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
The opinion (issued under the AG's "confidential legislative communications" review process) addresses the constitutionality of Senate Bill 991, a 1993 measure that would have banned purse seine menhaden fishing in coastal waters adjacent to Dare County. The legislator requesting the opinion asked two related questions. First, is SB 991 a general or a local act for NC Constitutional purposes? Second, if it is a local act, do other provisions of the Constitution limit the legislature's power to adopt it? Senior Deputy AG Edwin M. Speas, Jr. and Special Deputy AG Daniel F. McLawhorn worked through both in sequence.
General versus local. NC Supreme Court precedent makes the line bright: laws are "either 'general' or 'local'; there is no middle ground." Surplus Co. v. Pleasants, 264 N.C. 650 (1965). The legislature's own designation of a bill as "local" or "public" is not dispositive (Town of Emerald Isle v. State, 320 N.C. 640 (1987)). Two doctrinal lines have been used to draw the distinction: Town of Emerald Isle and the older McIntyre v. Clarkson, 254 N.C. 510 (1961). The AG applied the more recently enunciated Town of Emerald Isle standard, which focuses on the extent to which the act affects general public interests and concerns rather than the geographic scope alone. The Court has held that "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 (1928)) and that an act creating a facility in a specific location to promote tourism can be an act affecting general public interests and concerns (Webb v. Port Commission, 205 N.C. 663 (1933)).
The legislative history of SB 991 framed the bill as protection of tourism from injuries linked to menhaden fishing in the Dare County ocean waters. Tourism protection is a matter of general public interest. But the AG was careful: the bill must also be shown to address state-wide interest and concern that warrants uniform and coordinated action on a matter related to the welfare of the whole State. Based on the materials in front of the AG, that showing could not be conclusively made. If it can be made, the bill is likely constitutional as a general law; if it cannot, the bill faces real problems.
Assuming the state-wide interest and uniform action factors are satisfied by the final bill, SB 991 can be defended as a general law and would not trigger Article II, § 24's local-act limits.
Local law limits. If a court instead found SB 991 to be a local act, two specific Article II, § 24 prohibitions come into play.
The first is the bar on local acts abating a nuisance. The AG read the bill's tourism-injury rationale as effectively a nuisance abatement: prior injuries to tourism from menhaden fishing are the asserted harm, and the ban is the remedy. Chadwick v. Salter, 254 N.C. 389 (1961), and Chem-Security System v. Morrow, 61 N.C. App. 147 (1983), illustrate the nuisance-abatement category. A local act framed around abating a specific commercial-fishery harm in a specific area looks like a textbook example.
The second is the bar on local acts regulating trade. The AG worked through two questions: is the regulated activity a "trade," and does the act "regulate" it? Purse seine harvest of menhaden is commercial (not recreational) fishing, so it is a trade. Prior decisions establish that a local act banning a trade in a specific area is regulation (State v. Smith, 265 N.C. 173 (1965)). The history matters: acts regulating coastal fishing and designated as "local" under the General Assembly's rules were regularly adopted between 1917 and 1963. In 1965, the General Assembly repealed all such local coastal fishing acts (G.S. 113-133). None have been adopted since 1963. The AG noted the absence of appellate opinions on the legislative authority to adopt such acts but observed that "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." That legislative practice argument cuts against SB 991 if it is a local act.
Bottom line: SB 991 has a path to constitutionality as a general law if the state-wide interest and uniform action showing is made. If the bill instead reads as a local law, it touches both prohibited categories (nuisance abatement and trade regulation), and the 1965 repeal of historical local coastal fishing acts cuts against any modern revival.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Marine Fisheries Commission and the statewide framework for coastal-fisheries regulation have evolved substantially since 1993. Article II, § 24 and the general-versus-local law doctrine remain operative, but specific applications and the relevant case law have continued to develop. Anyone analyzing a current proposal that targets a specific coastal fishery should consult current NC constitutional case law, current Chapter 113 marine-fisheries provisions, and counsel familiar with NC environmental and constitutional law.
Common questions
Q: Why does it matter whether a bill is general or local for constitutional purposes?
A: Because Article II, § 24 of the NC Constitution prohibits the legislature from adopting local acts on specified subjects (including abating a nuisance and regulating trade). General laws are not subject to those subject-matter limits. So getting the classification right determines whether the legislature can constitutionally enact the bill in the form proposed.
Q: What does "uniform and coordinated action for the welfare of the whole State" mean?
A: It means the legislature has made a decision that fits into a coherent state-wide framework, not a one-off intervention in a single locality. A statute regulating an industry across the state, or addressing a problem that the state has a uniform interest in solving, qualifies. A statute that targets a single county's specific concern, without fitting into a broader framework, looks more local even if the legislator's reasons are sincere.
Q: How is "tourism protection" a general public interest?
A: Tourism is one of NC's significant economic sectors, and tourism harms in one coastal area can affect state revenue, employment, and reputation more broadly. The AG accepted tourism protection as a matter of general public interest. But that does not by itself make a single-county fishing ban a general law; the AG looked for state-wide-interest reasoning specific to the bill's targeted intervention.
Q: Is purse seine menhaden fishing a "trade" in a meaningful sense?
A: Yes. Purse seine harvest of menhaden is the major industrial commercial fishery for that species. The harvested fish are processed into fish oil, fish meal, and other commercial products. The AG treated commercial fishing as falling within "trade" for purposes of Article II, § 24, distinguishing it from recreational fishing.
Q: Why does the 1965 repeal of local coastal fishing acts matter?
A: Because the AG read it as a legislative recognition that local acts on coastal fishing fall inside the trade-regulation prohibition. When the legislature affirmatively cleared local coastal fishing acts off the books in 1965 and did not adopt any new ones for the next 28 years, that practice supports a constitutional interpretation that local fishing acts are off-limits. Modern appellate courts could defer to that legislative gloss.
Q: What is the AG's recommendation in practical terms?
A: The AG did not give a yes/no on constitutionality. The opinion is a roadmap: SB 991 can survive constitutional challenge if it is defended as a general law and the state-wide-interest and uniform-action showings are made; the bill cannot survive if it is litigated as a local law given the nuisance-abatement and trade-regulation problems. The drafters needed to either build the state-wide-interest record into the bill's findings and legislative history or expect the bill to be vulnerable.
Background and statutory framework
Article II, § 24 of the NC Constitution restricts the General Assembly's power to enact local laws on certain subjects. The list includes laws relating to health, sanitation, and the abatement of nuisances; laws relating to trade; and several other specifically enumerated subjects. The constitutional concern is that local-bill legislation can let a few legislators rope the General Assembly into addressing one locality's controversies in ways that bypass the deliberative processes general legislation goes through. The general-versus-local distinction is the gatekeeping mechanism.
NC Supreme Court doctrine on the distinction has gone through several iterations. Town of Emerald Isle (1987) is the more recent formulation: focus on whether the act affects general public interests and concerns, not whether it is geographically limited. McIntyre v. Clarkson (1961) is an older line that more readily classified geographically-limited acts as local. The AG chose to apply Town of Emerald Isle but acknowledged the alternative.
The historical record on coastal fishing is part of the analysis. From 1917 to 1963, the General Assembly regularly adopted local coastal fishing acts (treating them as "local" under its own rules). In 1965, those acts were swept off the books by G.S. § 113-133, and the practice was discontinued. The 28-year hiatus from 1963 forward, combined with the affirmative repeal, looks like a legislative interpretation that local coastal fishing acts cross the trade-regulation line. The AG cited that practice as supportive of the constitutional reading that disfavors SB 991 as a local act.
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
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