Could the NC General Assembly constitutionally pass a lottery statute whose effective date depended on a favorable statewide voter referendum?

Plain-English summary

A state senator asked whether the General Assembly could pass a lottery law that would take effect only if North Carolina voters approved it in a statewide referendum. The Attorney General answered that such legislation would be constitutional. The opinion also says no North Carolina court decision was directly on point, so its answer is a prediction about how the state Supreme Court would decide the question.

The opinion begins with Article II, Section 1 of the North Carolina Constitution, which vests legislative power in the General Assembly. It says the legislature could enact a lottery without any referendum. The question is whether making a lottery law effective only after a statewide vote would improperly delegate legislative power. The opinion notes that the Constitution contains no general authorization for referenda on proposed legislation.

The visible portion of the opinion discusses Manly v. Raleigh, 57 N.C. 370 (1859). That case upheld a Raleigh charter revision dependent on acceptance by local officials. In doing so, the North Carolina Supreme Court rejected the reasoning of Barto v. Himrod, a New York case involving a statewide referendum. The Attorney General reasoned that although Manly involved a local matter, its explanation also reached legislation contingent on a statewide vote. The opinion cites later local-option cases, including Cain v. Commissioners, that treated voter approval as a possible contingent event.

The stored original text ends before the opinion's full conclusion. Its opening expressly states the Attorney General's answer, but the missing passages should be consulted before using the opinion for a more specific proposition.

Currency note

This opinion was issued in 1999. 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.

Common questions

Q: Did the Attorney General say North Carolina courts had already approved a statewide lottery referendum?
A: No. The opinion says no North Carolina decision was directly on point. It predicts that the state Supreme Court would uphold the proposed legislation.

Q: Could the General Assembly establish a lottery without a statewide vote?
A: Yes. The opinion says the General Assembly could enact lottery legislation directly. The request concerned the additional referendum condition.

Q: Why did the opinion discuss Manly v. Raleigh?
A: Manly upheld legislation that depended on local officials' acceptance and rejected the reasoning of a New York decision about a statewide referendum. The Attorney General viewed its explanation as relevant beyond the local facts of that case.

Q: Did the opinion require a lottery statute to be “complete in form” before a vote?
A: The stored original cuts off before the full conclusion, so this record cannot establish a further condition. Check the complete official opinion before attributing one to the Attorney General.

Background and statutory framework

The opinion cites Article II, Section 1 of the North Carolina Constitution, which vests legislative power in the General Assembly. It describes two principles relevant to the proposed referendum: the state Constitution limits legislative power rather than granting it, and the General Assembly generally cannot delegate its legislative power. It then reviews cases concerning legislation made effective by a future event. The cases visible in the stored text concern local votes or actions, while the senator's question concerned a statewide vote.

Citations

• N.C. Const. art. II, § 1 (legislative power)
• Manly v. Raleigh, 57 N.C. 370 (1859) (legislation contingent on local acceptance)
• Cain v. Commissioners (local-option legislation discussed in the opinion)
• Barto v. Himrod, 8 N.Y. 483 (1853) (New York decision discussed in Manly)

Source

• Landing page: https://ncdoj.gov/opinions/establishment-of-a-lottery-upon-approval-of-the-voters-in-a-statewide-referendum/

Original opinion text

Note: the Sofya extract of this opinion is incomplete; it cuts off mid-paragraph before reaching the conclusion section. The text below is the portion preserved. The linked landing page is authoritative for the complete opinion.

REPLY TO: Andrew A. Vanore, Jr., General Counsel
(919) 716-6400 FAX: (919) 716-6750

March 2, 1999

Honorable James S. Forrester, M.D.
North Carolina Senate
Room 1121 State Legislative Building
Raleigh, North Carolina 27601

Re: Advisory opinion: Constitutionality of legislation conditioning the establishment of a lottery upon approval of the voters in a statewide referendum; Article II, Section 1 of the North Carolina Constitution

Dear Senator Forrester:

You request our opinion concerning the validity of legislation providing for a lottery in North Carolina that would go into effect only upon approval by the voters in a statewide referendum. In your letter, you preface your request with this statement: "The Institute of Government has stated that it is the General Assembly's responsibility to vote the lottery issue up or down rather than letting the people decide by voting on the issue."

For reasons which follow, it is our opinion that such legislation is constitutional.

THE GENERAL ASSEMBLY MAY ENACT A LOTTERY WITHOUT A REFERENDUM

Clearly, the General Assembly could simply enact legislation providing for a lottery in North Carolina, without any referendum by the voters. Pursuant to Article II, Section 1 of the Constitution of North Carolina, the General Assembly is entrusted with the general state legislative power:

Legislative power. The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives.

That exclusive legislative power has often been recognized, and indeed it is not open to question. "It is, of course, fundamental that under Article II, Section 1, of the North Carolina Constitution all legislative power in this State rests in the General Assembly, except as authorized by the Constitution, as in cases of municipal corporations." Redevelopment Comm'n of Greensboro v. Security Nat. Bank of Greensboro, 252 N.C. 595, 608 (1960). In exercising its legislative powers, the General Assembly may adopt any legislation which is not specifically forbidden either by the Constitution of North Carolina or by federal law. "The Constitution restricts powers, and powers not surrendered inhere in the people to be exercised through their representatives in the General Assembly; therefore, so long as an act is not forbidden, its wisdom and expediency are for legislative, not judicial, decision." Maready v. City of Winston-Salem, 342 N.C. 708, 714 (1996) (citation omitted). Moreover, legislative enactments enjoy a strong presumption of constitutionality and will be declared unconstitutional only on the strongest evidence. E.g., Town of Spruce Pine v. Avery County, 346 N.C. 787 (1997). "Every presumption favors the validity of a statute. It will not be declared invalid unless its unconstitutionality be determined beyond a reasonable doubt." Brannon v. North Carolina State Bd. of Elections, 331 N.C. 335, 339 (1992), quoting Assurance Co. v. Gold, Comm'r of Ins., 249 N.C. 461, 463 (1959).

WOULD A REFERENDUM CONSTITUTE AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE POWER?

The question that has been raised, however, is whether adoption of a statute providing for a lottery constitutes an unconstitutional delegation by the General Assembly of its legislative powers if the lottery provisions become enforceable or effective only upon a favorable vote of the people. North Carolina has no general constitutional authorization for voter referenda on proposed legislation, and has only limited provisions for referenda as to particular subjects.

[The opinion then surveys the majority view (Missouri, Maryland, Ohio, Illinois, Tennessee, Texas, Utah, Alabama, citing Barto v. Himrod 8 N.Y. 483 (1853)) and the minority view (Vermont State v. Parker, Wisconsin Smith v. City of Janesville, New Jersey Hudspeth v. Swayze, Oregon Marr v. Fisher, South Dakota Wyatt v. Kundert), then turns to NC precedent.]

WHY WE CONCLUDE OUR SUPREME COURT WOULD UPHOLD SUCH LEGISLATION

Given these two strains of decisions, the question is which approach is likely to be followed by the North Carolina courts. No decision is directly on point. Certain basic principles of North Carolina constitutional law are, however, relevant. First, the North Carolina Supreme Court has repeatedly declared that the Constitution of North Carolina is one of limitation, not one of a grant of power.

[I]t is firmly established that our State Constitution is not a grant of power. McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961). All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution. Id. See Lassiter v. Board of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958); Airport Authority v. Johnson, 226 N.C. 1, 8, 36 S.E.2d 803, 809 (1946).

State ex rel. Martin v. Preston, 325 N.C. 438, 449-50 (1989). Accord Gwathmey v. State Through Dep't of Environment, Health, and Natural Resources Through Cobey, 342 N.C. 287, 303-04 (1995). See also Purser v. Ledbetter, 227 N.C. 1, 6 (1946) ("Our Constitution is one of limitations rather than of grants.").

The countervailing fundamental principle is that, generally, the General Assembly's legislative power may not be delegated except within certain limited parameters.

'It is settled and fundamental in our law that the legislature may not abdicate its power to make laws nor delegate its Supreme legislative power to any other coordinate branch or to any agency which it may create. Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310. It is equally well settled that, as to some specific subject matter, it may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers.' North Carolina Turnpike Authority v. Pine Island, supra, 265 N.C. [109] at 114, 143 S.E.2d [319] at 323 [(1965)], and cases cited.

Martin v. North Carolina Housing Corp., 277 N.C. at 54-55; see also Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 748 (1990). "Legislative power vests exclusively in the General Assembly, Constitution of North Carolina, Article II, and, except as authorized by the Constitution, as in case of municipal corporations, may not be delegated." State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80, 95 (1954).

In North Carolina, numerous cases have declared the validity of legislation allowing for local acts to be effective upon approval by local voters or local officials or allowing statewide acts to be operative in particular localities upon approval by the voters of those localities. "(A)n act, otherwise valid, may be enacted so as to take effect upon approval by a majority of the qualified voters of the affected locality." Gardner v. City of Reidsville, 269 N.C. 581, 592 (1967), quoting State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. at 95. While the cases have dealt only with local referenda or actions, the language of those cases has not always been so limited. Indeed, the language of many of the early cases extended well beyond their specific circumstances.

In 1859, the North Carolina Supreme Court addressed the question of whether a revision of the City of Raleigh charter could be made effective by legislation that required acceptance by the local commissioners. In rejecting the contention that the act delegated part of the General Assembly's legislative authority to the local commissioners and mayor, the Supreme Court discussed, and rejected, the New York case of Barto v. Himrod, one of the leading cases disapproving of statewide referenda on general legislation:

This decision [Barto v. Himrod] and the reasoning offered in support of it fail to satisfy us that the Legislature has not the power to pass a law dependent upon a vote of the people or the acceptance of a corporation. It is certain the Legislature has power to pass a law to ascertain these facts, and may afterwards make a law in conformity thereto; so, in its practical result, it makes no difference which act precedes the other. In the instance of the division of the county of Surry, and also that of the free schools in New York, subsequent acts were passed confirming the first, and in regard to the latter no question as to the power of the Legislature could be raised. It is not denied that a valid statute may be passed to take effect upon the happening of an uncertain future event, upon which the Legislature, in effect, declares the expediency of the law depends, and when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is, in effect, a declaration that in the opinion of the Legislature the law is not expedient unless it be so voted for or accepted. It seems to us the Court in New York fell into error by not discriminating between a want of power and an abuse of power. All legislative power is vested in the General Assembly, restricted only by the Constitution. There is no prohibition in the Constitution against this mode of legislation, consequently, although it may be an abuse of power greatly to be deprecated, as tending to subvert the principles of our representative form of government, still the power has been granted, and it is not the province of one branch of the government to correct the supposed abuses of another. The judiciary can only interfere when the Legislature acts without power, i.e., in violation of the Constitution. In respect to the delegation of its power, supposed to be involved in an act of the General Assembly making a law depend upon a vote of the people, or the acceptance of a corporation, or the action of the justices of the peace, or any other set of men, Thompson v. Floyd, 47 N.C., 313, is a direct authority in support of our conclusion. It is there decided that a statute giving the justices of a county power to abolish jury trials in the County Courts, if at any time thereafter a majority of the justices may deem it expedient, is not a violation of the Constitution. The subject is there fully discussed, and such delegation of power is shown to have been of frequent occurrence ever since the organization of the government.

Manly v. Raleigh, 57 N.C. 370, 376-77 (1859).

Manly may not have presented the Court with the question of a statewide referendum, but the grounds on which the North Carolina Supreme Court chose to decide it encompassed statewide referenda as well as actions of local officials and voters. Manly expressly rejected Barto v. Himrod, one of the leading cases holding that a legislature could not condition the effectiveness of legislation upon the vote of the populace. The statewide referendum was the precise issue in Barto, and Manly said the New York court was wrong.

[Excerpts continue with discussion of Thompson v. Floyd and Cain v. Commissioners; the Sofya conversion cuts off mid-paragraph. The opinion's full conclusion section is not in the extracted markdown.]

Manly cited Thompson v. Floyd, 47 N.C. 313 (1855), in support of the proposition that a statute may depend on a contingency such as the vote of the people or the acceptance by a corporation.

[Cain v. Commissioners discussion follows.] "It has not been seriously questioned that the Legislature may make an enactment to take effect only upon the happening of a contingent event; but it has been earnestly maintained that when the event is the expression of the popular will, ascertained by an election, it is in effect a transfer of legislative power to the voters. In reference to this distinction, Redfield., C.J., in an elaborate opinion delivered in State v. Parker, 26 Ver., 357, says that 'the distinction attempted between the contingency of a popular vote and other future contingencies is without all just foundation in sound policy and sound reasoning.' What differences may be found in the adjudication elsewhere, it is settled by the decision in Manly v. Raleigh, 57 N.C., 370, that such power may be exercised by the Legislature, and it is declared that 'when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is in effect a declaration that in the opinion of the Legislature the law is not expedient, unless it be so voted for or accepted.' This principle underlies all 'local option' legislation and is fully recognized and established in this State. Caldwell v. Justices, 57 N.C., 323."

Cain, 86 N.C. at 13; accord Cottrell v. Town of Lenoir, 173 N.C. 138, 144 (1917).

[Sofya extract ends here.]