Confidential Legislative Communications

A. GENERAL OR LOCAL

In past decisions, the N.C. Supreme Court has declared that laws are "either ‘general’ or ‘local’; there is no middle ground." Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 656 (1965). However, the fact that the General Assembly has designated a bill as local rather than public, or general law, "is not determinative of whether a bill is a general law or a law under the North Carolina Constitution." Town of Emerald Isle v. State, 320 N.C. 640, 650 (1987).

Our Supreme Court has applied two principal interpretations for determining whether a legislative act is general or local. Compare Town of Emerald Isle v. State, supra, and McIntyre v. Clarkson, 254 N.C. 510 (1961). For purposes of this review, we have relied on the more recently enunciated standard — that in Town of Emerald Isle. Importantly, the Supreme Court concluded that, in applying the Constitution, its "attention should focus on the extent to which the act in question affects the general public interests and concerns" rather than whether the decision to adopt an act affecting only one area of the State would cause an act to be deemed local for constitutional purposes.

In 1928, our Supreme Court applied the same standard when it upheld an act authorizing condemnation of lands for a park. The Court held: "[A] statute will not be deemed private merely because it extends to particular localities or classes of persons." Yarborough v. Park Commission, 196 N.C. 284, 291 (1928). It is also significant that the Court has found an act to create a facility , in a certain location, for the purpose of promoting tourism was an act affecting the general public interests and concerns. See, Webb v. Port Commission, 205 N.C. 663, 682 (1933).

The legislative history demonstrates that SB 991 was introduced to protect tourism from the prior injuries that have resulted from menhaden fishing in the specific adjacent ocean areas of Dare County. While that purpose is adequate to demonstrate the bill addresses a matter of general public interest, the ban on purse seine menhaden fishing, in an isolated area, must also be shown to be a matter of state-wide interest and concern that results in uniform and coordinated action on a matter related tot he welfare of the whole State. Based on the information we have, we are unable to conclusively determine whether this showing can be made. If it can, the bill is likely constitutional; if it can’t, there may be problems with the legislation.

Assuming the two factors of state-wide interest and uniform and coordinated action are satisfied by the final bill, we conclude that SB 991 can be shown to be a general law rather than a local law. As such, it would not trigger the need to consider the limitations of Article II, § 24 of the Constitution.

B. LOCAL LAW LIMITATIONS

Should a court find differently and determine that SB 991 is a local law, then the Court would have to determine whether it addresses prohibited issues. The pertinent prohibitions are against local acts abating a nuisance and regulating trade.

As introduced, the bill, from its legislative history, would likely be determined an act to abate a nuisance. See e.g. Chadwick v. Salter, 254 N.C. 389 (1961) and Chem-Security System v. Morrow, 61 N.C. App. 147 (1983). In fact, the analysis offered in support of the general public purpose, the enhancement of tourism, is founded on the notion that the act will abate an nuisance.

The regulation of trade provision requires consideration of two issues: Is this a "trade" and does the act "regulate." Since SB 991 is limited to purse seine harvest of menhaden and does not extent to recreational fishing, we conclude the trade criterion is met. Prior decisions have established that an act barring a "trade" in a certain area is regulation. State v. Smith, 265 N.C. 173 (1965). It is noteworthy that acts regulating coastal fishing and denominated as "local" under the rules of the General Assembly were regularly adopted between 1917 and 1963. In 1965, the General Assembly repealed all such local coastal fishing acts. See G.S. 113-133. None have been adopted since 1963. While no appellate opinions were issued concerning the legislative authority to adopt such acts, the long history of so construing the Constitution may be accorded deference by the appellate courts especially as it relates to the "regulation of trade" limitation.

In conclusion, if SB 991 is found to be a general act, it should withstand challenge. We believe it can be found to be a general act under the Town of Emerald Isle opinion if the bill or its legislative history shows this to be a matter of state-wide interest and concern upon which the

legislature took a uniform and coordinated action for the welfare of the whole State. On the other
hand, if the courts were to find that the legislation is a local act, it appears to address prohibited
subjects of local legislation and might be found unconstitutional.

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Daniel F. McLawhorn
Special Deputy Attorney General