State Ex Rel. Wallace v. Bone , 304 N.C. 591 ( 1982 )

286 S.E.2d 79 (1982)

STATE of North Carolina, ex rel. James C. WALLACE and David Howells
v.
Roger W. BONE and Robie L. Nash.
Frederick S. BARKALOW and Brenda Armstrong
v.
J. J. HARRINGTON, R. P. Thomas, Roger W. Bone and Robie Nash.

No. 55.

Supreme Court of North Carolina.

January 12, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas F. Moffitt, Raleigh, for defendants-appellees.

Thomas S. Erwin, Raleigh, for plaintiffs-appellants.

BRITT, Justice.

Section 6 of Article I of our state constitution provides: "Separation of powers. The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other." We hold that the challenged enactment of the General Assembly violates this section of the state constitution and that the judgment appealed from must be reversed.

In arriving at this conclusion, we have considered, among other things, the history of the principle of separation of powers in our state and nation, the decisions of other jurisdictions in our nation respecting the principle, and the specific provisions of our constitution and the statutes involved.

I.

Since North Carolina became a state in 1776, three constitutions have been adopted: In 1776, in 1868 and in 1970. The first two documents provided that "[t]he legislative, executive and supreme judicial powers of Government, ought to be forever separate and distinct from each other." The 1970 rewrite contains the language first quoted above, changing "ought to be" to "shall be". Thus each of our constitutions has explicitly embraced the doctrine of separation of powers.^[1]

Section 1 of Article II of our present constitution provides that "[t]he legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives." Section 1 of Article III provides that "[t]he executive power of the State shall be vested in the Governor." Section 1 of Article IV provides:

The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article.

Previous constitutions contained similar provisions.

Our first state constitution was adopted on 18 December 1776.^[2] While records with respect to the drafting and adoption of our first constitution are sparse, history has recorded the instructions given by their constituents to two county delegations participating in the drafting of the first constitution—the delegations from Mecklenburg and Orange Counties. Instructions to the Mecklenburg delegation included the following:

* * * * * *

4. That you shall endeavor that the form of Government shall set forth a bill of rights containing the rights of the people and of individuals which shall never be infringed in any future time by the law-making power or other derived powers in the State.

5. That you shall endeavour that the following maxims be substantially acknowledged in the Bills of Rights (viz):

1st. Political power is of two kinds, one principal and superior, the other derived and inferior.

2nd. The principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ.

* * * * * *

6. That you shall endeavor that the Government shall be so formed that the derived inferior power shall be divided into three branches distinct from each other, viz:

The power of making laws

The power of executing laws and

The power of Judging.

* * * * * *

9. The law making power shall be restrained in all future time from making any alteration in the form of Government.^[3]

Instructions to the Orange delegation included the following:

* * * * * *

Fourthly. We require that in framing the civil constitution the derived inferior power shall be divided into three branches, to wit: The power of making laws, the power of executing and the power of judging.

Fifthly. That the power of making laws shall have authority to provide remedies for any evils which may arise in the community, subject to the limitations and restraints provided by the principal supreme power.

* * * * * *

Seventhly. That the executive power shall have authority to apply the remedies provided by the law makers in that manner only which the laws shall direct, and shall be entirely distinct from the power of making laws.

Eighthly: That the judging power shall be entirely distinct from and independent of the law making and executive powers.

Ninthly: That no person shall be capable of acting in the exercise of any more than one of these branches at the same time lest they should fail of being the proper checks on each other and by their united influence become dangerous to any individual who might oppose the ambitious designs of the persons who might be employed in such power.^[4] (Emphasis added.)

The federal constitution was drafted and adopted in 1787, eleven years after our first state constitution was adopted. While the federal constitution contains no explicit provision regarding separation of powers, the principle is clearly implied. Article I, Section 1, provides that "[a]ll legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a senate and house of representatives." Article II, Section 1, provides that "[t]he executive power shall be vested in a president of the United States of America ...." Article III, Section 1, provides that "[t]he judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish ...."

There is abundant evidence that the drafters of the federal constitution had the separation of powers principle in mind, and, for the most part, the principle has been championed and adhered to throughout the history of our republic.

Alexander Hamilton, one of the drafters of the federal constitution and keeper of copious notes, wrote:

In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. (Emphasis added.) The Federalist, No. 51.

It appears that George Washington, the father of our country, feared the destruction of our form of government by an abuse of the principle of separation of powers. In his Farewell Address, he said:

It is important, likewise, that the habit of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.^[5]

There are many indications that North Carolina, for more than 200 years, has strictly adhered to the principle of separation of powers. One indication is that ours is one of the few states, if not the only state, in the Union that does not provide its governor with the power to veto enactments of the legislature. Numerous efforts to change our constitution to give the governor that power have failed. The clear implication is that our people do not want the chief executive to have any direct control over our legislative branch.

Another indication is the absence of cases which have come to this court contending that a branch of our state government violated the separation of powers principle. While the case at hand appears to be one of first impression in our jurisdiction, we have found two instances in which members of the judiciary have expressed themselves on the principle.

In the fifth case reported in our reports, Bayard v. Singleton, 1 N.C. 5 (1787), it is recorded that Ashe, J., deviated from the case under consideration to make "a few observations on our Constitution and system of government." Obviously referring to our national government, he said:

[A]t the time of our separation from Great Britain, we were thrown into a similar situation with a set of people shipwrecked and cast on a marooned island— without laws, without magistrates, without government or any legal authority— that being thus circumstanced, the people of this country, with a general union of sentiment, by their delegates, met in Congress, and formed that system of those fundamental principles comprised in the Constitution, dividing the powers of government into separate and distinct branches, to wit: The legislative, the judicial, and executive, and assigning to each several and distinct powers, and prescribing their several limits and boundaries;....

1 N.C. at 6.

In State v. Bell, 184 N.C. 701, 115 S.E. 190 (1922), this court was confronted with the interpretation and application of a criminal statute relating to support of children. A majority of the court gave the statute a liberal interpretation and upheld the conviction of the defendant. Stacy, J., (later C. J.), dissented on the ground that the statute should be strictly construed. The following is from his dissenting opinion:

We must hew to the line and let the chips fall wherever they may. And though we may think the law ought to be otherwise, this should not blind our judgment to what it really is. The duty of legislation rests with another department of the Government. It is ours only to declare the law, not to make it. Moore v. Jones, 76 N.C. [182] 187. The people of North Carolina have ordained in their Constitution (Art. I, sec. 8) that the legislative, executive, and supreme judicial powers of the Government should be and ought to remain forever separate and distinct from each other. Such is their expressed will, and from the earliest period in our history they have endeavored with sedulous care to guard this great principle of the separation of the powers. In this country, those who make the laws determine their expediency and wisdom, but they do not administer them. The chief magistrate who executes them is not allowed to judge them. To another tribunal is given the authority to pass upon their validity and constitutionality, "to the end that it be a government of laws and not of men." From this unique political division results our elaborate system of checks and balances—a complication and refinement which repudiates all hereditary tendencies and makes the law supreme. In short, it is one of the distinct American contributions to the science of government; ....

184 N.C. at 719, 115 S.E. 190.

There should be no doubt that the principle of separation of powers is a cornerstone of our state and federal governments.

II.

Numerous decisions from sister states show strict adherence to the separation of powers principle and do not tolerate legislative encroachment or control over the function and power of the executive branch. See Book v. State Office Building Commission, supra; State ex rel. State Building Commission of West Virginia v. Bailey, 151 W.Va. 79, 150 S.E.2d 449 (1966); Greer v. Georgia, 233 Ga. 667, 212 S.E.2d 836 (1975); Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (1912). See also Bradner v. Hammond, 553 P.2d 1 (Alaska 1976); Ahearn v. Bailey, 104 Ariz. 250, 451 P.2d 30 (1969); In re Advisory Opinion to the Governor, 276 So.2d 25 (Fla.1973); In re Opinion of the Justices to the Governor, 369 Mass. 990, 341 N.E.2d 254 (1976) (This case stated flexibility in allocation of functions may sometimes be permissible, but only if it creates no interference by one department with the power of another.); Dearborn TP. v. Dail, 334 Mich. 673, 55 N.W.2d 201 (1952); and State ex rel. Warren v. Nusbaum, 59 Wis.2d 391, 208 N.W.2d 780 (1973).

A review of a representative number of those decisions is in order.

In Book v. State Office Building Commission, supra, the Supreme Court of Indiana declared unconstitutional that part of the State Office Building Act which provided that certain members of the legislature should be members of the State Office Building Commission. The court held that this part of the act violated the division of powers provision of the state constitution because it attempted to confer executive-administrative duties upon members of the legislature. Referring to the separation of powers provision of the Indiana Constitution, the court said:

Article 3, § 1, supra, is not a law against dual office holding. It is not necessary to constitute a violation of the Article, that a person should hold an office in two departments of Government. It is sufficient if he is an officer in one department and at the same time is performing functions belonging to another. State ex rel. Black v. Burch, supra, 1948, 226 Ind. 445, 462, 80 N.E.2d 294, 560, 81 N.E.2d 850; Monaghan v. School District No. 1, Clackamas County, Or. 1957, [211 Or. 360] 315 P.2d 797, 802-804.

149 N.E.2d at 296.

In State ex rel. State Building Commission of West Virginia v. Bailey, supra, the Supreme Court of Appeals of West Virginia declared unconstitutional that portion of a statute which named certain members of the legislature to the State Building Commission on the ground that the statute violated the separation of powers provision of the state constitution. We quote from the opinion:

[I]t is manifest that the powers granted and the duties imposed upon the State Building Commission of West Virginia by the legislative enactment here involved, Chapter 8, Acts of the Legislature, Regular Session, 1966, are executive or administrative and not legislative in character and that the provision of Section 1 of the statute that the president of the senate, the speaker of the house of delegates, the minority leader of the senate and the minority leader of the house of delegates shall be members of the commission is violative of Article V of the Constitution of this State in that it attempts to confer and impose executive or administrative powers and duties upon those members of the Legislature and for that reason is null and void and of no force and effect.

150 S.E.2d at 456.

In Greer v. State of Georgia et al., supra, the Supreme Court of Georgia declared unconstitutional legislation naming certain legislators to serve on the governing body of the World Congress Authority. The legislative act created said agency, a public corporation, to plan, construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate and manage the Georgia World Congress Center. The act also provided that the governing body of the authority would consist of 20 members, six of whom would be members of the General Assembly. In holding that the part of the act providing for members of the legislature to serve on the authority violated the separation of powers provision of the state constitution, the Georgia court said:

The question here is whether the legislature can constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality. Appellants' argument is that there is no constitutional defect in this arrangement. Carried to its logical extreme, this arrangement would permit the General Assembly to appoint an ad hoc committee of its own members to implement specific legislation. The case at bar does not present such a logical extreme, but it evidences the same constitutional infirmity. We have to conclude that a legislator who participates as a member of the governing body of a public corporation such as the World Congress Center Authority is performing executive functions.

212 S.E.2d at 838.

In Stockman v. Leddy, supra, the Supreme Court of Colorado declared unconstitutional an act of the Colorado legislature creating a joint committee of its members to conduct an investigation on which the committee would come to a conclusion and act in prosecuting or defending certain actions for the benefit of the state. In holding that the legislation violated the principle of separation of powers, the Colorado court said:

[T]he General Assembly not only passed an act—that is, made a law—but it made a joint committee of the Senate and the House as its executive agent to carry out that law. This is a clear and conspicuous instance of an attempt by the General Assembly to confer executive power upon a collection of its own members. This is contrary to article 3 of our Constitution,....

129 P. at 223.

In O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), the U.S. Supreme Court, after stating that our federal constitution distributes the power of government between the three branches, said:

This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, Springer v. Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 482, 72 L.Ed. 845, 849, namely, to preclude a commingling of these essentially different powers of government in the same hands.

289 U.S. at 530, 53 S.Ct. at 743, 77 L.Ed. at 1360.

In his judgment, Judge Bailey recited that he found the decision of the Supreme Court of South Carolina in State ex rel. McLeod v. Edwards, 269 S.C. 75, 236 S.E.2d 406 (1977), to be very persuasive. He also cited State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976). A study of these cases reveals that South Carolina and Kansas have deviated from the separation of powers principle.

In State ex rel. McLeod v. Edwards, supra, the constitutionality of two members of the South Carolina General Assembly serving as ex officio members of the State Budget and Control Board was challenged. This board is composed of the governor, the state treasurer, the controller general, the chairman of the senate finance committee, and the chairman of the house ways and means committee. All members of the board are ex officio. Relying on its previous decisions, the court held that the inclusion of members of the legislature on the board did not violate the separation of powers provisions of the state constitution. In defending its holdings, the court said:

While the foregoing disposes of the present separation of powers issue, we think that an examination of the principle, as applied to the present facts, reveals the basis for the result reached in our prior decisions. Important in this case is the fact that the General Assembly has been careful to put the legislative members in a minority position on The Board. The statutory composition of The Board does not represent an attempt to usurp the functions of the executive department, but apparently represents a cooperative effort by making available to the executive department the special knowledge and expertise of the chairman of the two finance committees in the fiscal affairs of the State and the legislative process in general. We view the ex officio membership of the legislators on The Board as cooperation with the executive in matters which are related to their function as legislators and not usurpation of the functions of the executive department.

236 S.E.2d 408-09.

In State ex rel. Schneider v. Bennett, supra, the question of the constitutionality of members of the legislature serving on the state finance council was presented. This council consists of the governor, the speaker of the house, the president of the senate, the majority and minority leaders of the house and senate, and the chairmen of the ways and means committees of the house and senate. The council was created as a "legislatively oriented" agency to approve the rules and regulations of the department of administration and thereby to check the power of the governor to coordinate the activities of state agencies. The council was specifically authorized to exercise control and authority over the state department of administration as a whole; to approve any and all rules and regulations with respect to the manner of performance of any power or duty of the department and the execution of any business of the department and its relations to and business with other state agencies; to hear and determine appeals by any state agency from final decisions or final actions of the secretary of administration; and to make allocations to, and approve expenditures by a state agency from any appropriations to the state finance council for that purpose, of funds for unanticipated and unbudgeted needs, under conditions and limitations prescribed by the legislature.

In commenting on the separation of powers doctrine, the Kansas court said:

In our judgment a strict application of the separation of powers doctrine is inappropriate today in a complex state government where administrative agencies exercise many types of power including legislative, executive, and judicial powers often blended together in the same administrative agency. The courts today have come to recognize that the political philosophers who developed the theory of separation of powers did not have any concept of the complexities of government as it exists today. Under our system of government the absolute independence of the departments and the complete separation of powers is impracticable. We must maintain in our political system sufficient flexibility to experiment and to seek new methods of improving governmental efficiency. At the same time we must not lose sight of the ever-existing danger of unchecked power and the concentration of power in the hands of a single person or group which the separation of powers doctrine was designed to prevent.

547 P.2d at 791.

However, the Kansas court also said:

The separation of powers doctrine does not in all cases prevent individual members of the legislature from serving on administrative boards or commissions created by legislative enactments. Individual members of the legislature may serve on administrative boards or commissions where such service falls in the realm of cooperation on the part of the legislature and there is no attempt to usurp functions of the executive department of the government. (Citations.)

547 P.2d at 792.

The Kansas court then proceeded to hold, however, that many, if not most, of the duties assigned to the state finance council were executive in nature and the exercise of those powers by legislators was unconstitutional. We quote again from the opinion:

All of these powers concern the day-to-day operations of the department of administration and its various divisions. The vesting of such powers in the state finance council in our judgment clearly grants to a legislatively oriented body control over the operation of an executive agency and constitutes a usurpation of executive power by the legislative department.

547 P.2d at 797.

III.

Having stated the history of the separation of powers principle, and having considered its application by other states, we now relate the principle to the challenged legislation providing for four members of our General Assembly to serve on the EMC.

The Environmental Management Commission exists pursuant to G.S. 143B-282 et seq. Its purpose is stated in G.S. 143B-282 as follows:

There is hereby created the Environmental Management Commission of the Department of Natural Resources and Community Development with the power and duty to promulgate rules and regulations to be followed in the protection, preservation, and enhancement of the water and air resources of the State.

Within the limitations of G.S. 143-215.9 concerning industrial health and safety, the EMC has the power and duty, among other things, to grant and revoke permits with regard to controlling sources of air and water pollution; to issue special orders pursuant to certain statutes to any person whom the commission finds responsible for causing or contributing to any pollution of water within a watershed or pollution of the air within the area for which standards have been established; to conduct and direct that investigations be conducted pursuant to certain statutes; to conduct public hearings, institute actions in superior court, and agree upon or enter into settlements, all pursuant to G.S. 143-215.3; to direct the investigation of any killing of fish and wildlife pursuant to G.S. 143-215.3; to review and have general oversight and supervision over local air pollution control programs pursuant to certain statutes; to declare an emergency when it finds a generalized dangerous condition of water or air pollution pursuant to certain statutes; to grant permits for water use within capacity use areas pursuant to G.S. 143-215.15; to direct that investigations be conducted when necessary to carry out duties regarding capacity use areas; to approve, disapprove and approve subject to conditions all applications for dam construction pursuant to G.S. 143-215.28; to halt dam construction pursuant to G.S. 143-215.29; to have jurisdiction and supervision over the maintenance and operation of dams pursuant to G.S. 143-215.31; and to have jurisdiction and supervision over all pollution pursuant to Article 21A of Chapter 143. G.S. 143B-282(1).

The EMC is also given the power and duty to establish standards and adopt rules and regulations for air quality standards, emission control standards, and classifications for air contaminant sources pursuant to G.S. 143-215.107; for water quality standards and classifications pursuant to certain statutes, to implement the issuance of permits for water use within capacity use areas; and for the protection of sand dunes pursuant to certain statutes. G.S. 143B-282(2).

Prior to 1979, the EMC consisted of 13 members, all appointed by the Governor. The statute also sets forth certain vocational qualifications for members of the commission.

It is crystal clear to us that the duties of the EMC are administrative or executive in character and have no relation to the function of the legislative branch of government, which is to make laws. We agree with the Georgia court's holding in Greer, that the legislature cannot constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality.

We agree with the Kansas and South Carolina courts that there should be cooperation between the legislative and executive branches of government. For many years North Carolina has recognized and benefited from cooperative efforts between the branches of its government. The best examples of this are various study commissions on which legislators and non-legislators, including persons from other branches of government, have served. Many recommendations of these commissions have been enacted into law beneficial to the citizens of our state.

Counsel for defendants have set forth in an exhibit to their brief a list of 49 other boards and commissions on which legislators serve as members pursuant to statutes. We do not find it appropriate to comment on any board or commission except the one which is the subject of this appeal. Suffice it to say, the people of North Carolina on at least three occasions—the last opportunity being as late as 1970—explicitly adopted the principle of separation of powers. It behooves each branch of our government to respect and abide by that principle.

For the reasons stated, we conclude that Section 6 of Chapter 1158 of the 1979 Sessions Laws [codified as §§ (d) of G.S. 143B-283] violates Section 6 of Article I of the North Carolina Constitution. Consequently, the judgment appealed from is

Reversed.

NOTES

[1] N.C. Constitution, Sec. 4, Declaration of Rights (1776); N.C. Constitution, Art. I, Sec. 8 (1868); N.C. Constitution, Art. I, Sec. 6 (1970).

[2] This constitution was adopted at the Fifth Provincial Congress which met in Halifax, N.C. The constitution was not submitted to a vote of the people. The History of a Southern State, North Carolina, Lefler and Newsome, 3rd ed., pg. 221. In commenting on the first constitution, Professors Lefler and Newsome record:

"The political theory of the new constitution, stated in Articles 1, 2 and 4, emphasized popular sovereignty, separation of powers, and three separate branches of government." Id.

[3] The Colonial Records of North Carolina, Saunders, Vol. X, 870a, 870b.

[4] Id., 870g, 870h. Professors Lefler and Newsome tell us that "it was only the pressure from a few county delegations notably Orange and Mecklenburg, that compelled the Congress to add a Bill of Rights to its constitution." The History of a Southern State, North Carolina, supra, pg. 221.

[5] Quoted by the Supreme Court of Indiana in Book v. State Office Building Commission, 238 Ind. 120, 149 N.E.2d 273 (1958).