If the NC General Assembly bans purse seine menhaden fishing in the coastal waters next to Dare County, does that count as a 'general law' the legislature can freely enact, or as a 'local law' that bumps into the NC Constitution's limits on local legislation?

Plain-English summary

A legislative request asked whether Senate Bill 991, which proposed to bar purse-seine menhaden fishing in coastal waters next to Dare County, was a general or local law under the North Carolina Constitution. It also asked what limits would apply if the bill was local. The AG could not conclusively classify the proposal on the information available.

The opinion used Town of Emerald Isle v. State to focus on whether the bill affected general public interests rather than geography alone. Protecting tourism supplied a general public interest, the AG said, but the bill also needed a showing of statewide interest and concern and uniform, coordinated action for the welfare of the whole State. If the final bill or its legislative history made that showing, the AG thought the bill could be found a general act and should withstand challenge.

If a court instead classified it as local, the AG identified possible limits on local acts concerning nuisance abatement and trade regulation. The bill's tourism rationale made it likely to be viewed as nuisance abatement, and a ban on a commercial fishery met the trade-regulation criteria discussed in the opinion. The AG's conclusion was conditional: as a local act, the measure appeared to address prohibited subjects and might be found unconstitutional. It did not say failure was certain.

Currency note

This opinion evaluates a proposed bill under the constitutional authorities discussed in 1993. Check the final legislative text and current law for a present question.

Background and statutory framework

The opinion distinguishes a bill's geographic reach from the constitutional test for a general law. A measure targeting one area may still address a wider public concern. Here the AG accepted tourism as a general public interest but lacked enough information to decide whether the needed statewide and coordinated-action showing could be made.

The opinion also noted a history of local coastal fishing laws adopted through 1963, their repeal in 1965 under G.S. 113-133, and the lack of later examples. It said appellate courts may give that practice weight, particularly on the trade-regulation issue. No appellate decision on the legislature's authority to adopt those historical acts had been identified.

Common questions

Did the AG decide SB 991 was a general law?

No. It said the bill could be defended as general if the final bill or legislative history showed statewide interest and uniform, coordinated action for the State's welfare. The materials available did not permit a conclusive determination.

Did the AG say the bill certainly failed if treated as local?

No. It said the bill appeared to touch constitutionally prohibited subjects for local laws and might be held unconstitutional.

Why was commercial fishing relevant to the local-law question?

The opinion treated the purse-seine menhaden harvest as a trade, distinct from recreational fishing, and cited a decision treating a ban on a trade in a specified area as regulation.

Citations

• N.C. Const. Art. II, § 24 (local-act subject-matter prohibitions)
• N.C. Const. Art. II, § 24(4) (limits on local-act powers; do not apply to general laws)
• N.C.G.S. § 113-133 (1965 repeal of all local coastal fishing acts)
• Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650 (1965) (NC Supreme Court; laws are either general or local with no middle ground)
• Town of Emerald Isle v. State, 320 N.C. 640 (1987) (NC Supreme Court; the recent standard for general-versus-local classification, focusing on extent to which act affects general public interests and concerns)
• McIntyre v. Clarkson, 254 N.C. 510 (1961) (NC Supreme Court; older general-versus-local test)
• Yarborough v. Park Commission, 196 N.C. 284 (1928) (NC Supreme Court; statute not deemed private merely because it extends to particular localities or classes of persons)
• Webb v. Port Commission, 205 N.C. 663 (1933) (NC Supreme Court; act creating facility for tourism promotion can affect general public interests and concerns)
• Chadwick v. Salter, 254 N.C. 389 (1961) (NC Supreme Court; example of nuisance-abatement analysis)
• Chem-Security System v. Morrow, 61 N.C. App. 147 (1983) (NC Court of Appeals; nuisance abatement)
• State v. Smith, 265 N.C. 173 (1965) (NC Supreme Court; act barring a trade in a certain area is regulation)

Source

• Landing page: https://ncdoj.gov/opinions/confidential-legislative-communications/

Original opinion text

The fetched body opens at the question presentation; the salutation and addressee block were not in the available extract.

(1) Is SB 991 a general or a local act as those terms are defined for constitutional purposes?

(2) Depending on its classification, do any other provisions of the Constitution limit the ability of the General Assembly to adopt SB 991?

These two questions will be addressed seriatim. Since the limits in the powers to adopt local laws do not apply to general laws, a determination that SB 991 is a general law may preclude the need to address the second query. See, Article II, § 24(4), N.C. Constitution.

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 to the 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