In pre-Revolutionary North Carolina the county was the primary political, as well as geographical unit. The colony relied heavily upon the county for administration of local government. Justices of the peace, as a body or court, administered the affairs of the county. These were men of standing and most often men of substance, and generally the leaders in their communities. Independence from England brought no major changes in this system. In the early days of statehood, justices were appointed by the governor to serve for good behavior; however, in making his appointments the governor relied on recommendations from the General Assembly. The members of the legislature from a given county had a powerful voice in the selection of justices of the peace for their county. This appointment input also gave legislators a good deal of influence in the government at the county level.
As a group, justices of the peace in a county formed a court known as the Court of Pleas and Quarter Sessions. Any three justices, sitting together, constituted a quorum for the transaction of business. It was common practice for the justices to meet each January, select a chairman, then elect five of their number to hold the regular sessions of the court for the year. During its early existence, the Court of Pleas and Quarter Sessions appointed the county sheriff, the coroner, and constables. Later these offices became elective positions with the sheriff and coroner elected from the county at large and constables from captain's districts (a militia-mustering area). Justices of the peace were also responsible for appointing a clerk of court, a register of deeds, a county attorney, a county trustee (treasurer), a surveyor, and overseers or wardens of the poor.
The Court of Pleas and Quarter Sessions had dual responsibilities; it performed judicial as well as administrative functions. The administrative duties of the justices of the peace included the assessing and levying of taxes; the establishing and maintaining of roads, bridges, and ferries; the granting of licenses to taverns and controlling the prices charged for food; and the erecting and controlling of mills. Through their power of appointment, justices supervised the work of the law enforcement officers, the administrative officers of the court, the surveyor, and the wardens of the poor. Taxes were collected by the sheriff.
In its judicial capacity, the Court of Pleas and Quarter Sessions heard civil cases (except those assigned by law to a single justice or to a higher court). The court was responsible for probate, dower, guardianships, and the administration of estates and had jurisdiction in criminal cases in which the punishment did not extend to life, limb, or member.
The county itself was a single political unit; there were no townships; and the Court of Pleas and Quarter Sessions, through its appointive and administrative powers, exerted strong control over county affairs. However, it should be emphasized that at this time the voters had no direct control over the court and thus no direct control over county government. Such was the situation until the end of the Civil War.
When the Constitution of North Carolina was rewritten in 1868, the drafters, many of whom were acquainted with local government systems in other parts of the country, devised a new and more democratic plan of organization for the counties.
Although the position of justice of the peace was retained, the old Court of Pleas and Quarter Sessions was eliminated. Its judicial responsibilities were distributed between the justices and the North Carolina Superior Court. Its administrative work was assigned to a board of county commissioners composed of five members elected at large by the voters of the county. The county commissioners were made responsible for public buildings, schools, roads and bridges, and the financial affairs of the county, including taxation. The wide appointive powers of the Court of Pleas and Quarter Sessions were not transferred to the board of county commissioners. Instead, the voters of the county elected the sheriff, coroner, clerk of court, register of deeds, surveyor, and treasurer. The sheriff continued to serve as tax collector.
Each county was divided into townships - a distinct innovation - and the voters of each township elected two justices of the peace and a clerk who served as the governing body of the township. Under the county commissioner's supervision, the township board was responsible for roads and bridges and for the assessment of property for taxation. Each township had a constable and each had a school committee.
This long ballot system was consciously constructed to favor the Republican Party. The support of this party lay in the newly enfranchised blacks who had been slaves only three years before, from native whites of small means who had opposed secession and remained loyal to the Union throughout the Civil War, and from a relatively small number of prominent citizens who believed that the state's shattered fortunes could be recovered only through cooperation and understanding between the races and accommodation with the dominant national political party. The ballot was intended to destroy forever the political power of the landowners, professional people, and merchants who had dominated state government, and thus local government under the old system, for nearly a century. Although most of the people were disenfranchised by the Fourteenth Amendment to the Constitution of the United States because they had "engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof by actively supporting the Confederacy, they formed a new political party called the Conservative Party devoted to restoring as much of the pre-war social and governmental system as was possible under the circumstances. The new system of county government contained in the Constitution of 1868 became one of their targets.
Seven years after the Constitution of 1868 established the county commissioners and township systems, political control shifted to the conservatives. At a constitutional convention in 1875, the Constitution of North Carolina was amended to authorize the General Assembly to modify the plan of county government established in 1868. The legislature was quick to exercise its authority in this matter. The board of county commissioners was not abolished, but members were to be chosen by the justices of the peace of the county rather than by the people at large. While the commissioners retained their responsibilities, decisions on matters of substance could not be put into effect without the concurrence of a majority of the justices - all of whom were elected by the legislature. The justices were made responsible for conducting all elections. In more than a few counties, the board of commissioners was also made subject to legislative appointment.
This troubling arrangement lasted for twenty years. In 1895, the right of the people to elect county commissioners was restored in most counties, and the necessity for approval of the board's decisions by the justices of the peace was repealed. Townships were stripped of their powers, but they were retained as convenient administrative subdivisions, primarily for road building and maintenance purposes. Finally, in 1905 the people of all 100 counties regained direct control over the board of commissioners through the ballot box.
The County as a Body Politic and Corporate
A county, as a defined geographic subdivision of the state, serves many purposes. Churches, civic clubs, and other societal institutions use counties as convenient subdivisions for their own purposes. The business world may assign sales territories and franchises to areas composed of one or more counties. The county may play a role in the psychology of people born and raised "in the country" - it serves to establish where they are from and who they are, thus becoming a part of their personal identity. But the county was created in the first instance by the state as a political unit, and this remains its primary purpose.
More than forty years ago, the North Carolina Supreme Court was called upon to define a county from a legal point of view. (In the case, Wake County was a litigant and the court spoke in terms of that county, but what the Court had to say is equally true of the other ninety-nine counties):
The language used by the court is important as it established the definition of a county. A county, according to the court, is a "body politic and corporate." A body politic is a civil division of the state for purposes of governmental administration. A body corporate is a legal entity. In private law, a corporation is a legal person. A county is a legal entity or corporation of a special sort and with a public function. As such, it can buy and hold property, sue and be sued, and enter into contracts - all functions necessary to make its work as a body politic effective.
In O'Berry, State Treasurer v. Mecklenburg County, [198 N.C. 357,151 S.E. 880 ( 1930)], the court stated that "the weight of authority is to effect that all the powers and functions of a county bear reference to the general policy of the State, and are in fact an integral portion of the general administration of State policy. Historically, the primary purpose for erecting a county was to serve state purposes and to perform state functions in a given area rather than to serve the purposes of a particular geographic community. (By way of contrast, a city was primarily formed at the request of the people within its jurisdiction to serve the needs of the inhabitants.)
For the Supreme Court to say that "all the powers and functions of a county bear reference to the general policy of the State and are in fact an integral portion of the general administration of State policy" is not as restrictive as might at first reading appear. "State policy" is a very broad frame of reference; it can touch any aspect of local government. Thus, the truly significant nugget in the Supreme Court's definition of the role of counties is its statement that in the exercise of their functions, counties "are subject to almost unlimited legislative control, except when the power is restricted by constitutional provisions." In effect, if the General Assembly can be persuaded to assign counties any given power or responsibility, and, if the Constitution does not prohibit it, that assignment becomes state policy for county administration.
The court's phrases should not be drained of meaning, but they must be read in the light of the freedom the General Assembly has in withholding, assigning, withdrawing, and supervising the specific powers of any agency of government - state, county, municipality, or special district. The development of "state policy" with regard to the allocation of functions among governmental units and agencies is necessarily determined by successive legislatures' changing ideas of what is best calculated to achieve desired results.
Experience plays a major role in the determination of state policy. Frequently financial emergency and stress have produced a climate favorable to reexamination of the allocation of governmental responsibilities. Until Governor McLean's administration, the state allowed counties, cities, and other local units almost unlimited freedom in borrowing money and issuing bonds. With no one to advise or warn them in marketing their securities, many counties overextended their obligations and saw their credit ratings drop to the point where they had to pay crippling rates of interest. Eventually, some faced bankruptcy. In 1927, on the basis of this experience, and recognizing a statewide concern, the legislature established the County Government Advisory Commission and gave it the supervisory powers necessary to correct the situation. This commission effected a reversal in local government financing, and its successor, the Local Government Commission remains one of the bulwarks of North Carolina government today.
Experience with various local arrangements for road building and maintenance had a comparable effect on state policy. It is not accidental that North Carolina counties are no longer responsible for this work. Reflecting the concern of the people of the state, the legislature recognized a community of interest in roads wider than the single county and defined state policy on roads accordingly. Comparable re-definitions of the area of concern have affected governmental responsibility for operating schools, conducting elections, housing the state's system of lower courts and their records, maintaining property ownership and mortgage records, enforcing much of the state's criminal law, administering public health and public welfare programs, and carrying on state programs designed to promote the development of agriculture. Some of these functions are the responsibility of the boards of county commissioners, and some are assigned to other boards with varying relationships to the board of county commissioners. Thus, apart from the role played by the commissioners in any of these fields, it is the policy of the state to make extensive use of its counties in carrying out a large number of essential governmental operations.
From the beginning, the county has been used as the basic local unit in the judicial system and for law enforcement - there one finds the court, the courthouse, the sheriff, the jail, the clerk, and the court records. But the court is not a county court; it is a unit of the state's judicial system. The judge, the solicitor, the clerk, and the magistrates are state officials who administer state law, not county law.
The General Assembly expresses and codifies its state policy decisions by enacting statutes. In assigning duties and powers to counties, the legislature sometimes speaks in terms of mandate or command and sometimes in terms of permission and discretion. Thus, for example, counties are required to provide adequate housing for public schools, while they are given discretionary authority to exercise planning and zoning powers.
The General Assembly makes two kinds of laws--it enacts general statutes that apply statewide, but it also enacts local or special laws that apply exclusively within named counties or cities. Our State Constitution contains limitations on legislative authority to enact local laws dealing with a substantial list of topics, but in the absence of constitutional restriction, the legislative is free to permit local variety and experiment, a freedom once denounced by students of government but now seen as a useful device for demonstrating new ideas and approaches to governmental problems. Given this legislative freedom, any discussion of county powers and responsibilities must always be prefaced with a caution that what is being said about counties in general may not be true for a particular county.
The Board of County Commissioners
We have seen that the county, as a body politic and corporate, is a legal entity capable of holding and managing property and possessed of many powers conferred on it by law. The county exercises its powers and discharges its responsibilities through its board of commissioners. G. S. 153A-12 states that "except as otherwise directed by law, each power, right, duty, function, privilege and immunity of the corporation [i.e., the county] shall be exercised by the board of commissioners." This statute goes on to say that the county's legal powers shall be carried into execution as provided by the laws of the state, but if a power is "conferred or imposed by law without direction or restriction as to how it is to be exercised or performed," the power or responsibility "shall be carried into execution as provided by ordinance or resolution of the board of commissioners."
Each county in the state has a board of commissioners, but no two boards are exactly alike. In many states, general laws prescribed a form of government for all counties, or for all counties in classes defined by population. In these states one would expect to find essentially the same form of government in counties of comparable size. Not so in North Carolina. Our boards of county commissioners vary in size, term of office, method of election, method of selecting the chairman, and administrative structure. And these variations bear no correlation to the population of the county or any other objective criteria.
The following table shows the method of election (as of 1997) for the 100 boards of county commissioners:
| 41 boards | Elected at large |
| 23 boards | Elected with various combinations of at large, at large with district residency requirements, and nominations by districts with election at large |
| 22 boards | Elected at large; district residency required |
| 10 boards | Nominated and elected entirely by districts |
| 4 boards | Elected under limited voting plans |
In nearly all counties, the chairman of the board is chosen by the board members themselves. However, in a few counties, the chairman is elected separately by the voters.
The county manager form of government is very strong in North Carolina, with all but one county appointing someone to serve as the county manager or administrator. The manager/administrator supervises all county departments as the board's chief administrative officer.
All county commissioners are elected by the people in partisan elections held in November of even-numbered years at the same time as the elections for members of the General Assembly and other state officers. But not every county elects all members of its board every two years. Because of the interplay of staggered four-year terms, two-year terms, and straight four-year terms, about half of the state's county commissioners are elected at each general election. Newly elected commissioners take office on the first Monday in December following their election by taking the oath of office. There is no requirement that a person be nominated as the candidate of a political party in order to run for the office of county commissioner, but this is almost invariably the practice.
Vacancies in the board of commissioners are filled by appointment of the remaining members. A person appointed to fill a vacancy must be a member of the same political party as the person he replaced (if that person was elected as the nominee of a political party), and the executive committee of that party has the right to be consulted before the appointment is made, although the board is not bound to follow any advice the committee may give. If the vacancy occurs in a two-year term or in the last two years of a four-year term, the appointment is for the remainder of the unexpired term. If the vacancy occurs in the first two years of a four-year term, the appointment runs only until the next general election, when an election is held to fill the office for the remainder of the unexpired term.
Occasionally, a board of commissioners finds itself deadlocked and unable to fill a vacancy. Since nearly all of the boards of commissioners have an odd number of members, one vacancy means that the remaining members can be equally divided between two candidates, so that neither candidate can receive a majority vote. Recognizing this problem, the law provides that when a board of commissioners fails to fill a vacancy in its membership for 60 days, the clerk to the board of commissioners must report the vacancy to the clerk of superior court, who must fill the vacancy within 10 days after the day the vacancy is reported to him. The law also provides for another contingency that has not yet occurred. If the number of vacancies on the board is such that a quorum cannot be obtained, the chairman of the board must appoint enough members to make up a quorum and the board then proceeds to fill the vacancies. If this situation exists and the office of the chairman is also vacant, the clerk of superior court may act in the chairman's stead on petition of any remaining member of the board or any five registered voters of the county. Whoever makes appointments to the board is bound by the rules that each appointee must be a member of the same political party as the person he is to replace and that the party executive committee must be consulted.
A newly elected or appointed county commissioner assumes the powers and duties of his office by taking the oath of office prescribed by the Constitution of North Carolina as follows:
The law gives to several public officials the authority to administer oaths, but in most counties it is customary to have the oath of office for members of the board of commissioners, the sheriff, and the register of deeds administered by the resident superior court judge, the chief district judge, or the clerk of superior court.
A person elected to public office may take the oath of office at any time on or after the date fixed by law for him to do so. For a newly elected county commissioner, that date is the first Monday in December following his election. This is also the regular meeting date for the board in most counties. If a newly elected commissioner is unable to take the oath then due to illness or for some other reason, he may take it at a later time. However, the Constitution provides that public officers continue to hold office until their successors are chosen and qualified. Thus, a member of the board of commissioners who was defeated in the election or chose not to seek reelection retains his office until his successor takes the oath of office.
In all but a few counties, the chairman of the board of commissioners is selected by the board itself. In all counties, the board itself must choose a vice- chairman to act in the absence or disability of the chairman. Generally, the board designates its chairman at its first regular meeting in December for a term of one year. Customs vary as to how the selection is made. In most counties, it is customary for the chairman to serve as long as he is reelected and retains the confidence of his colleagues. In others, the member elected with the highest vote is usually designated the chairman. In still others, the chairmanship rotates among the members.
The chairman of the board presides at all meetings. By law, this official has not only the right but also the duty to vote on all questions before the board unless excused by a standing rule of the board or by consent of the remaining members. However, the chair may not vote to break a tie vote in which he or she participated. The chair is generally recognized by law as the chief executive officer of the county and may acquire considerable prestige and influence by virtue of the position. Although as a general rule the chair has no more legal power than other members of the board, he or she does now have special authority to declare states of emergency under the state laws governing riots and civil disorders. The chair also has authority to call special meetings of the board on his own initiative.
The board is required by law to hold at least one meeting each month, although it may meet as frequently as necessary. Many counties have found in recent years that two regular meetings each month are needed. The board may select any day of the month and any public place within the county for its regular meetings, but in the absence of a formal resolution of the board selecting some other time and place, the law requires the board to meet on the first Monday of the month at the courthouse. Ten o'clock in the morning is the customary time of day for commissioners' meetings, although the law has never specified the time of day. In recent years, some boards have begun to hold some of their regular meetings in the evening to allow greater public attendance.
Special board meetings may be called by the chairman or by a majority of the other board members. The law lays down specific rules for calling special meetings. A special meeting must be called by written notice stating time, place, and subjects to be considered. The notice must be posted on the courthouse bulletin board and delivered to each member of the board at least 48 hours before the meeting. Unless all members attend or sign a written waiver, only business related to the subjects stated in the notice may be transacted at a special meeting. The usual rules do not apply to special meetings called to deal with an "emergency" which is not defined by the law, but even then the persons who call the meeting must take "reasonable action to inform the other members and the public of the meeting."
The board of commissioners is subject to the Open Meetings Statute, enacted in 1971. This law forbids most public bodies, both state and local, to hold meetings that are not open to the public. The law is broadly worded and often difficult to interpret. In general, it prohibits a majority of the members of a board of commissioners from gathering together in closed or secret session for a purpose of "conducting hearings, participating in deliberations or voting upon or otherwise transacting public business," except when the subject of discussion falls within one of the exceptions set out in the statute. The exceptions are:
The law leaves most procedural matters to the discretion of the board, but it does set out a few rules that must be followed. The board may take no action unless a quorum is present, and the law defines a quorum as a majority of the full membership of the board without regard to vacancies. For example, a quorum of a five-member board is always three members even though there may be two vacancies. Once a quorum is present at a meeting, a member cannot destroy the quorum by leaving the room without the consent of the remaining members. The law provides that if a member withdraws from the meeting room without being excused by a majority of the members remaining, he is counted as present for quorum purposes. The board also has the legal power to command the sheriff to take absent members into custody and bring them to the meeting place. However, such action can be taken only when a quorum is already present.
The law places a duty on each member to vote on each question before the board unless he is excused by his colleagues, and excuses are permitted only when the matter before the board concerns the financial interest or official conduct of the member requesting the excuse. Although this duty is clearly present in the law, there are no enforcement provisions for it.
The board must see to it that the clerk to the board keeps full and accurate minutes of its proceedings. The minute book must be open to public inspection, and the results of each vote taken by the board must be recorded in it. Each member has the right to demand a roll-call vote on any question put to the board; and when such a demand is made the names of those voting on each side of the question must be recorded.
The board has the power to adopt its own written rules of procedure. The only legal restraint on these rules is that they must be "in the spirit of generally accepted principles of parliamentary procedure."
Except for the few special powers held by the chairman of the board, the legal powers and duties of county commissioners are vested in the board of commissioners acting as a body. An individual commissioner has no power of his own; but when he meets with his fellow commissioners in a validly called and held meeting, a majority of the board has and may exercise control of those functions of county government confided to the care of the board of commissioners. The board takes formal action in one of three forms: orders, resolutions and ordinances. Although these terms are often used interchangeably, their definitions may be useful to illustrate how the board acts.
An order is usually a directive to a county administrative officer to take or refrain from taking a specified action. For example, a board of commissioners may enter an order directing the county manager to advertise for bids for a new office building. An order may also formally declare the existence of a given state of fact, such as an order declaring the results of a bond election. Finally, an order may sometimes be used to decide a question before the board, such as an order awarding a construction contract to the lowest responsible bidder.
A resolution usually expresses the sense of the board on a question before it. For example, the board may adopt a resolution requesting the county's legislative delegation to introduce a local bill, or it may resolve to petition the State Department of Transportation to pave a rural road.
An ordinance is an action of the board taken in its capacity as the county's legislative body. As such, an ordinance is analogous to an act of the General Assembly. The board of commissioners may adopt ordinances relating to such varied matters as zoning, subdivision control, dogs running at large, use of county parking lots, street numbers on rural roads, use of the county landfill, and so forth.
The law does not regulate the manner in which orders and resolutions are adopted by a board of commissioners, beyond the minimum requirements of a valid meeting at which a quorum is present, but there are several laws governing the adoption of ordinances. An ordinance may be adopted at the meeting in which it is introduced only if it receives a unanimous affirmative vote, all members of the board present and voting. If it passes with less than this unanimous vote, it may be finally passed by a majority vote at any time within 100 days after its introduction. This rule does not apply to the budget ordinance (which may be passed at any meeting at which quorum is present), or to a bond ordinance (which always requires a public hearing before passage and in most cases approval by the voters as well), or to any ordinance on which the law requires a public hearing before adoption (such as a zoning ordinance).
Once an ordinance is adopted it must be filed in an ordinance book, separate from the minute book. The ordinance book must be indexed and made available for public inspection. The budget ordinance, bond ordinances, and ordinances of "limited interest or transitory nature" may be omitted from the ordinance book, but the book must contain a section showing the caption of each omitted ordinance and the page in the minute book at which it appears. The board of commissioners has authority to adopt and issue a code of ordinances.
In the course of a normal year, a board of commissioners will hold several public hearings. Some hearings will be required by law, such as the hearing on the budget ordinance, or on a bond ordinance, or on a zoning ordinance or amendment thereto. Some of them may be held on the board's own initiative to give interested citizens an opportunity to make their views known to the board on controversial issues such as a dog-control ordinance. Laws requiring public hearings do not set out how the hearing must be conducted; they only require that one be held. However, the law does allow the board itself to adopt reasonable rules governing the conduct of public hearings. These rules may regulate such matters as the time allotted to each speaker, designating spokesmen for groups, selecting delegates from groups when the hearing room is too small to hold everyone who wants to attend, and maintaining order and decorum.
The law dictates many, if not most, features of how the county government will be organized. The sheriff and register of deeds are elected by the people. There is a board of education, a board of health, a board of social services, and a board of elections for each county and, in many counties, a board of alcoholic beverage control. The tax supervisor, tax collector, county attorney, county manager, and clerk to the board of commissioners are appointed directly by the commissioners. Yet in every county there are a number of county departments, agencies, or offices that are directly under the administrative jurisdiction of the board. With respect to these agencies, the board of commissioners has authority to organize the county government in any way it sees fit.
Except in those counties in which the chairman of the board is a full-time administrative officer, each board of commissioners has discretionary authority to adopt the county manager form of government by appointing a manager.
The board of commissioners must have a clerk, who is responsible for keeping the minute book and the ordinance book. The clerk also has a wide variety of miscellaneous duties, all directly related to official actions of the board of commissioners. In the past, the register of deeds usually acted as clerk to the board, but this custom is passing. A few boards now have a clerk who has no other duties, but most boards have designated some county official or employee such as the manager or finance officer to act as clerk to the board. The clerk is appointed directly by the board and serves as its pleasure.
The board of commissioners must appoint a county attorney, who serves as the board's legal adviser. The exact nature of the county attorney's duties varies from county to county, as does the amount and method of his compensation. A few counties have established a full-time position of county attorney, and in those counties the county attorney may provide legal services to nearly all county agencies except the board of education (which always employs its own attorney.) The county attorney is not appointed to a definite term; he serves at the pleasure of the board.
Sources:
Most of the preceding information was excerpted from the North Carolina Manual 1999-2000, published by the North Carolina Department of the Secretary of State.
The table of election methods, along with certain minor corrections, came from County Government in North Carolina 4th ed., A. Fleming Bell and Warren J. Wicker, eds. [Chapel Hill] : Institute of Government, the University of North Carolina at Chapel Hill, 1999.