by Henry W. Lewis, Kenan Professor of Public Law and Government, University of North Carolina at Chapel Hill [1]; revised and enlarged by Joseph S. Ferrell, Albert Coates Professor of Public Law and Government, University of North Carolina at Chapel Hill [1]. Minor revisions and additional citations by Steven Case.
See also: Local Government Commission [2]
Grade 8: NC Local Government – Activity & Poster. North Carolina Civic Education Consortium. https://k12database.unc.edu/wp-content/uploads/sites/31/2012/08/LocalGov... [6]
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 [13], 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 [14]. 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 [15], 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 black people who had been enslaved only three years before, from native white people 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 [16] 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 [17] 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 [18] regained direct control over the board of commissioners through the ballot box.
References and additional resources:
Lawrence, David M. 2007. County and Municipal Government in North Carolina. Chapel Hill, NC: UNC School of Government. http://www.sog.unc.edu/pubs/cmg/ [19].
University of North Carolina at Chapel Hill. 2008. Colonial and state records of North Carolina. [Chapel Hill, N.C.]: University Library, UNC-Chapel Hill. https://docsouth.unc.edu/csr/ [20].
Walbert, David. Governing the Piedmont. LEARN NC. https://web.archive.org/web/20180205012510/http://www.learnnc.org/lp/edi... [21](Accessed May 11, 2022).
A county, as a defined geographic subdivision of the state, serves many purposes. Churches, civic clubs [22], 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.
In 1928, the North Carolina Supreme Court [23] was called upon to define a county from a legal point of view (O’Neal v. Wake County, 196 NC 184). 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:
Wake County is a body politic and corporate, created by the General Assembly of North Carolina for certain public and political purposes. Its powers as such, both express and implied, are conferred by statutes, enacted from time to time by the General Assembly, and are exercised by its Board of Commissioners .... In the exercise of ordinary government functions, [counties] are simply agencies of the State, constituted for the convenience of local administration in certain portions of the State's territory, and in the exercise of such functions they are subject to almost unlimited legislative control, except when the power is restricted by constitutional provisions.
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 ( 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 [24] (1925-1929), 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 [25] 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 [26] 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.
References and additional resources:
Government & Heritage Library and State Archives digital collections [27]
Lawrence, David M. 2007. County and Municipal Government in North Carolina. Chapel Hill, NC: UNC School of Government. http://www.sog.unc.edu/pubs/cmg/ [19].
WorldCat [28] (Searches numerous library catalogs)
North Carolina counties are legal entities capable of holding and managing property and possessed of many powers conferred on by law. Through its board of commissioners, the county exercises its powers and discharges its responsibilities. North Carolina General Statute 153A-12 [29] 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 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."
By law, each county in North Carolina has a board of commissioners. These boards vary in size, term of office, method of election, method of selecting the chairperson, and administrative structure. These variations bear no correlation to the population of the county or any other objective criteria.
Different counties have different methods [30] for electing their county commissioners. Some commissioners are elected at large, some are elected at large with residence requirements, while some are nominated and elected by district. All county commissioners are elected at the same time as members of the General Assembly and other state officers, in elections held in the month of November in even-numbered years. Because boards have staggered four-year terms and two-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. 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.
Members of the board of commissioners fill mid-term vacancies in the board by appointment. If the member who is leaving the board was originally elected as the nominee of a political party, the person appointed to fill the vacancy must be a member of the same political party. 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. 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.
A newly elected or appointed county commissioner assumes the powers and duties of the office by taking the oath prescribed by the Constitution of North Carolina as follows:
I, [name] do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office[as County Commissioner of (county name) County], so help me God. [N.C. Const. art. VI, § 7 [31]]
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 who chose not to seek reelection retains the office until the successor takes the oath.
In all but a few counties, the chairman of the board of commissioners is selected by the board itself. The board also choose a vice-chairman to act in the absence or disability of the chairman. In most counties, the chairman serves as long as he or she is reelected and retains the confidence of his or her colleagues. In others, the member who receives the most votes during the elction is 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 the right and the duty to vote on all questions before the board unless excused by a standing rule of the board or by consent of the other board members. The chair is generally recognized by law as the chief executive officer of the county. He or she can call special meetings of the board, and can also declare states of emergency under the state laws governing riots and civil disorders.
The clerk of the board of commissioners keeps the minute and ordinance books, and has a wide variety of miscellaneous duties directly related to official actions of the board. Most boards designate a county official or employee to act as clerk to the board. The clerk is appointed directly by the board and serves as its pleasure.
The board of commissioners also 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 her or 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, but rather serves at the pleasure of the board.
The clerk of the board of commissioners keeps full and accurate minutes of the board's proceedings, including the results of each vote taken by the board. The clerk also keeps the ordinance book, which contains details on adopted ordinances. Both the minutes book and the ordinance book must be open to public inspection.
The board is required by law to hold at least one meeting each month, on any day of the month and at any public place within the county. Special board meetings may be called by the chairman or by a majority of the other board members. A special meeting must be called by written notice stating time, place, and subjects to be considered. 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 board of commissioners is subject to the Open Meetings Statute [32], enacted in 1971. This law forbids most public bodies, both state and local, to hold meetings that are not open to the public. In general, the law prohibits a majority of the members of a board of commissioners from gathering together in closed or secret session for the 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 law leaves most procedural matters to the discretion of the board, but it does set out a few rules regarding quorum. Quorum is 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. The board of commissioners may take no action unless a quorum is present.
Except for the few special powers held by the chairman of the board, the county commissioners act as a body; an individual commissioner has no power to act in lieu of the board. The board takes formal action in one of three ways: orders, resolutions, and ordinances. Although these terms are often used interchangeably, their definitions may be useful to illustrate how the board acts.
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 meeting at which a quorum is present. 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 by all members of the board. If it does not receive this type of support, it may be passed by a majority vote at any time within 100 days after its introduction. Exceptions to this rule are the budget ordinance, a bond ordinance, or any ordinance required by law to have a public hearing before adoption.
The law dictates many features of how the county's government will be organized. However, there are some county positions that are appointed directly by the board, including the tax supervisor, tax collector, county attorney, and clerk to the board of commissioners. Except in counties in which the chairman of the board is a full-time administrative officer, each board of commissioners may also appoint a county manager. The board also has administrative jurisdiction over a number of county departments, agencies, or offices.
References and resources for additional information:
Lawrence, David M. 2007. County and Municipal Government in North Carolina. Chapel Hill, NC: UNC School of Government. http://www.sog.unc.edu/pubs/cmg/ [19].
North Carolina Association of County Commissioners [33]
Links to resources from the North Carolina Association of County Commissioners. http://www.ncacc.org/QuickLinks.aspx [34]
Links
[1] https://www.unc.edu
[2] https://ncpedia.org/local-government-commission
[3] https://ncpedia.org/government/local/early
[4] https://ncpedia.org/government/local/body-politic
[5] https://ncpedia.org/government/local/commissioners
[6] https://k12database.unc.edu/wp-content/uploads/sites/31/2012/08/LocalGovernmentPosterChallenge-1.pdf
[7] https://ncpedia.org/category/subjects/politics-and-gove
[8] https://ncpedia.org/category/authors/case-steven
[9] https://ncpedia.org/category/authors/ferrell-joseph-s
[10] https://ncpedia.org/category/authors/lewis-henry-w
[11] https://ncpedia.org/category/entry-source/school-govern
[12] https://ncpedia.org/category/user-tags/lesson-plans
[13] https://ncpedia.org/justices-peace
[14] https://ncpedia.org/court-pleas-and-quarter-sessions
[15] https://ncpedia.org/government/convention-1868
[16] https://ncpedia.org/fourteenth-amendment
[17] https://ncpedia.org/government/nc-constitution-history
[18] https://ncpedia.org/geography/map
[19] http://www.sog.unc.edu/pubs/cmg/
[20] https://docsouth.unc.edu/csr/
[21] https://web.archive.org/web/20180205012510/http://www.learnnc.org/lp/editions/nchist-colonial/2040
[22] https://ncpedia.org/civic-clubs
[23] https://ncpedia.org/supreme-court-north-carolina
[24] https://ncpedia.org/../../../../../../biography/governors/mclean
[25] https://ncpedia.org/zoning
[26] http://www.ncga.state.nc.us/legislation/constitution/ncconstitution.html
[27] https://digital.ncdcr.gov
[28] https://www.worldcat.org/search?qt=worldcat_org_all&q=county+government+north+carolina
[29] http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bysection/chapter_153a/gs_153a-12.html
[30] http://www.ncacc.org/195/County-Election-Methods
[31] http://www.ncga.state.nc.us/Legislation/constitution/article6.html
[32] http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_143/Article_33C.html
[33] http://www.ncacc.org/
[34] http://www.ncacc.org/QuickLinks.aspx
[35] https://ncpedia.org/category/subjects/go
[36] https://ncpedia.org/category/subjects/laws