House Bill 200

Last week, the County Commissioners not only failed to adopt a measure to hire a lobbyist, they also failed to pass a measure authorizing the County Attorney to research issues surrounding a possible law suit by the county seeking injunctive or other relief from the tolls. The attorney explained that he would have to research a number of issues, including whether the county government has standing to bring a suit or whether only a citizen or taxpayer has standing. He would have to research court precedents for case law on point, including a review of North Carolina constitutional law.

This morning's session did not reexamine the issue of going to court.

Is a suit worth pursuing? Would there be a chance of success in a court, especially since a suit would have to be filed in Wake County Superior Court rather than in Pamlico County? I don't have a clue.  But in addition to the provision of North Carolina General Statutes that appear to prevent turning a previously toll-free highway into a toll road, there are some constitutional provisions that seem at odds with H200:

I won't post the entire bill of 343 pages. But it is interesting to look at the pertinent provisions. 


First, what was the bill about? Here is the stated purpose:

"GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2011

SESSION LAW 2011-145

HOUSE BILL 200

AN ACT to Spur the creation of private sector jobs; reorganize and reform state government; make base budget appropriations for current operations of state departments and institutions; and to enact budget related amendments.

The General Assembly of North Carolina enacts:

PART I. Introduction and Title of Act

TITLE

SECTION 1.1.  This act shall be known as the "Current Operations and Capital Improvements Appropriations Act of 2011."

INTRODUCTION

SECTION 1.2.  The appropriations made in this act are for maximum amounts necessary to provide the services and accomplish the purposes described in the budget.  Savings shall be effected where the total amounts appropriated are not required to perform these services and accomplish these purposes and, except as allowed by the State Budget Act, or this act, the savings shall revert to the appropriate fund at the end of each fiscal year."

In other words, it was presented as an appropriations bill. But here are the ferry provisions:

"Transportation/Ferry Division Tolling

SECTION 31.30.(a)  Effective April 1, 2012, G.S. 136‑82 reads as rewritten:

"§ 136‑82.  Department of Transportation to establish and maintain ferries.

The Department of Transportation is vested with authority to provide for the establishment and maintenance of ferries connecting the parts of the State highway system, whenever in its discretion the public good may so require, and to prescribe and collect such tolls therefor as may, in the discretion of the Department of Transportation, be expedient. The Board of Transportation shall establish tolls for all ferry routes, except for the Ocracoke/Hatteras Ferry and the Knotts Island Ferry.

To accomplish the purpose of this section said Department of Transportation is authorized to acquire, own, lease, charter or otherwise control all necessary vessels, boats, terminals or other facilities required for the proper operation of such ferries or to enter into contracts with persons, firms or corporations for the operation thereof and to pay therefor such reasonable sums as may in the opinion of said Department of Transportation represent the fair value of the public service rendered.

The Department of Transportation, notwithstanding any other provision of law, may operate, or contract for the operation of, concessions on the ferries and at ferry facilities to provide to passengers on the ferries food, drink, and other refreshments, personal comfort items, and souvenirs publicizing the ferry system."

SECTION 31.30.(b)  The Board of Transportation shall toll all ferry routes no later than the effective date of subsection (a) of this section but is encouraged to begin tolling on all routes before that date. In establishing tolls for ferry routes under G.S. 136‑82, as amended by this section, the Board of Transportation shall consider the needs of commuters and other frequent passengers."

The establishment of tolls for previously toll-free segments of the state highway system  is arguably not an appropriations measure, but a revenue bill.

Because the effect of the measure on citizens affects Craven, Pamlico, and Beaufort Counties, it is also arguably a local bill.

Here is what the NC Constitution has to say about revenue bills and local bills:

"ARTICLE II

LEGISLATIVE

"Sec. 23.  Revenue bills.

No law shall be enacted to raise money on the credit of the State, or to pledge the faith of the State directly or indirectly for the payment of any debt, or to impose any tax upon the people of the State, or to allow the counties, cities, or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days, and shall have been agreed to by each house respectively, and unless the yeas and nays on the second and third readings of the bill shall have been entered on the journal.

"Sec. 24.  Limitations on local, private, and special legislation.

(1)        Prohibited subjects.  The General Assembly shall not enact any local, private, or special act or resolution:

(a)        Relating to health, sanitation, and the abatement of nuisances;

(b)        Changing the names of cities, towns, and townships;

(c)        Authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys;

(d)       Relating to ferries or bridges;

(e)        Relating to non-navigable streams;

(f)        Relating to cemeteries;

(g)        Relating to the pay of jurors;

(h)        Erecting new townships, or changing township lines, or establishing or changing the lines of school districts;

(i)         Remitting fines, penalties, and forfeitures, or refunding moneys legally paid into the public treasury;

(j)         Regulating labor, trade, mining, or manufacturing;

(k)        Extending the time for the levy or collection of taxes or otherwise relieving any collector of taxes from the due performance of his official duties or his sureties from liability;

(l)         Giving effect to informal wills and deeds;

(m)       Granting a divorce or securing alimony in any individual case;

(n)        Altering the name of any person, or legitimating any person not born in lawful wedlock, or restoring to the rights of citizenship any person convicted of a felony.

(2)        Repeals.  Nor shall the General Assembly enact any such local, private, or special act by the partial repeal of a general law; but the General Assembly may at any time repeal local, private, or special laws enacted by it.

(3)        Prohibited acts void.  Any local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.

(4)        General laws.  The General Assembly may enact general laws regulating the matters set out in this Section."

 As to form, it may be argued that H200 is a general law. As to the substantive effect of the ferry provisions, though, it is arguably a local bill.

The provision requiring tolls for segments of the state highway is certainly a revenue provision, not an appropriation provision, and therefore improperly included in H200.

Fodder for attorneys?