Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority

• Decision Date: 30 January 1953
• Docket Number: No. 457,CAROLINA-VIRGINIA,457
• Citation: 237 N.C. 52,74 S.E.2d 310
• Parties: COASTAL HIGHWAY v. COASTL TURNPIKE AUTHORITY et al.
• Court: North Carolina Supreme Court

Page 310

74 S.E.2d 310

237 N.C. 52

CAROLINA-VIRGINIA COASTAL HIGHWAY v. COASTL TURNPIKE AUTHORITY et al.

No. 457

Supreme Court of North Carolina.

Jan. 30, 1953

McMullan & McMullan, Washington, and Reed, Hoyt & Washburn, New York City, for plaintiff, appellee.

John A. Wilkinson, Washington, for defendants, appellants.

JOHNSON, Justice.

Our examination of the challenged statute impels the conclusion that it is repugnant to three sections of the State Constitution. For immediate purposes of decision, it would suffice to rest decision on one section only. However, against the eventuality that this would serve only to extend the litigation and lead to further adverse decisions following piecemeal amendatory legislation, we deem it appropriate to discuss the statute in the light of each section of the Constitution which it impinges. We treat them seriatim. The questions posed are these:

1. Whether the statute in attempting to authorize the Municipal Board of Control to 'enter an order creating a municipal corporation' is invalid as being an attempt to delegate legislative power and authority contrary to the provisions of Article II, Section 1. of the Constitution?

2. Whether the amendatory act limiting the territorial scope of the statute to five of the 100 counties of the State, brings the statute into conflict with Article II, Section 29, of the Constitution, which forbids the General Assembly to 'pass any local, private or special act * * * authorizing the laying out, opening, * * * (or) maintaining * * * of highways * *; (or) relating to ferries or bridges * *'?

3. Whether (assuming that the plaintiff may be clothed with corporate existence), in view of the provisions of the plaintiff's charter immunizing it from governmental control, the plaintiff is entitled to tax exemption as a municipal corporation within the purview of Article V, Section 5, of the Constitution?

It will add to clarity of understanding if we keep in mind these facts: (a) The Municipal Board of Control issued the plaintiff's so-called charter under the original act of 1949, before the passage of the amendatory act of 1951; (b) the original act is statewide in scope, and contains no express power authorizing the construction and operation of toll bridges--its express grant of powers relates only to toll roads; (c) the amendatory act limits the operation of the statute to five counties and extends the express grant of powers to include toll bridges; (d) after the passage of the amendatory act, the plaintiff's charter was amended in form to confer on it the right to build a toll bridge over Croatan Sound; (e) Croatan Sound is not a link in the proposed toll road--the southern terminus of the proposed toll road is north of Nags Head, whereas Croatan Sound is several miles south of Nags Head and lies between Roanoke Island and the mainland at Manns Harbor.

1. The question of delegation of legislative power.--It is a settled principle of fundamental law, inherent in our constitutional separation of government into three departments and the assignment of the lawmaking function exclusively to the legislative department, that (except when authorized by the Constitution, as is the case in reference to certain lawmaking powers conferred upon municipal corporations usually relating to matters of local selfgovernment, Const.Articles VII, VIII, and IX; Durham Provision Company v. Daves, 190 N.C. 7, 128 S.E. 593, the Legislature may not abdicate its power to make laws or delegate its supreme legislative power to any other department or body. 11 Am. Jur., Constitutional Law, Sec. 214. See also Motsinger v. Perryman, 218 N.C. 15, 20, 9 S.E.2d 511; State v. Curtis, 230 N.C. 169, 52 S.E.2d 364, and cases there cited.

However, it is not necessary for the Legislature to ascertain the facts of, or to deal with, each case. Since legislation must often be adapted to complex conditions involving numerous details with which the Legislature cannot deal directly, the constitutional inhibition against delegating legislative authority does not deny to the Legislature the necessary flexibility of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the Legislature shall apply. Durham Provision Company v. Daves, supra. Without this power, the Legislature would often be placed in the awkward situation of possessing a power over a given subject without being able to exercise it.

Here we pause to note the distinction generally recognized between a delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. 11 Am.Jur., Constitutional Law, Sec. 234; See also Pue v. Hood, Com'r of Banks, 222 N.C. 310, 22 S.E.2d 896.

As to this, it may be conceded that the line of demarkation between those essentially legislative functions which must be exercised by the Legislature itself, and those of an administrative nature, or involving mere details, which may be conferred upon another body or administrative agency, is sometimes vague and difficult to define or discern. Durham Provision Company v. Daves, supra.

Nevertheless, the legislative body must declare the policy of the law, fix legal principles which are to control in given cases, and provide adequate standards for the guidance of the administrative body or officer empowered to execute the law. This principle is implicit in the general rule prohibiting the delegation of legislative power, and is affirmed by numerous authoritative decisions of this Court. Motsinger v. Perryman, supra; Durham Provision Company v. Daves, supra; State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658; State v. Curtis, supra. See also Annotation, 79 L.Ed. 474, 487.

In short, while the Legislature may delegate the power to find facts or determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend, or another agency of the government is to come into existence, it cannot vest in a subordinate agency the power to apply or withhold the application of the law in its absolute or unguided discretion. 11 Am. Jur., Constitutional Law, Sec. 234.

In the case at hand we are at grips with the question whether the statute, which invests in the Municipal Board of Control discretionary power to create a municipal corporation for the purpose of constructing and operating a toll road and a toll bridge, fails to lay down adequate standards for guidance, and is for that reason subject to attack as an unwarranted delegation of legisglative power.

The term 'municipal' reelates not only to a town or city as an incorporated territorial entity, but it also pertains to local self-government in general and, in a broader sense, to the internal government of the State. In the latter, broader sense, a corporation formed for purely governmental purposes is a municipal corporation. Wells v. Housing Authority of City of Wilmington, 213 N.C. 744, bottom of page 750, 197 S.E. 693; Mallard v. Eastern Carolina Regional Housing Authority, 221 N.C. 334, 20 S.E.2d 281; Webb v. Port Commission of Morehead City, 205 N.C. 663, 172 S.E. 377; Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930. See also Const. Article VII, Sec. 7.

But whether a municipal corporation be a unit of local self-government in the sense of being an incorporated territorial area having inhabitants, or a mere governmental agency of the State, clothed with the requisite attributes of government necessary to make it a municipal corporation, in either event such corporation is but a creature, an instrumentality, an agent of the State. 37 Am.Jur., Municipal Corporations, Sec. 4. See also Lee v. Poston, 233 N.C. 546, 64 S.E.2d 835.

This being so, the power to create or establish municipal corporations, to enlarge or diminish their powers, or to dissolve or abolish them altogether, is a political function which rests solely in the legislative branch of the government. 37 Am.Jur., Municipal Corporations, Sec. 7; Starmount Co. v. Town of amilton Lakes, 205 N.C. 514, 171 S.E. 909; Webb v. Port Commission, supra; Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252; Greensboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 36 S.E.2d 803.

Ordinarily 'no delegation of legislative functions is involved in general laws providing for the incorporation of municipal corporations, fixing the conditions on which they may be created, and leaving to some officer or official body the duty of determining whether such conditions exist, * * *.' 37 Am.Jur., Municipal Corporations, Sec. 8; Lyon v. City of Payette, 38 Idaho 705, 224 P. 793; Boone County v. Town of Verona, 190 Ky. 430, 227 S.W. 804; Carrithers v. City of Shelbyville, 126 Ky. 769, 104 S.W. 744, 17 L.R.A., N.S., 421.

'IT is generally held that the legislature, in enacting general statutes governing the incorporation of municipal corporations, which describe the conditions precedent to incorporation, may confer upon a court or other agency the power and duty to ascertain the existence of the facts set forth in the statute upon which it will become effective and to see that all legal forms have been complied with. When such facts are found to exist and the required legal forms have been complied with, the law directs the creation of the municipal corporation. If the legislature vests no power in the courts or other body or individual other than to determine the existence of the facts set forth in the law itself, contingent upon the existence of which the law comes into operation, it does not constitute a delegation of legislative power.' 37 Am.Jur., Municipal Corporations, Sec. 8. See also McQuillin,...