§ 12-1. [Repealed]
Repealed by Session Laws 1957, c. 783, s. 3.
For article, “Dueling Canons,” see 65 Duke L.J. 909 (2016).
§ 12-2. Repeal of statute not to affect actions.
The repeal of a statute shall not affect any action brought before the repeal, for any forfeitures incurred, or for the recovery of any rights accruing under such statute.
History. 1830, c. 44; R.C., c. 108, s. 1; 1879, c. 163; 1881, c. 48; Code, s. 3764; Rev., s. 2830; C.S., s. 3948.
Section Not Obligatory. —
As the laws of our legislature do not bind another, except insofar as they may be absolute contracts, this section must be taken as merely a rule of construction having no application where the intention of the legislature clearly and explicitly appears to the contrary. Dyer v. Ellington, 126 N.C. 941 , 36 S.E. 177, 1900 N.C. LEXIS 340 (1900).
The general rule is that a statute will be given prospective effect only, unless the law in question clearly forbids such a construction. Corporation of Elizabeth City v. Commissioners of Pasquotank, 146 N.C. 539 , 60 S.E. 416, 1908 N.C. LEXIS 259 (1908); Mann v. Allen, 171 N.C. 219 , 88 S.E. 235, 1916 N.C. LEXIS 53 (1916); Waddill v. Masten, 172 N.C. 582 , 90 S.E. 694, 1916 N.C. LEXIS 350 (1916).
In case of a remedial legislation, the general rule is not so insistent, and such statutes are not infrequently given retrospective effect where the language permits and such a construction will best promote the meaning and purpose of the legislature. Waddill v. Masten, 172 N.C. 582 , 90 S.E. 694, 1916 N.C. LEXIS 350 (1916).
Maxim “Leges Posteriores Priores Contrarias Abrogant”. —
To give operation to the maxim, leges posteriores priores contrarias abrogant, the latter law must be in conflict with the former; therefore, when a later statute is almost in ipsissimis verbis with a former one, there is no repeal of the former. Kesler v. Smith, 66 N.C. 154 , 1872 N.C. LEXIS 22 (1872).
Repeals by implication are not favored by the law. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
Action Commenced Before Repeal. —
By express terms of this section, the repeal of a statute does not affect an action theretofore commenced under it. Smith v. Morganton Ice Co., 159 N.C. 151 , 74 S.E. 961, 1912 N.C. LEXIS 247 (1912).
Same — For Penalty or Forfeiture. —
Under the provisions of this section a suit for a forfeiture or penalty is not discontinued by a repeal of the statute giving the penalty. State v. Williams, 97 N.C. 455 , 2 S.E. 55, 1887 N.C. LEXIS 190 (1887); Epps v. Smith, 121 N.C. 157 , 28 S.E. 359, 1897 N.C. LEXIS 196 (1897); Grocery Co. v. Railroad Co., 136 N.C. 396 , 48 S.E. 801, 1904 N.C. LEXIS 285 (1904).
A vested right of action is property in the same sense in which tangible things are property, and is equally protected against interferences. Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away. Williams v. Atlantic C.L.R.R., 153 N.C. 360 , 69 S.E. 402, 1910 N.C. LEXIS 86 (1910).
Limitation of Actions. —
While the legislature has the power to extend or reduce the time in which an action may be brought, this is subject to the restriction that when the limitation is shortened, a reasonable time must be given for the commencement of an action before the statute works a bar. Strickland v. Draughan, 91 N.C. 103 , 1884 N.C. LEXIS 26 (1884).
Repeal After Services Rendered. —
Where a statute was in force when certain services were rendered, it was held that the plaintiff’s right had become absolute, and no subsequent repeal could invalidate it. Copple v. Commissioners of Davie County, 138 N.C. 127 , 50 S.E. 574 (1905).
Subject Matter Destroyed by Statute Pending Appeal. —
Where, pending an appeal, the subject matter of the action is destroyed or a statute giving the cause of action is repealed, the appellate court will not go into consideration of the abstract question as to which party ought to have prevailed in order to adjudicate the costs, but the judgment below as to costs will be allowed to stand. Wikel v. Board of Comm'rs, 120 N.C. 451 , 27 S.E. 117, 1897 N.C. LEXIS 101 (1897); Brinson v. Duplin County, 173 N.C. 137 , 91 S.E. 708, 1917 N.C. LEXIS 260 (1917).
Right of Informer. —
An informer had, in a certain sense, an inchoate right when he brought his suit, but he had no vested right to the penalty until judgment. Hence, until his right became vested, it could not be destroyed by the legislature. Dyer v. Ellington, 126 N.C. 941 , 36 S.E. 177, 1900 N.C. LEXIS 340 (1900).
Action to Recover Arrearages of Taxes. —
An action pending to recover arrearages of taxes, brought under an act authorizing the collection of unpaid taxes for past years, was not affected by the repeal of such statute. City of Wilmington v. Cronly, 122 N.C. 388 , 30 S.E. 9, 1898 N.C. LEXIS 268 (1898).
Modes of Procedure. —
Statutes which change modes of procedure may govern suits pending at the time of their enactment. Sumner v. Miller, 64 N.C. 688 , 1870 N.C. LEXIS 226 (1870).
Mere Court Procedure. —
The rule that statutes may be construed to have retrospective effect does not prevail when they concern mere matters of court procedure before action instituted, or the substitution or designation of new parties deemed necessary to a proper determination of a controversy or authorized to maintain and enforce a recognized or existent right. Waddill v. Masten, 172 N.C. 582 , 90 S.E. 694, 1916 N.C. LEXIS 350 (1916).
Changing Rules of Evidence. —
An act of the legislature changing the rules of evidence cannot be construed as operating retrospectively so as to affect existing rights. Lowe v. Harris, 112 N.C. 472 , 17 S.E. 539, 1893 N.C. LEXIS 237 (1893).
General Rule in Criminal Actions. —
The repeal of a statute pending a prosecution for an offense which it creates arrests the prosecution and withdraws all authority to pronounce judgment, even after conviction. State v. Williams, 97 N.C. 455 , 2 S.E. 55, 1887 N.C. LEXIS 190 (1887); State v. Massey, 103 N.C. 356 , 9 S.E. 632, 1889 N.C. LEXIS 120 (1889).
Where a repealing statute contains a saving clause as to crimes committed prior to the repeal or as to pending prosecutions, the offender may be tried and punished under the old law. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
Legislative Authority to Increase Punishment. —
The legislature has no more authority to give a retroactive effect to a statute making the punishment for an offense already created more severe, than to subject persons to punishment under a criminal statute passed after the commission of the act for which they may be indicted. The provision of the federal Constitution, which forbids the enactment by a state of any ex post facto law, could, in either event, be invoked for the protection of the person charged. State v. Williams, 97 N.C. 455 , 2 S.E. 55, 1887 N.C. LEXIS 190 (1887); State v. Ramsour, 113 N.C. 642 , 18 S.E. 707, 1893 N.C. LEXIS 141 (1893).
Section Inapplicable to Rate Freeze Statute. —
G.S. 62-133.6(e) simply allows the legislature to preempt the North Carolina Utilities Commission’s ability to compel a general rate case by freezing rates until 31 December 2007, not completely revoking that ability; therefore, G.S. 12-2 was inapplicable to rate complaint and petition seeking to initiate a general rate proceeding. State ex rel. Utils. Comm'n v. Carolina Util. Customers Ass'n, 163 N.C. App. 46, 592 S.E.2d 221, 2004 N.C. App. LEXIS 253 (2004).
§ 12-3. Rules for construction of statutes.
In the construction of all statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the same statute, that is to say:
- Singular and Plural Number, Masculine Gender, etc. — Every word importing the singular number only shall extend and be applied to several persons or things, as well as to one person or thing; and every word importing the plural number only shall extend and be applied to one person or thing, as well as to several persons or things; and every word importing the masculine gender only shall extend and be applied to females as well as to males, unless the context clearly shows to the contrary.
- Authority, to Three or More Exercised by Majority. — All words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons, unless it shall be otherwise expressly declared in the law giving the authority.
- “Month” and “Year”. — The word “month” shall be construed to mean a calendar month, unless otherwise expressed; and the word “year,” a calendar year, unless otherwise expressed; and the word “year” alone shall be equivalent to the expression “year of our Lord.” When a statute refers to a period of one or more months and the last month does not have a date corresponding to the initial date, the period shall expire on the last day of the last month.
- Leap Year, How Counted. — In every leap year the increasing day and the day before, in all legal proceedings, shall be counted as one day.
- “Oath” and “Sworn”. — The word “oath” shall be construed to include “affirmation,” in all cases where by law an affirmation may be substituted for an oath, and in like cases the word “sworn” shall be construed to include the word “affirmed.”
- “Person” and “Property”. — The word “person” shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary. The words “real property” shall be coextensive with lands, tenements and hereditaments. The words “personal property” shall include moneys, goods, chattels, choses in action and evidences of debt, including all things capable of ownership, not descendable to heirs at law. The word “property” shall include all property, both real and personal.
- “Preceding” and “Following”. — The words “preceding” and “following,” when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference.
- “Seal”. — In all cases in which the seal of any court or public office shall be required by law to be affixed to any paper issuing from such court or office, the word “seal” shall be construed to include an impression of such official seal, made upon the paper alone, as well as an impression made by means of a wafer or of wax affixed thereto.
- “Will”. — The term “will” shall be construed to include codicils as well as wills.
- “Written” and “in Writing”. — The words “written” and “in writing” may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters: Provided, that in all cases where a written signature is required by law, the same shall be in a proper handwriting, or in a proper mark.
- “State” and “United States”. — The word “state,” when applied to the different parts of the United States, shall be construed to extend to and include the District of Columbia and the several territories, so called; and the words “United States” shall be construed to include the said district and territories and all dependencies.
- “Imprisonment for One Month,” How Construed. — The words “imprisonment for one month,” wherever used in any of the statutes, shall be construed to mean “imprisonment for thirty days.”
- “Governor,” “Senator,” “Solicitor,” “Elector,” “Executor,” “Administrator,” “Collector,” “Juror,” and “Auditor”. — The words “Governor,” “Senator,” “district attorney,” “elector,” “executor,” “administrator,” “collector,” “juror,” “auditor,” and any other words of like character shall when applied to the holder of such office, or occupant of such position, be words of common gender, and they shall be a sufficient designation of the person holding such office or position, whether the holder be a man or woman.
- “Devisee” and “Devise”. — The word “devisee,” wherever used in any of the statutes, shall be construed to mean “devisee” as defined in G.S. 28A-1-1 . The word “devise,” wherever used in any of the statutes as a noun, shall be construed to mean a testamentary disposition of real or personal property and, wherever used in any of the statutes as a verb, shall be construed to mean to dispose of real or personal property by will.
Requirement to consult with a committee or commission of the General Assembly. — All words purporting to require an individual or other entity to consult with a committee or commission of the General Assembly before taking an action shall be construed to require the entity to do all of the following:
- Submit a report of the action under consideration to the chairs and staff of the committee or commission. The report shall include all information required by statute and the rules of that committee or commission. The staff of the committee or commission shall make the report available electronically to the members of the committee or commission and to the public.
- Appear at a meeting of the committee or commission at which the matter is heard. Unless another period of time is specified by statute, the requirement to appear is satisfied if the committee or commission does not have a meeting at which the matter is heard within 90 days of receiving the required submission.
- “Husband and Wife” and similar terms. — The words “husband and wife,” “wife and husband,” “man and wife,” “woman and husband,” “husband or wife,” “wife or husband,” “man or wife,” “woman or husband,” or other terms suggesting two individuals who are then lawfully married to each other shall be construed to include any two individuals who are then lawfully married to each other.
- “Widow” and “Widower.” — The words “widow” and “widower” mean the surviving spouse of a deceased individual.
History. 21 Hen. III; R.S., c. 31, s. 113; R.C., c. 31, s. 108; c. 108; Code, s. 3765; Rev., s. 2831; C.S., s. 3949; 1921, c. 30; 1973, c. 47, s. 2; 1977, c. 446, s. 4; 2011-284, s. 1; 2012-142, s. 6.11; 2017-102, s. 35.
Session Laws 2012-194, s. 44.5, provides: “Any act of the 2011 Regular Session that refers to a bill of the ‘2012 Regular Session’ shall be deemed to be a reference to a bill of the 2011 Regular Session.”
Effect of Amendments.
Session Laws 2011-284, s. 1, effective June 24, 2011, added subdivision (14).
Session Laws 2012-142, s. 6.11, effective July 1, 2012, added subdivision (15).
Session Laws 2017-102, s. 35, effective July 12, 2017, added subdivisions (16) and (17).
For article, “ ‘Original Intention’: Raoul Berger’s Fake Antique,” see 70 N.C.L. Rev. 1523 (1992).
For article, “Backdoor Purposivism,” see 69 Duke L.J. 1275 (2020).
For article, “Eager to Follow: Methodological Precedent in Statutory Interpretation,” see 99 N. C.L. Rev. 101 (2020).
- I. General Consideration
- II. Determination of Intent and Meaning
- III. Similar and Related Acts
- IV. Statutes Strictly Construed
- V. Construction in Accord with Constitution
- VI. Definitions
Words Given Ordinary Meaning. —
When construing a statute the words used therein will be given their ordinary meaning, unless it appears from the context that they should be taken in a different sense. Abernethy v. Board of Comm'rs, 169 N.C. 631 , 86 S.E. 577, 1915 N.C. LEXIS 276 (1915).
Void for Vagueness. —
If a statute be so vague in its terms as to convey no definite meaning to the court or a ministerial officer, it is void. State v. Partlow, 91 N.C. 550 , 1884 N.C. LEXIS 115 (1884).
Words Cannot Be Construed Away. —
The court has no power or right to strike out words or to construe them away. Nance v. Southern Ry., 149 N.C. 366 , 63 S.E. 116, 1908 N.C. LEXIS 360 (1908).
The statutory inclusion of certain things implies the exclusion of others. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).
Specific Words Followed by General Words. —
Where particular and specific words or acts, the subject of a statute, are followed by general words, the latter must, as a rule, and by a proper interpretation, be confined to acts and things of the same kind. State v. Craig, 176 N.C. 740 , 97 S.E. 400, 1918 N.C. LEXIS 343 (1918).
As a general rule in the construction of statutes, a proviso will be considered as a limitation upon the general words preceding, and as excepting something therefrom, but this rule is not absolute, and the meaning of the proviso will be ascertained by the language used in it. Traders' Nat'l Bank v. Lawrence Mfg. Co., 96 N.C. 298 , 3 S.E. 363, 1887 N.C. LEXIS 54 (1887).
Proviso Prevails over Purview. —
Where a proviso in a statute was directly contrary to the purview of the statute, the proviso was good and not the purview, because the proviso spoke the later intention of the legislature. Orinoco Supply Co. v. Masonic & E. Star Home, 163 N.C. 513 , 79 S.E. 964, 1913 N.C. LEXIS 205 (1913).
Particular Statute Controls over General Statute. —
Where one statute deals with a subject in detail with reference to a particular situation and another statute deals with the same subject in general and comprehensive terms, the particular statute will be construed as controlling in the particular situation, unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto. State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, 1982 N.C. App. LEXIS 3068 (1982).
II.Determination of Intent and Meaning
When Statute Is Clear. —
It is not allowable to interpret what has no need of interpretation, or, where the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes should be read and understood according to the natural and most obvious import of the language without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Hamilton v. Rathbone, 175 U.S. 414, 20 S. Ct. 155, 44 L. Ed. 219, 1899 U.S. LEXIS 1575 (1899); Nance v. Southern Ry., 149 N.C. 366 , 63 S.E. 116, 1908 N.C. LEXIS 360 (1908); State v. Carpenter, 173 N.C. 767 , 92 S.E. 373, 1917 N.C. LEXIS 412 (1917).
Where the language of a statute is clear and unambiguous there is no room for judicial construction and the courts must give it its plain and definite meaning; the courts are without power to interpolate, or superimpose, provisions and limitations not contained therein. Begley v. Employment Sec. Comm'n, 50 N.C. App. 432, 274 S.E.2d 370, 1981 N.C. App. LEXIS 2137 (1981).
When Statute Is Ambiguous. —
It is well-settled law in this State that when the language of a statute is unclear or ambiguous, a court may interpret the language of the statute in accordance with what the court presumed the legislature intended. Carolina Truck & Body Co. v. GMC, 102 N.C. App. 262, 402 S.E.2d 135, 1991 N.C. App. LEXIS 312 , cert. denied, 329 N.C. 266 , 407 S.E.2d 831, 1991 N.C. LEXIS 454 (1991).
When Court May Interpolate Necessary Words. —
When it is necessary to carry out the clear meaning of a statute, and to make it sensible and effective, the court may interpolate the words necessary thereto, which were evidently omitted, as appears from the context, or silently understand them to be incorporated in it. Fortune v. Buncombe County Comm'rs, 140 N.C. 322 , 52 S.E. 950, 1905 N.C. LEXIS 49 (1905); Abernethy v. Board of Comm'rs, 169 N.C. 631 , 86 S.E. 577, 1915 N.C. LEXIS 276 (1915).
Where Language Is of Doubtful Meaning. —
In interpreting a statute where the language is of doubtful meaning, the court will reject an interpretation which would make the statute harsh, oppressive, inequitable and unduly restrictive of primary private rights. Nance v. Southern Ry., 149 N.C. 366 , 63 S.E. 116, 1908 N.C. LEXIS 360 (1908).
A statute should not be construed in such manner as to render it partly ineffective or inefficient if another construction will make it effective. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
Law Existing at Time of Enactment. —
To discover the true meaning of a statute, consideration should be given the law as it existed at the time of its enactment, the public policy as declared in judicial opinions and legislative acts, the public interest, and the purpose of the act in question. Kendall v. Stafford, 178 N.C. 461 , 101 S.E. 15, 1919 N.C. LEXIS 484 (1919).
Objects Embraced. —
The meaning of a statute in respect to what it has reference and the objects it embraces, as well as in other respects, is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means. State v. Partlow, 91 N.C. 550 , 1884 N.C. LEXIS 115 (1884).
Doctrine of the Last Antecedent. —
By what is known as the doctrine of the last antecedent, relative and qualifying words, phrases, and clauses ordinarily are to be applied to the word or phrase immediately preceding and, unless the context indicates a contrary intent, are not to be construed as extending to or including others more remote. HCA Crossroads Residential Ctrs. Inc. v. North Carolina Dep't of Human Resources, 327 N.C. 573 , 398 S.E.2d 466, 1990 N.C. LEXIS 989 (1990).
Doctrine of last antecedent is not an absolute rule, however, but merely one aid to the discovery of legislative intent. HCA Crossroads Residential Ctrs. Inc. v. North Carolina Dep't of Human Resources, 327 N.C. 573 , 398 S.E.2d 466, 1990 N.C. LEXIS 989 (1990).
Misdescription or Misnomer. —
The question was fully considered by the Supreme Court in Fortune v. Commissioners, 140 N.C. 322 , 52 S.E. 950 (1905), and the court there said: “A misdescription or misnomer in a statute will not vitiate the enactment or render it inoperative, provided the means of identifying the person or thing intended, apart from the erroneous description, are clear, certain, and convincing.” Under this rule we may call to our aid anything in the act itself, or even in the alleged erroneous description, which sufficiently points to something else as furnishing certain evidence of what was meant, though the reference to the extraneous matter may not in itself be full and accurate. The rule, even when literally or strictly construed, does not require that the erroneous description shall be altogether rejected in making the search for the true meaning; but it may be used in connection with anything outside of the statute to which it refers and which itself, when examined, makes the meaning clear. The erroneous description may in this way be helped out by extraneous evidence. Toomey v. Goldsboro Lumber Co., 171 N.C. 178 , 88 S.E. 215, 1916 N.C. LEXIS 42 (1916).
The title of a statute is no part thereof. State v. Welsh, 10 N.C. 404 (1824). But it may be construed when the meaning is doubtful. State v. Woolard, 119 N.C. 779 , 25 S.E. 719, 1896 N.C. LEXIS 373 (1896).
It cannot control the text when it is clear. Blue v. McDuffie, 44 N.C. 131 (1852); Jones v. Hartford Ins. Co., 88 N.C. 499 (1883); Hines & Battle v. Wilmington & W.R.R., 95 N.C. 434 (1886); State v. Woolard, 119 N.C. 779 , 25 S.E. 719 (1896). This is especially true as to the headings of a section in the Code. Cram v. Cram, 116 N.C. 288 , 21 S.E. 197, 1895 N.C. LEXIS 209 (1895); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958).
Motive and Purpose of Legislature. —
If the language of a statute is doubtful, and the intention of the legislature is clear, the former will be construed in the latter; but where the language is plain, the courts cannot look into the motive or purpose of the legislature in the enactment of the law. State v. Eaves, 106 N.C. 752 , 11 S.E. 370, 1890 N.C. LEXIS 380 (1890).
A statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the legislature did not intend any of its provisions to be surplusage. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
Where a literal reading of a statute will lead to absurd results, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded. Taylor v. Crisp, 286 N.C. 488 , 212 S.E.2d 381, 1975 N.C. LEXIS 1244 (1975).
In a case in which defendant appealed his conviction for performing a notarial act without a commission, in violation of G.S. 10B-60(e) , he argued unsuccessfully that the trial court erred in failing to dismiss for insufficient evidence because the statute prohibited notarial acts rather than a single notarial act, and the State was required to prove that he performed the functions of a notary on more than one occasion. As mandated by G.S. 12-3(1) , G.S. 10B-60(e) meant that a person violated the statute if the person performed one or more notarial acts with the knowledge that he or she was not a commissioned notary; defendant’s interpretation led to untoward consequences undermining the stated purposes of Chapter 10B of the North Carolina General Statutes. State v. West, 202 N.C. App. 479, 689 S.E.2d 216, 2010 N.C. App. LEXIS 284 (2010).
Same — Understanding of Individual. —
Whatever may be the views and purposes of those who procure the enactment of a statute, the legislature contemplates that its intention shall be ascertained from its words as embodied in it. And courts are not at liberty to accept the understanding of any individual as to the legislative intent. State v. Boon, 1 N.C. 103 N.C. 6 (1801); Drake v. Drake, 15 N.C. 110 , 1833 N.C. LEXIS 52 (1833); Adams v. Turrentine, 30 N.C. 147 , 1847 N.C. LEXIS 152 (1847); State v. Melton, 44 N.C. 49 , 1852 N.C. LEXIS 142 (1852); Blue v. McDuffie, 44 N.C. 131 , 1852 N.C. LEXIS 165 (1852); State v. Partlow, 91 N.C. 550 , 1884 N.C. LEXIS 115 (1884).
Same — Affidavit of Individual Legislators. —
In interpreting a statute it was not permissible to show its intent and meaning by affidavit of legislators, for such had to be gathered from the act itself. Goins v. Board of Trustees, 169 N.C. 736 , 86 S.E. 629, 1915 N.C. LEXIS 301 (1915).
Indicia Bearing on Intent. —
The legislative intent will be ascertained by such indicia as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means. State v. White, 58 N.C. App. 558, 294 S.E.2d 1, 1982 N.C. App. LEXIS 2790 (1982).
When a statute is unclear in its meaning, the courts will interpret it to give effect to the legislative intent. State v. White, 58 N.C. App. 558, 294 S.E.2d 1, 1982 N.C. App. LEXIS 2790 (1982).
Effectuation of Purpose. —
Where the language used is ambiguous, or admits of more than one meaning, it is to be taken in such a sense as will conform to the scope of the act and effectuate its objects. State v. Partlow, 91 N.C. 550 , 1884 N.C. LEXIS 115 (1884); Fortune v. Buncombe County Comm'rs, 140 N.C. 322 , 52 S.E. 950, 1905 N.C. LEXIS 49 (1905).
Harmonizing Context. —
It is the duty of the court to adopt that sense which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. Nance v. Southern Ry., 149 N.C. 366 , 63 S.E. 116, 1908 N.C. LEXIS 360 (1908).
As to Whether Statute Mandatory or Directory. —
There is no absolutely formal test for determining whether a statutory provision is to be considered mandatory or directory. The meaning and intention of the legislature must govern; and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in the one way or the other. Spruill v. Davenport, 178 N.C. 364 , 100 S.E. 527, 1919 N.C. LEXIS 460 (1919).
The use of inapt, inaccurate or improper terms or phrases will not invalidate the statute, provided the real meaning of the legislature can be gathered from the context or from the general purpose and tenor of the enactment. Fortune v. Buncombe County Comm'rs, 140 N.C. 322 , 52 S.E. 950, 1905 N.C. LEXIS 49 (1905).
Mistakes or Omissions. —
Legislative enactments are not to be defeated on account of mistakes or omissions, any more than other writings, provided the intention of the legislature can be collected from the whole statute. If the mistake renders the intention doubtful, the courts will look to the title and preamble as well as the body or purview of the act for assistance in arriving at it, and not until all these fail can the act be held inoperative. Toomey v. Goldsboro Lumber Co., 171 N.C. 178 , 88 S.E. 215, 1916 N.C. LEXIS 42 (1916).
Impossible Requirements. —
In the construction of a statute the court will avoid attributing to the legislature the intention to punish the failure to do an impossible thing. Garrison v. Southern Ry., 150 N.C. 575 , 64 S.E. 578, 1909 N.C. LEXIS 102 (1909).
Use of Word “Person” Bearing on Intent. —
North Carolina General Assembly did not intend for testamentary estates to recover compensation for persons erroneously convicted of felonies; “person” indicated the actual individual who was wrongfully incarcerated, and it would have been impossible for the North Carolina Industrial Commission to assess how an unconscious inanimate legal entity would have been deprived of loss of life opportunities. Estate of Jerry Jacobs v. State, 242 N.C. App. 396, 775 S.E.2d 873, 2015 N.C. App. LEXIS 671 (2015).
III.Similar and Related Acts
Words and Phrases in One Statute Read in a Subsequent Act. —
Words and phrases, the meaning of which in a statute have been ascertained, when read in a subsequent statute, are to be understood in the same sense. And where the terms of a statute which has received judicial construction are used in a later statute, whether passed by the legislature of the same state or county, or by that of another, that construction is to be given to the later statute. It is presumed that the legislature which passed the latter statute knew the judicial construction which had been placed on the former one, and such a construction becomes a part of the law. Bridgers v. Taylor, 102 N.C. 86 , 8 S.E. 893, 1889 N.C. LEXIS 14 (1889).
Permissible to Look at Other Statutes. —
To ascertain the mischief which an act of the legislature was intended to remove, it is permissible, in the interpretation thereof, to consider other statutes, related to the particular subject, or to one under construction. Abernethy v. Board of Comm'rs, 169 N.C. 631 , 86 S.E. 577, 1915 N.C. LEXIS 276 (1915); In re Hickerson, 235 N.C. 716 , 71 S.E.2d 129, 1952 N.C. LEXIS 473 (1952).
It is not permissible, if it can be reasonably avoided, to put such a construction upon a law as will raise a conflict between different parts of it, but effect should be given to each and every clause and provision. But when there is no way of reconciling conflicting clauses of a statute and nothing to indicate which the legislature regarded as of paramount importance, force should be given to those clauses which would make the statute in harmony with the other legislation on the same subject, and which would tend most completely to secure the rights of all persons affected by such legislation. State Bd. of Agriculture v. White Oak Buckle Drainage Dist., 177 N.C. 222 , 98 S.E. 597, 1919 N.C. LEXIS 105 (1919).
B.Statutes in Pari Materia
Statutes relating to the same subject matter should be construed in connection with each other as together constituting one law, giving effect to all parts of the statute when possible; and the history of the legislation may be considered in the effort to ascertain the uniform and consistent purpose of the legislature. Allen v. Town of Reidsville, 178 N.C. 513 , 101 S.E. 267, 1919 N.C. LEXIS 495 (1919).
Statutes relating to the same subject should be construed in pari materia, in such a way as to give effect, if possible, to all provisions without destroying the meaning of the statutes involved. Carolina Truck & Body Co. v. GMC, 102 N.C. App. 262, 402 S.E.2d 135, 1991 N.C. App. LEXIS 312 , cert. denied, 329 N.C. 266 , 407 S.E.2d 831, 1991 N.C. LEXIS 454 (1991).
Same — Apparent Conflict. —
Where two statutes on the same subject, or on related subjects, are apparently in conflict with each other they are to be reconciled, by construction, so far as may be, on any fair hypothesis, and validity and effect given to both, if this can be done without destroying the evident intent and meaning of the later act. Peoples Bank v. Loven, 172 N.C. 666 , 90 S.E. 948, 1916 N.C. LEXIS 376 (1916); State Bd. of Agriculture v. White Oak Buckle Drainage Dist., 177 N.C. 222 , 98 S.E. 597, 1919 N.C. LEXIS 105 (1919).
Acts of Same Session of Legislature. —
All acts of the same session of the legislature upon the same subject matter are considered as one act, and must be construed together, under the doctrine of “in pari materia.” They should be considered in pari materia, whether passed at the same session or not. Walser ex rel. Wilson v. Jordan, 124 N.C. 683 , 33 S.E. 139, 1899 N.C. LEXIS 108 (1899).
Where there are different statutes in pari materia, though made at different times, or even where they have expired, and not referring to each other, they shall be taken and considered together as one system, and as explanatory of each other. Walser ex rel. Wilson v. Jordan, 124 N.C. 683 , 33 S.E. 139, 1899 N.C. LEXIS 108 (1899).
Act Declaratory of Intent of Previous Act. —
An act of the legislature declaratory of the intent of a previous act will not control the judiciary in the construction of the first act in actions prior to the declaratory act. Rodwell v. Harrison, 132 N.C. 45 , 43 S.E. 540, 1903 N.C. LEXIS 225 (1903).
Private and Local Acts. —
Private as well as local acts are, as a whole, and in every clause, unaffected by any repugnant provision of the general law. State v. Womble, 112 N.C. 862 , 17 S.E. 491, 1893 N.C. LEXIS 306 (1893).
C.Amendatory and Repealing Acts
When Act Purports to Be Amendatory. —
Where a statute refers to a prior legislative enactment, and in the caption and body of the act purports to be amendatory, substituting and amending different sections, the legislative intent cannot be construed to repeal the former act. Toomey v. Goldsboro Lumber Co., 171 N.C. 178 , 88 S.E. 215, 1916 N.C. LEXIS 42 (1916).
Amended and Amending Acts Construed Together. —
Where an amendment to an existing statute is enacted, the proper method of arriving at their true intent and meaning is by construing them together. Keith v. Lockhart, 171 N.C. 451 , 88 S.E. 640, 1916 N.C. LEXIS 106 (1916); Township Rd. Comm'n v. Board of Comm'rs, 178 N.C. 61 , 100 S.E. 122, 1919 N.C. LEXIS 388 (1919).
When Amendatory Act Refers to Wrong Section. —
If a section in an amendatory act refers to a section of the act amended by number, and the section referred to does not express the legislative intent, but another section is found which does express that intent, the reference will be treated as being made to the latter section. Toomey v. Goldsboro Lumber Co., 171 N.C. 178 , 88 S.E. 215, 1916 N.C. LEXIS 42 (1916).
Erroneous Statement of Date. —
An act of the legislature subsequent to and in amendment of a former act of the same session and correcting an ambiguity therein, is not invalidated by the fact that the date of ratification of the amended act is erroneously stated, provided it sufficiently appears beyond cavil, what prior act is referred to. State v. Woolard, 119 N.C. 779 , 25 S.E. 719, 1896 N.C. LEXIS 373 (1896).
Rules for Construing Repealing Acts. —
“Upon a perusal of the authorities it appears that the courts have universally given their sanction to the following rules of construction: (1) That the law does not favor a repeal of an older statute by a later one by mere implication. State ex rel. County Trustee v. Woodside, 30 N.C. 104 (1847); Simonton v. Lanier, 71 N.C. 498 (1874). (2) The implication, in order to be operative, must be necessary, and if it arises out of repugnancy between the two acts the later abrogates the older only to the extent that it is inconsistent and irreconcilable with it. A later and older statute will, if it is possible and reasonable to do so, be always construed together, so as to give effect not only to the distinct parts or provisions of the latter, not inconsistent with the new law, but to give effect to the older law as a whole, subject only to restrictions or modifications of its meaning, where such seems to have been the legislative purpose. A law will not be deemed repealed because some of its provisions are repeated in a subsequent statute, except insofar as the latter plainly appears to have been intended by the legislature as a substitute. State v. Custer, 65 N.C. 339 (1871). (3) Where a later or revising statute clearly covers the whole subject matter of antecedent acts, and it plainly appears to have been the purpose of the legislature to give expression in it to the whole law on the subject, the latter is held to be repealed by a necessary implication.” Winslow v. Morton, 118 N.C. 486 , 24 S.E. 417, 1896 N.C. LEXIS 83 (1896).
When Acts Irreconcilably Inconsistent. —
A later statute repeals, by implication, an older statute, with which it is irreconcilably inconsistent, to the extent of such repugnancy. But the two statutes must be reconciled if that can be done by any fair construction. State v. Massey, 103 N.C. 356 , 9 S.E. 632, 1889 N.C. LEXIS 120 (1889).
Repeal of Act Giving Forfeiture. —
The repeal of an act of assembly giving a forfeiture for an offense is a repeal of all forfeitures incurred under the act repealed, unless there be a special exception to the contrary. Governor v. Howard, 5 N.C. 465 , 1810 N.C. LEXIS 36 (1810).
Repeal of Repealing Act. —
The repeal of a statute repealing a former statute leaves the latter in force. Brinkley v. Swicegood, 65 N.C. 626 , 1871 N.C. LEXIS 192 (1871).
Implied Repeal by Lessening Degree of Crime. —
It is perfectly settled as a rule of construction that if, by the common or statute law, an offense, for example, be a felony, and subsequent statute by an enactment merely affirmatively lessen its grade or mitigate the punishment, the latter is to that extent an implied repeal of the former. State v. Upchurch, 31 N.C. 454 , 1849 N.C. LEXIS 28 (1849).
IV.Statutes Strictly Construed
In Derogation of Common Law. —
A statute in derogation of the common law must be strictly construed. Swift & Co. v. Tempelos, 178 N.C. 487 , 101 S.E. 8, 1919 N.C. LEXIS 491 (1919).
Acts Limiting Rights to Contract. —
Statutes restricting or disabling persons capable of contracting in the making of contracts, being in derogation of common right, and especially those penal in their nature, must be strictly construed. W.C. Marriner & Bro. v. John L. Roper Co., 112 N.C. 164 , 16 S.E. 906, 1893 N.C. LEXIS 185 (1893).
Acts Restricting Private Acts. —
Statutes which restrict the private rights of persons or the use of property in which the public has no concern should be strictly construed. Nance v. Southern Ry., 149 N.C. 366 , 63 S.E. 116, 1908 N.C. LEXIS 360 (1908).
Statutes depriving courts of jurisdiction once attached are strictly construed, and every requirement of such statute must be met before the court will yield its jurisdiction. State v. Sullivan, 110 N.C. 513 , 14 S.E. 796, 1892 N.C. LEXIS 98 (1892).
Statutes providing for forfeitures should be strictly construed and not extended beyond the meaning of the words employed. Skinner v. Thomas, 171 N.C. 98 , 87 S.E. 976, 1916 N.C. LEXIS 21 (1916).
Ordinarily a strict or narrow construction is applied to statutory exceptions to the operation of laws. News & Observer Publishing Co. v. Interim Bd. of Educ., 29 N.C. App. 37, 223 S.E.2d 580, 1976 N.C. App. LEXIS 2375 (1976).
Local Lien Law. —
A lien law applicable to certain counties only was local in its nature, and being contrary to the general lien laws of the State, had to be strictly construed. Orinoco Supply Co. v. Masonic & E. Star Home, 163 N.C. 513 , 79 S.E. 964, 1913 N.C. LEXIS 205 (1913).
A remedial statute should be liberally construed, according to its intent, so as to advance the remedy and repress the evil. Cape Lookout Co. v. Gold, 167 N.C. 63 , 83 S.E. 3, 1914 N.C. LEXIS 54 (1914).
Rule for Construction of Penal Statutes. —
Penal statutes must be strictly construed, and the plaintiff, before he is entitled to recover the penalty, must bring his case strictly within the language and meaning of the statute. They must be construed sensibly, as all other instruments, but not liberally, so as to stretch their meaning beyond what the words will warrant. Coble v. Schoffner, 75 N.C. 42 , 1876 N.C. LEXIS 196 (1876); State v. Godfrey, 97 N.C. 507 , 1 S.E. 779, 1887 N.C. LEXIS 205 (1887); Sears v. Whitaker, 136 N.C. 37 , 48 S.E. 517 (1904); Alexander v. Atlantic C.L.R.R., 144 N.C. 93 , 56 S.E. 697, 1907 N.C. LEXIS 113 (1907); Hamlet Grocery Co. v. Southern Ry., 170 N.C. 241 , 87 S.E. 57, 1915 N.C. LEXIS 380 (1915).
Rule Explained. —
The rule that a penal statute must be strictly construed, means no more than that the court, in ascertaining the meaning of such a statute, cannot go beyond the plain meaning of the words and phraseology employed in search of an intention not certainly implied by them, and when there is a reasonable doubt as to the meaning of the words used in the statute, the court will not give them such an interpretation as to impose the penalty, nor will the purpose of the statute be extended by implication, so as to embrace cases not clearly within its meaning. Hines & Battle v. Wilmington & W.R.R., 95 N.C. 434 , 1886 N.C. LEXIS 284 (1886).
Supplying Omission and Strained Constructions. —
As a matter of policy it is more dangerous for the appellate court to usurp the powers of the legislative department by supplying omissions in, or putting strained constructions upon, criminal statutes, than that some criminals should go unpunished. State v. Massey, 103 N.C. 356 , 9 S.E. 632, 1889 N.C. LEXIS 120 (1889).
Whether a criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design. State v. Abrams, 29 N.C. App. 144, 223 S.E.2d 516, 1976 N.C. App. LEXIS 2396 (1976).
A statute will not be construed to operate retrospectively so as to take away a penalty or condone a crime unless such intention is clearly expressed. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
V.Construction in Accord with Constitution
General Rule. —
Whenever an act of the legislature can be so construed and applied as to avoid conflict with the Constitution, and give it the force of law, such construction will be adopted by the court. State v. Pool, 74 N.C. 402 , 1876 N.C. LEXIS 105 (1876).
Unconstitutionality of the statute must appear clearly. State v. White, 58 N.C. App. 558, 294 S.E.2d 1, 1982 N.C. App. LEXIS 2790 (1982).
Construction so as to Avoid Constitutional Question. —
If a statute is reasonably susceptible of two constructions, one of which will raise a serious question as to its constitutionality and the other will avoid such question, the courts should construe the statute so as to avoid the constitutional question. In re Arcadia Dairy Farms, Inc., 289 N.C. 456 , 223 S.E.2d 323, 1976 N.C. LEXIS 1322 (1976).
If the statute is susceptible of two interpretations, one constitutional and the other unconstitutional, the former will be adopted. State v. White, 58 N.C. App. 558, 294 S.E.2d 1, 1982 N.C. App. LEXIS 2790 (1982).
Presumption in Favor of Validity. —
Every presumption is in favor of the validity of an act of the legislature and all doubts are resolved in support of the act. Lowery v. School Trustees, 140 N.C. 33 , 52 S.E. 267 (1905); In re Denial of Approval to Issue Hous. Bonds, 307 N.C. 52 , 296 S.E.2d 281, 1982 N.C. LEXIS 1595 (1982).
When the constitutionality of a statute is challenged, “every presumption is to be indulged in favor of its validity.” Martin v. North Carolina Hous. Corp., 277 N.C. 29 , 175 S.E.2d 665, 1970 N.C. LEXIS 507 (1970); State v. White, 58 N.C. App. 558, 294 S.E.2d 1, 1982 N.C. App. LEXIS 2790 (1982).
Existence of Facts Preserving Constitutionality Presumed. —
If the constitutionality of a statute depends on the existence of certain facts and circumstances, the existence of such facts and circumstances will generally be presumed for the purpose of giving validity to the statute, if such a state of facts can reasonably be presumed to exist, and if any such facts may be reasonably conceived in the mind of the court. This rule does not apply if the evidence is to the contrary, or if facts judicially known or proved, compel otherwise. Martin v. North Carolina Hous. Corp., 277 N.C. 29 , 175 S.E.2d 665, 1970 N.C. LEXIS 507 (1970).
When the constitutionality of a statute depends on the existence or nonexistence of certain facts and circumstances, the existence of such facts and circumstances will generally be presumed for the purpose of giving validity to the statute, if such a state of facts can reasonably be presumed to exist, and if any such facts may be reasonably conceived in the mind of the court. In re Denial of Approval to Issue Hous. Bonds, 307 N.C. 52 , 296 S.E.2d 281, 1982 N.C. LEXIS 1595 (1982).
Valid and Invalid Portions of Same Act. —
Where there are distinct and valid provisions of a statute, with unconstitutional provisions, the two portions of the law being separate and it appearing from a perusal of the statute that the legislature intended the valid portion to be effective independently of the invalid part, the valid provisions may be enforced. Archer v. Joyner, 173 N.C. 75 , 91 S.E. 699, 1917 N.C. LEXIS 241 (1917).
If the invalid portions can be separated from the rest, and if, after their excision, there remains a complete, intelligible, and valid statute capable of being executed, and conforming to the general purpose and intent of the legislature as shown in the act, the same will not be adjudged unconstitutional in toto, but sustained to that extent. Keith v. Lockhart, 171 N.C. 451 , 88 S.E. 640, 1916 N.C. LEXIS 106 (1916).
That position, however, is not allowed to prevail when the parts of the statute are so connected and dependent, the one upon the other, that to eliminate one will work substantial change to the portion which remains. If the unconstitutional clause cannot be rejected without causing the statute to enact what the legislature did not intend, the whole statute must fall. Riggsbee v. Town of Durham, 94 N.C. 800 , 1886 N.C. LEXIS 140 (1886); State ex rel. Greene v. Owen, 125 N.C. 212 , 34 S.E. 424, 1899 N.C. LEXIS 195 (1899); Keith v. Lockhart, 171 N.C. 451 , 88 S.E. 640, 1916 N.C. LEXIS 106 (1916). See State v. Godwin, 123 N.C. 697 , 31 S.E. 221, 1898 N.C. LEXIS 125 (1898).
Resort to Implication. —
Courts may resort to an implication to sustain an act, but not to destroy it. Lowery v. School Trustees, 140 N.C. 33 , 52 S.E. 267 (1905).
Liability of Public Officer Under Unconstitutional Act. —
An individual officeholder is not required to be wiser than the whole people represented in their General Assembly; therefore, he is not indictable for obeying an unconstitutional legislative act; nor is he indictable for refusing to perform certain duties under a former law repealed by a subsequent unconstitutional statute, until at least after a decision by competent authority. State v. Godwin, 123 N.C. 697 , 31 S.E. 221, 1898 N.C. LEXIS 125 (1898).
When Court Reverses Itself Decision Not Retroactive. —
Where property rights are acquired in accordance with a decision of the Supreme Court, in the interpretation of a statute, which is subsequently overruled, the effect of the later decision will not be retroactive in effect. S.W. Fowle & Son v. Ham, 176 N.C. 12 , 96 S.E. 639, 1918 N.C. LEXIS 169 (1918).
Subdivision (1) of this section was intended to avoid the very awkward expressions, “such person or persons,” “he, she, or they,” “himself or themselves,” to be met with in some badly drawn statutes. Von Glahn v. Harris, 73 N.C. 323 , 1875 N.C. LEXIS 68 (1875).
“Person” Extends to “Persons”. —
The word “person” is construed to extend to “persons” under the authority of subdivision (1) of this section. State v. Wilkerson, 98 N.C. 696 , 3 S.E. 683, 1887 N.C. LEXIS 351 (1887); State v. Dunn, 134 N.C. 663 , 46 S.E. 949, 1904 N.C. LEXIS 143 (1904).
Authority to Three or More. —
The authority granted by a statute to a board of property appraisers was not terminated by the death of one of its five members so long as three or more of them remained. Ballard v. City of Charlotte, 235 N.C. 484 , 70 S.E.2d 575, 1952 N.C. LEXIS 435 (1952).
The lunar month, when spoken of in statutes, consists of twenty-eight days; a calendar month contains the number of days ascribed to it in the calendar, varying from twenty-eight to thirty-one. State v. Upchurch, 72 N.C. 146 (1875). In this respect our statute has adopted the computation of the civil instead of the common law. Satterwhite v. Burwell, 51 N.C. 92 , 1858 N.C. LEXIS 115 (1858); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961).
The term “thirty days” and the term “one month” are not synonymous, although where the particular calendar month is composed of exactly thirty days the number of days involved happen to be the same. Kennedy v. Pilot Life Ins. Co., 4 N.C. App. 77, 165 S.E.2d 676, 1969 N.C. App. LEXIS 1441 (1969).
Three Calendar Months. —
Plaintiff had three calendar months, not 90 days, in which to file an action; thus, the trial court erred in dismissing plaintiff’s cause of action based on the statute of limitations. Storey v. Hailey, 114 N.C. App. 173, 441 S.E.2d 602, 1994 N.C. App. LEXIS 305 (1994).
The words “twelve months,” in the absence of any legislative definition of the word “month” and the word “year,” will be interpreted to mean twelve calendar, not lunar, months. Muse v. London Assurance Corp., 108 N.C. 240 , 13 S.E. 94, 1891 N.C. LEXIS 46 (1891); Green v. Patriotic Order Sons of America, 242 N.C. 78 , 87 S.E.2d 14, 1955 N.C. LEXIS 479 (1955); Kennedy v. Pilot Life Ins. Co., 4 N.C. App. 77, 165 S.E.2d 676, 1969 N.C. App. LEXIS 1441 (1969).
Subdivision (6) Does Not Affect Constitution. —
The provisions of subdivision (6) of this section could not affect the meaning of the terms employed in the Constitution; indeed, it purports to apply only to statutes, and to them, when the meaning is manifestly otherwise than as therein provided and defined. Redmond v. Commissioners of Tarboro, 106 N.C. 122 , 10 S.E. 845, 1890 N.C. LEXIS 278 (1890).
“Property” Used in Limited Sense. —
While the term “property,” in its broadest and most general signification, embraces all kinds of property, including choses in action, rights and credits, and the like things, it is very often and conveniently used in its limited sense, and this is so notwithstanding the statutory provision. Redmond v. Commissioners of Tarboro, 106 N.C. 122 , 10 S.E. 845, 1890 N.C. LEXIS 278 (1890).
Real Property. —
Under the terms of the deed of trust, debtor obviously had enforceable rights regarding the escrow funds and escrow account, i.e., debtor had the right to insist that the funds be utilized to pay the escrow items specified in the deed of trust, to receive any excess in the escrow account that accumulated during the term of the loan and to receive a refund of any balance in the escrow account upon the payoff of the loan; but, as to whether such rights fall within the definition of real property, despite no North Carolina cases that were dispositive of the question, the court believed that, even under an expanded definition of real property, the North Carolina courts would answer the question in the negative. In re Bradsher, 427 B.R. 386, 2010 Bankr. LEXIS 470 (Bankr. M.D.N.C. 2010).
In actuality, the escrow contractual rights possessed by debtor could best be described as a chose in action, which, under G.S. 12-3(6) , constituted personal property. This meant that the creditor’s indebtedness was not secured solely by real estate that was debtor’s principal residence and thus the creditor was outside the protection from modification provided under 11 U.S.C.S. § 1322(b)(2). In re Bradsher, 427 B.R. 386, 2010 Bankr. LEXIS 470 (Bankr. M.D.N.C. 2010).
The word “estate” has a broader meaning than the word “property.” The latter word could not include choses in action, unless there be something in the context which would require it to receive this interpretation, except by force of the definition contained in this section. Vaughan v. Town of Murfreesboro, 96 N.C. 317 , 2 S.E. 676, 1887 N.C. LEXIS 56 (1887).
A chose in action is property, and embraced in the terms of subdivision (6) of this section. Winfree v. Bagley, 102 N.C. 515 , 9 S.E. 198, 1889 N.C. LEXIS 55 (1889).
A promissory note or due bill being an “evidence of debt” is embraced in the term “personal property.” State v. Sneed, 121 N.C. 614 , 28 S.E. 365, 1897 N.C. LEXIS 293 (1897).
While the word “property” in its legal sense ordinarily includes money, yet where it can be seen from other parts of a will in which it is used that it was not intended, that interpretation will be given it by the court with which the testator had evidently employed it. Patterson v. Wilson, 101 N.C. 584 , 8 S.E. 229, 1888 N.C. LEXIS 100 (1888).
§ 12-3.1. Fees and charges by agencies.
Authority. — Only the General Assembly has the power to authorize an agency to establish or increase a fee or charge for the rendering of any service or fulfilling of any duty to the public. In the construction of a statute, unless that construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute, the legislative grant of authority to an agency to adopt rules shall not be construed as a grant of authority to the agency to establish by rule a fee or a charge for the rendering of any service or fulfilling of any duty to the public, unless the statute expressly provides for the grant of authority to establish a fee or charge for that specific service. Notwithstanding any other law, a rule adopted by an agency to establish or increase a fee or charge shall not go into effect until the agency has consulted with the Joint Legislative Commission on Governmental Operations on the amount and purpose of the fee or charge to be established or increased. Where a rule provides for a periodic automatic adjustment to a fee, the agency that adopts the rule is not required to consult with the Commission every time the fee automatically adjusts. The agency shall submit a request for consultation to all members of the Commission, the Commission Assistant, and the Fiscal Research Division of the General Assembly on the same date the notice of text of the rule is published. The request for consultation shall consist of a written report stating (i) the amount of the current fee or charge, if applicable, (ii) the amount of the proposed new or increased fee or charge, (iii) the statutory authority for the fee or charge, and (iv) a detailed explanation of the need for the establishment or increase of the fee or charge.
(a1) If the Commission does not hold a meeting to hear the consultation required by subsection (a) of this section within 90 days after the notice of text of the rule has been published and the consultation request required by subsection (a) of this section has been submitted, the consultation requirement is satisfied.
Definitions. — The following definitions apply in this section:
- Agency. — Every agency, institution, board, commission, bureau, department, division, council, member of the Council of State, or officer of the legislative, executive or judicial branches of State government. The term does not include counties, cities, towns, villages, other municipal corporations or political subdivisions of the State or any agencies of these subdivisions, the University of North Carolina, community colleges, hospitals, county or city boards of education, other local public districts, units, or bodies of any kind, or private corporations created by act of the General Assembly.
- Rule. — Every rule, regulation, ordinance, standard, and amendment thereto adopted by any agency, including rules and regulations regarding substantive matters, standards for products, procedural rules for complying with statutory or regulatory authority or requirements and executive orders of the Governor.
Exceptions. — This section does not apply to any of the following:
- Rules establishing fees or charges to State, federal or local governmental units.
- A reasonable fee or charge for copying, transcripts of public hearings, State publications, or mailing a document or other item.
- Reasonable registration fees covering the cost of a conference or workshop.
- Reasonable user fees covering the cost of providing data processing services.
- In lieu of the requirements of subsections (a) and (a1) of this section, the North Carolina State Ports Authority shall report the establishment or increase of any fee to the Joint Legislative Commission on Governmental Operations as provided in G.S. 136-262(a)(11).
History. 1979, c. 559, s. 1; 1981, c. 695, ss. 1, 2; 1987, c. 564, s. 35; 1991, c. 418, s. 6; 2001-427, s. 8(a); 2002-99, s. 7(c); 2005-276, s. 6.8(b); 2011-145, s. 14.6(k); 2015-241, s. 6.18.
For the definition of “public records”, see G.S. 132-1 .
For provision regarding provisions for copies of public records and fees, see G.S. 132-6.2 .
Session Laws 2011-145, s. 14.6(k), authorized the Revisor of Statutes to make conforming changes resulting from the recodification of Part 10 of Article 10 of Chapter 143B to Article 20 of Chapter 136. The reference in subsection (d) to G.S. 136-262(a)(11) was updated.
Session Laws 2019-231, s. 1.4(a), provides: “Notwithstanding G.S. 12-3.1 , the Department of Transportation is not required to consult with the Joint Legislative Commission on Governmental Operations prior to establishing or increasing a fee to the level authorized or anticipated in this act.”
For similar prior provisions, see Session Laws 2005-276, s. 6.8(a), Session Laws 2006-66, s. 6.3, Session Laws 2007-323, s. 6.5, Session Laws 2008-107, s. 6.4, Session Laws 2009-451, s. 6.4(a), Session Laws 2010-31, s. 6.5(a), Session Laws 2011-145, s. 6.3(a), Session Laws 2012-142, s. 6.10(a), Session Laws 2013-360, s. 6.2(a), Session Laws 2014-100, s. 6.2(a), Session Laws 2015-241, s. 6.2(a), Session Laws 2016-94, s. 6.1(a), Session Laws 2017-57, s. 6.2(a), and Session Laws 2018-5, s. 6.1(a).
Session Laws 2019-231, s. 5.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium.”
Session Laws 2019-231, s. 5.5, is a severability clause.
Session Laws 2019-235, s. 1.5, provides: “Notwithstanding G.S. 12-3.1 , for the 2019-2021 fiscal biennium, the State Board of Community Colleges is not required to consult with the Joint Legislative Commission on Governmental Operations prior to establishing or increasing a fee to the level authorized or anticipated in this act.”
Session Laws 2019-235, s. 5.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium.”
Session Laws 2019-235, s. 5.5, is a severability clause.
Session Laws 2021-180, s. 5.1(a), provides: “Notwithstanding G.S. 12-3.1 , an agency is not required to consult with the Joint Legislative Commission on Governmental Operations prior to establishing or increasing a fee to the level authorized or anticipated in this act.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2005-276, s. 6.8(b), effective July 1, 2005, rewrote subsection (a); added subsection (a1); and in subsection (d), substituted “subsections (a) and (a1)” for “subdivision (a)(2).”
Session Laws 2015-241, s. 6.18, effective July 1, 2015, added the fourth sentence in subsection (a)
Provisions of G.S. 12-3.1(a) blocking agency rules setting fees for public services did not apply to a fee charged to prisoners found guilty of disciplinary violations because G.S. 150B-1(d)(6) exempted the North Carolina Department of Correction from Administrative Procedure Act rulemaking requirements regarding prisoners. Griffith v. N.C. Dep't of Corr., 210 N.C. App. 544, 709 S.E.2d 412, 2011 N.C. App. LEXIS 603 (2011).
§ 12-4. Construction of amended statute.
Where a part of a statute is amended it is not to be considered as having been repealed and reenacted in the amended form; but the portions which are not altered are to be considered as having been the law since their enactment, and the new provisions as having been enacted at the time of the amendment.
Whenever the General Assembly (i) enacts a bill which purports to amend an existing general statute by deleting, adding, or substituting specific words or figures, and (ii) such bill also purports to set out the wording of the amended statute, or a portion thereof, as it will read after the amendment is accomplished, and (iii) there is a variance between the latter and the former, then, in such case, the latter shall control and be presumed to express the amendatory intent of the General Assembly.
History. 1868-9, c. 270, s. 22; 1870-1, c. 111; Code, s. 3766; Rev., s. 2832; C.S., s. 3950; 1971, c. 115.
See 12 N.C.L. Rev. 262 (1934).
Discovering Legislative Intent of Original Enactment Through Amendatory Legislation. —
An amendment to an act may be resorted to for the discovery of the legislative intention in the enactment amended, as where the act amended is ambiguous. Taylor v. Crisp, 286 N.C. 488 , 212 S.E.2d 381, 1975 N.C. LEXIS 1244 (1975).
Amending Act Presumed Not to Repeal. —
Where a statute only undertakes to amend one already on the statute books, it will be presumed that it did not intend to repeal it, unless there is an express repealing clause. State v. Massey, 97 N.C. 465 , 2 S.E. 445, 1887 N.C. LEXIS 194 (1887); State v. Broadway, 157 N.C. 598 , 72 S.E. 987, 1911 N.C. LEXIS 102 (1911).
Repeals by implication are not favored by the law. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
Amendment of a statute operates from its enactment, leaving in force the portions which are not altered. Nichols v. Board of Councilmen, 125 N.C. 13 , 34 S.E. 71, 1899 N.C. LEXIS 159 (1899).
Nonconflicting Portions of Original Act Remain in Force. —
Where a statute is amended, all portions of the original act which are not in conflict with the provisions of the amendment remain in the force with the same meaning and effect that they had before the amendment. Rice v. Rigsby, 259 N.C. 506 , 131 S.E.2d 469, 1963 N.C. LEXIS 625 (1963); Begley v. Employment Sec. Comm'n, 50 N.C. App. 432, 274 S.E.2d 370, 1981 N.C. App. LEXIS 2137 (1981).
Bill of Indictment. —
If a statute creating an offense is amended in any important particular, a bill of indictment for an offense committed before the act was amended, but which was found after the passage of the amending act, should charge the offense under the old act, and contain an averment that the offense was committed before the amendment was passed. State v. Massey, 97 N.C. 465 , 2 S.E. 445, 1887 N.C. LEXIS 194 (1887).
Misdemeanor Made Punishable by Fine or Imprisonment. —
A public-local law making an act a misdemeanor was not repealed by a statute making the same offense for the first time punishable by “a fine or imprisonment in the discretion of the court,” and a felony for the second offense, the latter statute expressly stating in the heading of the chapter that it was amendatory, and for the better enforcement of the former statute, and that it was to take effect from and after its ratification; and where the prohibited offense had been committed prior to the enactment of the latter act, it was punishable under the prior law. State v. Mull, 178 N.C. 748 , 101 S.E. 89, 1919 N.C. LEXIS 552 (1919).
Where amendatory legislation carries a saving clause as to prior offenses, the law as it stood at the time of the offense is applied to the prosecution and sentencing of the violator. State v. Williams, 286 N.C. 422 , 212 S.E.2d 113, 1975 N.C. LEXIS 1240 (1975).
Reenactment Contemporaneous with Repeal. —
It was held in State v. Williams, 117 N.C. 753 , 23 S.E. 250 (1895), that: “The reenactment by the legislature of a law in the terms of a former law at the same time it repeals the former law, is not, in contemplation of law, a repeal, but it is a reaffirmance of the former law, whose provisions are thus continued without any intermission.” State v. Sutton, 100 N.C. 474 , 6 S.E. 687, 1888 N.C. LEXIS 213 (1888); State ex rel. Walser v. Bellamy, 120 N.C. 212 , 27 S.E. 113, 1897 N.C. LEXIS 41 (1897); State v. Southern Ry., 125 N.C. 666 , 34 S.E. 527, 1899 N.C. LEXIS 284 (1899).