Advisory Opinion In re Sales-Tax Election of 1969 , 275 N.C. 683 ( 1969 )

State op North CAROLINA

DEPARTMENT OP JUSTICE

P. 0. Box 629

Raleigh

27602

Robert MorgaN

AttorNEy General

26 August 1969

HONORABLE ROBERT W. SCOTT

GoverNOr op North Carolina

State Capitol

Raleigh, North Carolina

Dear Governor Scott:

Chapter 1228 of the Session Laws of 1969 (S.B. 178) enacted a statute which required each of the counties of the State to hold a special election for the purpose of considering whether a county shall or shall not impose and levy a sales and use tax of one per cent (1%) upon certain taxable transactions. Actually, the counties are voting for or against a local sales tax for each county in which the election is held. The Act provides as follows:

“The board of elections of each county shall call and conduct a special election on Tuesday, November 4, 1969, for the purpose of submitting to the voters of each such county the question of whether a one per cent (1%) sales and use tax as hereinafter provided will be levied.”

Chapter 1258 of the Session Laws of 1969 (H.B. 231) is an Act to revise and amend the Constitution of North Carolina. This is a revision of the Constitution of the State but it is to be submitted to the voters as a constitutional amendment.

Chapter 1200 of the Session Laws of 1969 (H.B. 331) is an Act to amend the Constitution of North Carolina to revise Article V concerning State and local finance. This too is a lengthy amendment to be submitted to the people.

Chapter 1004 (H.B. 327) is an Act to Amend Article VI of the North Carolina Constitution relating to the qualifications of individuals to register and vote in elections in North Carolina.

Chapter 872 of the Session Laws of 1969 (H.B. 465) is an Act to amend the Constitution of North Carolina to authorize the General Assembly to fix the personal exemptions for income tax purposes.

Chapter 827 of the Session Laws of 1969 (H.B. 562) is an Act to amend the Constitution of North Carolina to provide for a reassignment of escheats.

Chapter 932 of the Session Laws of 1969 (H.B. 568) is an Act to amend the Constitution of North Carolina to require the General Assembly to reduce the State Administrative Departments to 25 and to authorize the Governor to reorganize the Administrative Departments subject to legislative approval.

Chapter 1270 of the Session Laws of 1969 (S.B. 362) is an Act to amend the Constitution of North Carolina to require convening of extra Sessions of the General Assembly upon request of three-fifths of the members of each House.

All of these constitutional amendments, including the large one which represents a revision of the Constitution, contain the following language:

“The amendment set out in Section 1 of this Act (or Sections 1 and 2 of this Act, as the case may be) shall be submitted to the qualified voters of the State at the next general election. That election shall be conducted under the laws then governing elections in this State.”

The question, therefore, arises as to whether or not the election to be held under Chapter 1228 of the Session Laws of 1969 whereby each county is required to vote on the question of the sales tax is or is not a general election. If it is a general election, then the constitutional amendments above referred to would have to be submitted for a vote of the people of the State as to their approval or disapproval. If it is not a general election, then such amendments would not be submitted at the sales tax election which is to be held on Tuesday, November 4, 1969, but would be submitted at the general election to be held in 1970.

It is important, therefore, to know whether the sales tax election is a general election or not. I am of the opinion that the sales tax election is not a general election. The Act calls the election a “special election.” It is held in each county by the board of elections of each county and counties may approve or reject the sales tax issue for each respective county according to the county vote. It does not involve a single, unitary question submitted to the voters of the State at large by the State Board of Elections. There is, however, some doubt about the matter and the question as to the nature of this sales tax election should be resolved in an authoritative manner so we will know the correct legal procedure in submitting the constitutional amendments.

I suggest, therefore, that you ask the Supreme Court of North Carolina for an advisory opinion on this question. As you know, there is ample legal precedent for the Governor of North Carolina to request the Supreme Court for an advisory opinion on pressing matters of this nature.

With all good wishes and kind regards, I am

Sincerely,

Robert Morgan

September 8, 1969

The Honorable Robert W. Soott

Governor of North Carolina

Raleigh, North Carolina

My bear Governor Soott:

Your communication of 26 August 1969 requested an advisory opinion from the members of the Supreme Court of North Carolina on the following question: Is the sales-tax election to be held in each county on 4 November 1969, under the provisions of S. L. 1969; ch. 1228, a general election within the meaning of N. C. Const. Art. 13, § 2, so that the constitutional amendments proposed by the 1969 General Assembly must be submitted to the voters at that time?

The undersigned, each for himself and herself, expresses the opinion, after careful consideration and study, that the answer to the foregoing question is in the negative.

Respectfully,

R. Hunt Pareer, Chief Justice

William H. Bobbitt, Associate Justice

Susie Sharp, Associate Justice

Joseph Branch, Associate Justice

J. FRANK HUSKINS, Associate Justice

September 8, 1969

HONORABLE ROBERT W. SCOTT

GOVERNOR OE NORTH CAROLINA

State Capitol

Raleigh, North; CaroliNa

Dear Governor Soott:

It is our opinion that we, as Associate Justices of the Supreme Court of North Carolina, should not express our views concerning the law of the State governing any specific issue until that issue is presented to the Court for decision in an appropriate judicial proceeding between adversary parties to a justiciable controversy. Otherwise, as justices, wfhen subsequently called upon to determine the same issue in such a proceeding, we may find ourselves embarrassed by an advisory opinion given without the benefit of argument and briefs. In that event, the litigant who takes a contrary view of the law might feel his case has been prejudged, thus denying him the benefit of his day in court.

Consequently, we reluctantly abstain from expressing our opinions concerning the interesting question propounded in your letter of August 24, 1969. Our failure to join in the response to your inquiry made by our associates upon the Court is not to be deemed an indication either of agreement or disagreement with any opinion expressed therein.

Respectfully yours,

Carlisle W. Higgins, I. Beverly Laee, Associate Justices