Scarborough v. Adams

Annotate this Case

142 S.E.2d 608 (1965)

264 N.C. 631

William L. SCARBOROUGH, for himself and on behalf of any other residents and taxpayers of the "Metropolitan Sewerage District of Buncombe County" who may be interested and desirous to make themselves parties, Plaintiff, v. J. G. ADAMS, Jr., J. W. Spicer, George E. Dawson, J. R. Reagan, Ronald E. Finch, Myron Peterson, Oscar Tandy, Mrs. Robert M. Swicegood, C. LeRoy Robinson and T. S. Garrison, Sr., Members of the District Board of the "Metropolitan Sewerage District of Buncombe County," and "Metropolitan Sewerage District of Buncombe County."

No. 116.

Supreme Court of North Carolina.

June 18, 1965.

*613 Loftin & Loftin, by E. L. Loftin, Asheville, for plaintiff appellant.

Anthony Redmond, Asheville, for defendant appellee.

HIGGINS, Justice.

The Board of Commissioners of Buncombe County in conjunction with the State Stream Sanitation Committee created in the manner provided by G.S. §§ 153-295 through 153-324 the Metropolitan Sewerage District of Buncombe County. Prior to the creation the city, the three towns, and nine of the ten sanitary sewerage districts each maintained its individual sewerage system. The tenth (Venable Sanitary District) did not have "a public sewerage collection system." All of the several systems discharged raw sewage into the French Broad River or into its tributary, Hominy Creek. Many of the discharge outlets emptied into the river within the corporate limits of the City of Asheville. All of the sanitary districts lacked facilities for the treatment of raw sewage. The resulting stream pollution is and has been in violation of public health laws of the State. However, the State Stream Sanitation Committee, on a temporary basis, has permitted the pollution to continue, pending the arrangements herein contemplated.

To remove the health hazard resulting from pollution, the State Stream Sanitation Committee and the fourteen sanitary districts initiated the proceeding before the Board of County Commissioners for the creation of the Metropolitan District. Confronted, as they were, with the necessity of complying with the health laws by treating the sewage before its discharge into the river, and realizing the enormous cost to each unit if required to furnish a separate treatment facility, the several units, through their governing bodies, petitioned the Board of Commissioners for the creation of the Metropolitan District in order that they might pool their resources and create one unit to handle the problem for all. These constituent units contracted with the Metropolitan District as to their respective rights, duties, and obligations under which the contracting parties shall discharge the contract obligations which are to become effective only upon the sale of the Metropolitan District bonds authorized by the bond resolution.

The plan herein followed for dealing with the pollution problem is specifically authorized by law. G.S. § 143-215.2(e) and (f) provides: "It is the intent of this section, however, that the Committee shall seek to obtain the co-operative effort of all persons contributing to each situation involving pollution in remedying such situation, and that the powers granted by this section shall be exercised only when the objective of this section cannot be otherwise achieved within a reasonable time. * * *

"When an order of the Committee to abate discharge of untreated or inadequately treated sewage and other waste is served upon a municipality or upon a sanitary district, the governing board of such municipality or the sanitary district board of such district shall, unless said order be reversed on appeal, proceed to provide funds, using any or all means necessary and available * * * by issuance of bonds secured by the full faith and credit of such municipality or district or by issuance of revenue bonds or otherwise, for financing the cost of all *614 things necessary for full compliance with said order and shall thereby comply with said order * * *."

The foregoing is a summary of the factual background as shown by the record before us. Untenable is the objection that the creation of the Metropolitan District is invalid as violative of Sections 1 and 17 (the inalienable rights and the law of the land guarantees) of Article I of the North Carolina Constitution. The Metropolitan District was created pursuant to petition filed by the governing bodies of the city, towns, and the ten sanitary districts without the joinder of any of the residents of the subdivision. G.S. § 153-297 provides for the creation of the district upon the petition of two or more political subdivisions, or any political subdivision and any unincorporated areas by the resolution of the governing body of a political subdivision, or "If any unincorporated area is to be included in such district, a petition, signed by not less than fifty-one per centum (51%) of the freeholders resident within such area, * * *."

Obviously the governing body acts for the subdivision. If there is no subdivision and no governing body to act for the subdivision, a majority of the freeholders must sign the petition. The governing body of each subdivision signed the petition in this case. The Metropolitan District does not include any unincorporated areas. The requirement that fifty-one per centum of the resident freeholders sign the petition (we presume) was met when the Sanitary Districts were created. G.S. § 130-124; Deal v. Enon Sanitary District, 245 N.C. 74, 95 S.E.2d 362; Idol v. Hanes, 219 N.C. 723, 14 S.E.2d 801. Hence the constitutional requirements of Article I, sections 1 and 17, are satisfied.

The inhabitants of the entire area, through their representatives in the manner provided by law, have acted to accomplish that which had to be done, that is: treat the sewage before it entered the only available outlet, the French Broad River. The Legislature has provided machinery for the creation of the governmental agencies necessary to deal with the health hazard incident to stream pollution and has prescribed suitable rules and fixed available standards to govern these agencies in dealing with the problem. These enactments are within legislative competence. They neither violate the inalienable rights nor the law of the land sections of the State Constitution. East Lenoir Sanitary District v. Lenoir, 249 N.C. 96, 105 S.E.2d 411; Grimesland v. Washington, 234 N.C. 117, 66 S.E.2d 794; Moore v. Board of Education, 212 N.C. 499, 193 S.E. 732.

Likewise untenable is the plaintiff's contention that the creation of the Metropolitan District violates the constitutional rights of those located in the Venable Sanitary District by taxing them when in fact the Venable District does not have a sewerage system to which Metropolitan may attach its collecting lines. The Venable District, through its representatives, participated in the creation of Metropolitan which embraces all of Venable's territory. The contract obligates Metropolitan to receive and treat sewage for all its constituent members, including Venable, and under the contract must receive sewage from Venable if and when it constructs a system, which it may do at any time. Metropolitan facilities will not be available until there is a sale of the bonds and after its facilities are constructed. In the meantime, Venable may or may not construct needed facilities. The provision that unincorporated areas may become a part of the system refutes the contention that a system must be in existence at the time of the creation of Metropolitan. Actually, under the setup, Metropolitan is authorized to "acquire, lease * * *, construct, reconstruct, improve, extend, enlarge, equip, repair, maintain and operate any sewerage system or part thereof within * * * the district." G.S. § 153-300(5). It may be that Metropolitan, under its authority, will construct the needed facilities for the Venable District.

*615 The agreements between the 14 subdivisions and Metropolitan are to continue in force only so long as the district sewerage disposal system remains in existence and in operation, either by the district or by any successor. The agreements provide that each subdivision may use its own or other available disposal facilities to the extent the district fails or is unable to meet the disposal needs of the subdivision. The contracts obligate Metropolitan, for a fixed charge, to pick up raw sewage from the subdivisions' connections and thereafter to transport, convey, treat, and dispose of it. To this end the subdivisions agree to use the services made available by Metropolitan. The General Assembly by G.S. § 153-317 authorized the parties to make these contracts. Ordinarily, a valid contract once entered into may not be altered or abrogated except by agreement of the contracting parties. When no time is fixed for the termination of a contract, at least it will continue for a reasonable time, taking into account the purposes the parties intended to accomplish. Lambeth v. City of Thomasville, 179 N.C. 452, 102 S.E. 775; Plant Food Co. v. Charlotte, 214 N.C. 518, 199 S.E. 712. The power of the parties to make contracts of this character is discussed by McQuillin on Municipal Corporations, (3rd Ed. Rev. 1964) Vol. 11, Section 31.13:

"Ordinarily, apart from the authority conferred upon them pertaining to contracts for the construction of public works and improvements generally, including sewers, considered elsewhere in this work, municipalities have power to enter into contracts with respect to their sewer systems. Thus, agreements frequently are entered into with adjoining municipalities or other public bodies, or with private parties, for the mutual development or use of sewerage facilities, upon such considerations, terms and conditions as the parties, acting within the scope of their lawful authorities, deem adequate and politic."

"Authorities, districts, boards, commissions and other supplementary public corporations are widely utilized as effective means for accomplishing the desirable and, in metropolitan areas, the imperative cooperation in the solution of common problems that are typically larger than the single municipality. The metropolitan authority that takes over a number of the most important municipal functions from all the municipal corporations and townships in a metropolitan area is just coming into its own. * * * Of all the problems facing metropolitan communities requiring joint action and common solutions, that of sewerage and drainage may well be the most important." Antieau, Municipal Corporation Law (1964), Vol. 3, Sec. 28.06, p. 528.

The provision in the contracts between Metropolitan and the 14 subdivisions that the latter will cut off water from users who are delinquent in their sewerage accounts is valid. G.S. § 153-317(2) (c) specifically provides for "(T)he shutting off of the supply of water furnished by any water system owned or operated by such political subdivision, in the event that the owner * * * shall fail to pay * * * fees or charges." "Laws authorizing the discontinuance of water services or supplies for nonpayment of sewer charges have been regarded as valid and as not penal in nature." McQuillin, Municipal Corporations, (3rd. Ed. Rev. 1964) Vol. 11, § 31.32(a).

Finally, the appellant challenges the validity of that part of the bond resolution and the trust agreement providing that a trustee shall have the custody, supervision, and management of the funds available for discharging the bonds. The basis of the challenge is the provision of Section 9, Ch. 4, Public-Local Laws of 1937, that the Sinking Fund Commission shall have the custody and management of all sinking, revolving, and other funds earmarked by law or by contract for the payment or retirement of *616 bonded indebtedness of Buncombe County and its subdivisions. This provision of the Public-Local Law is rendered inapplicable to the bonds issued pursuant to the bond resolution here involved. The 1961 Act of the General Assembly, Ch. 795, and G.S. § 153-310 provide that any resolution authorizing the issuance of bonds to finance the cost of any sewerage system or any trust agreement securing the bonds may contain the following:

"(2) The use and disposition of the revenues of the sewerage system or systems; "(3) The creation and maintenance of reserves or sinking funds and the regulation, use and disposition thereof";

The bond resolution and the trust agreement provide that a trustee shall have custody and management of the funds. G.S. § 153-324 provides: "All general, special or local laws, or parts thereof, inconsistent herewith are hereby declared to be inapplicable." Hence, the Act of 1961 gives precedence to the bond resolution and the trust agreement and renders Public-Local Law, 1937, inapplicable.

As population increases it becomes manifest that an unpolluted water supply (along with food, clothing, and shelter) is a necessity not only for physical well-being, but as a means of sustaining life. The legislative enactments here involved look to the accomplishment of this end. The Constitution does not interpose any roadblock.

In addition to the assignments of error presented and discussed herein, we have examined the record proper. Error of law does not appear on the face thereof. Skinner v. Empresa Transformadora, 252 N.C. 320, 113 S.E.2d 717; Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244.

The judgment of the Superior Court of Buncombe County is