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North Carolina v. Bone

Filed: January 12, 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



Appeal by plaintiffs from Bailey, J., 18 March 1981 Session, Wake Superior Court.

Britt, Justice.

Britt

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.*fn1

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.*fn2 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.*fn3

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 Page 598} 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.*fn4 (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 ...


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