Stroupe v. Eller , 262 N.C. 573 ( 1964 )

138 S.E.2d 240 (1964) 262 N.C. 573

Nell STROUPE, President, and Frances K. McLaren, Secretary, of the Asheville and Buncombe County Branch of The Pure Water Association
v.
Earl ELLER, Frank Mulvaney, Clarence Morgan, Theodore B. Sumner, William Algary, Walter McRary, and Ralph Morris, Individually and as Members of the Asheville City Council, and J. Weldon Weir, Individually and as City Manager of Asheville, North Carolina, and The City of Asheville, North Carolina, a Municipal Corporation.

No. 93.

Supreme Court of North Carolina.

October 14, 1964.

Horton & Horton, by Shelby E. Horton, Jr., Asheville, for plaintiff appellees.

O. E. Starnes, Jr., Asheville, for defendant appellants.

HIGGINS, Justice.

According to the stipulations of the parties and the findings of the court, the advantages and disadvantages of fluoridating the city water supply are controversial. The question, therefore, becomes one of policy for the decision of the City Council rather than one of law for the courts. DeAryan v. Butler, 119 Cal. App. 2d 674, 260 P.2d 98; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703; G.S. §§ 160-229 and 160-255; State ex rel. Whittington v. Strahm, 374 S.W.2d 127 (Mo.). "It is only where the ordinance is so unreasonable, oppressive and subversive of individual and property rights that it carries the inference of an attempted abuse rather than a legitimate exercise of power that the courts will interfere." 6 McQuillin, Municipal Corporations, § 20.04, p. 9 (3rd Ed. 1949).

The plaintiffs contend the adverse vote in the county-wide election of 1956, although advisory, nevertheless should prevent the council from passing the resolution until the electors are given another opportunity to vote on the question. While the city charter was not introduced in evidence, yet the parties in their briefs and in the oral argument concede that it provides for a referendum election upon proper petition before any ordinance becomes effective; and in the event a majority vote for the repeal, the ordinance shall be recalled.

The board allegations in the complaint are narrowed by the stipulations of the parties. In the absence of any charge of bad faith on the part of the city council or on the part of the health officer and the dental and medical associations at whose instance the council ordered fluoridation, we hold the complaint fails to allege a cause of action. At the same time we realize that difficulty and expense are involved in the changeover to fluoridation, and that upon petition for a referendum the resolution to fluoridate may be called. This being an equity proceeding, we remand the cause to the Superior Court of Buncombe County to be dismissed—but only after the opponents have had time to call for and obtain a referendum as provided in the City Charter.

The recall election must be determined by the voters of the city. Those outside, notwithstanding their dependence on the city for their water supply, may not participate in any election to recall an ordinance of the City Council. After the opponents of fluoridation have had a reasonable time to petition for a referendum the Superior Court will dismiss this cause at the cost of the plaintiffs. This delay seems proper inasmuch as the Charter provides the petition may be filed "after the passage of any ordinance * * * and before it goes into effect." (emphasis added)

Reversed and remanded with instructions to dismiss within a reasonable time after the mandate of this Court.