State Ex Rel. East Lenoir Sanitary District v. City of Lenoir

105 S.E.2d 411 (1958) 249 N.C. 96

STATE ex rel. EAST LENOIR SANITARY DISTRICT, Plaintiff,
v.
The CITY OF LENOIR, North Carolina, Earl H. Tate, Mayor, and James Barger, Albert Carpenter, Archie Coffee, Fred M. Dula, Paul Pendry, Joe J. Steele, Frie Torrence, Commissioners of the City of Lenoir, North Carolina, Defendants.

No. 310.

Supreme Court of North Carolina.

October 29, 1958.

Claude F. Seila and W. C. Palmer, Lenoir, for plaintiff appellant.

L. H. Wall, Lenoir, for defendant appellees.

RODMAN, Justice.

We think it unnecessary to compare the facts stated in the judgment with the facts stipulated to ascertain if indeed there is a variance or a mere condensation of the agreed statement of facts; nor is it necessary to pass on exceptions 2, 3, and 4 to the court's conclusions of law.

In our opinion the case can properly be disposed of by considering the exception to the judgment. If the correct result has been reached, the judgment should not be disturbed even though the court may not have assigned the correct reasons for the judgment entered.

A reading of the complaint immediately raises this question: Has plaintiff stated a cause of action? If not, it is our duty, ex mero motu, to take note of that fact. Caldlaw, Inc., v. Caldwell, 248 N.C. 235, 102 S.E.2d 829; Amazon Cotton Mills Co. v. Duplan Corp., 246 N.C. 88, 97 S.E.2d 449; Maola Ice Cream Co. v. Maola Milk & Ice Cream Co., 238 N.C. 317, 77 S.E.2d 910; Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911; Watson v. Lee County, 224 N.C. 508, 31 S.E.2d 535.

Before one can call on a court to redress or protect against a wrongful act done or threatened, he must allege that he is or will in some manner be adversely affected thereby. He must be the real party in interest. G.S. § 1-57; Application for Reassignment of Pupils, 247 N.C. 413, 101 S.E.2d 359; Joyner v. McDowell County Board of Education, 244 N.C. 164, 92 S.E.2d 795; Lipe v. Guilford Nat. Bank, 236 N.C. 328, 72 S.E.2d 759; Thomas v. Gate City Life Insurance Co., 222 N.C. 754, 22 S.E.2d 711; Home Real Estate Loan & Insurance Co. v. Locker, 214 N.C. 1, 197 S.E. 555; Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673; Choate Rental Co. v. Justice, 211 N.C. 54, 188 S.E. 609; First Nat. Bank v. Thomas, 204 N.C. 599, 169 S.E. 189.

Plaintiff bases its assertion of violation of its rights on two legal propositions: (1) Plaintiff and Lenoir are both municipal corporations. The statute does not permit defendant city to enlarge its boundary so as to include any portion of the area lying within plaintiff's corporate boundaries. (2) The enlargement of defendant's boundary results in a diminution of plaintiff's corporate limits and has the effect of transferring title to that portion of plaintiff's property, its water mains, lying within the area transferred to the new sovereign.

Articles VII and VIII of the Constitution give the Legislature complete authority to create, control, and dissolve cities, towns, and other public corporations or governmental agencies. Moore v. Board of Education, 212 N.C. 499, 193 S.E. 732; Town of Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298; Starmount Co. v. Hamilton Lakes, 205 N.C. 514, 171 S.E. 909; Matthews v. Blowing Rock, 207 N.C. 450, 177 S.E. 429; University of North Carolina v. High Point, 203 N.C. 558, 166 S.E. 511; Town of Highlands v. Hickory, 202 N.C. 167, 162 S.E. 471; Lutterloh v. Fayetteville, 149 N.C. 65, 62 S.E. 758.

Exercising its constitutional authority, the Legislature has made general provision for the creation, modification, and operation of numerous kinds of public or quasi-public corporations. In the codification of our statute law these various agencies have been assigned their appropriate places dependent upon the functions they exercise. Illustrative: School District and School Administrative Units as governmental agencies are provided for in the chapter on education. G.S. c. 115. Drainage districts, quasi-public corporations, Davenport v. Pitt County Drainage District, 220 N.C. 237, 17 S.E.2d 1, are provided for in the chapter on drainage. Housing facilities are provided for in the chapter on housing authorities, G.S. c. 157, counties as governmental agencies, c. 153, sanitary districts in the chapter dealing with health, G.S. c. 130. These districts have been defined as quasi-municipal corporations. Halifax Paper Co. v. Roanoke Rapids Sanitary District, 232 N.C. 421, 61 S.E.2d 378. Cities and towns are provided for in c. 160 entitled "Municipal Corporations." That chapter does not purport to deal with sanitary districts or other quasi-municipal corporations.

The Legislature of 1947 took note of the need to provide some ready means by which cities might modify their corporate limits without awaiting the passage of some private act. It enacted a general statute dealing with the problem. That statute is now incorporated as Art. 36 of c. 160 of the General Statutes. The first section of the statute permits a city or town to annex contiguous territory which is "not embraced within the corporate limits of some other municipality." Does the word "municipality" as there used mean another city or town, or does it comprise sanitary districts and other quasi-municipal corporations? It is, we think, apparent that the word was intended to mean cities and towns and is limited to that meaning. That fact is, we think, apparent from the caption of the act and its preamble.

It is not unusual for one governmental agency to occupy the same territory as another governmental agency, and this is particularly true when the governmental objects are not coequal and coextensive. Instances are not wanting where the same general purpose is to be accomplished. Drainage Commissioners, etc. v. Eastern Home and Farm Association, 165 N.C. 697, 81 S.E. 947. The town does not need to secure the approval of a sanitary district in order to enlarge its boundaries and cover the sanitary district. On the other hand, a sanitary district may with, but only with, the consent of a municipality, occupy the same territory as the city. G.S. § 130-33.

Plaintiff exercises under the statute creating it both governmental functions and proprietary rights. In operating a water system to provide fire protection and kindred services it is acting in a governmental capacity. Baker v. Lumberton, 239 N.C. 401, 79 S.E.2d 886; Mabe v. Winston-Salem, 190 N.C. 486, 130 S.E. 169; Mack v. Charlotte, 181 N.C. 383, 107 S.E. 244. In supplying water to the individual inhabitants for their convenience, it was acting in a proprietary capacity. Hamilton v. City of Rocky Mount, 199 N.C. 504, 154 S.E. 844; Munick v. Durham, 181 N.C. 188, 106 S.E. 665, 24 A.L.R. 538; Terrell v. Washington, 158 N.C. 281, 73 S.E. 888.

Where there is in effect a merger or consolidation of corporations and the surviving corporation succeeds to all the duties and obligations of the constituent parts which then cease to exist, the survivor properly succeeds to the assets of the previous parts. It would be expected that the Legislature would so provide. Green v. Asheville, 199 N.C. 516,154 S.E. 852; Vilas v. Manila, 220 U.S. 345, 31 S. Ct. 416, 55 L. Ed. 491.

But where each corporation continues to survive and exercise the function authorized by the Legislature, each will continue to own and hold the property acquired and necessary for its corporate purposes. Certainly this is true in the absence of clear legislative mandate to the contrary.

The rule is well illustrated in the case of City of Winona v. School District, 40 Minn. 13, 41 N.W. 539, 3 L.R.A. 46, 12 Am. St. Rep. 687. There the town and the school district each operated a public school system. The town boundaries were enlarged so as to include a school house belonging to defendant. The third headnote, which accurately summarizes the decision, reads: "Where part of the territory of one municipal corporation is taken from it and annexed to another, the former corporation retains all its property, including that which happens to fall within the limits of such other corporation, unless some other provision is made by the act authorizing the separation."

Without specific language to so indicate, we will not assume that the Legislature intended to permit a city to acquire property of a quasi-municipal corporation by a mere enlargement of the city's boundaries. The mere fact that a person is moved into a city by a change of boundary does not deprive him or his vendor of the privilege of buying and selling water transported through the mains of the vendor.

Plaintiff has not alleged facts permitting it to challenge the validity of the proceedings by which Lenoir undertook to enlarge its corporate limits. Turner v. Reidsville, 224 N.C. 42, 29 S.E.2d 211; North Carolina Utilities Commission v. Kinston, 221 N.C. 359, 20 S.E.2d 322; Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563. The judgment dismissing the action is

Affirmed.

PARKER, J., not sitting.