North Carolina State Board of Health v. Commissioners of Louisburg

Hoke, J., after stating tbe case: In section 33, Laws 1911, cb. 62, a statute to collect and amend tbe laws more directly appertaining to tbe public bealtb, it is enacted that “No person, firm, corporation, or municipality shall flow or discharge sewage above tbe intake into any drain, brook, creek, or river from which a public drinking-water supply is taken unless tbe same shall have been passed, through some well-known system of sewage juriflcation approved by the State Board of Health; and the continued flow and discharge of such sewage may be enjoined on the application of any person.” This same provision, enacted in 1903, ch. 159, see. 13, and contained in Eevisal 1905, see. 3057, has been very fully considered and upheld in several decisions of the Court: Shelby v. Power Co., 155 N. C., 196; Durham v. Cotton Mills, 144 N. C., 705; Durham v. Cotton Mills, 141 N. C., 615; and it appearing from the statements and admissions in the pleadings that defendant town has been for several years past and is now discharging its raw sewage into Tar Eiver, and that below, on said stream and beginning not more than 75 miles as the river winds, several other towns are drawing their public drinking-water supply therefrom,” the case is one coming directly within the provisions of the law, and we are of opinion that defendant has been properly enjoined. It is urged for defendant that plaintiffs having demurred to the answer’ it is thereby admitted that the water supply of the lower towns is entirely beyond the danger zone, and that owing to the natural conditions prevailing, the distance, the volume and flow of the stream, etc., the water supply of the lower* towns is as free from pollution as' if it had been subject to any kind of known purification, etc. It is fully recognized that, for the purpose of presenting the legal question involved, a demurrer is construed as admitting relevant facts well pleaded and, ordinarily, relevant inferences of fact necessarily deducible therefrom; but the principle is not extended to admitting conclusions or inferences of law nor to admissions of fact when contrary to those of which the Court is required to take judicial notice, and more especially when such opposing facts and conditions are declared and established by a valid statute applicable to and controlling the subject. Pritchard v. Comrs., 126 N. C., pp. 908-913; Hopper v. Covington, 118 U. S., pp. 148-151; Equitable Assurance v. Brown, 213 U. S., 25; Graef v. Equitable Insurance, 160 N. Y., 119; Griffin v. R. R., 72 Ga., 423; Bramham v. Mayor, 24 Cal., 585; 6 Pl. and Pr., pp. [254] 336-338; 31 Cyc., pp. 333-337. "While a demurrer might be taken as an adimission that the water of Tar River reaches the lower towns without appreciable contamination from defendant’s sewage, and, in proper instances, such an admission would justify a denial of any interference by court process, it may not have that effect when a statute, explicit in terms and plain of meaning, absolutely forbids the discharge of untreated sewage into the stream, in another section makes such act a misdemeanor and in effect declares such conduct and the conditions thereby created an indictable nuisance. True, in the cases upholding the law heretofore cited, the distances between the upper and lower points on the river were 17 and 25 miles, respectively, and the distance here is said to be 75 miles as the river winds; but this difference, in our opinion, may not be allowed to affect the result. The conservation and protection of the public water supply are peculiarly within the police power of the State, referred very largely to the legislative discretion, entirely so with us unless it clearly offends against some constitutional principle, and the Legislature, in the exercise of such powers, having forbidden the use of such stream for the purpose and in the manner described, its decision on the facts presented must be accepted as final and defendants required to conform to the requirements of the law. Skinner v. Thomas, 171 N. C., 98; S. v. R. R., 169 N. C., pp. 295-304; Daniels v. Homer, 139 N. C., 219. And the same answer, we think, will suffice to a kindred position insisted on, that the defendant town, situate on the river, had installed its present system long before the lower towns had resorted to the stream for their public water supply and has operated same in the present manner for at least thirteen years without hindrance or question on the part of the health authorities or any others, and to compel defendants now to make this radical change in their system at a burdensome and unnecessary cost would be an unwarranted interference ■with defendant’s riparian and vested rights, etc. In so far as the mere question of time is concerned, and as between individuals, it requires an adverse user of twenty years to create a right of this character, Tise v. Whitaker, 146 N. C., 374; and, in reference to this statute, it was expressly held in Shelby v. Power Co., supra, that no length of time will justify the maintenance of a nuisance of this kind as against the public. On this question, Brown, J., delivering the opinion, said: “There are authorities to the effect that as against a private individual lower down on the stream, the right to pollute it to a greater extent than is permissible at common law may be acquired by prescription by an upper riparian owner. But we are not now dealing with the rights of riparian owners, but with the rights [255] of tbe public at large as represented by tbe General Assembly. It is well settled tbat unless by legislative enactment, no title can be acquired against tbe public by user alone, nor lost to tbe public by nonuser. Commonwealth v. Morehead, 4. Am. St., 601, and cases cited, Am. and Eng., p. 1190. Public rights are never destroyed by long continued encroachments or permissive trespasses. If it is in tbe power of tbe General Assembly, in tbe exercise of its police power, as we have held in tbe Durham case, to enact this law and make its violation a misdemeanor, it necessarily follows tbat tbe defendant could not acquire a right by prescription which would exempt it from tbe operation of tbe statute.” And even vested rights having reference to tbe ordinary incidents of ownership must yield to reasonable interference in tbe exercise of police power. In tbat field, as stated, tbe judgment of the Legislature is to a great extent decisive, and must be upheld unless tbe statute in question has no reasonable relation to tbe end or purpose in view and is manifestly an arbitrary and palpable invasion of personal and private rights. Skinner v. Thomas, supra; S. v. R. R., supra; Hadacheck v. Los Angeles, 239 U. S., 394; Chicago, etc., R. R. v. Tranbarger, 238 U. S., pp. 67-77; Reinman v. City of Little Rock, 237 U. S., 171; Mo. Pac. R. R. v. Omaha, 235 U. S., 121; McLean v. Arkansas, 211 U. S., pp. 539-547. In Skinner’s case, supra, speaking of tbe police power, Allen, J., delivering tbe opinion of this Court, said: “It is the power to protect tbe public health and public safety, to preserve good order and tbe public morals, to protect tbe lives and property of tbe citizens, tbe power to govern men and things by any legislation appropriate to the end,” citing from 9 Enc. of U. S. Reports, p. 473, and again from the Slaughterhouse cases, 16 Wallace, 36: “Upon it depends tbe security of social order, tbe life and health of tbe citizens, tbe comfort of existence in a thickly populated community, tbe enjoyment of private and social life, and' tbe beneficial use of property”; and, further: “Tbe exercise of tbe power is left largely to tbe disretion of tbe lawmaking body, and the authority of tbe courts cannot be invoked unless there is an unnecessary interference with tbe rights of tbe citizens or when there is no reasonable relation between tbe statute enacted and tbe end or purpose sought to be accomplished.” In Hadacheck’s case, supra, in upholding a city ordinance prohibiting tbe manufacturing of brick in certain localities in tbe city of Los Angeles, it was held, among other things, as follows: “While the police power of tbe State cannot be so arbitrarily exercised as to deprive persons of their property without due process of law or deny [256] them equal protection o£ tbe law, it is one of tbe most essential powers of government and one of tbe least limitable — in fact, tbe imperative necessity for its existence precludes any limitation upon it wben not arbitrarily exercised. “A vested interest cannot, because of conditions once obtaining, be asserted against tbe proper exercise of tbe police power. To so bold would preclude development. Chicago and Alton R. R. v. Tranbarger, 238 U. S., 67: There must be progress, and in its march private interests must yield to the good of tbe community. “Tbe police power may be exerted under some conditions to declare that under particular circumstances and in particular localities specified businesses which are not nuisances per se (such as livery stables, as in Reinman v. Little Rock, 237 U. S., 171, and brickyards, as in this ease) are to be deemed nuisances in fact and law.” In Mo. Pacific v. Omaha, supra, it was said: “In the exercise of the police power tbe means to be employed to promote tbe public safety are primarily in the judgment of tbe Legislature, and tbe courts will not interfere with duly enacted legislation which has a substantial relation to tbe purpose to be accomplished and does not arbitrarily interfere with personal and private rights.” In recognition of these well established principles, and on tbe admissions appearing of record that three populous and progressive towns lower down on tbe same stream are now taking their drinking-water supply from tbe river, beginning within a distance of 75 miles, and adverting to tbe sworn statements of tbe Board of Health and its dutiful, trained, and capable secretary, that under tbe conditions presented, and especially in times of epidemic, tbe discharge of untreated sewage by defendant imports a menace to tbe inhabitants of tbe lower towns, we are of opinion that tbe statute in question is a valid law and that tbe defendant must be held to comply with its provisions. It is further contended that plaintiffs are not proper parties to maintain a suit of this kind, but tbe position cannot be sustained. We are inclined to tbe opinion that plaintiff board, as a public quasi-corporation charged with tbe duty of looking after tbe public health and of tbe statutes promotive of such purpose, have a right in their quasi-corporate name to resort to tbe courts of tbe State in enforcement of these statutes and of regulations pursuant thereto having tbe force of law, Salt Lake City, etc., v. Golding, 2 Utah, 319; 28 Cyc., p. 131; but tbe question is not necessarily presented, as tbe secretary of tbe board, in bis individual name, is also a party, and, by tbe express provision of tbe law, an injunction may be obtained on tbe “application of any [257] person.” It is the accepted rule with ns that the joinder o£ unnecessary parties is without material effect except as to the matter of cost. Ormond v. Ins. Co., 145 N. C., 142. The presence of the Board of Health, therefore, even without the power to sue, does not prevent the efficient maintenance of the action. And the further position must be also overruled, that the Board of Health have prescribed no stated method of purification informing defendant as to how they must proceed. By the terms of the statute, expressly forbidding the discharge of the sewage unless treated, etc., the defendants, and others in like cases desiring to use the stream, are made primarily actors in such cases, and it is their duty to confer with the board and ascertain a proper method before resorting to the river for the purpose. It is to the interests of municipalities desiring to make use of a stream that no arbitrary or fixed method or system should be established in advance, for, no doubt, in many instances, a modification from the more exacting method may be found reasonable, permitting the maintenance of a less burdensome and less costly system. In any event, the statute bearing on the conduct of defendant is peremptory, and they must at once confer with the Board of Health and obtain and follow the reasonable requirements prescribed for the conditions presented. We find no error in the judgment below, and this will be certified that judgment be entered restraining defendant from discharging their untreated sewage into Tar River unless, within a definite time stated, the time fixed to be reasonable for the purpose, method of treatment looking to the purification of the sewage shall be installed and put in operation as required by law. Affirmed.