City of Asheville v. State
City of Asheville v. State
Opinion of the Court
In 2013, the General Assembly enacted legislation that effectively required the City of Asheville to involuntarily transfer the assets that it uses to operate a public water system to a newly created metropolitan water and sewerage district. See Act of May 2, 2013, ch. 50, 2013 N.C. Sess. Laws 118, amended by Act of July 22, 2013, ch. 388, secs. 4-5, 2013 N.C. Sess. Laws 1605, 1618. Following the enactment of this legislation, the City sought a declaratory judgment and injunctive relief in Superior Court, Wake County. The trial court concluded that this involuntary transfer violated various provisions of the North Carolina Constitution, declared the relevant statutory provisions to be void and unenforceable, and permanently enjoined the State from enforcing the legislation. On appeal, the Court of Appeals reversed the trial court’s order, in part, and directed the trial court to enter summary judgment in favor of the State. City of Asheville v. State, _ N.C. App. _, _, 777 S.E.2d 92, 102 (2015). In view of our determination that the legislation in question constitutes aprohibited “[l]ocal... act... [Relating to health[ and] sanitation” in violation of Article II, Section 24(1) (a) of the North Carolina Constitution, we reverse the Court of Appeals’ decision. N.C. Const. art. II, § 24(1)(a).
The City is a municipal corporation that is authorized, among other things, to own and acquire property. N.C.G.S. §§ 160A-1(2), -11 (2015). Pursuant to N.C.G.S. §§ 160A-311(2) and 160A-312, along with Chapter 399 of the 1933 Public-Local Laws, Chapter 140 of the 2005
Customers in Buncombe County served by the City’s water system receive sewer service from the Metropolitan Sewerage District of Buncombe County,
In May 2013, House Bill 488, which is entitled “An Act to Promote the Provision of Regional Water and Sewer Services by Transferring Ownership and Operation of Certain Public Water and Sewer Systems to a Metropolitan Water and Sewerage District,” became law. Ch. 50, 2013 N.C. Sess. Laws 118. According to Section 2 of the legislation, two or more political subdivisions are authorized to voluntarily establish a new type of entity, to be known as a “metropolitan water and sewerage district,” which is “authorized and empowered” to “exercise any power of a Metropolitan Water District under G.S. 162A-36, except subdivision (9) of that section”; to “exercise any power of a Metropolitan Sewer District under G.S. 162A-69, except subdivision (9) of that section”; and “[t]o do all acts and things necessary or convenient to carry out the powers granted by” the newly created Article 5A. Id., sec. 2, at 119-24. Pursuant to Section 1(a) of the legislation, “[a]ll assets, real and personal, tangible and intangible, and all outstanding debts of any public water system” meeting certain statutorily specified criteria “are by operation of law transferred to the metropolitan sewerage district operating in the county where the public water system is located” regardless of whether the municipality in question consents to the required transfer.
On 14 May 2013, the City filed a complaint and a motion seeking temporary, preliminary, and permanent injunctive relief in which the City alleged that the involuntary transfer provisions of the legislation, which were specifically designed to apply to the City and to no other municipality in North Carolina, constituted an invalid local act “[Relating to health, sanitation, and the abatement of nuisances” prohibited by Article II, Section 24(l)(a) of the North Carolina Constitution and “[Relating to non-navigable streams” prohibited by Article II, Section 24(l)(e) of the North Carolina Constitution; violated the City’s due process and equal protection rights as guaranteed by Article I, Section 19
On 23 August 2013, the Governor signed Chapter 388 of the 2013 Session Laws, which had been enacted by the General Assembly on 22 July 2013 and which amended Section 1 of the Act in two ways. Ch. 388, secs. 4-5, 2013 N.C. Sess. Laws at 1618. More specifically, the newly enacted legislation repealed Section 1(a)(2) of Chapter 50 of the 2013 Session Laws so as to effectively eliminate one of the original criteria necessary to trigger an involuntary transfer of a covered municipality’s water system, id., sec. 4, at 1618 (stating that “Section 1(a)(2) of S.L. 2013-50 is repealed”), and added a new exemption from the existing involuntary transfer requirement, id., sec. 5, at 1618 (amending “S.L. 2013-50 ... by adding a new section” l.(g)). As a result, the trial court entered a consent order providing, among other things, that the parties would be allowed to amend their pleadings to reflect these modifications to the legislation.
On 2 October 2013, the City filed an amended complaint in which it asserted the same substantive claims that had been raised in its initial pleading.
Before the Court of Appeals, the State argued that the trial court had erred by concluding (1) that the City had the capacity and standing to bring its claims against the State; (2) that the Act is a “locaif ]... act” “[Relating to health] and] sanitation,” N.C. Const. art. II, § 24(1)(a), and “non-navigable streams,” id. art. II, § 24(1)(e); (3) that Section 1 of the legislation violated the City’s state equal protection and substantive due process rights; and (4) that Section 1 of the legislation effected an
After determining that the City had standing to challenge the constitutionality of the legislation “because it ha[d] not accepted any benefit from” the Act, City of Asheville, N.C. App. at , 777 S.E.2d at 95 (citing Town of Spruce Pine v. Avery County, 346 N.C. 787, 790, 488 S.E.2d 144, 146 (1997)),
In seeking relief from this Court, the City argues that the Court of Appeals erred (1) by concluding that Section 1 of the legislation is not an unconstitutional local act relating to health and sanitation prohibited by Article II, Section 24(l)(a) of the North Carolina Constitution; (2) in holding that Section 1 of the legislation does not effectuate a taking for which Asheville is entitled to compensation pursuant to Article I, Section 19 of the North Carolina Constitution; and (3) by appearing to hold that the City had abandoned any right to assert its claims pursuant to the contract clauses and N.C.G.S. § 159-93 on remand by failing to raise them on appeal pursuant to Rule 10(c) of the North Carolina Rules of Appellate Procedure. For the reasons set forth below, the Court of Appeals’ decision is reversed.
It is well settled in this State that the courts have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional—but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.
Article II, Section 24 of the North Carolina Constitution, which expressly forbids the General Assembly from “enact[ing] any local, private, or special act or resolution” concerning fourteen “[prohibited subjects,” N.C. Const. art. II, § 24(1), “is the fundamental law of the State and may not be ignored,” High Point Surplus Co. v. Pleasants, 264 N.C. 650, 656, 142 S.E.2d 697, 702 (1965). More specifically, Article II, Section 24 of the North Carolina Constitution provides that:
(1) Prohibited subjects. - The General Assembly shall not enact any local, private, or special act or resolution:
(a) Relating to health, sanitation, and the abatement of nuisances;
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(3) Prohibited acts void. - Any local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.
N.C. Const. art. II, § 24(1)(a), (3). Although the General Assembly shall not “enact any local, private, or special act” regarding any of the fourteen prohibited subjects listed in Article II, Section 24(1) “by the partial repeal of a general law,” id. art. II, § 24(2), it “may . . . repeal local, private, or special laws enacted by it,” id., and “enact general laws regulating the matters set out” in the relevant constitutional provision, id. art. II, § 24(4).
As the history of Article II, Section 24 of the North Carolina Constitution
*89 The organic law of the State was originally drafted and promulgated by a convention which met at Halifax in December, 1776. During the ensuing 140 years, the Legislature of North Carolina possessed virtually unlimited constitutional power to enact local, private, and special statutes. This legislative power was exercised with much liberality, and produced a plethora of local, private, and special enactments. As an inevitable consequence, the law of the State was frequently one thing in one locality, and quite different things in other localities. To minimize the resultant confusion, the people of North Carolina amended their Constitution at the general election of 1916 so as to deprive their Legislature of the power to enact local, private, or special acts or resolutions relating to many of the most common subjects of legislation.
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In thus amending their organic law, the people were motivated by the desire that the General Assembly should legislate for North Carolina in respect to the subjects specified as a single united commonwealth rather than as a conglomeration of innumerable discordant communities. To prevent this laudable desire from degenerating into a mere pious hope, they decreed in emphatic and express terms that “any local, private, or special act or resolution passed in violation of the provisions of this section shall be void [....]”
Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 185-86, 581 S.E.2d 415, 426-27 (2003) (quoting Idol v. Street, 233 N.C. 730, 732-33, 65 S.E.2d 313, 314-15 (1951) (first alteration in original) (quoting N.C. Const, of 1868, art. II, § 29 (1917) (now art. II, § 24(3)))).
It was the purpose of the amendment to free the General Assembly from the enormous amount of petty detail which had been occupying its attention, to enable it to devote more time and attention to general legislation of statewide interest and concern, to strengthen local self-government by providing for the delegation of local matters by general laws to local authorities, and to require uniform and coordinated action under general laws on matters related to the welfare of the whole State.
“The first issue [that must be resolved in this case] is whether the Act is a local act prohibited by Article II, section 24 of the Constitution or is a general law which the General Assembly has the power to enact.” Adams, 296 N.C. at 690, 249 S.E.2d at 406. “A statute is either ‘general’ or ‘local’; there is no middle ground.” High Point Surplus Co., 264 N.C. at 656, 142 S.E.2d at 702. “[N]o exact rule or formula capable of constant application can be devised for determining in every case whether a law is local, private or special or whether [it is] general.” McIntyre v. Clarkson, 254 N.C. 510, 517, 119 S.E.2d 888, 893 (1961). The primary test that this Court has employed for the purpose of differentiating between general and local acts for the past half-century has been the “reasonable classification” test adopted in McIntyre, id. at 517-19, 525-26, 119 S.E.2d at 893-95, 898-99. See, e.g., Williams, 357 N.C. at 183-85, 581 S.E.2d at 425-26; City of New Bern v. New Bern-Craven Cty. Bd. of Educ., 338 N.C. 430, 435-37, 450 S.E.2d 735, 738-39 (1994); Adams, 295 N.C. at 690-91, 249 S.E.2d at 406-07; Treasure City of Fayetteville, Inc. v. Clark, 261 N.C. 130, 133, 134 S.E.2d 97, 99 (1964). In applying this test, we must remember that “the number of counties included or excluded [from the ambit of an act] is not necessarily determinative.” High Point Surplus Co., 264 N.C. at 656, 142 S.E.2d at 702.
Conceivably, a statute may be local if it excludes only one county. On the other hand, it may be general if it includes only one or a few counties. It is a matter of classification. For the purposes of legislating, the General Assembly may and does classify conditions, persons, places and things, and classification does not render a statute “local” if the classification is reasonable and based on rational difference of situation or condition; “[u]niversality is immaterial so long as those affected are reasonably different from those excluded and for the purpose of the [act] there is a logical basis for treating them in a different manner.” A law is local “where, by force of an inherent limitation, it arbitrarily separates some places from others upon which, but for such limitation, it would operate, [ ] where it embraces less than the entire class of places to which such legislation would be necessary or appropriate having regard to the purpose for which the legislation was designed, and where [the] classification does not rest on circumstances distinguishing the places included from those excluded.”
On the other hand, a law is general “ ‘if it applies to and operates uniformly on all the members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law.’ [ ] Classification must be reasonable and germane to the law. It must be based on a reasonable and tangible distinction and operate the same on all parts of the [S]tate under the same conditions and circumstances. Classification must not be discriminatory, arbitrary or capricious.”
High Point Surplus Co., 264 N.C. at 657, 142 S.E.2d at 702-03 (quoting McIntyre, 254 N.C. at 519, 119 S.E.2d at 894) (citation omitted)). As noted by a leading scholar cited with regularity by this Court, e.g., Adams, 295 N.C. at 690-91, 249 S.E.2d at 407:
In barest outline, a statutory classification is held to be “reasonable” if it satisfies the following five tests: (1) the classification must be based upon substantial distinctions which make one class really different from another; (2) the classification adopted must be germane to the purpose of the law; (3) the classification must not be based upon existing circumstances only; (4) to whatever class a law may apply, it must apply equally to each member thereof; and (5) if the classification meets these requirements, the number of members in a class is wholly immaterial.
Joseph S. Ferrell, Local Legislation in the North Carolina General Assembly, 45 N.C. L. Rev. 340, 391-92 (1967) [hereinafter Ferrell, Local Legislation] (footnotes omitted). The reasonable classification test utilized to distinguish between general and local legislation is not equivalent to the rational basis test utilized in due process and equal protection cases. See id. at 391-92 (footnotes omitted).
In Town of Emerald Isle v. State, 320 N.C. 640, 360 S.E.2d 756 (1987), this Court articulated a different test for determining whether an act is
The legislation states that:
Whereas, regional water and sewer systems provide reliable, cost-effective, high-quality water and sewer services to a wide range of residential and institutional customers; and
Whereas, in an effort to ensure that the citizens and businesses of North Carolina are provided with the highest quality services, the State recognizes the value of regional solutions for public water and sewer for large public systems; Now, therefore,
Ch. 50, pmbl., 2013 N.C. Sess. Laws at 118. Simply put, the General Assembly stated that large, public regional water and sewer systems will better ensure that North Carolina citizens have access to higher quality, cost-effective water and sewer services and that the creation of regional water and sewer systems should be encouraged for that reason. In view of the fact that the stated purpose of the legislation contains no indication that it was site-specific in nature, we conclude that the reasonable classification test should be utilized in determining whether the legislation is local or general in nature. See, e.g., Williams, 357 N.C. at 184-85, 581 S.E.2d at 426 (applying the “reasonable classification” test on the grounds that, while “the enabling legislation and the Ordinance allowing for the creation of a comprehensive civil rights ordinance apply only to Orange County, this legislation is not site-specific as in Emerald .Isle because ‘[s]uch a legislated change could be effected as easily in [Orange County] as in any other [county] in the state’ ” (alterations in original) (quoting City of New Bern, 338 N.C. at 436, 450 S.E.2d at 739)).
According to the undisputed record evidence, there are only three metropolitan sewerage districts presently operating in North Carolina: the Metropolitan Sewerage District of Buncombe County, the Contentnea Metropolitan Sewerage District in Pitt County, and the Bay River Metropolitan Sewerage District in Pamlico County. The only municipal water system located in a county served by one of these three metropolitan sewerage districts that has over 120,000 customers is that owned and operated by the City. Although existing population growth trends create some possibility that the water system operated by the City of Greenville could reach the 120,000 person threshold in the foreseeable future,
As originally enacted, the legislation contained a third criterion that had to be met before an involuntary transfer was required, which was that “[t]he public water system has not been issued a certificate for an interbasin transfer.” Ch. 50, sec. 1(a)(2), 2013 N.C. Sess. Laws at 119. In view of the fact that Greenville possessed an interbasin transfer
In addition, we note that Section 5.5 of the legislation prohibits the creation of any new metropolitan sewerage districts without the consent of all relevant local governmental entities. Ch. 50, sec. 5.5, 2013 N.C. Sess. Laws at 125. The inclusion of Section 5.5 ensured that all of the other municipalities that currently operate water systems that serve more than 120,000 customers, such as Charlotte, Durham, Fayetteville, Greensboro, and Winston-Salem, or will operate such systems in the future will never be subjected to the involuntary transfer provisions of the legislation. Thus, the undisputed record evidence clearly shows that the City is the only entity that will ever be required to involuntarily transfer its water system to a metropolitan sewerage district under the legislation.
Although the fact that the City is the only municipality that will ever be subject to the involuntaiy transfer provisions of the legislation does not, standing alone, mean that the legislation is, per se, a “local” act, see High Point Surplus Co., 264 N.C. at 656, 142 S.E.2d at 702 (stating that a statute “may be general if it includes only one or a few counties”), it does, however, indicate the existence of a serious question concerning the extent to which the classification contained in the legislation is “reasonable and germane to the law” and “based on a reasonable and tangible distinction,” id. at 657, 142 S.E.2d at 702 (quoting McIntyre, 254 N.C. at 519, 119 S.E.2d 894 (citation omitted)). Nothing in the legislation in any way explains why every other municipality in North Carolina except the City should have the right to decide for itself whether to transfer its water system to a metropolitan water and sewerage district. Moreover, nothing in the legislation does anything to explain why the benefits that the General Assembly expects to result from the creation
In spite of the absence of “any real, proper, or reasonable basis or . . . necessity springing from manifest peculiarities clearly distinguishing . . . and imperatively demanding” the involuntary transfer of the City’s water system to a metropolitan water and sewerage district in the face of an apparent determination that similar treatment would be “useless or detrimental to [every] other[ ]” North Carolina municipality, McIntyre, 254 N.C. at 518, 119 S.E.2d at 894 (quoting 50 Am. Jur. Statutes § 8, at 25 (1944) (footnotes omitted)), the State hypothesizes that the General Assembly’s decision to treat the City differently than all other North Carolina municipalities might hinge upon the “unique facts” and history of the “Asheville-Buncombe-Henderson region,” which the State claims to consist of a “prolonged history of conflict between” the City and residents of Buncombe and Henderson Counties who are dependent on the City’s water system that has been “characterized by charges of discrimination and the misuse of public monies and other resources” and has “engendered a toxically high level of public distrust and cynicism concerning local government in that region which itself makes
At the outset, we note that this aspect of the State’s defense of the legislation seems rooted in the rational basis test employed in the due process and equal protection context. See, e.g., In re R.L. C., 361 N.C. 287, 295, 643 S.E.2d 920, 924 (noting that, in the context of an as-applied due process challenge, evaluating “whether the law in question is rationally related to a legitimate government purpose” does not require “courts to determine the actual goal or purpose'of the government action at issue” and allows the reviewing court to uphold the legislation on the basis of “any conceivable legitimate purpose” (citations omitted)), cert. denied, 552 U.S. 1024, 128 S. Ct. 615, 169 L. Ed. 2d 396 (2007). However, nothing in our Article II, Section 24 jurisprudence suggests that we should focus on a hypothetical, rather than the actual, justification for the challenged legislation in determining whether it should be deemed general or local in nature. Furthermore, a decision to approve the use of the hypothetical purpose approach suggested by the State would deprive Article II, Section 24 of the North Carolina Constitution of any meaningful effect by rendering it indistinguishable from the substantive due process provisions of Article I, Section 19 of the North Carolina Constitution. Cf. District of Columbia v. Heller, 554 U.S. 570, 628 n.27, 171 L. Ed. 2d 637, 679 n.27, 128 S. Ct. 2783, 2818 n.27 (2008) (rejecting such a result under the federal constitution and, more specifically, stating that, “[i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect”). As a result, we will focus our analysis upon the extent, if any, to which there is record support for the State’s argument to the effect that the legislation is a general, rather than a local, act.
Having determined that Section 1 of the Act is a local law, we must next consider whether the legislation “[r]elat[es] to health[ and] sanitation.” N.C. Const. art. II, § 24(l)(a). In answering this question in the negative, the Court of Appeals began by noting that, in the 2008 City of Asheville case, it had concluded that “the mere implication of water or a water system in a legislative enactment does not necessitate a conclusion that it relates to health and sanitation in violation of the Constitution,” id. at _, 777 S.E.2d at 97 (quoting Asheville I, 192 N.C. App. at 37, 665 S.E.2d at 129); that this Court’s precedent “instructs” that a local law does not relate to health or sanitation “unless (1) the law plainly ‘state [s] that its purpose is to regulate [this prohibited subject],’ or (2) the reviewing court is able to determine ‘that the purpose of the act is to regulate [this prohibited subject after] careful perusal of the entire act,’ ” id. at_., 777 S.E.2d at 97-98 (second and third alterations in original) (quoting Asheville I, 192 N.C. App. at 33, 665 S.E.2d at 126 (first alteration in original) (citing and quoting Reed v. Howerton Eng’g Co., 188 N.C. 39, 44, 123 S.E. 479, 481 (1924))); and “that the best indications of the General Assembly’s purpose are ‘the language of the statute, the spirit of the act, and what the act seeks to accomplish,’ ” id. at _, 777 S.E.2d at 98 (quoting Asheville I, 192 N.C. App. at 37, 665 S.E.2d at 129 (quoting State ex rel. Comm’r of Ins. v. N.C. Rate Bureau, 300 N.C. 381, 399, 269 S.E.2d 547, 561 (1980))). As a result, the Court of Appeals “first look[ed] to see if the ... Act expressly states that its purpose is to regulate health or sanitation” and answered that question in the negative on the theory that the Act’s “stated purpose,” as reflected in its preamble, “is to address concerns regarding the quality of the service provided to the customers of public water and sewer systems.” Id. at_, 777 S.E.2d at 98. Secondly, the Court of Appeals “peruse[d] the entire... Act to determine whether it is plain and clear that the Act’s purpose is to regulate health or sanitation” and determined that “there are no provisions in the Act which ‘contemplate [ ] . . . prioritizing the [Asheville Water System’s] health or sanitary conditionf.]’ ” Id. at _, 777 S.E.2d at 98 (alterations in original) (quoting Asheville I, 192 N.C.
In making this determination, the Court of Appeals distinguished several cases upon which the City relied before finding this Court’s decision in Reed v. Howerton Engineering Co. controlling with respect to the health and sanitation issue. Id. at _, 111 S.E.2d at 98-99. After noting that our decision in Drysdale v. Prudden, 195 N.C. 722, 143 S.E. 530 (1928), was “[t]he most compelling of’ the cases cited in support of the City’s position, the Court of Appeals stated that this Court “base[d] its ruling [in Drysdale] on the fact that the act [was] a local law” and did not make “any determination regarding which of the 14 ‘prohibited subjects’ was implicated by the act” at issue in that case, City of Asheville,_N.C. App. at_, 777 S.E.2d at 98. In addition, the Court of Appeals distinguished City of New Bern, 338 N.C. at 437-38, 450 S.E.2d at 739-40, Idol, 233 N.C. at 733, 65 S.E.2d at 315, and Sams v. Board of County Commissioners, 217 N.C. 284,285, 7 S.E.2d 540, 541 (1940), on the grounds that they “deal[t] with legislation that empowers a political subdivision with authority to enforce health regulations in a county” while the legislation at issue in this case “does not empower anyone to enforce health regulations” or “impose any health regulations on the Asheville Water System,” City of Asheville,_N.C. App. at_, 777 S.E.2d at 99. Moreover, the Court of Appeals pointed to our decision in Reed, which rejected a challenge to legislation that “created sewer districts in Buncombe County,” “because the language in the act did not suggest [that health or sanitation was] the act’s purpose” and because the challenged act “merely sought to create political subdivisions through which sanitary sewer service could be provided.” Id. at _, 111 S.E.2d at 98-99 (citing Reed, 188 N.C. at 42-45, 123 S.E. at 479-82). Finally, the Court of Appeals concluded that our decision in Lamb v. Board of Education, 235 N.C. 377, 70 S.E.2d 201 (1952), which invalidated a statute that “imposed a duty on the Randolph County Board of
The City claims that the Court of Appeals utilized an overly narrow construction of Article II, Section 24 of the North Carolina Constitution that conflicted with its purpose, ignored the distinction between “[Relating to” and “regulat[ing],” and employed a “ ‘regulation’ standard” stemming from our decision in Reed in preference to the approach utilized in our more recent decisions. In addition, the City asserts that the Court of Appeals’ decision conflicts with three lines of decisions from this Court, including (1) a line of decisions, such as Drysdale, City of New Bern, and Lamb, that hold that water and sewer services are inherently related to health and sanitation; (2) a line of cases, such as City of New Bern, Idol, Board of Health v. Board of Commissioners, 220 N.C. 140, 16 S.E.2d 677 (1941), and Sams, that hold that local laws addressing the governance of health-related services relate to health and sanitation; and (3) a line of cases, such as City of New Bern and Williams, that indicate that the “practical effect” of challenged legislation must be considered in determining whether the act involves one of the prohibited subjects specified in Article II, Section 24(1). On the other hand, the State contends that the analysis employed by the Court of Appeals is firmly grounded in our decision in Reed, which remains good law, and that Lamb merely establishes that an act involving water and sewer services relates to health and sanitation if it does nothing other than to prescribe the manner in which sewer and water service is provided. In
In concluding that the legislation is not unconstitutional because it does not “expressly state[ ] that its purpose is to regulate health or sanitation” and because “it is [not] plain and clear,” when viewing the Act as a whole, that its “purpose is to regulate health or sanitation,” the Court of Appeals placed principal reliance upon our decision in Reed. City of Asheville, _ N.C. App. at __, 777 S.E.2d at 98. In Reed, we considered whether legislation that established a procedure pursuant to which the Buncombe County Board of Commissioners could create sanitary districts for the purpose of providing water and sewer service in rural areas of the county was a local act relating to health, sanitation, and the abatement of nuisances. 188 N.C. at 40-41, 44, 123 S.E. at 479-80, 481. Although this Court upheld the legislation because it was not a local law and did not relate to health and sanitation because it did “not state that its purpose [was] to regulate sanitary matters, or to regulate health or abate nuisances” and was, instead, intended “to provide districts in Buncombe County wherein sanitary sewers or sanitary measures may be provided in rural districts,” id. at 44, 123 S.E. at 481, the second of these two holdings was substantially limited four years later in Drysdale, 195 N.C. at 726-28, 143 S.E. at 532-33, in which this Court invalidated a statute that created a single, special sanitary district in Henderson County as an impermissible local act.
In addition, while the stated purpose of the legislation is undoubtedly relevant to the determination of whether a local law violates Article II, Section 24(a), our recent precedent clearly indicates that the practical effect of the legislation is pertinent to, and perhaps determinative of, the required constitutional inquiry. E.g., Williams, 357 N.C. at 189, 581 S.E.2d at 429 (concluding that, while “the record demonstrates that. . . the intent of the enabling legislation and the Ordinance [enacted pursuant to the authority granted by the challenged legislation] is to prohibit discrimination in the workplace, the effect of these enactments is to govern the labor practices of [certain businesses] in Orange County”); City of New Bern, 338 N.C. at 434-42, 450 S.E.2d at 737-42 (concluding that the challenged legislation, which shifted the responsibility for enforcing the State Building Code with respect to certain buildings from the City of New Bern to Craven County, constituted unconstitutional local acts related to health and sanitation). As a result, the approach adopted by the Court of Appeals for determining whether the legislation constituted an impermissible local law relating to health and sanitation departs from that required by our precedents, properly understood.
Admittedly, this Court has not, to date, clearly indicated when a local act does and does not “relate” to a prohibited subject for purposes of Article II, Section 24. Although “related” can be defined as “[c]onnected in some way; having a relationship to or with something else,” Related, Black’s Law Dictionary (10th ed. 2014), we cannot conclude that the existence of a tangential or incidental connection between the challenged legislation and health and sanitation is sufficient to trigger the prohibition worked by Article II, Section 24(l)(a) of the North Carolina Constitution. On the other hand, we recognize that, as a purely textual matter, “relating to” is not equivalent to “regulating.” Compare N.C. Const, art. II, § 24(1)(a) (“[Relating to health, sanitation, and the abatement of nuisances”), with id. art. II, § 24(1)(j) (“[r]egulating labor, trade, mining, or manufacturing”); see generally Williams, 357 N.C. at 189, 581 S.E.2d at 429 (defining “regulate” as “ ‘to govern or direct according to rule[,] ... to bring under [ ] control of law or constituted authority’ ” (quoting State v. Gulledge, 208 N.C. 204, 208, 179 S.E. 883, 886 (1935)
In view of the fact that “[p]ure water is the very life of a people,” Drysdale, 195 N.C. at 732, 143 S.E. at 535, and the broad interpretation that this Court has given to Article II, Section 24(l)(a) since Reed,
The fact that the legislation changes the governance of the City’s water system does not operate to remove it from the prohibition worked by Article II, Section 24(l)(a) of the North Carolina Constitution. As we have clearly held, a local act that shifts responsibility for enforcing health and safety regulations from one entity to another clearly relates to health and sanitation. E.g., City of New Bern, 338 N.C. at 440, 450 S.E.2d at 741 (invalidating local legislation that shifted responsibility for enforcing the State Building Code with respect to certain buildings from the City of New Bern to Craven County given that “the Building Code Council’s stated purposes for the different inspections under the Code evince an intent to protect the health of the general public,”
As the State and our dissenting colleague note, Article VII, Section 1 of the North Carolina Constitution provides, in pertinent part, that
[t]he General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.
N.C. Const. art. VII, § 1. Although North Carolina is not a home rule jurisdiction, and although our constitution, consistent with the language of this provision, gives the General Assembly exceedingly broad authority over the “powers and duties” delegated to local governments, id., that authority is subject to limitations imposed by other constitutional provisions.
REVERSED.
. As of June 2014, the City’s water system consisted of a sizeable watershed; two impoundments; three water treatment plants; 29 treated water storage reservoirs; 1,661 miles of transmission and distribution lines; at least 40 pump stations; and certain intangible assets, including, but not limited to, approximately 147 trained and certified employees, numerous licenses, wholesale water supply contracts, contracts for the supply of goods and services, and revenue accounts containing more than $2,218,000.00 that are held for the purpose of ensuring repayment of outstanding bonded indebtedness.
. Although some of the assets of Asheville’s water system were, at one time, owned by Buncombe County, the County conveyed its interest in those assets to the City on 15 May 2012.
. Although the Metropolitan Sewerage District has been joined as a party defendant in this case, it has not taken a position with respect to the merits of any of the claims asserted in the City’s pleadings.
. The first six sentences of Chapter 50 of the 2013 North Carolina Session Laws are titled Sections 1(a) through 1(f). Chapter 388 of the 2013 Session Laws added Section 1(g). The parties regularly referred to these seven sections as simply “Section 1.”
. The enforcement of Section 1 of the legislation has been enjoined throughout the course of this litigation.
. The City predicated its amended impairment of contract claim upon both Article I, Section 10 of the United States Constitution and Article I, Section 19 of the North Carolina Constitution.
. Although the trial court did not directly reference the City’s claim pursuant to N.C.G.S. § 169-93, it did not address this claim either.
. The State has not sought review of the Court of Appeals’ decision with respect to the standing issue.
. On the basis of a similar analysis, the Court of Appeals concluded that “[t]here is nothing in the... Act which suggests that its purpose is to address some concern regarding a non-navigable stream.” Id. at _, 777 S.E.2d at 98. The City has not requested review of this aspect of the Court of Appeals’ decision.
. The City has not sought review by this Court of the Court of Appeals’ decision to reject its due process and equal protection claims.
. Although we need not reach the issue of whether the Corut of Appeals erred by apparently holding that the City had waived the right to have the claims that it had asserted pursuant to the contract clauses and N.C.G.S. § 169-93 considered on remand by failing to assert those claims as an alternative basis for upholding the trial court’s order pursuant to Rule 10(c) of the North Carolina Rules of Appellate Procedure, we disavow that holding in order to avoid confusion in subsequent cases. Simply put, nothing in the relevant provisions of the North Carolina Rules of Appellate Procedure or any of our prior cases requires an appellee to challenge legal decisions that the trial court declined to make on the grounds that the case could be fully resolved on some other basis on appeal pursuant to Rule 10(c) of the North Carolina Rules of Appellate Procedure at the risk of losing the right to assert those claims at a later time.
. At the time of its original adoption, the language now contained in Article II, Section 24 appeared in Article n, Section 29.
. The record clearly establishes that none of the municipal water systems located in the territory in which the Bay River Metropolitan Sewerage District operates have any prospect of serving the requisite number of customers in the foreseeable future.
. As the City points out, the law at issue in Lamb did not require the County Board of Education to provide water and sewer services to public school children and to ensure the provision of healthful conditions for Randolph County school children. Instead, the law “purported] to limit the power of the County Board of Education to provide for sanitation and healthful conditions in the schools by means of a sewerage system and an adequate water supply,” Lamb, 235 N.C. at 379, 70 S.E.2d at 203, by prohibiting the County Board of Education “from expending ‘in excess of two thousand dollars ($2,000.00) under any one project or contract for the purpose of extending any public or private water or sewer system so that such extended system will serve any public school in Randolph County’ ” absent approval by a majority of voters at a special election, id. at 379, 70 S.E.2d at 203 (quoting Act of Apr. 14, 1951, ch. 1075, sec. 1, 1951 N.C. Sess. Laws 1079).
. In spite of the fact that the Court of Appeals expressed uncertainty about the prohibited subject to which the statute at issue in Drysdale “related,” it is clear from our opinion that the statute in question was deemed to impermissibly relate to health and sanitation, which is how subsequent opinions of this Court have understood that decision. E.g., Gaskill v. Costlow, 270 N.C. 686, 688, 155 S.E.2d 148, 149 (1967); Sams, 217 N.C. at 285, 7 S.E.2d at 541.
. The only time that this Court has rejected a claim that a local law impermissibly “related to” health and sanitation after Reed occurred in Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989), in which we held that a local act obligating the City of Greensboro to provide solid waste collection to newly annexed areas did not relate to health and sanitation given that the “effect” of the local act was to make a general law of statewide application applicable to an annexation being effectuated by the adoption of a local act and given that the Challenged legislation did not “subject the annexed area to a different treatment than” would have been the case if Greensboro “had annexed the area under the general annexation law.” Id. at 506,380 S.E.2d at 111.
. Although the Court of Appeals reasoned, in reliance upon its 2008 decision in Asheville I, that a provision in the legislation at issue here allowing for the discontinuance of water and sewer services by a metropolitan water and sewerage district for nonpayment “belies [the City’s] argument that the purpose of the [legislation] relates to health and sanitation,” City of Asheville,_N.C. App. at_, 777 S.E.2d at 98, we do not find this argument persuasive. A careful analysis of the Sullivan Acts reveals that each of them was intended to address economic, rather than health and sanitation, issues given that they prohibited the City from charging higher extraterritorial rates, required the City to place
. The legislation cannot be properly understood as nothing more than an exercise of the General Assembly’s plenary authority to create new units of local government. Instead of simply creating a new unit of local government, the General Assembly took a number of actions in the legislation, including creating the Metropolitan Water and Sewerage District through a repurposing of the Metropolitan Sewerage District and effectively eliminating the City’s ability to operate its existing water system. In similar instances, such as Idol,
. In view of our conclusion that the legislation is an unconstitutional local law relating to health and sanitation, we need not address the City’s challenge to the Court of Appeals’ holding that the legislation did not result in a compensable talcing and express no opinion'concerning its correctness.
. Although the General Assembly has, in the past, enacted legislation authorizing various units of local government to operate systems for the provision of water service, we do not believe that our decision in this case in any way impairs the ability of the affected units of local government to operate their water systems in a lawful manner. Aside from the fact that we do not know whether such legislation could be properly characterized as local, rather than general, in nature or relates to health and sanitation under the test that we have deemed appropriate in this case and the fact that the legislation in question appears to have allowed the initial provision of water service rather than requiring the reallocation of the responsibility for providing water and sewer service from one entity of local government to another, the current effect of any such legislation would be to allow the affected unit of local government to do what has otherwise been authorized by general legislation, an outcome which this Court held did not result in a violation of Article n, Section 24 in Piedmont Ford Truck Sale, 324 N.C. at 502, 380 S.E.2d at 111.
Dissenting Opinion
dissenting.
Throughout our history, when communities needed a governmental provision of water and sewer services, the General Assembly, by local act, would grant a local government unit the authority to act. Here the majority’s holding ignores this historic constitutional understanding of the plenary authority of the General Assembly to oversee local government subdivisions and create new ones when necessary. Our history and our constitution recognize this plenary authority is necessary because the General Assembly is uniquely situated to oversee local government
This Court presumes that legislation is constitutional absent an express constitutional prohibition on the legislature’s otherwise plenary police power and until its unconstitutionality is plainly and clearly demonstrated beyond a reasonable doubt. E.g., Hart v. State, 368 N.C. 122, 126, 774 S.E.2d 281, 284 (2015); see also Kornegay v. City of Goldsboro, 180 N.C. 441, 445, 105 S.E. 187, 189 (1920) (“[CJourts always presume[,] in the first place[,] that the act is constitutional... [and] that the Legislature acted with integrity and with an honest purpose to keep within the restrictions and limitations laid down by the Constitution.” (quoting Lowery v. Bd. of Graded Sch. Trs., 140 N.C. 33, 40, 52 S.E. 267, 269 (1905)). The presumptive constitutional power of the General Assembly to act is consistent with the principle that a restriction on the General Assembly is in fact a restriction on the people. See Baker v. Martin, 330 N.C. 331, 336-37, 410 S.E.2d 887, 890 (1991). Thus, this Court is powerless to review an act of the people through the General Assembly for its political propriety so long as it reasonably relates to the need sought to be remedied and falls within legislative discretion. Greensboro-High Point Airport Auth. v. Johnson, 226 N.C. 1, 8, 36 S.E.2d 803, 809 (1946).
The General Assembly has long enjoyed plenary power to create political subdivisions of local government,
The General Assembly creates governmental subdivisions to facilitate local self-government, dividing governing authority between local governmental units that may otherwise compete for jurisdiction. See Hailey v. City of Winston-Salem, 196 N.C. 17, 22, 144 S.E. 377, 380 (1928) (“When a new governmental agency is established by the Legislature, such as a municipal corporation, it takes control of all the affairs over which it is given authority, to the exclusion of other governmental agencies.”). Local governmental subdivisions are “parts and parcels of the State, organized for the convenience of local self-government,” People ex rel. Van Bokkelen v. Canaday, 73 N.C. 198, 222 (1875), which the General Assembly may create, organize, abolish, arrange, and rearrange to meet local needs. See also Town of Boone v. State, _ N.C._, _, _ S.E.2d _, _ (2016) (No. 93A15-2); Holmes v. City of Fayetteville, 197 N.C. 740, 746, 150 S.E. 624, 627 (1929) (recognizing municipalities as “mere instrumentalities of the State for the more convenient administration of local government”), appeal dismissed per curiam, 281 U.S. 700, 50 S. Ct. 353, 74 L. Ed. 1126 (1930).
Moreover, the legislature can create “separate corporate agencies] to serve [ ] particular governmental purposes” and “call upon them to perform such functions as the Legislature may deem best.” Johnson, 226 N.C. at 9-10, 36 S.E.2d at 809 (citing Brockenbrough v. Bd. of Water Comm’rs, 134 N.C. 1, 17, 46 S.E. 28, 33 (1903)). “A municipality acting in its governmental capacity is an agency of the State for the better government of those residing within its corporate limits . . . .” Candler v. City of Asheville, 247 N.C. 398, 406, 101 S.E.2d 470, 476 (1958); see also McCormac v. Commr’s of Robeson Gty., 90 N.C. 441, 444 (1884) (“[I]t is within the power and is the province of the legislature to . . . invest the inhabitants .. . with corporate functions, more or less extensive and varied in their character, for the purposes of government....”). The General Assembly is the political body designated to oversee local government and to make necessary modifications as local conditions
This broad historic power of the General Assembly, acknowledged by our case law, has remained unchanged and is now expressly incorporated into Article VII, Section 1 of our current constitution, adopted in 1971:
The General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.
N.C. Const, art. VII, § 1. As such, Article VII, Section 1 “is not a delegation of power to the General Assembly” but “a general description” and “merely a recognition” of “the General Assembly’s power to provide for the organization and powers of local government,” 1968 Constitution Commission Report 85, as affirmed in the 1875 amendment, which “gave the General Assembly full power to revise or abolish the form and powers of county and township governments,” id. at 143.
By its plain meaning, the text of the first clause, “ [t]he General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions,” mandates the statutory creation and structuring of local governmental subdivisions. See State v. Webb, 358 N.C. 92, 97, 591 S.E.2d 505, 510-11 (2004) (The constitution is construed for its plain meaning.); see also Dunn v. Pac. Emp’rs Ins. Co., 332 N.C. 129, 134, 418 S.E.2d 645, 648 (1992) (Ordinary rules of grammar apply.). “Organization” means something “put together into an orderly, functional, [and] structured whole.” Organize, The American Heritage Dictionary 926 (new coll, ed. 1979). “Government” is defined as “[t]he act or process of governing; especially, the administration of public policy in a political unit; political jurisdiction.” Government, id. at 570. The “fixing of boundaries” means establishing borders or limits. See Fix and Boundary, id. at 497, 156. “Other governmental subdivisions” includes a “special-purpose district or authority,” Local Government, Black’s Law Dictionary (10th ed. 2014), such as an administrative water district, operated in compliance with principles, rules, and regulations, see id. (listing examples of local
Our case law has historically treated “other governmental subdivisions” similarly to traditional political subdivisions. See Town of Saluda v. Polk County, 207 N.C. 180, 186, 176 S.E. 298, 301-02 (1934) (“[T]he legislature alone can create, directly or indirectly, counties, townships, school districts, road districts, and the like subdivisions,... to effectuate the purposes of the government.... Such organizations are intended to be instrumentalities and agencies employed to aid in the administration of the government, and are always under the control of the power that created them, unless the same shall be restricted by some constitutional limitation.” (quoting McCormac, 90 N.C. at 444-45)); see also N.C.G.S. § 162A-65 (2015) (defining “political subdivision” for purposes of water and sewer authorities as “any county, city, town, incorporated village, sanitary district, water district, sewer district, special purpose district or other political subdivision,” id. § 162A-65(a)(8), and “governing body” as “the board, commission, council or other body... of a political subdivision in which the general legislative powers ... of such political subdivision are exercised,” id. § 162A-65(a)(6)). As such, the text of the first clause of Article VII, Section 1 contemplates the legislative creation of local governmental subdivisions, along with counties, cities, and towns, without constitutional limitation.
The second clause of Article VII, Section 1 concerns the authority of the General Assembly to confer specific “powers and duties” on local governmental units. Unlike the first clause, the second clause in Article VII, Section 1 includes an express limitation; namely, it prohibits any legislative delegation of “powers and duties” to local governmental units that is “otherwise prohibited by this Constitution.” Only under the second clause, then, is the General Assembly’s authority over local governments expressly subject to limitations imposed by other constitutional provisions, including the constraints on local acts listed in Article II, Section 24 first adopted in 1917. For example, under the Article II, Section 24 prohibition on certain local acts, the General Assembly cannot grant to one county the power to enact local employment legislation,
The question before this Court is whether the legislation at issue, Act of May 2, 2013, ch. 50, 2013 N.C. Sess. Laws 118 (the District Act), which creates a new regional district to govern water and sewer services within certain areas of Buncombe and Henderson Counties, is an exercise of the General Assembly’s plenary authority to “provide for the organization and government and the fixing of boundaries” of local government under the first clause of Article VII, Section 1 or whether it confers specific “powers and duties” on a local governmental unit under the second clause. If the General Assembly’s action creating the regional water and sewer district arises under its plenary authority recognized in the first clause of Article VII, Section 1, the analysis ends, and there is no need to address the application of the second clause and any restrictions imposed by Article II, Section 24.
As admitted by the City, the District Act creates a new political subdivision. Moreover, the statutory text of the District Act provides for
Initially established by local act in 1883, the City’s public water “system currently serves approximately 124,000 customers, some 48,000 of whom are located outside Asheville’s city limits” in portions of Buncombe and Henderson Counties. See N.C.G.S. § 160A-312(a) (2015) (authorizing a city to operate a water supply and distribution system inside and “outside its corporate limits, within reasonable limitations”). In 2013 the General Assembly created a new local governmental subdivision to provide regional water and sewer services to the City and those portions of Buncombe and Henderson Counties. Ch. 50, 2013 N.C. Sess. Laws 118 (captioned “An Act to Promote the Provision of Regional Water and Sewer Services by Transferring Ownership and Operation of Certain Public Water and Sewer Systems to a Metropolitan Water and Sewerage District.”).
The “transfer provision” regionalizes water and sewer services by combining the City’s public water system with the Metropolitan Sewerage District operating in the same county to form a new governmental subdivision. The transfer provision provides in part: “All assets, real and personal, tangible and intangible, and all outstanding debts ... are by operation of law transferred to the metropolitan sewerage district operating in the county where the public water system is located, to be operated as a Metropolitan Water and Sewerage District.Id., sec. 1(a), at 118. All assets and all outstanding debts of both the City’s water system and the Metropolitan Sewerage District transfer to the new regional district. Id., sec. 1(b)-(c), (f), at 119.
Likewise, the District Act amends N.C.G.S. § 162A-85.3 to provide for the organization and governance of metropolitan water and sewerage districts like the one created here, including a governing board with regional representation. Id. at 120-21.
The broad constitutional authority acknowledged in the text of the first clause of Article VII, Section 1 clearly affirms the legislature’s ability to create and organize political subdivisions to meet changing needs, resolve disputes between local governments, and provide new governance solutions. The General Assembly’s constitutional authority to do so remains even if its solution combines, divides, or regional-izes the political power of preexisting subdivisions that once governed local issues. Here it seems the General Assembly, in its discretion and in accordance with the District Act’s stated purpose, finds regional governance over certain water systems will ensure high quality water and sewer services.
The role of the legislature is to balance the weight to be afforded to disparate interests and to forge a workable compromise among those interests. The role of the Court is not to sit as a super legislature and second-guess the balance struck by the elected officials . . . [but] only to measure the balance struck by the legislature against the required minimum standards of the constitution.
Henry v. Edmisten, 315 N.C. 474, 491, 340 S.E.2d 720, 731 (1986). The General Assembly’s policy decision here falls within legislative discretion and, as an exercise of legislative authority under the first clause of
Assuming the District Act is a local act
The General Assembly is the only body politic with the oversight and authority to create and organize local political subdivisions in its discretion. It alone has the ability to resolve local governance disputes such as those undergirding the litigious past of the water system at issue.
Spanning almost a century, legislation and litigation chronicle the strained relationship between the City of Asheville’s water system
As acknowledged in the first clause of Article VII, Section 1, the General Assembly has plenary authority, to establish new subdivisions of local government. The General Assembly alone can consider the local competing interests and craft a solution. Such legislative action is not conditioned upon first providing a majority of this Court with satisfactory justification. Johnson, 226 N.C. at 8, 36 S.E.2d at 809 (“We have no power to review a statute with respect to its political propriety as long as it is within the legislative discretion and has a reasonable relation to the end sought to be accomplished.”). The majority’s holding that a new political subdivision addressing regional problems with the water system violates Article II, Section 24 simply because the legislation involves a water system erases the General Assembly’s historic authority to establish convenient local governmental units acknowledged by the first clause of Article VII, Section 1. The General Assembly’s creating a new local governmental subdivision does not offend the state constitution. This Court should not weigh the wisdom or expediency of a legislative act. Accordingly, I respectfully dissent.
. Before its express inclusion in the 1868 state constitution, this Court recognized the General Assembly’s historic duty and plenary power to create and abolish political subdivisions of local government. See, e.g., White v. Comm’rs of Chowan Cty., 90 N.C. 437, 438 (1884) (County subdivisions “are indeed a necessary part and parcel of the subordinate instrumentalities employed in carrying out the general policy of the state in the administration of government... [and their functions] may be enlarged, abridged, or modified at the will of the legislature . . . [as] they are intended only to be essential aids and political agencies.”); see also Lilly v. Taylor, 88 N.C. 489, 494-95 (1883) (affirming the legislature’s creation and subsequent repeal of the charter of the Town of Fayetteville); Mills v. Williams, 33 N.C. (11 Ired.) 558, 563-64 (1850) (upholding the legislature’s “power to create and abolish” Polk County).
. See Town of Boone,_N.C. at_,_S.E.2d at_(Ervin, X, concurring in result) (“[T]he plain language in which the provision in question is couched suggests to me that ‘organization and government’ refers to the creation of units of local government and the manner in which those units of local government are governed....”).
. This approach of conducting an Article II, Section 24 analysis only when the challenged statute specifies a specific “power” or “duty” is consistent with our prior decisions. In Piedmont Ford Truck Sale, Inc. v. City of Greensboro, the plaintiffs challenged a local act annexing certain land to the City of Greensboro. 324 N.C. 499, 501, 380 S.E.2d 107, 108 (1989). While the annexation clearly arose under the authority to "fix the boundaries of cities” acknowledged in Article VII, Section 1, id. at 503, 380 S.E.2d at 110, because the act also contained a specific “provision regarding solid waste collection,” the plaintiffs argued the statute violated Article II, Section 24, id. at 504, 380 S.E.2d at 110. Because the statute specified a particular “power,” this Court conducted an analysis under-Article H. Id. at 504-06, 380 S.E.2d at 110-11. When viewed as a whole, the explicit grant of power was a “small part” of the legislation, id. at 506,380 S.E.2d at 111, and this Court concluded that “[t]he provision... regarding solid waste collection” did not violate Article n, Section 24, id. at 506, 380 S.E.2d at 111. See also, e.g., Lamb v. Bd. of Educ., 235 N.C. 377, 379-80, 70 S.E.2d 201, 203 (1952) (concluding that an act expressly restricting certain express powers of the Randolph County Board of Education violated the Article It limitations on local acts); Idol v. Street, 233 N.C. 730, 733, 65 S.E.2d 313, 315 (1951) (concluding that an act that “conferred] power upon the Board of Aldermen of the City of Winston-Salem and the Board of Commissioners of Forsyth County” to, inter alia, “name a joint city-county board of health,” which varied from general law, “[wa]s a local act relating to health” in violation of the Article II limitations on local acts); Bd. of Health v. Bd. of Comm’rs, 220 N.C. 140, 143-44, 16 S.E.2d 677, 678-79 (1941) (concluding that an act removing from the Nash County Board of Health the power to appoint a county health officer was a local act relating to health in violation of the Article II limitations on local acts).
. “All necessary permits for operation” are also “transferred to the Metropolitan Water and Sewerage District... to ensure that no current and paid customer loses services due to the regionalization of water and sewer services.” Id., sec. 1(e), at 119. Moreover, the General Trust Indenture, which governs the bonds issued and secured by a pledge of “[a]ll Net Revenues of the Water System,” contemplates a transfer “to another political subdivision or public agency in the State authorized by law to own and operate such systems.” The trustee allows a transfer “if such political subdivision... assumes all of the
. Governing bodies of other political subdivisions may establish regional systems by joint resolution. See Ch. 50, sec. 5.5, 2013 N.C. Sess. Laws, at 125 (requiring consent from county commissioners and all municipal governing boards affected before creation of district).
. The District Act amended the definitions of “unit of local government” and “municipality” to include “metropolitan water and sewerage districts” and added “metropolitan water and sewerage districts” to the fist of political subdivisions that may borrow money and issue bonds. Ch. 50, sec. 2, 2013 N.C. Sess. Laws, at 119-20; see also N.C.G.S. § 159-44(4) (2015) (defining a “unit of local government”); id. § 159-48(e) (2015) (borrowing and bond issuing); id. § 159-81(1) (2015) (defining a “municipality”); id. § 159-81(3) (2015) (revenue-bond issuing).
. Generally, the District Act requires that the apportionment of members on the district board be representative of the area serviced while considering population. See Ch. 50, sec. 2, 2013 N.C. Sess. Laws, at 120 (two from each county served); id. (one from each municipality served); id. (two from each municipality served with a population greater than 200,000); id. (one from each county served with a population greater than 200,000); id. (“One individual from a list submitted by the governing body of a county in which a watershed serving the district board is located in a municipality not served by the district. . . .”); id., at 121 (“One individual by the governing body of any elected water and sewer district wholly contained within the boundaries of the district.”). “[T]he district board may expand to include other political subdivisions if’ the additional political subdivision “become[s] a participant in the district board.” Id.
The District Act also sets terms for members and provides procedures for meetings, removal of members, filling vacancies on the district board, and the election and compensation of officers. Id. Until all appointments are made, the district board of the County’s
. The District Act outlines the permissible authority for the local governing bodies within the regional district’s jurisdiction. See, e.g., Ch. 50, sec. 2, 2013 N.C. Sess. Laws, at 122-23 (regulating the transfer of jurisdiction from smaller systems to the regional district system for the benefit of the district, contracting with the district, revising rates or collecting taxes to pay obligations to the district, and submitting to its electors agreements with the district). When possible, the district board must coordinate with the local municipalities when constructing any system improvements. Id. at 123.
. The statutory definition of “local act” in reference to cities and towns “means an act of the General Assembly applying to one or more specific cities by name, or to all cities within one or more specifically named counties.” N.C.G.S. § 160A-1(5) (2016). The District Act does not refer to the City of Asheville by name.
. In 1883 the General Assembly appointed the Asheville Committee on Permanent Improvements as trustee to oversee a $20,000 fund provided for “water supply.” Act of Feb. 28, 1883, ch. 66, sec. 2,1883 N.C. Priv. [Sess.] Laws 752, 753. The legislature followed suit with other municipalities and subdivisions. E.g., Act of Mar. 11, 1889, ch. 219, sec. 105, 1889 N.C. Priv. [Sess.] Laws 899, 924 (appointing the Board of Alderman for City of Greensboro to manage and regulate “water-works” which “may be established, or land on which water-pipes are run to and from said works”); id. sec. 107, at 924 (same for “system of sewerage”); Act of Dec. 20, 1815, ch. XVII, sec. II, 1815 N.C. [Sess.] Laws 18, 18 (empowering and appointing City of Charlotte board of commissioners to “erect pumps or wells”).
The General Assembly revised the charter of the City of Asheville to provide for its water authority in 1901, conferring upon the Board of Alderman the power “[t]o provide a sufficient supply of pure water for said city, fix charges and rates therefor, and prescribe rules and regulations governing the use of same,” Act of Mar. 13, 1901, ch. 100, sec. 30, 1901 N.C. Priv. [Sess.] Laws 222, 232, which included “construction, operation, repair and control of such water-works," id., sec. 66, at 259. The legislature designated a separate subdivision of government, the Board of Health, to take “general charge and supervision of . . . the healthfulness of the water supply.” Id., sec. 32, at 234. In 1923 the General Assembly revised the charter and restructured the local government, empowering a Board of Commissioners to “build and construct” waterworks and sewerage systems, Act of Jan. 26, 1923, ch. 16, sec. 306, 1923 N.C. Priv. [Sess.] Laws 88, 154, both within the City limits and beyond, id., sec. 353, at 167, as well as a Commissioner of Public Works to supervise the systems, id., sec. 25, at 96.
In 1931 the legislature revised the charter again, which remains the charter today, subject to various amendments. Act of Mar. 30,1931, ch. 121, 1931 N.C. Priv. [Sess.] Laws 154. Under this charter, the General Assembly created a Department of Finance to take charge of “the supervision and control of and over the water system and supply,” id., sec. 32, at 161, and to “collect for the use of water,” id. at 163; see also Act of Apr. 6, 1951, ch. 618, 1951 N.C. Sess. Laws 554, 554 (allowing “the City of Asheville, Buncombe County and political units therein to contract” for the water system).
In 1981 the legislature expressly repealed these charter provisions related to the supervision and control of the water system, Act of Feb. 16,1981, ch. 27, sec. 3,1981 N.C. Sess. Laws 13,14, removing control from the Department of Finance and appointing anew political subdivision to handle the authority. In 1981 the City and Buncombe County then entered into a comprehensive local agreement that established, inter alia, an agency to administer the jointly-owned water supply and distribution systems.
. See, e.g., Act of June 29, 1967, ch. 1019, sec. 1, 1967 N.C. Sess. Laws 1463, 1463 (permitting the Town of Taylorsville and Alexander County to purchase a water system); Act of Apr. 5, 1961, ch. 560, secs. 1, 2, 1961 N.C. Sess. Laws 461, 461 (appointing Town of Dunn as new entity to acquire, build, manage, and operate the “water and sewerage system” for the “unincorporated village of Erwin in Harnett County”); Act of Apr. 5,1947, ch. 1040, sec. 3, 1947 N.C. Sess. Laws 1519, 1520 (creating a “Board of Power, Water and Airport Commissioners of the City of High Point... to construct, to improve, [and] to better... [the] water system”); Act of Jan. 30,1945, ch. 24, sec. 1,1945 N.C. Sess. Laws 37, 37 (moving all water-related property from the Board of Water Commissioners to the City of Charlotte, a separate corporation); Act of Jan. 18, 1939, ch. 1, sec. 1,1939 N.C. Pub.-Local [Sess.] Laws 11, 11 (establishing “sanitary districts” in Forsyth County); Act of May 3, 1935, ch. 418, sec. 1, 1935 N.C. Pub.-Local [Sess.] Laws 378, 378 (establishing joint water and sewer systems for Haywood County municipalities); Act of Jan. 26, 1923, ch. 1, sec. 1,1923 N.C. Priv. [Sess.] Laws 1, 1 (extending the “waterworks system” for the Town of Lenoir); Act of Jan. 1, 1917, ch. 71, sec. 2, 1917 N.C. Priv. [Sess.] Laws 134, 134 (establishing a separate entity, the Board of Water Commissioners, to “provide for the better management and proper operation of the ... water-works system of the city of Durham”).
Reference
- Full Case Name
- CITY OF ASHEVILLE, a Municipal Corporation v. STATE OF NORTH CAROLINA and the METROPOLITAN SEWERAGE DISTRICT OF BUNCOMBE COUNTY
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- 11 cases
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- Published