May 30, 1995
Ms. Norma Ware Special Assistant/Legal Affairs Office of the President Pro Tempore Room 2007, LOB Raleigh, N.C. 27601
Re: Advisory Opinion; Marina Easements/Submerged Lands; N.C. Const. Art. 1, Sec. 32
Dear Norma:
You have requested our opinion whether a Proposed Committee Substitute for Senate Bill 52, dated May 4, 1995; short title, "State-Owned Submerged Lands," would withstand a constitutional challenge. The primary focus of our inquiry is whether the Proposed Committee Substitute would violate Art.1, Sec. 32 of the North Carolina Constitution entitled, "Exclusive Emoluments". As explained more fully below, although we are unable to predict with confidence how a court would rule on the issue, the Proposed Committee Substitute would be presumed constitutional and is clearly more defensible than S.B. 52 as currently written.
S.B. 52 as currently drafted provides for a "no cost" perpetual easement for existing and future owners of structures in or over state-owned lands covered by navigable waters. The Proposed Committee Substitute would establish a voluntary easement program for existing piers, docks, wharves, marinas and other structures located in or over State-owned submerged lands covered by navigable waters ("existing structures"). Owners of existing structures would have a three-year period in which to apply for and obtain the easement. It would also establish a mandatory easement requirement for new docks, wharves, marinas or other structures located in or over submerged lands covered by navigable waters ("new structures"). These easements, which would be issued by the Department of Administration, would be non-exclusive, i.e., other uses by the public would be permitted, so long as such uses do not interfere with the use covered by the easement. The easement term would be fifty years, renewable for an additional fifty years. Both the voluntary easement for existing structures and the mandatory easement for new structures would require a one-time fee of $1000 per acre, after a credit for common law riparian rights. Additional fees would be due upon renewal of the easement, expansion of the structure, or transfer of the structure covered by an easement. Finally, the Proposed Committee Substitute provides certain exceptions to the easement requirements.
The Proposed Committee Substitute sets forth the following specific legislative findings:
- The promotion of recreational and commercial boating and fishing activities in and over stateowned submerged lands and public access to such is in the public interest.
- Public and private structures in and over state-owned submerged lands generally serve public trust purposes consistent with the public interest.
- Such structures promote tourism, which in turn helps support the economy of eastern North Carolina.
- The State itself cannot provide adequate access to use and enjoyment of public trust waters and much of such access must be provided by privately-owned structures.
- A "high charge for easements for continued utilization or future construction of such structures would be counter-productive for the intent of the State to provide an opportunity for the construction of such structures, . . . and would place North Carolina at a competitive disadvantage in attracting tourism to the State . . . ."
Our courts have made clear that enactments by the General Assembly are presumed constitutional, and judgments about the public interest are matters for the elected representatives of the people unless a law clearly violates a constitutional prohibition or limitation.
It is well settled in this State that the courts have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional – but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people. Glenn v. Board of Education, 210 N.C. 525, 529-30, 187 S.E. 781, 784 (1936).
"The presumption is that an act passed by the Legislature is constitutional, and it must be so held by the courts unless it appears to be in conflict with some constitutional provision. [Citations omitted.] The legislative department is the judge, within reasonable limits, of what the public welfare requires, and the wisdom of its enactments is not the concern of the courts. As to whether an act is good or bad law, wise or unwise, is a question for the Legislature and not for the courts it is a political question. The mere expediency of legislation is a matter for the Legislature, when it is acting entirely within constitutional limitations, but whether it is so acting is a matter for the courts. [Citations omitted.]" State v. Warren, 252 N.C. 690, 696, 114 S.E. 660, 664 (1960).
The exclusive emoluments clause of the North Carolina Constitution provides
:
No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.
N.C. Const. Art. 1 Sec. 32. This clause prohibits governmental units from exempting some individuals from prohibitions or limitations that otherwise generally apply. See, e.g., Taylor v. Carolina Racing Assoc., 241 N.C. 80, 84 S.E.2d 390 (1954)(Striking grants of exclusive franchises to operate racing tracks, in contravention of the general laws prohibiting gambling.) Simonton v. Lanier, 71 N.C. 498 (1874)(Legislation authorizing bank to charge higher interest rates than otherwise allowed by law confers exclusive emolument).
However, "not every classification which favors a particular group of persons is an `exclusive emolument or privilege’ within the meaning of the constitutional prohibition." Lowe v. Tarble, 312 N.C. 467, 323 S.E.2d 19, 21 (1984). When the beneficiary provides a public service in exchange for the benefit, there is no prohibition. See, e.g., Leete v. Warren County, 114 N.C. App. 755, 443 S.E. 2d 98 (1994)(service as county employee); Brumely v. Baxter, 225 N.C. 691, 36 S.E.2d 281 (1945)(miliary service); Bridges v. Charlotte, 221 N.C. 472, 20 S.E.2d 825 (1942)(teaching in the public schools); Martin v. Raleigh, 208 N.C. 369, 180 S.E. 786 (1935)(caring for the indigent sick). And where the exemption or benefit is justified by promotion of the public interest, it is not prohibited. See, e.g., State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967)(Exemptions from jury duty for physicians, firemen, nurses, ministers and mothers of children under twelve, etc. is justified for a public purpose). The Supreme Court recently stated the test succinctly as follows:
In sum, a statute which confers an exemption that benefits a particular group of persons is not an exclusive emolument or privilege within the meaning of Article I, Section 32, if: (1) the exemption is intended to promote the general welfare rather than the benefit of the individual, and (2) there is a reasonable basis for the legislature to conclude the granting of the exemption serves the public interest.
Town of Emerald Isle v. North Carolina, 320 N.C. 640, 360 S.E.2d 756 (1987).
The one thousand dollar ($1000) per acre one-time fee set forth in the Proposed Committee Substitute does not approximate, and we understand is not intended to approximate fair market value for the easement rights. Nor is this fee comparable to the $500 per acre annual fee charged for water column leases from the State. See, N.C.G.S. § 113-202.1. However, the amount of the fee, in both instances, appears to be a legislative prerogative unless it is so small as to be judged a gift of public trust resources with no public benefit.
The question whether the Proposed Committee Substitute for S.B. 52 with the addition of the fee violates the constitutional prohibition against exclusive emoluments, therefore, turns in large measure on whether there is a reasonable basis to support the legislative findings of public benefits that will derive from the easement program, as well as the presumption that attaches to those findings. This is a factual question the resolution of which we cannot predict with certainty. Much would depend on the facts to support the findings in the particular easement or permit that may be challenged. We can advise, however, that the Proposed Committee Substitute, if enacted, would be presumed constitutional by the courts and is on stronger constitutional grounds than
S.B. 52 as currently drafted, as the latter contains neither legislative findings nor any fee.
Two other aspects of the Proposed Committee Substitute would likely be raised in any court challenge. First, the Proposed Committee Substitute appears to require the issuance of easements out to the main water course area. See Sec. 3. This provision is inconsistent with current Coastal Area Management Act regulations and the common law public trust doctrine. Further, it is contrary to the holding of Weeks v. N.C. Dep’t of Natural Resources and Community Development, 97 N.C. App. 215, 388 S.E.2d 228 (1990).
Second, an easement term of fifty years renewable for an additional fifty years is a significant impairment of the common law public trust rights the public has in the navigable waters of the State. The State is the guardian and trustee of those rights for the public, and it may not totally divest those rights for private use. State, ex. rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 (1988). In short, the State may not convey fee simple title to public trust lands, waters or natural resources. Whether a fifty year term renewable for an additional fifty years, as provided in the Proposed Committee Substitute, is an impermissible impairment of public trust rights would be a question of first impression for the North Carolina courts.
John R. McArthur Chief Counsel
Daniel C. Oakley
Senior Deputy Attorney General