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The Constitution of North Carolina


 

Contents
Historical Perspective
Preamble
Article I, Declaration of Rights
Article II, Legislative
Article III, Executive
Article IV, Judicial
Article V, Finance
Article VI, Suffrage and Eligibility to Vote
Article VII, Local Government
Article VIII, Corporations
Article IX, Education
Article X, Homesteads and Exemptions
Article XI, Punishments, Corrections, and Charities
Article XII, Military Forces
Article XIII, Conventions, Constitutional Amendment and Revision
Article XIV, Miscellaneous
 

OUR CONSTITUTIONS: A HISTORICAL PERSPECTIVE

Written by John L. Sanders, Director of the Institute of Government, University of North Carolina at Chapel Hill.

Constitution of 1776
Convention of 1835
Convention of 1861-62
Convention of 1865-66
Constitution of 1868
Convention of 1868
Convention of 1875
Proposed Constitution of 1933
Constitutional Commission of 1957-58
Constitution of 1971
Constitutional Study Commission of 1967
Constitional Amendments of 1970-71
Conclusion

North Carolina has had three Constitutions in her history as a State: the Constitution of 1776, the Constitution of 1868, and the Constitution of 1971.

Constitution of 1776

Drafted and promulgated by the Fifth Provincial Congress in December, 1776, without submission to the people, the Constitution of 1776 and its separate but accompanying Declaration of Rights sketched the main outlines of the new state government and secured the rights of the citizen from governmental interference. While the principle of separation of powers was explicitly affirmed and the familiar three branches of government were provided for, the true center of power lay in the General Assembly. That body not only exercised full legislative power; it also chose all the state executive and judicial officers, the former for short terms and the judges for life.

Profound distrust of the executive power is evident throughout the document. The Governor was chosen by the legislature for a one-year term and was eligible for only three terms in six years. The little power granted him was hedged about in many instances by requiring for its exercise the concurrence of a seven-member Council of State chosen by the legislature. Judicial offices were established, but the court system itself was left to legislative design. No system of local government was prescribed by the Constitution, although the offices of justice of the peace, sheriff, coroner, and constable were created.

The system of legislative representation was based on units of local government. The voters of each county elected one Senator and two members of the House of Commons, while six (later seven) towns each elected one member of the House. It was distinctly a property owner's government, for only landowners could vote for Senators until 1857, and progressive property qualifications were required of members of the House, Senators, and the Governor until 1868. Legislators were the only state officers who were elected by the people until 1836.

The Convention of 1835

Dissatisfaction with the legislative representation system, which gave no direct recognition to population. resulted in the Convention of 1835. Extensive Constitutional amendments adopted by that Convention were ratified by a vote of the people, 26,771 to 21,606 on November 9, 1835. The Amendments of 1835 fixed the membership of the Senate and House at their present levels, 50 and 120. The House apportionment formula then devised gave one seat to each county and distributed the remainder of the seats--nearly half of them at that time--according to a mathematical formula favoring the more populous counties. From 1836 until 1868, Senators were elected from districts laid out according to the amount of taxes paid to the State from the respective counties, thus effecting senatorial representation in proportion to property values.

The Amendments of 1835 also made the Governor popularly elective for a two-year term, greatly strengthening that office; relaxed the religious qualifications for office holding; abolished free Negro suffrage; equalized the capitation tax on slaves and free white males; prohibited the General Assembly from granting divorces, legitimating persons, or changing personal names by private act; specified procedures for the impeachment of state officers and the removal of judges for disability; made legislative sessions biennial instead of annual; and provided methods of amending the Constitution. Following the precedent established in amending the United States Constitution, the 1835 amendments were appended to the Constitution of 1776, not incorporated in it as is the modern practice.

The Convention of 1861-62

The Convention of 1861-62, called by act of the General Assembly, took the State out of The Union and into the Confederacy and adopted a dozen Constitutional amendments. These were promulgated by the Convention without the necessity of voter approval, a procedure that was permitted by the Constitution until 1971.

The Convention of 1865-66

The Convention of 1865-66, called by the Provisional Governor on orders of the President, nullified secession and abolished slavery, with voters approval, in 1865. It also drafted a revised Constitution in 1866. That document was largely a restatement of the Constitution of 1776 and the 1835 amendments, plus several new features. It was rejected by a vote of 21,770 to 19,880 on August 2, 1866.

 

Constitution of 1868

The Convention of 1868

The Convention of 1868, called upon the initiative of Congress but with a popular vote of approval, wrote a new Constitution which the people ratified in April of 1868 by a vote of 93,086 to 74,016. Drafted and put through the Convention by a combination of native Republicans and a few Carpet- baggers, the Constitution was highly unpopular with the more conservative elements of the State. For its time it was a progressive and democratic instrument of government. In this respect it differed markedly from the proposed Constitution of 1866. The Constitution of 1868 was an amalgam of provisions copied or adapted from the Declaration of Rights of 1776, the Constitution of 1776 and its amendments, the proposed Constitution of 1866, and the Constitutions of other states, together with some new and original provisions. Although often amended, a majority of the provisions of that document remained intact until 1971, and the Constitution of 1971 brought forward much of the 1868 language with little or no change.

The Constitution of 1868 incorporated the 1776 Declaration of Rights into the Constitution as Article I and added several important guarantees. To the people was given the power to elect all significant state executive officers, all judges, and all county officials, as well as legislators. All property qualifications for voting and office holding were abolished. The plan of representation in the Senate was changed from a property to a popular basis, and the 1835 House apportionment plan was retained. Annual legislative sessions were restored.

The executive branch of government was strengthened by popular election for four-year terms of office and the Governor's powers were increased significantly.

A simple and uniform court system was established with the jurisdiction of each court fixed in the Constitution. The distinctions between actions at law and suits in equity were abolished.

For the first time, detailed Constitutional provision was made for a system of taxation, and the powers of the General Assembly to levy taxes and to borrow money were limited. Homestead and personal property exemptions were granted. Free public schools were called for and the maintenance of penal and charitable institutions by the State was commanded. A uniform scheme of county and township government was prescribed.

The declared objective of the Conservative Party (under whose banner the older native political leaders grouped themselves) was to repeal the Constitution of 1868 at the earliest opportunity. When the Conservative Party gained control of the General Assembly in 1870, a proposal to call a convention of the people to revise the Constitution was submitted by the General Assembly to the voters and rejected in 1871 by a vote of 95,252 to 86,007.

The General Assembly thereupon resorted to the legislative initiative for amending the Constitution. That procedure then called for legislative approval of each proposed amendment at two successive sessions, followed by a vote of the people on the amendment. The 1871-72 legislative session adopted an act calling for about three dozen amendments to the Constitution which had the general purpose of restoring to the General Assembly the bulk of the power over local government, the courts, and the public schools and the University that had been taken from it by the Constitution of 1868. The 1872-73 session of the General Assembly approved for the second time and submitted to the people only eight of those amendments, all of which were approved by the voters in 1873 by wide margins. These amendments restored biennial sessions of the General Assembly, transferred control of the University of North Carolina from the State Board of Education to the General Assembly, abolished various new state offices, altered the double office-holding prohibition, and repealed the prohibition against repudiation of the state debt.

The Convention of 1875

In 1875, the General Assembly called a convention of the people to consider Constitutional revision. No confirmation of that action by popular referendum was had, and none was then Constitutionally required. The Convention of 1875 (the most recent in the State's history) sat for five weeks in the fall of that year. It was a limited convention, certain actions--for example, the reinstatement of property qualifications for office-holding or voting--being forbidden to it.

The Convention of 1875 adopted and the voters on November 7, 1876, approved by a vote of 120,159 to 106,~54 a set of 30 amendments affecting 36 sections of the Constitution. These amendments (which took effect on January 1, 1877) prohibited secret political societies, moved the legislative convening date from November of even numbered years to January of odd- numbered years, fixed in the Constitution for the first time the rate of legislative compensation, called for legislation establishing a State Department of Agriculture, abandoned the simplicity and uniformity of the 1868 court system by giving the General Assembly power to determine the jurisdiction of all courts below the Supreme Court and to establish such courts inferior to the Supreme Court as it might see fit, reduced the Supreme Court from five to three members, required Superior Court judges to rotate among all judicial districts of the State, disqualified for voting persons guilty of certain crimes, established a one-year residency requirement for voting, required non-discriminatory racial segregation in the public schools, gave the General Assembly full power to revise or abolish the form and powers of county and township governments, and simplified the procedure for Constitutional amendment by providing that the General Assembly might by act adopted by three-fifths of each house at one legislative session submit an amendment to the voters of the State (thus eliminating the former requirement of enactment by two successive sessions of the General Assembly). The principal effect of the amendments of 1873 and 1875 was to restore in considerable measure the former power of the General Assembly, particularly as to the courts and local government.

The amendments framed by the Convention of 1875 seem to have satisfied most of the need for Constitutional change for a generation, for only four amendments were submitted by the General Assembly to the voters throughout the remainder of the nineteenth century. Three of them were ratified; one failed.

In 1900 the suffrage article was revised to add the literacy test and poll tax requirement for voting (the latter provision was repealed in 1920). A slate of ten amendments prepared by a Constitutional commission and proposed by the General Assembly in 19;3 was rejected by the voters in 1914. With the passage of time and amendments, the attitude towards the Constitution of 1868 had changed from resentment to a reverence so great that until the second third of the twentieth century, amendments were very difficult to obtain. Between 1900 and 1938 the voters ratified 15 and rejected 20 amendments. During the first third of this century, nevertheless, amendments were adopted lengthening the school term from four to six months, prohibiting legislative charters to private corporations, authorizing special Superior Court judges, further limiting the General Assembly's powers to levy taxes and incur debt, and abolishing the poll tax requirement for voting and reducing the residence qualification for voters. Amendments designed to restrict the legislature's power to enact local, private and special legislation were made partly ineffective by judicial interpretation.

The Proposed Constitution of 1933

A significant effort at general revision of the Constitution was made in 1931-33. A Constitutional Commission created by the General Assembly of 1931 drafted and the General Assembly of 1933 approved a revised Constitution. Blocked by a technicality raised in an advisory opinion of the State Supreme Court, the proposed Constitution of 1933 never reached the voters for approval. It would have granted the Governor the veto power; given to a l Judicial Council composed of all the judges of the Supreme and Superior Courts power to make all rules of practice and procedure in the courts inferior to the Supreme Court; required the creation of inferior courts by general laws only; removed most of the limitations on the taxing powers of the General Assembly; required the General Assembly to provide for the organization and powers of local governments by general law only; established an appointive State Board of Education with general supervision over the public school system; and set forth an enlightened policy of state responsibility for the maintenance of educational, charitable, and reformatory institutions and programs.

Several provisions of the proposed Constitution of 1933 were later incorporated into the Constitution by individual amendments, and to a limited extent it served as a model for the work of the 1957-59 Constitutional Commission.

Between the mid-1930's and the late 1950's, greater receptiveness to Constitutional change resulted in amendments authorizing the classification of property for taxation; strengthening the limitations upon public debt; authorizing the General Assembly to enlarge the Supreme Court, divide the State into judicial divisions, increase the number of Superior Court judges, and create a Department of Justice under the Attorney General; enlarging the Council of State by three members; creating a new, appointive State Board of Education with general supervision of the schools; permitting women to serve as jurors; transferring the Governor's power to assign judges to the Chief Justice and his parole power to a Board of Paroles; permitting the waiver of indictment in non-capital cases; raising the compensation of the General Assembly and authorizing legislative expense allowances; increasing the general purpose property tax levy limitation and the maximum income tax rate; and authorizing the closing of public schools on a local option basis and the payment of educational expense grants in certain cases.

The increased legislative and public willingness to accept Constitutional change between 1934 and 1960 resulted in 32 Constitutional amendments being ratified by the voters while only six were rejected.

The Constitutional Commission of 1957-58

At the request of Governor Luther H. Hodges, the General Assembly of 1957 authorized the Governor to appoint a fifteen-member Constitutional Commission to study the need for changes in the Constitution and to make recommendations to the Governor and the 1959 General Assembly.

That Commission recommended rewriting the whole Constitution and submitting it to the voters for approval or disapproval as a unit, the changes suggested being too numerous to be effected by individual amendments. The proposed Constitution drafted by the Commission represented in large part a careful job of editorial pruning, rearrangement, clarification, and modernization, but it also included several significant substantive changes. The Senate would have been increased from 50 to 60 members and the initiative (but not the sole authority) for decennial redistricting of the Senate would have been shifted from the General Assembly to an ex-officio committee of three legislative officers. Decennial reapportionment of the House of Representatives would have been made a duty of the Speaker of the House, rather than of the General Assembly as a whole. Problems of succession to Constitutional State executive offices and of determination of issues of officers' disability would have been either resolved in the Constitution or their resolution assigned to the General Assembly. The authority to classify property for taxation and to exempt property from taxation would have been required to be exercised only by the General Assembly and only on a uniform, statewide basis. The requirement that the public schools Constitute a "general and uniform system" would have been eliminated, and the Constitutional authority of the State Board of Education reduced. Fairly extensive changes were recommended in the judicial article of the Constitution, including the establishment of a General Court of Justice with an Appellate Division, a Superior Court Division, and a Local Trial Court Division. A uniform system of District Courts and Trial Commissioners would have replaced the existing multitude of inferior courts and justices of the peace, the creation of an intermediate Court of Appeals would have been provided for, and uniformity of jurisdiction of the courts within each division would have been required. Otherwise, the General Assembly would have retained essentially its then-existing power over the courts, their jurisdiction, and their procedures.

The General Assembly of 1959 also had before it a recommendation for a Constitutional amendment with respect to the court system that had originated with a Court Study Committee of the North Carolina Bar Association. In general, the recommendations of that Committee called for more fundamental changes in the courts than those of the Constitutional Commission. The principal difference between the two sets of recommendations lay in the extent of the proposed authority of the General Assembly over the courts. The Constitutional Commission generally favored legislative authority over the courts and proposed only moderate curtailment of it; the Court Study Committee accepted more literally the concept of an independent judiciary and its proposals would have minimized the authority of the General Assembly over the courts of the State, though structurally, its system would have been much like that of the Constitutional Commission.

The proposed Constitution received extended attention from the General Assembly of 1959. The Senate modified and passed the bill to submit the proposed Constitution to the voters, but it failed to pass the House, due chiefly to the inability of the supporters of the two divergent approaches to court revision to reach agreement.

As had been true of the proposed Constitution of 1933, the proposed Constitution of 1959, though not adopted as a whole, subsequently provided the material for several amendment proposals that were submitted individually to the voters and approved by them during the next decade.

In the General Assembly of 1961, the proponents of court reform were successful in obtaining enactment of a Constitutional amendment, approved by the voters in 1962, creating a unified and uniform General Court of Justice for the State. Other amendments submitted by the same session and approved by the voters provided for the automatic decennial reapportionment of the State House of Representatives, clarified the provisions for succession to elective State executive offices and disability determination, authorized a reduction in the residence period for voters for President, allowed increases in the compensation of elected state executive officers during their terms, and required that the power of the General Assembly to classify and exempt property for taxation be exercised by it alone and only on a uniform, statewide basis.

The session of 1963 submitted two amendments: One to enlarge the rights of married women to deal with their own property was approved by the voters; one to enlarge the Senate from fifty to seventy members and allocate one Representative to each county was rejected by the voters. The General Assembly of 1965 submitted and the voters approved an amendment authorizing the legislative creation of a Court of Appeals.

The 1967 General Assembly proposed and the voters approved amendments authorizing the General Assembly to fix its own compensation and revising the legislative apportionment scheme to conform to the judicially-established requirement of representation in proportion to population in both houses.

 

Constitution of 1971

From 1869 through 1968, there were submitted to the voters of North Carolina a total of 97 propositions for amending the Constitution of the State. All but one of these proposals originated in the General Assembly. Of those 97 amendment proposals, 69 were ratified by the voters and 28 were rejected by them. The changing attitude of the voters toward Constitutional amendments is well illustrated by the fact that from 1869 to 1933, 21 of the 48 amendment propositions were rejected by the voters, a failure rate of three out of seven. Between 1933 and 1968, only seven of 49 proposed amendments were rejected by the voters, a failure rate of one out of seven.

After the amendments of the early 1960's, the pressure for Constitutional change seemed at the time to have abated. Yet while an increasingly frequently used amendment process had relieved many of the pressures that otherwise would have strengthened the case for Constitutional reform, it had not kept the Constitution current in all respects. Constitutional amendments usually were drafted in response to particular problems experienced or anticipated and generally they were limited in scope so as to achieve the essential goal, while arousing minimum unnecessary opposition. Thus amendments sometimes were not as comprehensive as they should have been to avoid inconsistency in result. Obsolete and invalid provisions had been allowed to remain in the Constitution to mislead the unwary reader. Moreover, in the absence of a comprehensive reappraisal, there had been no recent occasion to reconsider Constitutional provisions that might be obsolescent but might not have proved so frustrating or unpopular in their effect as to provoke curative amendments.

The Constitutional Study Commission of 1967

It was perhaps for these reasons that when Governor Dan K. Moore recommended to the North Carolina State Bar in the fall of 1967 that it take the lead in making a study of the need for revision of the State Constitution, the response was prompt and affirmative. The North Carolina State Bar and the North Carolina Bar Association joined to create the North Carolina State Constitution Study Commission as a joint agency of the two organizations. The 25 members of that commission (fifteen attorneys and ten laymen) were chosen by a steering committee representative of the sponsoring organizations. The Chairman of the Commission was former state Chief Justice Emery B. Denny.

The State Constitution Study Commission worked throughout most of 1968. It became clear early in the course of its proceedings that the amendments the Commission wished to propose were too numerous to be submitted to the voters as independent propositions. On the other hand, the Commission did not wish to embody all of its proposed changes in a single document, to be approved or disapproved by the voters on a single vote. The compromise procedure developed by the Commission and approved by the General Assembly was a blend of the two approaches. The Commission combined in a revised text of the Constitution all of the extensive editorial changes that it thought should be made in the Constitution, together with such substantive changes as the Commission deemed not to be controversial or fundamental in nature. These were embodied in the document that came to be known as the Constitution of 1971. Those proposals for change that were deemed to be sufficiently fundamental or potentially controversial in character as to justify it, the Commission set out as independent amendment propositions, to be considered by the General Assembly and by the voters of the State on their independent merits. Thus the opposition to the latter proposals would not be cumulated. The separate proposals framed by the Commission were ten in number, including one extensive revision of the finance article of the Constitution which was largely the work of the Local Government Study Commission, a legislatively-established group then at work on the revision of Constitutional and statutory provisions with respect to local government. The amendments were so drafted that any number or combination of them might be ratified by the voters and yet produce a consistent result.

The General Assembly of 1969, to which the recommendations of the State Constitution Study Commission were submitted, received a total of 28 proposals for Constitutional amendments. Constitutional revision was an active subject of interest throughout the session. The proposed Constitution of 1971, in the course of seven roll-call votes (four in the House and three in the Senate), received only one negative vote. The independent amendments fared variously; ultimately six were approved by the General Assembly and submitted to the voters. These were the executive reorganization amendment, the finance amendment, an amendment to the income tax provision of the Constitution, a reassignment of the benefits of the escheats, authorization for calling extra legislative sessions on the petition of members of the General Assembly, and abolition of the literacy test for voting. All but the last two of these amendments had been recommended by the State Constitution Study Commission. At the election held on November 3, 1970, the proposed Constitution of 1971 was approved by a vote of 393,759 to 251,132. Five of the six separate amendments were approved by the voters; the literacy test repeal was rejected.

The Constitution of 1971 took effect under its own terms on July 1, 1971 (hence its designation as the "Constitution of 1971"). So did the executive reorganization amendment, the income tax amendment, the escheats amendment, and the amendment with respect to extra legislative sessions, all of which amended the Constitution of 1971 at the instant it took effect. The finance amendment, which made extensive revisions in the Constitution of 1971 with respect to debt and local taxation, took effect on July 1, 1973. The two-year delay in its effective date was occasioned by the necessity to conform state statutes with respect to local government finance to the terms of the amendment.

The Constitution of 1971, the State Constitution Study Commission stated in its report recommending its adoption,

 

effects a general editorial revision of the Constitution .... The
deletions, reorganizations, and improvements in the clarity and
consistency of language will be found in the proposed Constitu-
tion. Some of the changes are substantive, but none is calculated
to impair any present right of the individual citizen or to bring
about any fundamental change in the power of state and local
government or the distribution of that power.

In the new Constitution, the old fourteen-article organization of the Constitution was retained, but the contents of several articles--notably Articles I, II, III, V, IX, and X--were rearranged in a more logical sequence. Sections were shifted from one article to another to make a more logical subject- matter arrangement. Clearly obsolete and Constitutionally invalid matter was omitted, as were provisions essentially legislative in character. Uniformity of expression was sought where uniformity of meaning was important. Directness and currency of language were also sought, together with standardization in spelling. punctuation, capitalization, and other essentially editorial matters. Greater brevity of the Constitution as a whole was a by-product of the revision, though not itself a primary objective.

The Declaration of Rights (Article I), which dates from 1776 with some 1868 additions. was retained with a few additions. The organization of the article was improved and the frequently used subjunctive mood was replaced by the imperative in order to make clear that the provisions of that article are commands and not mere admonitions. (For example, "All elections ought to be free" became "All elections shall be free.") To the article were added a guarantee of freedom of speech, a guarantee of equal protection of the laws, and a prohibition against exclusion from jury service or other discrimination by the State on the basis of race or religion. Since all of the rights newly expressed in the Constitution of 1971 were already guaranteed by the United States Constitution, their inclusion simply constituted an explicit recognition by the State of their importance.

In the course of reorganizing and abbreviating Article III (the Executive), the Governor's role as chief executive was brought into clear focus. The scattered statements of the Governor's duties were collected in one section, to which was added a brief statement of his budget powers, formerly merely statutory in origin. No change was made in the Governor's eligibility or term, or in the list of state executives previously elected by the people. To the Council of State (formerly seven elected executives with the Governor as presiding officer) were added the Governor, Lieutenant Governor, and Attorney General as ex-officio members.

Having been entirely rewritten in 1962, the judicial article (Article IV) was the subject of little editorial alteration and of no substantive change. The editorial amendments to Article V, dealing with finance and taxation, were extensive. Provisions concerning finance were transferred to it from four other articles. The former finance provisions were expanded in some instances to make clearer the meaning of excessively condensed provisions. The only substantive change of note gave a wife who is the primary wage- earner in the family the same Constitutionally guaranteed income tax exemption now granted a husband who is the chief wage-earner; she already had that benefit under statute.

The revision of Article VI (voting and elections) added out-of-state and federal felonies to felonies committed against the State of North Carolina as grounds for denial of voting and office-holding rights in this State. The General Assembly was directed to enact general laws governing voter registration.

The provision that has been interpreted to mean that only voters can hold office was modified to limit its application to popularly elective offices only; thus it is left to the legislature to determine whether one must be a voter in order to hold an appointive office.

The Constitution of 1971 prohibits the concurrent holding of two or more elective state offices or of a federal office and an elective state office. It expressly prohibits the concurrent holding of any two or more appointive offices or places of trust or profit, or of any combination of elective and appointive offices or places of trust or profit, except as the General Assembly may allow by general law.

The power to provide for local government remains in the legislature, confining the Constitutional provisions on the subject to a general description of the General Assembly's plenary authority over local government, a declaration that any unit formed by the merger of a city and a county should be deemed both a city and a county for Constitutional purposes, and a section retaining the sheriff as an elective county officer.

The education article (Article IX) was rearranged to improve upon the former hodge-podge treatment of public schools and higher education, obsolete provisions especially those pertaining to racial matters) were eliminated, and other changes were made to reflect current practice in the administration and financing of schools.

The Constitutionally-mandated school term was extended from six months (set in 1918) to a minimum of nine months (where it was fixed by statute many years earlier). The possibly restrictive age limits on tuition-free public schooling were removed. Units of local government to which the General Assembly assigns a share of responsibility for financing public education were authorized to finance from local revenues education programs, including both public schools and technical institutes and community colleges, without a popular vote of approval. It was made mandatory (it was formerly permissive) that the General Assembly require school attendance.

The Superintendent of Public Instruction was eliminated as a voting member of the State Board of Education but retained as the Board's secretary. He was replaced with an additional at-large appointee. A potential conflict of authority between the Superintendent and the Board (both of which previously had Constitutional authority to administer the public schools) was eliminated by making the Superintendent the chief administrative officer of the Board, which is to supervise and administer the schools.

The provisions with respect to the state and county school funds were retained with only minor editorial modifications. Fines, penalties, and forfeitures continue to be earmarked for the county school fund.

The former provisions dealing with The University of North Carolina were broadened into a statement of the General Assembly's duty to maintain a system of higher education.

The General Assembly was authorized by the changes made in Article X (Homesteads and Exemptions) to set the amounts of the personal property exemption and the homestead exemption (Constitutionally fixed at $500 and $1,000 respectively since 1868) at what it considers to be reasonable levels, with the Constitutional figures being treated as minimums. The provision protecting the rights of married women to deal with their own property was left untouched. The protection given life insurance taken out for the benefit of the wife and children of the insured was broadened.

The provisions prescribing the permissible punishments for crime and limiting the crimes punishable by death (Article XI) were left essentially intact.

The procedures for Constitutional revision (Article XIII) were made more explicit.

The five Constitutional amendments ratified at the same time as the Constitution of 1971 deserve particular mention.

The Constitutional Amendments of 1970-71

By the end of the 1960's, North Carolina state government consisted of over 200 state administrative agencies. The State Constitution Study Commission concluded on the advice of witnesses who had tried it that no governor could effectively oversee an administrative apparatus of such disjointed complexity. The Commission's solution was an amendment, patterned after the Model State Constitution and the Constitutions of a few other states, requiring the General Assembly to reduce the number of administrative departments to not more than 25 by 1975, and to give the Governor authority to effect agency reorganizations and consolidations, subject to disapproval by action of either house of the legislature if the changes affected existing statutes.

The second separate Constitutional amendment ratified in 1970 supplemented the existing authority of the Governor to call extra sessions of the General Assembly with the advice of the Council of State. The amendment provides that on written request of three-fifths of all the members of each house, the President of the Senate and the Speaker of the House of Representatives shall convene an extra session of the General Assembly. Thus the legislative branch is now able to convene itself, notwithstanding the contrary wishes of the Governor.

The most significant of the separate amendments and in some ways the most important of the Constitutional changes ratified in 1970 was the finance amendment. The changes it effected are especially important in the financing of local government. The amendment became effective on July 1, 1973. Its principal provisions are as follows:

 

(1) All forms of capitation or poll tax were prohibited.
(2) The General Assembly was authorized to enact laws empowering
counties, cities, and towns to establish special taxing districts
less extensive in area than the entire county or city in order to
finance the provision within those special districts of a higher
level of governmental service than is available in the unit at
large, either by supplementing existing services or providing
services not otherwise available. That provision eliminated the
previous necessity of creating a new, independent governmental
unit to accomplish the same result.
(3) For a century, the Constitution required that the levying of taxes
and the borrowing of money by local government be approved by
a vote of the people of the unit, unless the money was to be used
for a "necessary expense." The court, not the General Assembly,
was the final arbiter of what was a "necessary expense," and the
State Supreme Court took a rather restrictive view of the embrace
of that concept. The determination of what types of public expendi-
tures should require voter approval and what types should be
made by a governing board on its own authority was found by
the General Assembly to be a legislative and not a judicial
matter. In that conviction, the finance amendment provided that
the General Assembly, acting on a uniform, statewide basis,
should make the final determination of whether voter approval
must be had for the levy of property taxes or the borrowing of
money to finance particular activities of local government.
(4) To facilitate governmental and private cooperative endeavors,
the state and local governmental units were authorized by the
amendment to enter into contracts with and appropriate money
to private entities "for the accomplishment of public purposes
only."
(5) The various forms of public financial obligations were more
precisely defined than in the previous Constitution, with the
general effect of requiring voter approval only for the issuance of
general obligation bonds and notes or for governmental guar-
antees of the debts of private persons or organizations. The
General Assembly was directed to regulate by general law (per-
mitting classified but not local acts) the contracting of debt by
local governments.
(6) The amendments retained the existing limitation that the state
and local governments may not, without voter approval, borrow
more than the equivalent of two-thirds of the amount by which
the unit's indebtedness was reduced during the last fiscal period,
except for purposes listed in the Constitution. This list was
lengthened to include "emergencies immediately threatening
public health or safety."
(7) No change was made in the provisions with respect to the classifi-
cation and exemption of property for purposes of property
taxation. The limitation of .20 on the $100 valuation previously
imposed on the general county property tax was omitted.

The fourth independent amendment also dealt with taxation. It struck out a schedule of specified minimum exemptions from the Constitutional provision on the state income tax, leaving those exemptions to be fixed by the General Assembly. This change enabled the legislature to provide for the filing of joint tax returns by husbands and wives and to adopt a "piggy- back" state income tax to be computed on the same basis as the federal income tax, thus relieving the taxpayer of two sets of computations. The amendment retains the maximum tax rate at ten per cent.

The final amendment ratified in 1970 assigned the benefits of property escheating to the State for want of an heir or other lawful claimant to a special fund, to be available to help needy North Carolina students attending public institutions of higher education in the State. Property escheating prior to July 1, 1971, continues to be held by The University of North Carolina.

The one amendment defeated by the voters in 1970 would have repealed the state Constitutional requirement that in order to register as a voter, one must be able to read and write the English language. That requirement was already ineffective by virtue of federal legislation and therefore the failure of repeal had no practical effect.

The General Assembly of 1971 submitted to the voters five state Constitutional amendments, all of which were ratified by the voters on November 7, 1972. Those amendments set the Constitutionally-specified voting age at 18 years, required the General Assembly to set maximum age limits for service as justices and judges of the state courts, authorized the General Assembly to prescribe procedures for the censure and removal of state judges and justices, added to the Constitution a statement of policy with regard to the conservation and the protection of natural resources, and limited the authority of the General Assembly to incorporate cities and towns within close proximity to existing municipalities.

The General Assembly at its 1973 session submitted and the voters in 1974 approved an amendment changing the title of the Solicitor to that of District Attorney. The 1974 legislative session submitted an amendment authorizing the issuance by state or county governments of revenue bonds to finance industrial facilities, which the voters rejected.

In 1975, the General Assembly submitted two amendments authorizing legislation to permit the issuance of revenue bonds (1) by state and local governments to finance health care facilities and (2) by counties to finance industrial facilities. Both received voter approval on March 23, 1976.

The Constitutional amendments of 1835 had permitted the voters to elect a Governor for two successive two-year terms. The Constitution of 1868 extended the Governor's term to four years but prohibited the Governor and Lieutenant Governor from serving successive four-year terms of the same office. The 1971 Constitution retained this limitation. An amendment to empower the voters to elect both the Governor and Lieutenant Governor to two successive terms of the same office was submitted by the 1977 General Assembly and ratified by the voters on November 8, 1977. Four other amendments were approved by the voters at the same time. They required that the State operate on a balanced budget at all times, extended to widowers (as well as to widows) the benefit of the homestead exemption, allowed a woman (as well as a man) to insure her life for the benefit of her spouse or children free from all claims of the insured's creditors or of her (or his) estate, and authorized municipalities owning or operating electric power facilities to do so jointly with other public or private power organizations and to issue electric system revenue bonds to finance such facilities.

Only one amendment was proposed by the General Assembly of 1979. Approved by the voters in 1980, it required that all justices and judges of the State courts be licensed lawyers as a condition of election or appointment to the bench.

The 1981 session of the General Assembly sent five amendments to the voters for decision on June 29, 1982. The two amendments ratified by the voters authorized the General Assembly (1) to provide for the recall of retired State Supreme Court Justices and Court of Appeals Judges to temporary duty on either court and (2) to empower the Supreme Court to review direct appeals from the Utilities Commission. The voters rejected amendments (1) extending the terms of all members of the General Assembly from two to four years; (2) authorizing the General Assembly to empower public agencies to develop new and existing seaports and airports, and to finance and refinance seaport, airport, and related commercial and industrial facilities for public and private parties; and (3) authorizing the General Assembly to empower a State agency to issue bonds to finance facilities for private institutions of higher education.

At its 1982 session, the General Assembly submitted two amendments. On November 2, 1982, the electorate ratified an amendment shifting the beginning of legislative terms from the date of election to January 1 next after the election, and rejected an amendment permitting the issuance of tax-increment bonds without voter approval.

On May 8, 1984, the voters ratified an amendment submitted by the General Assembly of 1983 to authorize the General Assembly to create an agency to issue revenue bonds to finance agricultural facilities. And on November 6, 1984, the voters approved an amendment requiring that the Attorney General and all District Attorneys be licensed lawyers as a condition of election or appointment.

An amendment to shift the elections for state legislative, executive, and judicial officers and for county officers from even-numbered to odd-numbered years (beginning in 1989 for legislators and 1993 for Governors and other state executives) was submitted by the General Assembly of 1985 to the voters, who rejected it on May 6, 1986. An amendment to revert to the pre-1977 Constitutional policy that barred the Governor and Lieutenant Governor from election to two successive terms of the same office was proposed by the 1985 legislative session for a popular vote on November 4, 1986, but in the meantime the 1986 adjourned session repealed the act proposing the amendment.

In mid-1986, the General Assembly at its adjourned session voted to send to the voters three Constitutional amendments, all three of which were approved on November 4, 1986. They (1) authorized legislation enabling state and local governments to develop seaports and airports and to participate jointly with other public agencies and with private parties and issue revenue bonds for that purpose; (2) authorized the State to issue tax-exempt revenue bonds to finance or refinance private college facilities; and (3) provided that when a vacancy occurs among the eight elected state executive officers (not including the Governor and Lieutenant Governor) or the elected judges and justices more than 60 days (it had been 30 days) before a general election, the vacancy must be filled at that election.

Neither the General Assembly of 1987-88 nor the General Assembly of 1989 submitted a Constitutional amendment to the voters.

 

Conclusion

The people of North Carolina have treated their Constitution with conservatism and respect. The fact that we have adopted only three Constitutions in two centuries of existence as a state is the chief evidence of that attitude. (Some states have adopted as many as five or ten Constitutions in a like period.) The relative fewness of amendments, even in recent years, is another point of contrast to many states. It reflects the fact that North Carolina has been less disposed than have many states to write into its state Constitution detailed provisions with respect to transitory matters better left to legislation. The Constitution has allowed the General Assembly wide latitude for decision on public affairs, and legislators have been willing to accept responsibility for and act on matters within their authority instead of passing the responsibility for difficult decisions on to the voters in the form of Constitutional amendments.

Constitutional draftsmen have not been so convinced of their own exclusive hold on wisdom or so doubtful of the reliability of later generations of legislators that they found it necessary to write into the Constitution the large amount of regulatory detail often found in state Constitutions. Delegates to Constitutional conventions and members of the General Assembly have acted consistently with the advice of the late John J. Parker, Chief Judge of the United States Court of Appeals for the Fourth Circuit (1925-58), who observed:

 

The purpose of a state Constitution is two-fold: (1) to protect the
rights of the individual from encroachment by the State; and (2)
to provide a framework of government for the State and its
subdivisions. It is not the function of a Constitution to deal with
temporary conditions, but to lay down general principles of govern-
ment which must be observed amid changing conditions. It
follows, then, that a Constitution should not contain elaborate
legislative provisions, but should lay down briefly and clearly
fundamental principles upon which government shall proceed,
leaving it to the people's representatives to apply these principles
through legislation to conditions as they arise.

 

 

 
 

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