Historic and Archeological Property; Appropriations; Executive Budget Act

Subject:

Historic and Archeological Property; Appropriations; Executive Budget Act.

Requested By:

Sara W. Hodgkins, Secretary Department of Cultural Resources

Question:

Do the provisions of G.S. 143-31.2 and G.S. 121-11 apply when the General Assembly appropriates funds for historic or archeological properties without action by the North Carolina Historical Commission and where there is no reference to Historical Commission review in the appropriation act?

Conclusion:

Yes, with the exception noted in the opinion.

G.S.: 121-11 sets forth identical requirements for making a "contribution" for the acquisition, etc.
of historical or archeological property and provides for additional conditions of assistance:

(1): The property assisted shall, upon its acquisition or restoration, be made accessible to the
public at such times and upon such terms as the Department of Cultural Resources shall by rule prescribe;
(2): That the plans for preservation, restoration, and development be reviewed and approved by
the Department of Cultural Resources;
(3): That the expenditure of such funds be supervised by the Department of Cultural Resources; and,
(4): That such expenditures be accounted to the Department in a manner and at such times as are
satisfactory to it.

Heretofore, the North Carolina Historical Commission carried out the review process prior to action by the General Assembly on funding requests for historic or archeological sites. In the last two sessions of the General Assembly, action was taken without compliance with these statutes and without reference to the statutes in appropriation bills.

From time to time, appropriations have been enacted in three different ways:

(1): with reference to G.S. 121-11 and G.S. 143-31.2;
(2): with no reference to G.S. 121-11 or G.S. 143.31-2;
(3): with specific indication that the appropriation is unconditional.

Your question deals with the second situation.

G.S.: 143-31.2 provides that no State funds shall be "appropriated, allotted, or expended" for the acquisition, etc. of historic or archeological property unless the conditions set out are complied with. G.S. 121-11 prohibits a "contribution" of State funds for assistance in the acquisition, etc. of historic or archeological property without complying with the conditions set out. Neither G.S. 121-11 nor G.S. 143-31.2 contain any exceptions to the compliance with the conditions contained therein. Neither do the subject Appropriations Acts except the "appropriations" in question from the provisions of the two statutes. Therefore, with the exception hereinafter indicated, this Office is of the opinion that the provisions of G.S. 121-11 and G.S. 143-31.2 apply to the appropriations in question.
G.S.: 121-11 provides that no State funds shall be "appropriated" for historic or archeological acquisition, etc. without compliance with the conditions therein. The Legislature made the appropriation without complying with the condition. The Supreme Court considered a similar question in the case of Furniture Company v. Barron, 243 N.C. 502. The Court held that "one legislature cannot restrict or limit by statute the right of a succeeding legislature to exercise the constitutional power to legislate in its own way." Page 506. Therefore, the restrictions of G.S. 143-31.2 as to "appropriations" are not binding on the General Assembly in making appropriations and the conditions have no affect on the validity of the "appropriations" made by the legislature. As the subject Appropriations Acts do not purport to make an exception to the application either G.S. 143-31.2 or G.S. 121-11, the conditions of G.S. 143-31.2 are otherwise applicable to allotments by the Director of the Budget and to expenditures, and the conditions of
G.S.: 121-11 are applicable to such "contributions."

Rufus L. Edmisten Attorney General

Douglas A. Johnston Assistant Attorney General