April 24, 1990
Subject:
Education, Taxation
Requested By:
John B. Dunn, Superintendent Edenton-Chowan Schools
Questions:
Under the North Carolina Constitution, would a local school board be prohibited from levying taxes in support of its schools?
Conclusion:
No, assuming there is a legislative grant of such power in accordance with the requirements of our Constitution.
The current funding structure in North Carolina is one in which public school financing rests primarily with the State. 1 Phay, EDUCATION LAW IN NORTH CAROLINA, 4-1 (1988). The local responsibility for financing the schools has traditionally been vested in the counties "which under North Carolina system of government serve primarily as agents of the state government in administering services that must be made available uniformly to all people in the state." Id. To that end, counties have used their tax-levying power to discharge their financing responsibilities and to supplement the funding by the State. Id. See N.C. Constitution Article IX Section 2.
The question has arisen whether a local school system may levy taxes and therefore support independently its schools. As noted, the current school funding structure in North Carolina provides for schools to be funded jointly by the State and the County. To this end, counties are given by statute the power to levy taxes. G.S. § 153A-149. Nevertheless, "the power to levy taxes rests exclusively in the legislative branch of the governments" DeLoatch v. Beamon, 252 N.C. 754, 757, 114 S.E.2d 711 (1960), and we believe the legislature may lawfully delegate its power to tax to another unit of government, including a local school administrative unit.
Article IX, Sec 2(2) of our State Constitution provides, inter alia, that,
The General Assembly may assign to units of local government such responsibility for the financial support of the free public schools as it may deem appropriate.
In addition, subsection (5) of Article V, Section 2 provides that
The General Assembly shall not authorize any county, city or town, special district, or other unit of local government to levy taxes on property, except for purposes authorized by general law uniformly applicable throughout the State, unless the tax is approved by a majority of the qualified voters of the unit who vote thereon.
It seems clear that our Constitution contemplates that the General Assembly may authorize units of government to levy property taxes, but unless such authority is conferred "by general law uniformly applicable throughout the State," it must be approved by a vote of the people affected by the tax. Thus, the legislature may by statute, consistently with the Constitution, provide that a local school administrative unit may levy taxes at the local level but such taxing authority must be conferred either by a general law, applicable statewide, or by local act subject to a vote of those persons affected.
Lacy H. Thornburg Attorney General
Laura E. Crumpler Assistant Attorney General