A Primer on Power

            In my last post I commented that House Bills 652 and 687 assume all powers exercised by local governments are clear and precise, noting the mischief created because “implied powers” are neither clear nor precise. One reader has asked me to define “implied powers.”  Let’s return to Civics 101.

            Power flows in two directions, and the genius of our political systems is that, over time, they (generally) maintain equilibrium.

             Citizens elect legislators and approve a constitution.  Legislators, in turn, approve municipal corporate charters and establish powers to be exercised by cities and counties consistent with the citizen-approved constitution.

             It is impossible, however, to specifically describe and authorize every action necessary for a local government to do what it was established to do.  Cities, on the other hand, need to know what powers are at their disposal to do the citizens’ business.

            “Corporate powers” are those powers granted to municipal corporations (cities and towns) through N.C. Gen. Stat. § 160A-4, which vests cities with “all of the property and rights in property belonging to the corporation . . . [to] sue and be sued; [to] contract and be contracted with; [to] acquire and hold any property . . .  and [to] have and exercise in conformity with the city charter and the general laws of this State all municipal powers, functions, rights, privileges, and immunities of every name and nature whatsoever.”

            “Police powers” generally are powers of the sovereign government (e.g. federal or state) to promote the general welfare and protect the health and safety of their inhabitants.  Police powers can be delegated to local governments.  Zoning land, for example, is an exercise of the police power delegated to local governments.*

             “Implied powers” are typically described in numerous cases as “such powers as are necessarily or reasonably implied from those expressly granted or such as are essential to the exercise of those which are expressly conferred.” 

            So . . . the point remains. Interpreting ordinances and laws and determining which ones are “beyond authority” is difficult at best.  Villainizing local government employees and elected officials for doing their best to get it right only punishes governments for doing in good faith what we have established them to do.  Under House Bills 652 and 687 human error is not acceptable.

            *Side Bar: My first zoning case, loosely speaking, pertained to the zoning designation of property in a client’s estate when I was a summer associate at the Manhattan law firm of Davidson, Dawson & Clark in 1984.  I will never forget attorney Bill Buice (fellow southerner and a Duke Law School grad) asking me if I knew anything about zoning.  I replied with some degree of self-satisfaction, “I know that it’s an exercise of the police power of the state,” to which he accurately replied, “That, along with fifty cents, is worth a small cup of coffee.” Several hundreds of zoning cases later, Mr. Buice’s wisdom remains unchallenged.

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