Opinion
July 21, 1961
Hon. J. Wallace Winborne
Chief Justice
Hon. Emery B. Denny
Hon. R. Hunt Parker
Hon. William H. Bobbitt
Hon. Carlisle W. Higgins
Hon. William B. Rodman, Jr.
Hon. Clifton L. Moore
Associate Justices
Of the Supreme Court of North Carolina Raleigh, North Carolina
My dear Sirs:
The 1961 General Assembly at its Regular Session ratified Senate Bill No. 5 and House Bill No. 13, Chapter 1037 of the 1961 Session Laws, entitled 'Capital Improvement Bond Election Bill.' Section 26 of this Act provides in part as follows:
'The question of the issuance of the bonds of each of said issues shall be submitted to the qualified voters of the State of North Carolina at an election to be held on a date during 1961 to be fixed by the Governor by a proclamation issued by him; provided, that if an election upon the question of the issuance of other State bonds is authorized to be held during the same period, the election herein provided for may be held upon the same day as such other State bond election. Notice of said election shall be given by publication at least twice in a newspaper published in each county of the State or having a general circulation therein, and said election shall be held under and in accordance with the general laws of the State of North Carolina, except that no absentee ballots shall be allowed in said election.'
The 1961 General Assembly also ratified six separate acts proposing [255 N.C. 748] six different constitutional amendments to be submitted to the qualified voters 'at the next general election.' These Constitutional amendments are proposed by Chapters 313, 459, 466, 591, 840 and 1169 of the 1961 Session Laws.
The Attorney General has advised the Secretary of the State Board of Elections that the proposed constitutional amendments may not be submitted to the electors of the State at the election to be held on a date to be fixed by the Governor pursuant to Chapter 1037 of the 1961 Session Laws, for the reason that such an election would not be a general election within the meaning of Section 1 of Article XIII of the Constitution. However, the Attorney General has advised me that the question is not altogether free from doubt.
The 1949 General Assembly proposed five constitutional amendments, three of which provided that the question be submitted to the qualified voters 'at the next general election to be held November 7, 1950,' and two of which provided that the question be submitted 'at the next general election.' On June 4, 1949, a bond election was called by Governor Kerr Scott, but no constitutional amendments were submitted at this election. Likewise, in the 1953 General Assembly, there were proposed five constitutional amendments, and at the bond election held on October 3, 1953, these amendments were not submitted to the qualified voters.
The question is, however, of such great importance that I feel justified in seeking an opinion of the Supreme Court. Hence, I respectfully request, if in keeping with the proprieties and functions of the Court, an advisory opinion on the following question:
Would a bond election called pursuant to Chapter 1037 of the 1961 Session Laws meet the constitutional requirements of a general election, so as to require the constitutional amendments proposed by Chapters 313, 459, 466, 591, 840, and 1169 of the 1961 Session Laws be submitted to the qualified voters of the State?
Your opinion on the question presented will be appreciated and will guide me in the fixing of a date to submit these important issues to the people.
Sincerely,
/s/ Terry Sanford
Terry Sanford
[255 N.C. 749] To His Excellency Terry Sanford Governor of North Carolina
Your communication of the 21st instant presents this question: Should the Constitutional Amendments referred to below, which the General Assembly of 1961 proposed, be submitted at a called bond election in 1961 or at the general election in 1962?
1. Chapter 313 of the 1961 Session Laws, entitled 'An Act to Amend the Constitution of North Carolina by Rewriting Article IV Thereof and Making Appropriate Amendments of Other Articles so as to Improve the Administration of Justice in North Carolina.'
2. Chapter 459 of the 1961 Session Laws, entitled 'An Act to Amend Section 5 of Article II of the Constitution of North Carolina for the Purpose of Providing an Automatic Reapportionment of the Members of the House of Representatives of the General Assembly of North Carolina.'
3. Chapter 466 of the 1961 Session Laws, entitled 'An Act to Amend Articles II, III and XIV of the Constitution of North Carolina with Respect to Succession to Elective State Executive Offices, the Appointment of Acting Officers in Certain Instances, the Determination of the Incapacity of Elected State Executive Officers to Perform the Duties of Their Offices, and Fixing a Permanent Seat of Government.'
4. Chapter 591 of the 1961 Session Laws, entitled 'An Act to Amend Article VI, Section 2, of the Constitution of North Carolina so as to Permit New Residents Not Qualified to Vote Only Because of Insufficient Residence Time, to Vote for Presidential and Vice-Presidential Electors.'
5. Chapter 840 of the 1961 Session Laws, entitled 'An Act to Amend the Constitution of North Carolina so as to Provide For Greater Legislative Authority Over the Salaries of the State Executive Officers.'
6. Chapter 1169 of the 1961 Session Laws, entitled 'An Act to Amend Section 3, Article V, and Section 5, Article V, of the Constitution of North Carolina Relative to the Power of the General Assembly to Exempt and to Classify Property for Ad Valorem Tax Purposes.'
[255 N.C. 750] Chapter 1037 of the 1961 Session Laws provides for submitting the question of the issuance of Capital Improvement bonds to the qualified voters of the State at an election to be held on a date in 1961 to be fixed by the Governor, but the Act excludes the use of the absentee ballot in such election.
On the other hand, the Constitutional Amendments are to be submitted 'at the next general election to the qualified voters of the State in the same way and manner and under the same rules and regulations governing general elections in this State.'
Therefore, the undersigned, each for himself, states that the proposed Constitutional Amendments should be submitted to the qualified voters of the State at the general election in November 1962, and may not be submitted at the bond election to be called pursuant to the provisions of Chapter 1037, Session Laws of 1961.
J. WALLACE WINBORNE
Chief Justice
EMERY B. DENNY
R. HUNT PARKER
WM. H. BOBBITT
CARLISLE W. HIGGINS
WILLIAM B. RODMAN JR.
CLIFTON L. MOORE
Justices.