Town of Emerald Isle Ex Rel. Smith v. State

Justice Meyer

dissenting.

The majority holds that, because Chapter 539 of the 1983 Session Laws of North Carolina is a general rather than a local act, it does not violate the North Carolina Constitution. In reaching its decision, the majority employs a wholly new and unsupported standard and makes meaningless a century-old and important distinction between local and general legislation in North Carolina. In fact, Chapter 539 is a local act through and through and, as such, violates Article II, section 24 of our state Constitution. Accordingly, I dissent.

The important distinction between local and general acts has long been recognized by both the courts and the people of the State of North Carolina. More than a century ago, our Court addressed the inherent danger of legislative action being accomplished by “local” rather than by “general” acts in the case of Simonton v. Lanier, 71 N.C. 498 (1874). The principal policy rationale for the constitutional limitation on legislation by local act is not, as the majority claims, merely to allow the General Assembly an opportunity to devote more time and attention to matters of state-wide interest and concern. Rather, we stated in Simonton as follows:

Public laws are founded on the gravest considerations of public benefit. They are deliberately enacted, are permanent in character, are for the equal benefit of all, and of universal application. Not so with private statutes. These are not of common concern, and do not receive the watchful and cautious scrutiny of the legislature, which is devoted to those of a public character. They are often procured by agents, and for a purpose, who are watchful to take advantage of any relaxation in legislative vigilance.

Id. at 504-05.

*659Perhaps more important, the people of North Carolina have long evidenced their own recognition of and concern about the potential dangers of local legislation. They spoke most loudly on the subject when they wrote into our state Constitution a specific prohibition against local acts relating to particular subjects, providing thereby that any such acts are void. Article II, section 24 of the North Carolina Constitution provides as follows:

Sec. 24. Limitations on local, private, and special legislation.
(l) Prohibited subjects. The General Assembly shall not enact any local, private, or special act or resolution:
(a) Relating to health, sanitation, and the abatement of nuisances;
(b) Changing the names of cities, towns, and townships;
(c) Authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys;
(d) Relating to ferries or bridges;
(e) Relating to non-navigable streams;
(f) Relating to cemeteries;
(g) Relating to the pay of jurors;
(h) Erecting new townships, or changing township lines, or establishing or changing the lines of school districts;
(i) Remitting fines, penalties, and forfeitures, or refunding moneys legally paid into the public treasury;
(j) Regulating labor, trade, mining, or manufacturing;
(k) Extending the time for the levy or collection of taxes or otherwise relieving any collector of taxes from the due performance of his official duties or his sureties from liability;
(l) Giving effect to informal wills and deeds;
(m) Granting a divorce or securing alimony in any individual case;
*660(n) Altering the name of any person, or legitimating any person not born in lawful wedlock, or restoring to the rights of citizenship any person convicted of a felony.
(2) Repeals. Nor shall the General Assembly enact any such local, private, or special act by the partial repeal of a general law; but the General Assembly may at any time repeal local, private, or special laws enacted by it.
(3) Prohibited acts void. Any local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.
(4) General laws. The General Assembly may enact general laws regulating the matters set out in this Section.

N.C. Const, art. II, § 24 (emphases added).

In deciding that Chapter 539 of the 1983 Session Laws is a general rather than a local act, the majority employs a wholly unsupported legal test and turns a deaf ear to these widely recognized dangers of local legislation. Though the majority discusses in some detail our 1978 decision in Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C. 683, 249 S.E. 2d 402 (1978), it concludes that the analysis utilized in that case is “ill-suited” to the question presented by the case at bar. Accordingly, it announces a new and wholly unsupported standard by which legislation in North Carolina shall be designated as local or general in nature. The test, states the majority, is “the extent to which the act in question affects the general public interests and concerns.” Applying its new standard to the facts, the majority concludes, incredibly, that the act in question, which affects four blocks of the Town of Emerald Isle, is a general and not a local act within the meaning of the North Carolina Constitution.

I believe that the majority has unnecessarily and unwisely rendered meaningless the important distinction between local and general legislation. Granted, our Court stated in McIntyre v. Clarkson, 254 N.C. 510, 517, 119 S.E. 2d 888, 893 (1961), that the “factors are so variable that no exact rule or formula of constant application can be devised for determining in every case whether a law is local . . . or . . . general.” However, given the result of *661their application of the new standard to the act in question in this case, I can only conclude that no act, no matter how geographically limited, no matter how unrelated to state-wide affairs, can ever again be designated “local.” Under the majority’s reasoning, the century-old concerns about the dangers of legislation by local act, so eloquently expressed by the courts and the people of the State of North Carolina, will go unacknowledged. Legislation formerly considered local in nature, no less fraught with the inherent dangers our Court discussed in Simonton, will apparently now be considered general for purposes of our Constitution. This is a lamentable result for the State of North Carolina.

Properly analyzed, Chapter 539 of the 1983 Session Laws is in actuality a “local” act through and through. Like many areas of the law, the law in North Carolina concerning the distinction between local and general legislation has evolved over time. Standards and principles set out in our own cases, today inexplicably ignored by the majority, show clearly that the act in question in the case at bar is local and not general legislation.

In Day v. Commissioners, 191 N.C. 780, 133 S.E. 164 (1926), our Court held that an act which directed the Commissioners of Surry and Yadkin Counties to construct a bridge across the Yadkin River, at a location provided for in the act, was a local and special act within the meaning of our state Constitution. We so held because the act was “direct legislation addressed to the accomplishment of a single designated purpose at a ‘specific spot.’ ” Id. at 784, 133 S.E. at 167. Under Day, Chapter 539, which directs that public pedestrian beach access facilities be established and maintained at a specific location, would surely be considered a local act.

In the 1961 case of McIntyre v. Clarkson, 254 N.C. 510, 119 S.E. 2d 888, our Court further defined the concept of local law as follows:

“The phrase ‘local law’ means, primarily at least, a law that in fact, if not in form, is confined within territorial limits other than that of the whole state, or applies to any political subdivision or subdivisions of the state less than the whole, or to the property and persons of a limited portion of the state, or to a comparatively small portion of the state, or is *662directed to a specific locality or spot, as distinguished from a law which operates generally throughout the state. . . .”

Id. at 517-18, 119 S.E. 2d at 893 (quoting 50 Am. Jur. Statutes § 8, pp. 24 (1944), now appearing as rewritten in 73 Am. Jur. 2d Statutes § 7, p. 273 (1974)).

Accordingly then, in McIntyre, our Court set up five alternate tests for whether a law is a local act: (1) a law is confined within territorial limits other than that of the whole state; (2) a law applies to any political subdivision or subdivisions of the state less than the whole; (3) a law affects property and persons of a limited portion of the state; (4) a law affects a relatively small portion of the state; and (5) a law is directed to a specific locality or spot. Chapter 539 of the 1983 Session Laws satisfies all five of these tests. The law’s effect is confined within the territorial limits of the Town of Emerald Isle and applies only to the political subdivision of the Town of Emerald Isle. Moreover, Chapter 539 affects only a four-block area of the Town of Emerald Isle — hardly a large portion of the persons or property within the State of North Carolina. Under McIntyre, Chapter 539 of the 1983 Session Laws simply can be nothing other than a local act.

In the more recent case of Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C. 683, 249 S.E. 2d 402 (1978), our Court once again addressed the distinction between local and general legislation. Adams involved a challenge to the Coastal Area Management Act of 1974, which established a cooperative program of coastal area management between local and state governments, on grounds that it constituted a local act in violation of article II, section 24 of our State Constitution. In holding that the act there in question was a general rather than a local act, we stated that “the mere fact that a statute applies only to certain units of local government does not by itself render the statute a prohibited local act.” Id. at 690, 249 S.E. 2d at 407 (emphasis added). However, we stated further:

[T]he distinguishing factors between a valid general law and a prohibited local act are the related elements of reasonable classification and uniform application. A general law defines a class which reasonably warrants special legislative attention and applies uniformly to everyone in the class. On the other hand, a local act unreasonably singles out a class for special *663legislative attention or, having made a reasonable classification, does not apply uniformly to all members of the designated class.

Id. at 690-91, 249 S.E. 2d at 407.

Under the approach set out in Adams, Chapter 539 would once again be classified as a local act. Significantly, whereas the Coastal Area Management Act was directed by the legislature toward the entire coastal region of North Carolina, the act in question here affects a mere four-block area within but one town. More exactly, in Adams, the classification of coastal land, versus noncoastal land, as the target of the legislation was a reasonable classification by the legislature. Here, however, the choice of four blocks within the Town of Emerald Isle, as opposed to the entire balance of the state, or even to the coastal area, as the law’s target was clearly not reasonable. Chapter 539 of the 1983 Session Laws is a local law under our own case law and should have been so found by the majority.

Finally, erasing all doubt as to the proper designation of Chapter 539 of the 1983 Session Laws as a local rather than a general law is the General Assembly’s own labeling of the then-pending bill as local. On both the first and second readings of then-House Bill 886, the measure was explicitly designated as a “local bill.” A law that walks and talks like a local law is, it seems to me, strong indication that it is indeed a local law.

Having determined, contrary to the majority, that Chapter 539 of the 1983 Session Laws is a local act, I turn next to the question not reached by the majority — whether, as a local act, Chapter 539 violates article II, section 24 of the North Carolina Constitution. In my opinion, Chapter 539 does indeed violate our state Constitution and it is therefore void.

Chapter 539 seeks to accomplish three objectives. First, it directs the Department of Natural Resources and Community Development to acquire land and to build on that land a parking lot, rest room, and other “pedestrian access facilities,” bypassing the department’s normal procedures for such development. The statute also prohibits vehicular traffic on the beach fronting the ocean, the inlet, and the sound in a four-block area surrounding the proposed facility. Second, the statute requires the Town of *664Emerald Isle to maintain these facilities with unspecified municipal funds. Third, the statute prohibits vehicular traffic on a small portion of Inlet Drive, presumably overriding the discretion given to the department to maintain streets within facilities under its control.

I.

The establishment of the beach facility on Bogue Inlet is, for all intents and purposes, the establishment of a state park. The act calls for the construction of the sort of facilities often associated with parks. Moreover, it prohibits driving onto or on the beach in the vicinity of the facilities — again suggesting an attempt to create a recreational area. I believe that a local act creating a state park is violative of our state Constitution and is void.

The establishment of state parks is entrusted to general laws by article XIV, section 5 of the North Carolina Constitution:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas . . . and ... to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.
. . . The General Assembly shall prescribe by general law the conditions and procedures under which such properties or interests therein shall be dedicated for the aforementioned public purposes.

N.C. Const, art. XIV, § 5 (emphases added). A local act may not be enacted where there is a general law on the subject. N.C. Const, art. XIV, § 3. It seems clear, therefore, that a local act may not create a state park.

It is the clear intent of our legislature that state park land be acquired and maintained as part of a plan; taking into account the *665use and enjoyment of all of the residents of our state.1 In 1977, the General Assembly authorized a State Parks Study Commission to study the needs of our state for park lands. 1977 N.C. Sess. Laws ch. 1030. This Commission made a recommendation for a five-year plan of development of the park system. See New Directions, A Plan for the North Carolina State Parks and Recreation System, 1979-1984. This report, which includes recommendations regarding beach access, emphasizes the need for comprehensive planning. Implicit in the activities of the State Parks Study Commission is a recognition that state parks are a statewide concern and, as such, should continue to be the subject of general legislation. In short, we have a state parks system, coordinated by state agencies that hold the state park lands in stewardship for the state as a whole.

The task of acquiring and managing lands within the system is assigned to the Department of Natural Resources and Community Development, as advised by the Parks and Recreation Council. N.C.G.S. § 143B-311 (1983). In determining the suitability of land for inclusion in “the statewide outdoor park and recreation system,” the Department of Natural Resources and Community Development looks to “[t]he statewide comprehensive outdoor recreation plan and the individual site master plan.” 15 NCAC 12D .0106(a). There are seven criteria for determining the suitability of a proposed site:

(1) statewide significance of the site;
(2) scenic beauty of the site;
(3) outdoor recreation potential of the site;
(4) unsatisfied recreation demands;
(5) the extent to which the various regions of the state are presently served;
(6) the goal of a balanced system including state parks, state recreation areas, state trails, state natural and scenic rivers, and state nature preserves;
*666(7) the need for preservation of the site.

15 NCAC 12D .0106(b)(l)-(7).

There is ample authority for a state park to be developed on Bogue Inlet if the area were found by the department to meet the above criteria. However, there is no indication that the beach facilities planned for Bogue Inlet were ever considered in the light of these criteria. Rather, the statute merely directs the department to bypass its procedures to include this beach in the State Parks and Recreation System.2

I would hold that a state park may only be created by general legislation, and not by local act. Because Chapter 539 purports to create a state park by local act, I would hold that it is repugnant to our Constitution and therefore void.

II.

Chapter 539 of the 1983 Session Laws also contains language that authorizes the state and requires the town to “maintain” the “beach access support facilities”:

The Department of Natural Resources and Community Development, in cooperation with the Town of Emerald Isle, is hereby directed to acquire real property by purchase or condemnation, make improvement for and maintain facilities for the provision of public pedestrian beach access in the vicinity of Bogue Inlet. The town shall not be required to expend local funds to acquire real property, but shall be responsible for maintaining the facility. Public beach access facilities in the vicinity of Bogue Inlet shall include parking areas, pedestrian walkways, and rest room facilities, and may include any other public beach access support facilities.

1983 Sess. Laws ch. 539, § 1 (emphases added).

By the plain language of the act, then, the facilities are to be maintained. Although the statute is ambiguous in some respects, *667it is clear that the town is responsible for such maintenance. The legislature thus has, by local act, placed the financial burden of maintaining a facility presumably created to serve the people of the state at large on the shoulders of the few taxpayers of the Town of Emerald Isle.

III.

The people of this state have guaranteed unto themselves through the enactment of their state Constitution that:

The General Assembly shall not enact any local, private, or special act or resolution . . . [authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys ....

N.C. Const, art. II, § 24(l)(c). An objective reading of the statute requires the conclusion that it calls for just such “laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys.”

There is nothing to suggest that the word “alter” has attained a technical meaning or is otherwise a term of art. Thus, the ordinary meaning of the word should suffice. Williams v. Williams, 299 N.C. 174, 261 S.E. 2d 849 (1980). The term “alter” is defined as:

To make a change in; to modify; to vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. To change partially. To change in one or more respects, but without destruction of existence or identity of the thing changed; to increase or diminish.

Black’s Law Dictionary (5th ed. 1979). There is nothing in this definition, or in common sense, to support the notion that a street is not altered when it is changed from a street for vehicular use to a walking path for pedestrians.

Neither can it be said that the act does not “discontinue” the street. Our statutes define “street”:

The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right *668for the purposes of vehicular traffic. The terms “highway” and “street” and their cognates are synonymous.

N.C.G.S. § 20-4.01(13) (Cum. Supp. 1985) (emphasis added).

A street without vehicular access, then, is no “street” at all. Thus, once Inlet Drive becomes a passageway for pedestrians only, it is discontinued as a street within the statutory definition.3

The facilities covered by the act include Inlet Drive. N.C.G.S. § 136-44.12 authorizes the Department of Transportation to “maintain all roads leading into and located within the boundaries of all areas administered by the Division of State Parks of the Department of Natural Resources and Community Development.” Clearly, Inlet Drive leads into and is located within the area affected by chapter 539. Thus, the act violates the constitutional proscription against local acts authorizing the “maintaining” of streets.

The control over municipal streets is entrusted by general legislation to the municipalities. N.C.G.S. §§ 136-66.1 to -66.7 (1986), 160A-299 (1982). Whether chapter 539 be interpreted as authorizing the alteration, the discontinuation, or the maintenance of Inlet Drive, it certainly does one of these. And because each is prohibited by article II, section 24 of the North Carolina Constitution, I would hold that chapter 539 of the 1983 Session Laws is void.

The purpose of the constitutional prohibition against the use of local acts to accomplish certain ends was to prevent just the sort of situation presented by this case — the use of legislative power to further very limited local interests rather than the general welfare. The majority has placed its stamp of approval on what is in reality a local act of the General Assembly which, in several respects, does precisely what the people of this state have, in their Constitution, forbidden.

Because chapter 539 is, in my opinion, a local act, it is violative of our state Constitution and is therefore void.

. The North Carolina State Parks System was created in 1916 with the acquisition by the state of Mount Mitchell. Since that time, over 119,000 acres of land have been added to the system, encompassing parks in all regions of the state. See Report of the State Parks Study Commission (1985).

. If the area around Inlet Drive becomes part of the state parks system, the control over a number of activities now regulated by the town would fall to the Department of Natural Resources and Community Development. Among these would be not only access to the beach, but the hours of access, whether bathing or fishing would be allowed, whether pets would be allowed without leashes, and whether alcoholic beverages would be allowed. See generally 15 NCAC 12B.

. While, under Chapter 539, Inlet Drive would still be accessible to public service and emergency vehicles, such vehicles, when responding to an emergency, would not need specific statutory authority to use Inlet Drive. See Restatement (Second) of Torts §§ 196, 197, 211 (1963) (public or private necessity as a defense to action in trespass). See generally W. Keeton, Prosser & Keeton on Torts, § 13 (5th ed. 1984).