Reed v. Howerton Engineering Co.

Jun 21, 1924

Versions:

Clarkson, J.

Tbe first contention cannot be sustained. Article VII, section 7, of tbe State Constitution, is as follows:

“No county, city, town or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.”

This Court has uniformly held that a sewer system was a necessary expense within the meaning of the Constitution, and unless so prescribed by the Legislature, a vote of the majority of the qualified voters is not necessary. Greensboro v. Scolt, 138 N. C., 181; Bradshaw v. High Point, 151 N. C., 517; Underwood v. Asheboro, 152 N. C., 641; Gastonia v. Bank, 165 N. C., 507.

The second contention cannot be sustained. The judiciary can only interfere with the legislative acts when those acts are in violation of the Constitution.

In S. v. Perley, 173 N. C., 790, it was said: “When a statute is assailed as unconstitutional, every presumption of validity should be indulged in its favor, and it should not be declared void except upon the clearest showing that it conflicts with the organic law. The conclusion that it is invalid should be unavoidable, and reached only after removing every reasonable doubt as to its incompatibility with the Constitution. Between the two there should be an irreconcilable conflict.” Coble v. Comrs., 184 N. C., 348; S. v. Kelly, 186 N. C., 377; Person v. Doughton, 186 N. C., 725.

Allen, J., in Skinner v. Thomas, 171 N. C., 100, says: “The police power is an attribute of sovereignty, possessed by every sovereign state, and is a necessary attribute of every civilized government. 6 R. C. L., 183. ‘It is the power to protect the public health and the public safety, to preserve good order and the public morals, to protect the lives and property of the citizens, the power to govern men and things by any legislation appropriate to that end.’ 9 Ency. of U. S. Reports, 473. ‘Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property.’ Slaughterhouse cases, 16 Wall., 36; 21 L. Ed., 394. The exercise of this power is left largely to the discretion of the law-making body, and the authority of the courts cannot be invoked unless there is an unnecessary interference with the rights of the citizens, or when there is no reasonable relation between the statute enacted and the end or purpose sought to be accomplished. 6 R. C. L., 236.”

*43 Tbe act in question providing for sewer districts in Buncombe County and tbe method is similar to tbe “Fence Law Acts,” “Drainage Acts” and “Town and City Extension Acts,” wbicb bave universally been beld constitutional in this State. Manly v. Raleigh, 57 N. C., 370; Cain v. Comrs., 86 N. C., 8; Newsome v. Earnheart, 86 N. C., 391.

In tbe Cain case, supra (Fence Law Act), Smith, C. J., said: “We can scarcely conceive a ease more clearly witbin tbe compass of tbe rule tban tbat now under consideration. Tbe general law requires a sufficient fence to be built and kept up around all cultivated land to protect it from tbe depredations of stock, at a very great and unceasing expense, becoming tbe more onerous as tbe material used in its construction becomes scarcer and more costly. Tbe enactment proposed to dispense witb separate enclosures for eacb man’s land, and substitute a common fence around tbe county boundary to protect all agricultural lands from tbe inroads of stock from abroad, and tbe fencing in of stock owned witbin its limits. It creates a community of interest in upholding one barrier in place of separate and distinct barriers for eacb plantation, and thus in tbe common burden lessens tbe weight tbat eacb cultivator of tbe soil must otherwise individually bear. As tbe greater burden is thus removed from tbe landowner be, as such, ought to bear the expense by wbicb tbis result is brought about. Tbe social interest benefited by the law is charged witb tbe payment of tbe sum necessary in securing tbe benefit. Tbis and no more is what tbe statute proposes to do, and in tbis respect is obnoxious to no just objection from tbe taxed land proprietor, as it is free from any constitutional impediments.”

In Sanderlin v. Luken, 152 N. C., 741, Hoke, J. (now C. J.), citing-numerous authorities, said: “Tbe power of tbe Legislature to create special-taxing districts for public purposes, separate and distinct from tbe ordinary political subdivisions of tbe State, such as counties, townships, etc., was declared and approved in tbe case of Smith v. School Trustees, 141 N. C., 143, and like power to create special assessment districts has been upheld by tbe Court in several well-considered decisions. . . . Tbe principle has been frequently extended and applied to tbe creation of these drainage districts, and while certain statutes may bave been declared void, tbis as a rule was because tbe rights of persons affected bad not been in some way sufficiently safeguarded; and, so far as we bave examined, tbe power of tbe General Assembly to enact legislation of tbis character has not been successfully questioned.”

Brown, J., in Lutterloh v. Fayetteville, 149 N. C., 69, said: “Consequently it follows tbat tbe enlargement of tbe municipal boundaries by an annexation of new territory, and tbe consequent extension of their corporate jurisdiction, including tbat of levying taxes, are legitimate *44 subjects of legislation. In tbe absence of constitutional restriction, tbe extent to wbicb sucb legislation shall be enacted, botb witb respect to tbe terms and circumstances under wbicb tbe annexation may be bad, and tbe manner in wbicb it may be made, rests entirely in tbe discretion of tbe Legislature. Witb its wisdom, propriety or justice we bave nought to do. It has, therefore, been held that an act of annexation is valid wbicb authorized tbe annexation of territory, without tbe consent of its inhabitants, to a municipal corporation, having a large unprovided-for indebtedness, for the. payment of wbicb tbe property included within tbe territory annexed became subject to taxation.”

Tbe third contention cannot be sustained. Article II, section 29, of tbe Constitution, is as follows: “Tbe General Assembly shall not pass any local, private, or special act or resolution . . . relating to health, sanitation and tbe abatement of nuisance.”

While tbe act may use tbe words “sanitary district,” yet when taken as a whole it is not a local, private or special act relating to health, sanitation and tbe abatement of nuisance. The act does not state that its purpose is to regulate sanitary matters, or to regulate health or abate nuisances. A careful perusal of tbe entire act, and tbe entire act must be considered, clearly shows that tbe main purpose of the act and, in fact, tbe only purpose of tbe act, is to provide districts in Buncombe County wherein sanitary sewers or sanitary measures may be provided in rural districts.

Since tbe above amendments to tbe Constitution, which took effect 10 January, 1911 (1915, ch. 99), this Court has frequently declared acts similar to tbe one under consideration, constitutional. Brown v. Comrs., 173 N. C., 598; Mills v. Comrs., 175 N. C., 215; Comrs. v. Pruden, 178 N. C., 394; Comrs. v. Bank, 181 N. C., 347; In re Harris, 183 N. C., 633; Kornegay v. Goldsboro, 180 N. C., 446; S. v. Kelly, 186 N. C., 365.

In Kelly's case, supra, we said: “It was held in Armstrong v. Comrs., 185 N. C., 405, that an act to authorize a county to build a hospital and issue bonds therefor is a special and local act, and prohibited under tbe prohibition of section 29 above, relating to health, sanitation, and tbe abatement of nuisances. In that case Holce, J., again distinguishes tbe earlier cases and affirms the ruling therein, largely on tbe ground that they dealt with what were necessary expenses of tbe county.” We do not think the Armstrong case, supra, applicable to tbe case at bar.

“Nor do we think tbe law is subject to tbe objection that it is local or special. A law wbicb applies generally to a particular class of cases is not a local or special law. Hymes v. Aydolott, 26 Ind., 431; Palmer v. Stumph, 29 Ind., 329.” 15 L. R. A., 508.

*45 We think the present act is one of great benefit to rural communities. With good roads in the State, many are moving from the crowded cities and towns to the country. Water and sewer is of great value to a home, and is a necessity. The expense is often more than the individual can afford, but a community or group, under the present law as applicable to Buncombe County, can all join in one sewer system and lessen the cost to the individual home owners. It is of vital importance to improve rural conditions and encourage, by every means possible, living conditions in the country. It was not the intention of the framers of the constitutional amendments and those who voted for them to prohibit such beneficent and constructive legislation applicable to an entire county.

For the reasons given, the judgment of the court below is Affirmed.