The plaintiff, for himself and for other residents and taxpayers of the Metropolitan Sewerage District of Buncombe County similarly situated, instituted this civil action against the Metropolitan Sewerage District of Buncombe County and the ten individual members of the Metropolitan Sewerage District Board for the purpose of enjoining and restraining all defendants, their agents, etc., from issuing, offering for sale, or selling bonds and notes not to exceed Ten Million, Four Hundred Thousand Dollars ($10,400,000.00) pursuant to the authority conferred by G.S. 153-295 to 324, inclusive, and as ordered by Bond Resolution dated September 25, 1964, and approved at the election held in the district on December 14, 1963.
The parties waived a jury trial and stipulated that Judge McLean should hear the evidence and decide the entire controversy. Among other findings, Judge McLean made the following:
The plaintiff challenges the validity of the Bond Resolution upon five grounds:
1. The method by which the Metropolitan Sewerage District was created violates Section 1 and Section 17 of Article I, North Carolina Constitution in that it included within the overall district the fourteen political subdivisions by resolutions of their governing boards without the joinder of the residents of the subdivision.
2. The inclusion of the Venable Sanitary District which has no public sewerage system violates the sections of the Constitution above referred to.
3. The agreements between the Metropolitan District and the fourteen subdivisions are against public policy in that they provide that the agreement shall continue so long as the sewerage district systems remain in existence and operation.
4. That part of the agreement between the Metropolitan District and each subdivision that the latter during default will discontinue furnishing water to the users whose sewage disposal service charges are delinquent is invalid.
5. The provision of the Bond Resolution that a trustee shall have custody, supervision, and management of the fund provided for the payment of bonds violates Section 9, Chapter 4, Public-Local Laws of 1937 which provides for a Sinking Fund Commission to perform these services.
1. The Metropolitan Sewerage District of Buncombe County was created according to law.
2. The inclusion of the Venable Sanitary District within Metropolitan was authorized by law.
3. Bonds issued pursuant to the Bond Resolution will be valid and binding obligations of the Metropolitan Sewerage District of Buncombe County.
4. The agreements between the fourteen subdivisions and Metropolitan, including the authority to cut off water in default of sewerage dues payment, are valid and binding and not in contravention of the North Carolina Constitution.
5. The provision of the bond resolution and the trust agreement that a trustee shall have custody and management of the District's funds committed to the specific purposes prescribed is valid and that the provisions of Section 9, Chapter 4, Public-Local Laws of 1937, are inapplicable.
The court entered judgment denying the restraining order and dismissing the action. Plaintiff excepted and appealed.
HIGGINS, J.
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 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 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 percentum (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 percentum of the resident freeholders sign the petition (we presume) was met when the Sanitary Districts were created. G.S. 130-124; Deal v. 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. 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.
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. 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 McQuillan 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 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 provided 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;
"(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. 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
Affirmed.