declarations by the General Assembly of the legislative goals and policies which an agency is to apply when exercising its delegated powers. Such declarations need be only as specific as the circumstances permit. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Standards for Board Regulating Trade or Profession. - When the General Assembly delegates to administrative officers and agencies its own power to prescribe detailed administrative rules and regulations governing the right of individuals to engage in a trade or profession, the statute granting such authority must lay down or point to a standard for the guidance of the officer or agency in the exercise of his or its discretion. Otherwise, such statute will be deemed an unlawful delegation by the General Assembly of its own authority. Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert. denied, 406 U.S. 920, 92 S. Ct. 1774, 32 L. Ed. 2d 119 (1972).

In licensing those who desire to engage in professions or occupations such as may be proper subjects of such regulation, the legislature may confer upon executive officers or bodies the power of granting or refusing to license persons to enter such trades or professions only when it has prescribed a sufficient standard for their guidance. Revco Southeast Drug Centers, Inc. v. North Carolina Bd. of Pharmacy, 21 N.C. App. 156, 204 S.E.2d 38 (1974); In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975), appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1976).

Standards Are Unnecessary When Power Is Delegated in the Constitution. - The principle that the General Assembly may not transfer its legislative power without the establishment of standards for guidance has no application to a direct delegation by the people, themselves, in the Constitution of this State, of any portion of their power, legislative or otherwise. In such case, the Supreme Court looks only to the Constitution to determine what power has been delegated. Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert. denied, 406 U.S. 920, 92 S. Ct. 1774, 32 L. Ed. 2d 119 (1972).

Administrative Details May Be Left to Agency. - If it were necessary for the Turnpike Authority to formulate specific plans as to the course of the turnpike through the various municipalities, and as to the manner and method of construction, and then seek legislative approval thereof, there would be no purpose in creating the Authority; the legislature might just as well act itself in the entire matter. The prohibition against abdication of legislative power in favor of an agency was never intended to extend to such administrative details. North Carolina Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965).

Legislature May Delegate Power to Determine Facts. - The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some facts or state of facts upon which the law makes, or intends to make, its own action depend. State v. Curtis, 230 N.C. 169, 52 S.E.2d 364 (1949).

The legislature may not abdicate its power to make laws or delegate its supreme legislative power to any other department or body. However, it is not necessary for the legislature to ascertain the facts of, or to deal with, each case. The constitutional inhibition against delegating legislative authority does not deny to the legislature the necessary flexibility of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the legislature shall apply. Carolina-Virginia Coastal Hwy. v. Coastal Tpk. Auth., 237 N.C. 52, 74 S.E.2d 310 (1953); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); State v. Lisk, 21 N.C. App. 474, 204 S.E.2d 868, cert. denied, 285 N.C. 666, 207 S.E.2d 759 (1974); A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979).

The General Assembly, for the purpose of carrying its enactment into effect, may delegate the power to find facts or to determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend or another agency of the government is to come into existence, provided adequate standards are set forth to guide the agency in so doing. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); Bulova Watch Co. v. Brand Distrib. of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974); State v. Lisk, 21 N.C. App. 474, 204 S.E.2d 868, cert. denied, 285 N.C. 666, 207 S.E.2d 759 (1974).

The General Assembly, having itself declared the policy to be effectuated and having established the broad framework of law within which it is to be accomplished and standards for the guidance of the administrative agency, may delegate to such agency the authority to make determinations of fact upon which the application of a statute to particular situations will depend. Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973).

Delegation of Authority to Test Applicants to Bar. - There is no more appropriate delegation of authority than that of testing to determine a capability to practice law. The Board of Law Examiners is not required to make important policy choices, which might just as easily be made by the elected representatives in the legislature, but merely to compile and administer examinations. Form, grading and logistics only are left to the Board, which does no violence to constitutional principle. Bowens v. Board of Law Exmrs., 57 N.C. App. 78, 291 S.E.2d 170 (1982).

Delegation of Power to Private Corporations. - The legislature may not vest in a private corporation the authority to determine in its absolute or unguided discretion the price at which another, with whom it has no contractual relation, may sell to a willing buyer an article lawfully acquired and owned by him. Bulova Watch Co. v. Brand Distrib. of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974).

The "nonsigner" provision of former G.S. § 66-56, extending the force and effect of a "fair trade" contract to a seller not a party thereto, was unconstitutional, because it delegated legislative power to a private corporation, in violation of this section. Bulova Watch Co. v. Brand Distrib. of North Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974).

Delegation of Power to Board of Bar Examiners. - This section does not unconstitutionally delegate legislative power, where the statute authorizes the Board of Law Examiners to make rules governing admission to the bar. Bring v. North Carolina State Bar, 348 N.C. 655, 501 S.E.2d 907 (1998).

III. LOCAL POWER.

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Delegation of Power to Voters of Municipality. - While an act, otherwise valid, may be enacted so as to take effect upon approval by a majority of the qualified voters of the affected locality, the General Assembly cannot constitutionally provide that the qualified voters in one governmental unit, e.g., a town, shall decide whether a statute shall be in force and effect elsewhere than in the territory comprising that particular governmental unit. State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80, 84 S.E.2d 390 (1954).

An act, otherwise valid, may be enacted so as to take effect upon approval by a majority of the qualified voters of the affected locality. Gardner v. City of Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967).

Incorporation of Municipal Corporations. - Ordinarily no delegation of legislative functions is involved in general laws providing for the incorporation of municipal corporations, fixing the conditions on which they may be created, and leaving to some officer or official body the duty of determining whether such conditions exist. However if the statute requires or authorizes the court or other agency to pass upon questions of public policy involved, or to exercise any discretion as to whether the municipal corporation should be created, or to render any other assistance than the determination of facts, there is an attempted delegation of legislative power and the statute is invalid. Carolina-Virginia Coastal Hwy. v. Coastal Tpk. Auth., 237 N.C. 52, 74 S.E.2d 310 (1953).

Power May Be Delegated to Municipalities. - Ordinary restrictions with respect to the delegation of power to an agency of the State, which exercises no function of government, do not apply to cities, towns, or counties. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).

Trial court's conclusion that a city council improperly circumvented an appeals process in exercising its legislative authority to amend the city's zoning map was erroneous because the enactment of zoning legislation within the limitations imposed by N.C. Const., Art. II, § 1 and the enabling statute was a matter within the legislative authority of the council; nonetheless, the council exceeded its legislative authority by considering a zoning map amendment application that was filed prior to the expiration of the four-month window mandated by Section 14.8 of the Ordinances, which began on the date the council made a final determination that the district would be zoned General Business. Carroll v. City of Kings Mt., 193 N.C. App. 165, 666 S.E.2d 814 (2008).

And to Counties. - The general rule that legislative power, vested in the General Assembly, may not be delegated is subject to an exception permitting the delegation to municipal corporations and to counties of power to legislate concerning local problems. Porter v. Suburban San. Serv., Inc., 283 N.C. 479, 196 S.E.2d 760 (1973).

But the General Assembly cannot delegate to a city or county more extensive power than it possesses. In re Ellis, 277 N.C. 419, 178 S.E.2d 77 (1970).

Though the law-making power can unquestionably create a municipal corporation and delegate legislative authority to it, it cannot clothe the creature with power to do what the Constitution prohibits the creator from doing. In re Ellis, 277 N.C. 419, 178 S.E.2d 77 (1970).

Power to Legislate Concerning Local Problems. - The authority of the General Assembly to delegate to municipal corporations power to legislate concerning local problems, such as zoning, is an exception (established by custom in most, if not all, of the states) to the general rule that legislative powers, vested in the General Assembly by this section, may not be delegated by it. This exception to the doctrine of nondelegation is not limited to a delegation of such legislative authority to incorporated cities and towns, but extends, as to other types of local matters, to a like delegation to counties and other units established by the General Assembly for local government. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).

Enlargement of Municipal Boundaries. - There is no constitutional provision prohibiting the creation of a municipality by an act of the General Assembly. A fortiori, by a special act, it may constitutionally enlarge the boundaries of a town which it has created. It may also provide statutory procedures for extending the corporate limits of a municipality organized and existing under the laws of the State. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).

The enlargement of municipal boundaries by the annexation of new territory, resulting in the extension of municipal corporate jurisdiction, is a legitimate subject of legislation. In the absence of constitutional restriction, the extent to which such legislation shall be enacted, both with respect to the terms and circumstances under which the annexation may be had, and the manner in which it may be made, rests entirely in the discretion of the legislature, and an act of annexation is valid which authorizes the annexation of territory without the consent of its inhabitants. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).

In delegating to town commissioners the discretionary right to decide whether to enlarge corporate limits as specified in special act, Session Laws 1971, c. 801, the General Assembly did not delegate legislative authority in violation of N.C. Const., Art. I, § 6 or this section. Except for approval by the town's board of commissioners, the act was complete in every respect at the time of its ratification. The only discretion given the commissioners was to decide whether or not to annex the territory specified in the act. In authorizing the annexation, the General Assembly determined that the annexation was suitable and proper. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).

Establishment or Abolition of County Court. - While the legislature may not delegate its power to make laws, it may delegate to local political subdivisions the power to find facts determinative of whether a particular law should become effective in the locality, and therefore it may delegate to county commissioners the power to establish a county court when necessary in the public interest, and, a fortiori it may also delegate to the county commissioners similar authority to abolish a county court established by the legislature. Efird v. Board of Comm'rs, 219 N.C. 96, 12 S.E.2d 889 (1941).

IV. ZONING.

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The power to zone is the power originally vested in the General Assembly to legislate with reference to the use which may be made of land and the structures which may be erected or located thereon. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).

Power to zone real property is vested in the General Assembly by this section. Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1988).

Subject to Constitutional Limitations on Interference with Property Rights. - The power to zone rests originally in the General Assembly, but this power is subject to the constitutional limitation forbidding arbitrary and unduly discriminatory interference with the right of property owners. In re Ellis, 277 N.C. 419, 178 S.E.2d 77 (1970).

Power to Adopt Zoning Ordinance May Be Conferred. - The General Assembly, notwithstanding this section, may confer upon county boards of commissioners the power to adopt zoning ordinances otherwise valid. Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).

But a Municipality May Not Delegate Power to Zone to Board of Adjustment. - The legislative body of a municipal corporation, in which the General Assembly has vested its power to zone, may not delegate the power to zone to the municipal board of adjustment. Keiger v. Winston-Salem Bd. of Adjustment, 278 N.C. 17, 178 S.E.2d 616 (1971).

Issuance of Special Use Permit. - Where a municipal ordinance required the board of adjustment to issue a special use permit when it made certain affirmative findings specified in the ordinance, the board's determination of whether to issue a special use permit was not an unlawful exercise of legislative power. Kenan v. Board of Adjustment, 13 N.C. App. 688, 187 S.E.2d 496, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972).

Denial of Special Use Permit. - Where petitioners produced competent, material and substantial prima facie evidence to show their compliance with four general conditions required to obtain a special use permit needed to construct a mobile home park, and where city council failed to make adequate findings of fact to support denial of the special use application, such action constituted an unlawful exercise of legislative power in violation of this section. Clark v. City of Asheboro, 136 N.C. App. 114, 524 S.E.2d 46 (1999).

Licensing of Dry Cleaners. - Chapter 30 of the Public Laws of 1937, as amended by c. 337 of the Public Laws of 1939, providing for the licensing of those engaged in the business of dry cleaning by the commission set up in the act, was an unconstitutional delegation of legislative authority, in that the act failed to set up standards or provide reasonable limitations to guide the administrative board in admitting or excluding persons from the business, but left such power in unlimited discretion of the administrative board. State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658 (1940).

For case upholding the Urban Redevelopment Law, see Horton v. Redevelopment Comm'n, 259 N.C. 605, 131 S.E.2d 464 (1963).

Applied in In re Powers, 295 S.E.2d 589 (N.C. 1982); White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983); Kerik v. Davidson County, 145 N.C. App. 222, 551 S.E.2d 186 (2001).

Cited in In re Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973); Town of Mebane v. Iowa Mut. Ins. Co., 28 N.C. App. 27, 220 S.E.2d 623 (1975); In re Ordinance of Annexation No. § 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979); Reed v. Byrd, 41 N.C. App. 625, 255 S.E.2d 606 (1979); Wood v. City of Fayetteville, 43 N.C. App. 410, 259 S.E.2d 581 (1979); In re Arcadia Dairy Farms, Inc., 43 N.C. App. 459, 259 S.E.2d 368 (1979); Harts Book Stores, Inc. v. City of Raleigh, 53 N.C. App. 753, 281 S.E.2d 761 (1981); State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982); State v. Gravette, 327 N.C. 114, 393 S.E.2d 856 (1990); Bethania Town Lot Comm. v. City of Winston-Salem, 348 N.C. 664, 502 S.E.2d 360 (1998); Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012); In re McClain, 226 N.C. App. 465, 741 S.E.2d 893 (2013), review denied, 743 S.E.2d 188, 2013 N.C. LEXIS 532 (2013); State ex rel. McCrory v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016).

Opinions of Attorney General



Delay of Rules by Review Commission. - An act vesting in the Administrative Rules Review Commission (ARRC), a commission appointed by the General Assembly, the power to delay indefinitely the effective date of duly adopted agency rules which it deems in excess of statutory authority would likely be held to violate this section by vesting the ARRC with judicial powers reserved to the court and with supreme legislative powers reserved to the General Assembly. See opinion of Attorney General to Henson P. Barnes, President Pro Tempore, Senate, - N.C.A.G. - (February 25, 1991).

Contingent Lottery Legislation Not Invalid Delegation of Legislative Power. - A statute enacted by the General Assembly providing for a lottery, with the effectiveness contingent upon the results of a statewide referendum, is neither constitutionally forbidden nor invalid as a prohibited delegation of legislative power. See opinion of Attorney General to Honorable James S. Forrester, M.D., North Carolina Senate, 1999 N.C.A.G. 7 (3/2/99).

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