| REPLY TO: | Andrew A Vanore, Jr. |
| General Counsel | |
| (919) 716-6400 | |
| FAX: | (919) 716-6750 |
March 2, 1999
Honorable James S. Forrester, M.D. North Carolina Senate Room 1121 State Legislative Building Raleigh, North Carolina 27601
Re: Advisory opinion: Constitutionality of legislation conditioning the establishment of a lottery upon approval of the voters in a statewide referendum; Article II, Section 1 of the North Carolina Constitution
Dear Senator Forrester:
You request our opinion concerning the validity of legislation providing for a lottery in North Carolina that would go into effect only upon approval by the voters in a statewide referendum. In your letter, you preface your request with this statement: “The Institute of Government has stated that it is the General Assembly’s responsibility to vote the lottery issue up or down rather than letting the people decide by voting on the issue.”1
For reasons which follow, it is our opinion that such legislation is constitutional.
THE GENERAL ASSEMBLY MAY ENACT A LOTTERY WITHOUT A REFERENDUM
Clearly, the General Assembly could simply enact legislation providing for a lottery in North Carolina, without any referendum by the voters. Pursuant to Article II, Section 1 of the Constitution of North Carolina, the General Assembly is entrusted with the general state legislative power:
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.
That exclusive legislative power has often been recognized, and indeed it is not open to question. “It
We assume that you refer to an article by John L. Sanders, Can the Fate of the Lottery Be Left to the Voters?, Vol. 59 #3 POPULAR GOVERNMENT, pp. 10-17 (1994). In that article, a copy of which is attached and which will hereafter be referred to as the “Sanders Article,” Mr. Sanders concludes that such legislation “probably would be found to be unconstitutional.”
is, of course, fundamental that under Article II, Section 1, of the North Carolina Constitution all legislative power in this State rests in the General Assembly, except as authorized by the Constitution, as in cases of municipal corporations.” Redevelopment Comm’n of Greensboro v. Security Nat. Bank of Greensboro, 252 N.C. 595, 608 (1960). In exercising its legislative powers, the General Assembly may adopt any legislation which is not specifically forbidden either by the Constitution of North Carolina or by federal law. “The Constitution restricts powers, and powers not surrendered inhere in the people to be exercised through their representatives in the General Assembly; therefore, so long as an act is not forbidden, its wisdom and expediency are for legislative, not judicial, decision.” Maready v. City of Winston-Salem, 342 N.C. 708, 714 (1996) (citation omitted). Moreover, legislative enactments enjoy a strong presumption of constitutionality and will be declared unconstitutional only on the strongest evidence. E.g., Town of Spruce Pine v. Avery County, 346 N.C. 787 (1997). “Every presumption favors the validity of a statute. It will not be declared invalid unless its unconstitutionality be determined beyond a reasonable doubt.” Brannon v. North Carolina State Bd. of Elections, 331 N.C. 335, 339 (1992), quoting Assurance Co. v. Gold, Comm’r of Ins., 249
N.C. 461, 463 (1959).
WOULD A REFERENDUM CONSTITUTE AN UNCONSTITUTIONAL
DELEGATION OF LEGISLATIVE POWER?
The question that has been raised, however, is whether adoption of a statute providing for a lottery constitutes an unconstitutional delegation by the General Assembly of its legislative powers if the lottery provisions become enforceable or effective only upon a favorable vote of the people. North Carolina has no general constitutional authorization for voter referenda on proposed legislation, and has only limited provisions for referenda as to particular subjects. See N.C. Const., art. II, § 22 (2) (proposed constitutional amendments); art. V, § 2(5) (local referenda on property taxes); art. V, § 3 (1) (statewide referenda on debts secured by pledge of faith and credit of State); art. V, § 3(2) (statewide referenda for General Assembly to give or lend credit of State for any person or entity); art. V, § 3(4) (referenda before General Assembly assumes debts or bonds from Convention of 1868 or General Assembly of 1868,1868-69, or 1869-70); art. V, § 4 (2) (local referenda concerning pledge of faith and credit of local government unit); art. V, § 4(3) (referenda for local government to give credit for private person or entity); art. XIII, § 1 (statewide referenda on calling convention of the people); art. XIII, § 3 (statewide referenda on new or revised constitutions or constitutional amendments proposed by convention); art. XIII, § 4 (statewide referenda on proposed constitutional amendments initiated by General Assembly). Plainly, none of these limited referenda provisions address the issue of whether the General Assembly can enact a statute providing for a lottery, with the effective date based on approval by the voters in a statewide referendum. In fact, the Constitution of North Carolina neither specifically authorizes such a referendum nor specifically prohibits it. Therefore, the question is one of interpretation and implication from the North Carolina Constitution. Moreover, the question is one which apparently has never been squarely faced by the North Carolina courts.
HOW OTHER STATES HAVE RULED ON THIS ISSUE —
THE MAJORITY AND MINORITY VIEWS
Before looking at North Carolina law on this issue, it may be helpful to consider the views in other states. The majority view in this country holds that, absent express constitutional authority, conditioning the validity of statewide legislation on the vote of the people constitutes an unconstitutional delegation of legislative authority to the electorate. 2 See, e.g., Akin v. Director of Revenue, 934 S.W.2d 295, 299 (Mo. 1996) (en banc); Board of Supervisors of Elections for Anne Arundel County v. Attorney General, 229 A.2d 388, 396 (Md. 1967); State ex rel. Allison v. Garver, 64 N.E. 573 (Ohio 1902); People ex rel. Thomson v. Barnett, 176 N.E. 108 (Ill. 1931); Gibson County Special School Dist. v. Palmer, 691 S.W.2d 544, 547 (Tenn. 1985); State v. Swisher, 17 Tex. 441 (1856); State v. Briggs, 146 P. 261, 263 (Utah 1915); Opinion of the Justices, 251 So. 2d 739 (Ala. 1971). See also 16A AM. JUR. 2D Constitutional Law § 302 (1998); Annotation, Referendum of General Legislative Act to People in Absence of Constitutional Requirement in That Regard, 76
A.L.R. 1053. Courts adopting this view have taken the position that the legislative power has been entrusted to the legislature by the people, and the legislature can neither re-delegate the legislative authority back to the people or provide for legislation to be effectuated other than as prescribed in the state constitution. See, e.g., Brawner v. Curran, 119 A. 250, 252 (Md. 1922); Barnett, 176 N.E. at 110-11. One of the early cases, often cited by other states, was decided by the New York Court of Appeals addressing the validity of legislation which provided for statewide free schools, with the voters to decide by their votes “whether this act shall or shall not become a law.” Barto v. Himrod, 8 N.Y. 483, 486 (1853). That court concluded that the legislature was the only body “with the power of general legislation.” Id. at 489. “The people reserved no part of it to themselves excepting in regard to laws creating public debt; and can therefore exercise it in no other case.” Id. Similarly, although the legislature may enact laws dependent on the occurrence of a contingency, the New York court concluded that that contingency could not be the vote of the people.
The event on which the act was made to take effect was nothing else than the vote of the people on the identical question which the constitution makes it the duty of tR
Unless otherwise indicated, no constitutional provision directly bearing upon the authority of the legislature to make a statute effective upon legislative approval was at issue in any of the cases cited herein.
delegate or commit to any other man or men to be exercised. They have no more authority to refer such a question to the whole people than to an individual.
Id. at 491.
Interestingly, even in states that hold that the legislature cannot condition a statute’s effectiveness upon a favorable statewide vote of the people, the courts have generally found ways to uphold legislation that applies only to specific localities upon the favorable vote of the electorate in the localities. Those courts typically conclude that a law may be enacted, but be effective only in each locality that votes for it, on the theory that the law is not contingent upon voter approval. Only its enforcement in the particular locality is contingent. Thus, the Illinois Supreme Court expressed this distinction: “[I]t has long been recognized that the legislature may properly enact a complete law which is to become operative upon the happening of a specified contingency such as the affirmative vote of the people in the area or district to be affected.” Hoogasian v. Regional Transportation Auth., 317 N.E.2d 534, 540 (Ill. 1974). New York long ago adopted this distinction, concluding that the legislature “may in cases like those specified permit the electors of a restricted locality to determine whether the provisions of a completed act passed by the Legislature shall become operative or shall be taken advantage of.” People ex rel. Unger v. Kennedy, 101 N.E. 442, 548 (N.Y. 1913). See also Swanberg v. Tart, 778 S.W.2d 931, 935 (Ark. 1989); Gannett v. Cook, 61 N.W.2d 703, 709-10 (Iowa 1953).
Although the New York approach represents the majority view, other states have reached the opposite conclusion and hold that, even in the absence of express constitutional authorization, legislatures may adopt legislation to become effective upon the favorable vote of the statewide electorate. An early Vermont case upheld the validity of liquor legislation that provided for meetings of the freemen of the state and an effective date thereafter, with a proviso that the effective date would be months later (after the legislature convened) if the vote were against the legislation.
Numerous other instances may be found where statutes have been made dependent upon future contingencies, not only for the time of their coming in force, but for their very vitality; and no question of their validity has ever been made upon that ground. This is all recognized as sound law and established precedent by those courts and by those judges who have attempted to argue that a law, made dependent upon a popular vote, was different in principle from one dependent upon other contingencies. But all such attempts seem to me altogether illusory, and, to some extent, captious, not to say frivolous.
If the operation of a law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and a fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one.
State v. Parker, 26 Vt. 357, 365 (1854). See also Thompson v. Smith, 129 A.2d 638, 647 (Vt. 1957) (Vermont law “is established that the legislature may make the effective date of its legislation be determined by the vote of the people of the state at large,” citing Parker and State v. Scampini, 77 Vt. 92, 97-98, 59 A. 201 (1904)). The Wisconsin Supreme Court reached a similar result in Smith v. City of Janesville, 26 Wis. 291 (1870) (upholding validity of tax law that took effect only after favorable vote of the electorate). There, the court said, “[n]o one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute, or conditional and contingent; and if the latter, they may take effect on the happening of any event which is future and uncertain.” Id. at 294. That being so, “the only question here would seem to be, whether a vote of the people in favor of a law is to be excluded from the number of those future contingent events upon which it may be provided that it shall take effect.” Id. at 294-95. See also State ex rel. Van Alstine v. Frear, 125 N.W. 961 (Wis. 1910) (upholding state primary law effective upon favorable vote in statewide referendum); State ex rel. Broughton v. Zimmerman, 52 N.W.2d 903 (Wis. 1952) (upholding statute governing legislative districting, with different provisions effective upon favorable or unfavorable vote on proposed constitutional amendment, and citing Parker case extensively). Similarly, New Jersey conditioned provisions governing selection of jury members upon approval by the voters statewide, and that legislation was upheld. Hudspeth v. Swayze, 89 A. 780 (N.J. 1914). Quoting extensively both from Parker and City of Janesville, the New Jersey court concluded that there was no express prohibition on the legislature’s conditioning the effectiveness of an enactment upon the outcome of a vote of the electorate. “In the absence of an express limitation upon the Legislature’s power in this regard, one ought not to be imported into the Constitution by implication. There is no necessity for such implication, and, in the absence of express prohibition, only a necessary implication will limit power.” Hudspeth, 89 A. at 787. In addition, Oregon upheld state income tax provisions which were dependent upon whether a sales tax went into effect, which itself depended upon the vote of the people. Marr v. Fisher, 187 P.2d 966 (Or. 1947). Interestingly, the Oregon court upheld the tax despite a state constitutional provision prohibiting the passage of any law “the taking effect of which shall be made to depend upon any authority, except as provided in this constitution” and also despite the existence of a constitutional initiative and referendum procedure which could be invoked by the people, but which was not involved in this instance. Id. at 967-68. The Oregon court also emphasized that the statute must be complete in form, with its effectiveness contingent upon the vote of the electorate, to be valid, and noted that the New York statute in Barto was deficient because it submitted to the voters the question of “whether this act shall or shall not become a law.” Id. at 969 (emphasis in original). Similarly, the South Dakota Supreme Court upheld the referral of a low-level radioactive waste compact agreement to the voters by joint resolution of the South Dakota legislative chambers as within an inherent power of referral possessed by the legislature, a discrete power which survived a constitutional amendment that allowed for referenda initiated by the people. Wyatt v. Kundert, 375 N.W.2d 186, 191 (S.D. 1985).
WHY WE CONCLUDE OUR SUPREME COURT WOULD UPHOLD SUCH LEGISLATION
Given these two strains of decisions, the question is which approach is likely to be followed by the North Carolina courts. No decision is directly on point. Certain basic principles of North Carolina constitutional law are, however, relevant. First, the North Carolina Supreme Court has repeatedly declared that the Constitution of North Carolina is one of limitation, not one of a grant of power.
[I]t is firmly established that our State Constitution is not a grant of power. McIntyre
v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961). All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution. Id. See Lassiter v. Board of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958); Airport Authority v. Johnson, 226 N.C. 1, 8, 36 S.E.2d 803, 809 (1946).
State ex rel. Martin v. Preston, 325 N.C. 438, 449-50 (1989). Accord Gwathmey v. State Through Dep’t of Environment, Health, and Natural Resources Through Cobey, 342 N.C. 287, 303-04 (1995). See also Purser v. Ledbetter, 227 N.C. 1, 6 (1946) (“Our Constitution is one of limitations rather than of grants.”).
The countervailing fundamental principle is that, generally, the General Assembly’s legislative power may not be delegated except within certain limited parameters.
‘It is settled and fundamental in our law that 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. Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310. It is equally well settled that, as to some specific subject matter, it 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 Turnpike Authority v. Pine Island, supra, 265 N.C. [109] at 114, 143 S.E.2d [319] at 323 [(1965)], and cases cited.
Martin v. North Carolina Housing Corp., 277 N.C. at 54-55; see also Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 748 (1990). “Legislative power vests exclusively in the General Assembly, Constitution of North Carolina, Article II, 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, 95 (1954).3
In North Carolina, numerous cases have declared the validity of legislation allowing for local acts to be effective upon approval by local voters or local officials or allowing statewide acts to be operative in particular localities upon approval by the voters of those localities. “(A)n 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, 592 (1967), quoting State ex rel. Taylor v. Carolina Racing Ass’n, 241 N.C. at 95. While the cases have dealt only with local referenda or actions, the language of those cases has not always been so limited. Indeed, the language of many of the early cases extended well beyond their specific circumstances.
In 1859, the North Carolina Supreme Court addressed the question of whether a revision of the City of Raleigh charter could be made effective by legislation that required acceptance by the local commissioners. In rejecting the contention that the act delegated part of the General Assembly’s legislative authority to the local commissioners and mayor, the Supreme Court discussed, and rejected, the New York case of Barto v. Himrod, one of the leading cases disapproving of statewide referenda on general legislation:
This decision [Barto v. Himrod] and the reasoning offered in support of it fail to satisfy us that the Legislature has not the power to pass a law dependent upon a vote of the people or the acceptance of a corporation. It is certain the Legislature has power to pass a law to ascertain these facts, and may afterwards make a law in conformity thereto; so, in its practical result, it makes no difference which act precedes the other. In the instance of the division of the county of Surry, and also that of the free schools in New York, subsequent acts were passed confirming the first, and in regard to the latter no question as to the power of the Legislature could be raised. It is not denied that a valid statute may be passed to take effect upon the happening of an uncertain future event, upon which the Legislature, in effect, declares the expediency of the law depends, and when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is, in effect, a declaration that in the opinion of the Legislature the law is not expedient unless it be so voted for or accepted. It seems to us the Court in New York fell into error by not discriminating between a want of power and an abuse of power. All legislative power is vested in the General Assembly, restricted only by the Constitution. There is no prohibition in the Constitution against this mode of legislation, consequently, although it may be an abuse of power greatly to be
Under Article VII, Section 1, of the North Carolina Constitution, the General Assembly “may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.”
deprecated, as tending to subvert the principles of our representative form of government, still the power has been granted, and it is not the province of one branch of the government to correct the supposed abuses of another. The judiciary can only interfere when the Legislature acts without power, i.e., in violation of the Constitution. In respect to the delegation of its power, supposed to be involved in an act of the General Assembly making a law depend upon a vote of the people, or the acceptance of a corporation, or the action of the justices of the peace, or any other set of men, Thompson v. Floyd, 47 N.C., 313, is a direct authority in support of our conclusion. It is there decided that a statute giving the justices of a county power to abolish jury trials in the County Courts, if at any time thereafter a majority of the justices may deem it expedient, is not a violation of the Constitution. The subject is there fully discussed, and such delegation of power is shown to have been of frequent occurrence ever since the organization of the government.
Manly v. Raleigh, 57 N.C. 370, 376-77 (1859).
Manly may not have presented the Court with the question of a statewide referendum, but the grounds on which the North Carolina Supreme Court chose to decide it encompassed statewide referenda as well as actions of local officials and voters. Manly expressly rejected Barto v. Himrod, one of the leading cases holding that a legislature could not condition the effectiveness of legislation upon the vote of the populace. The statewide referendum was the precise issue in Barto, and Manly said the New York court was wrong. According to Manly, making the effectiveness of a statute depend on the favorable vote of the people is no different from conditioning a statute’s operation on any other contingency. Thus, the North Carolina Supreme Court clearly staked its position in support of the view that making a statute depend upon the vote of the people is not a delegation of legislative authority, but instead is simply one among many contingencies which may determine whether a statute becomes effective or operative.4
The Court in Manly cited Thompson v. Floyd, 47 N.C. 313 (1855), in support of the proposition that a statute may depend on a contingency such as the vote of the people or the acceptance by a corporation. Thompson dealt with the validity of legislation that transferred jury trials in Robeson County to county courts, but provided that a majority of the county justices of the peace could cause jury trials to be restored to the Superior Courts. The Supreme Court treated the issue as principally one of the legislature acting through its agents, noting that the General Assembly “has often appointed agents, and conferred upon them authority to ascertain the existence of certain facts, declaring what the law shall be if the facts be found to exist; and yet no one ever thought of doubting that the law went into operation immediately upon the ascertainment of the facts in the manner designated.” Id. at 316. The Court went on to note “a remarkable instance” of legislation becoming effective in such a manner when the General Assembly in 1834 enacted legislation to convene a constitutional convention if the voters of the State, in a statewide referendum, voted in favor of the convention. Although the Court in Thompson pointed out the reliance by the legislature
Manly was cited in Newsom v. Earnheart, 86 N.C. 391 (1882), in which the Court rejected a challenge to legislation providing for “stock” districts in certain counties if voters in a defined district or territory in one of those counties voted in favor of the district. The Court noted that the challenge to the act relied on a California case which rejected “all local option legislation, upon grounds which are expressly repudiated in Manly.” Id. at 381. While Newsom might suggest that Manly, despite its broad language, should be limited to local option legislation, the case of Cain v. Commissioners, 86 N.C. 8 (1882), says otherwise. Cain also involved an act to prevent live stock from running loose in certain counties if the voters of the county or a township voted in favor of having the provision in effect in a specific territory. Once again, as in Manly, the Court discussed its decision in terms far broader than the local option legislation at issue.
It has not been seriously questioned that the Legislature may make an enactment to take effect only upon the happening of a contingent event; but it has been earnestly maintained that when the event is the expression of the popular will, ascertained by an election, it is in effect a transfer of legislative power to the voters. In reference to this distinction, Redfield., C.J., in an elaborate opinion delivered in State v. Parker, 26 Ver., 357, says that “the distinction attempted between the contingency of a popular vote and other future contingencies is without all just foundation in sound policy and sound reasoning.” What differences may be found in the adjudication elsewhere, it is settled by the decision in Manly v. Raleigh, 57 N.C., 370, that such power may be exercised by the Legislature, and it is declared that “when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is in effect a declaration that in the opinion of the Legislature the law is not expedient, unless it be so voted for or accepted.” This principle underlies all “local option” legislation and is fully recognized and established in this State. Caldwell v. Justices, 57 N.C., 323.
Cain, 86 N.C. at 13; accord Cottrell v. Town of Lenoir, 173 N.C. 138, 144 (1917).
While the Court in Cain said the principle it expounded “underlies all ‘local option’ legislation,” 86 N.C. at 13, that principle, as discussed in the case, was not one limited to local option legislation. Instead, the Court again espoused the principle that a vote of the people is a contingent event upon which legislation may constitutionally take effect just as legislation may constitutionally be conditioned upon other contingencies. In discussing that principle, the North Carolina Supreme Court quoted from the Parker case, in which the Vermont court upheld the validity of legislation conditioned upon the contingency of a favorable statewide vote. Rather than relying on a case which upheld a local option provision, the North Carolina Supreme Court reached out to one of the leading
on various agents in state government to determine that the voters supported the convention and then to conduct the election of delegates, part of the contingency obviously was the vote of the people themselves.
cases holding that a statute may be contingent on a statewide referendum. The North Carolina Supreme Court quoted and adopted the language of the Parker case dealing with a statewide referendum. It then applied Parker’s reasoning to local option legislation instead of employing one of the rationales used to approve local option legislation in states which do not recognize statewide referenda as a condition for the effectiveness of legislation. Thus,