In re Advisory Opinion

227 N.C. 708

• Court: Supreme Court of North Carolina
• Decided: June 9, 1947
• Status: Published

Opinion

4 June 1947.

HONORABLE R. GrEGG CHERRY

Governor of North Carolina

Raleigh, North Carolina.

Dear Governor Cherry :

I have received from Dr. Ellen Winston, Commissioner of Public Welfare of the State of North Carolina, a letter under this date, which is enclosed, requesting my opinion as to the sufficiency of the enactment of the Committee Substitute for House Bill No. 65 of the General Assembly of 1947 entitled “A Bill to Be Entitled an Act to Rewrite Chapter 48 oe the General Statutes Relating to Adoptions.”

The important question which she has submitted has been given a careful consideration by me; but in view of the fact that there is no decision of the Supreme Court of North Carolina to which I can point which will conclusively determine the question which she has presented, I believe that it is of a high degree of importance that you should request the Chief Justice and the Associate Justices of the Supreme Court of North Carolina to render an advisory opinion as to the enactment of this law which is to go into effect on the first day of July, 1947.

This House Bill No. 65, purporting to rewrite adoption laws of the State, was regularly introduced in the General Assembly and referred to committee. This original bill, as introduced, contained the usual enacting clause as prescribed by Art. II, Sec. 21, of the North Carolina Constitution: The amendments proposed by the committee were of such an extensive nature that, in accordance with approved legislative practice, a substitute bill was prepared by the committee. The committee then reported the original bill with a recommendation that such bill “do not pass,” and reported the substitute bill with a recommendation that such substitute “do pass.” In accordance with usual legislative practice, the,original bill was then placed on the unfavorable calendar where it remained without any further action with respect to it. The substitute bill was adopted, passed by both Houses and ratified. The substitute bill had the same title as the original bill, and contained all the sections which the committee wishes the bill to include. The substitute bill as recommended by the committee, passed by both Houses of the General Assembly, enrolled and ratified, did not contain an enacting clause.

In the case of State v. Patterson, 98 N. C., 660, the Supreme Court of this State held invalid Chapter 113 of the Private Laws of 1887 incorporating a municipality in Cabarrus County because the Act failed to contain the enacting clause, “The General Assembly of North Carolina do enact,” as required by Article II, Section 21, of the State Constitution which provides as follows :

“The style of the acts shall be: 'The General Assembly of North Carolina do enact.’ ”

The Court said:

“In the case before us, what purports to be the statute in question has no enacting clause, and nothing appears as a substitute for it.”

If the use of the enacting phrase “The General Assembly of North Carolina do enact” m ipsissimis verbis is required by the Constitution, the result would be that the Committee Substitute for House Bill No. 65 was not enacted by both branches of the General Assembly. The Patterson Case, however, does suggest that in lieu of the constitutional language, other language might be used in the Act as a substitute for it.

Section I of the Act provides as follows:

“Chapter 48 of the General Statutes of North Carolina is hereby rewritten to read as follows :

“48-I. Legislative intent; construction of chapter. . . . The General Assembly hereby declares as a matter of legislative policy with respect to adoption that . . .”

There is other language in the Committee Substitute for House Bill No. 65 which may be considered by the Court as sufficient to identify it as an. enactment by the General Assembly.

Sec. 2 of the Act provides as follows:

“All laws and clauses of laws in conflict with this Act are hereby repealed.”

Sec. 3 of the Act provides :

“This Act shall become effective July 1, 1947.”

I find no other case recited by our Court which would solve the problem posed by these differences between the Committee Substitute for House Bill No. 65 and the Act of the General Assembly considered in the case of State v. Patterson, and the differences are obvious and important.

As the Committee Substitute for House Bill No. 65 makes many important changes in substance and procedure in the provisions of Chapter 48 of the General Statutes relating to adoption, it is a matter of wide public concern to timely ascertain whether or not House Bill No. 65 was enacted by the General Assembly. This bill purporting to be an Act was read three times in each House of the General Assembly and signed by the presiding officers of both Houses as required by the Constitution, Article II, Section 23. The journals kept by the House and Senate, as required by Article II, Section 16, of the Constitution, disclose that the Committee Substitute for House Bill No. 65 was duly passed upon the several readings in the House and the Senate.

I am informed that the Act which was duly ratified and enrolled in the office of the Secretary of State has been designated as Chapter 885 of the Session Laws of 1947 and is now in process of being printed under the direction of the Secretary of State and shortly will appear as part of the Session Laws of 1947.

Under an Act of the Legislature the duty is imposed upon this office to codify and make as a part of -the General Statutes the public laws enacted by the General Assembly of North Carolina which when, so codified, are prima facie the law of the State. On account of the uncertainty as to whether or not the Committee Substitute for House Bill No. 65 has become a part of the law of the State, I, as Attorney-General, am unable to determine whether or not Chapter 48 of the General Statutes should be treated as repealed to the- extent in conflict with the Committee Substitute for House Bill No. 65 and whether or not the Committee Substitute for House Bill No. 65 should be included as a part of the codification of the laws of North Carolina.

In view of these important considerations, I am constrained to suggest to you that public interest would justify you in requesting the Chief Justice and the Associate Justices of the Supreme Court of North Carolina to render to you, and other officers of the State and the several counties of tbe State directly concerned in the administration of tbis law, an advisory opinion as to whether or not the Committee Substitute for House Bill No. 65 has become a part of the statutory law of North Carolina. The numerous adoption proceedings which are now pending and which in due course would be brought in the Courts of North Carolina prior to the next session of the General Assembly may be seriously imperiled and validity brought into question unless the answer to this problem is given by such authority as may be provided in an advisory opinion of the Chief Justice and the Associate Justices of the Supreme Court. Any opinion expressed by me would be inconclusive and not in anywise binding upon the Courts.

I, therefore, recommend to you that such opinion be requested from the Chief Justice and the Associate Justices of the Supreme Court of North Carolina.

Respectfully yours,

Harry McMuldan, Attorney-General.

HM :f.

The following response was made by the Chief Justice and Associate Justices of the Supreme Court of North Carolina:

Raleigh, N. C.,

9 June, 1947.

To His Excellency, R. Gregg Cherry,

Governor of North Carolina.

Advisoey OpiNioN In Re House Bill No. 65, Designated as Chapter 885 of the Session Laws of 1947.

Tour request for an advisory opinion as to whether or not the Committee Substitute for House Bill No. 65 was duly enacted by the General Assembly of 1947, and became a part of the public laws of the State, presents the question whether the purported Act of the General Assembly, designated as Chap. 885, Session Laws of 1947, from which was omitted the enacting-clause prescribed by sec. 21, Art. II, of the Constitution of North Carolina, may be regarded as a valid Act of the General Assembly.

Since the Bill referred to undertook to rewrite Chap. 48 of the General Statutes of North Carolina, relating to the adoption of minors, and to repeal the laws on this subject now in force, it becomes important to determine now whether the laws in relation thereto have been repealed and other provisions enacted in lieu thereof, or whether Chap. 48 continues in force as now written. The interest of the public is involved, as human and property rights may be materially affected before the question by orderly procedure could reach this Court. Certainty as to the proper administration of tbe law is essential, and tbe question of incorporation of tbe Act as part of tbe General Statutes requires answer before tbe effective date of tbe Act. Hence, compliance witb your Excellency’s request is deemed appropriate.

By tbe Constitution of North Carolina tbe legislative power of tbe people of tbe State is by them vested in tbe two branches composing tbe' General Assembly, and certain limitations are placed upon tbe exercise of this power. Among these is that contained in sec. 21, Art. II, of tbe Constitution: “Tbe style of tbe acts shall be: ‘The General Assembly of North Carolina do enact.’ ”

It is axiomatic under our system of government that tbe Constitution within its compass is supreme as tbe established expression of tbe will and purpose of tbe people. Its provisions must be observed by all. Tbe form set out in tbe quoted section prescribes that tbe legislative power shall be exercised in a specific manner. A due observance of it is essential. It is not in accord witb tbe nature of written constitutions to incorporate nonessential or unimportant details which may be dispensed witb. Those who framed tbe Constitution, which tbe people have ratified, placed this requirement in a distinct and separate section. It must be treated as a command. Its observance is essential to tbe effectiveness of tbe act. To interpret tbe Constitution otherwise would permit it to be ignored by tbe General Assembly, its creature. To be valid and effective tbe Acts of tbe -General Assembly must be enacted in conformity witb tbe Constitution. Under tbe quoted section tbe manner of enactment must be regarded as of its substance. Tbe provision is mandatory. I Cooley Cons. Lim., pg. 81.

This is in accord witb tbe view heretofore expressed by this Court in State v. Patterson, 98 N. C., 660, where tbe identical section of tbe Constitution now being considered was interpreted. It was there held that tbe omission of tbe enacting clause rendered tbe purported Act of tbe General Assembly inoperative and void. And in Scarborough v. Robinson, 81 N. C., 409, by tbe same reasoning, it was held that tbe failure of tbe presiding officers of tbe two branches of tbe General Assembly to affix their signatures to an act during tbe session, as required by sec. 23, Art. II, of tbe Constitution rendered tbe act ineffective, and that tbe judicial power could not be exercised “in aid of an unfinished and inoperative act.” In I Sutherland Statutory Construction, see. 1802, it is said: “In a majority of jurisdictions tbe constitutional form of enacting clause must be set forth m ipsissimis verbis in every Act.”

In tbe Patterson Gases tbe Court based its decision that tbe statute was invalid on tbe absence of an enacting clause, and added “and nothing appears as a substitute for it.” It is suggested that there may be in this Act other words of like import which may be treated as a substitute for the constitutional form. But from an examination of the statute in question here we do not find a “substitute” for the enacting clause. Ai most there are expressions in the Act which purport to declare a legislative .policy but which fall short of supplying words which may be interpreted as equivalent to the constitutional formula, “the General Assembly of North Carolina do enact.” Moreover, it may be doubted whether any substitute for this form should be deemed a compliance with the unequivocal requirement of the Constitution.

Nor may the fact that the bill which passed both branches of the General Assembly was a committee substitute for the original bill be regarded as material. Whatever may have been the form of the bill originally introduced, the bill in the form now presented for consideration was the only bill ever passed and it admittedly contained no enacting clause. The enacting clause must be incorporated in the bill at the time it is passed by both houses of the General Assembly. 59 C. J., 597, sec. 151.

Accordingly, in response to the question propounded in your letter, you are advised that in the opinion of the Chief Justice and Associate Justices of the Supreme Court, the bill passed by the General Assembly, and now designated as Chapter 885 of the Session Laws of 1947, was not enacted in conformity with the Constitution, and must be regarded as inoperative and void.

Respectfully submitted,

Waltee P. Stacy, Chief Justice.

Michael Schenck, W. A. Devin, M. Y. Barnhill, J. Wallace Winborne, A. A. E. Sea well, Emery B. Denny, Associate Justices.