North Carolina State Bd. Of Health v. Comm'rs Of Town Of Louisburg

• Decision Date: 04 April 1917
• Docket Number: (No. 250.)
• Citation: 91 S.E. 1019
• Court: North Carolina Supreme Court
• Parties: NORTH CAROLINA STATE BOARD OF HEALTH et al. v. COMMISSIONERS OF TOWN OF LOUISBURG.

91 S.E. 1019

(173 N.C. 250)

NORTH CAROLINA STATE BOARD OF HEALTH et al.

v.COMMISSIONERS OF TOWN OF LOUISBURG.

(No. 250.)

Supreme Court of North Carolina.

April 4, 1917.

Appeal from Superior Court, Franklin County; Bond, Judge.

Suit for injunction by the North Carolina State Board of Health and W. S. Rankin, its secretary and ex officio State Health Officer, against the Commissioners of the Town of Louisburg. Judgment for the plaintiffs,

and defendant excepts and appeals. Affirmed.

Civil action heard on demurrer to answer and by consent September 28, 1916.

The action was instituted to restrain the defendants from discharging raw sewage into Tar river a short distance below the town without having the same properly treated as required by. statute. Public Laws 1911, c 62, § 33.

In the complaint, it is, among other things, alleged that defendant, a town of several thousand people situate on Tar river, maintains waterworks and a sewerage system, the latter consisting of five principal sewer lines and their ramifications, extending through the business district and a large part of residential section of the town, discharging the sewage into the Tar river and without having the same subjected to any treatment whatsoever for the purification thereof, etc. (2) "That, basing this allegation upon the approved teachings of modern sanitary science applied to physical conditions, such as have been hereinbefore set out, and likewise upon the conclusions arrived at, after mature consideration by the individual plaintiff above named and by those members of the North Carolina State Board of Health who, in the proper discharge of their official duties, have been called upon to take under advisement the problem in sanitation presented by continued contamination of the waters of Tar river by the discharge of raw sewage into the same above the point of intake of the waterworks system of the city of Rocky Mount and the towns of Tarboro and Greenville, as set out in the preceding paragraph of this complaint, these plaintiffs aver that such contamination of the waters of said river, owing to the above present danger of the bacterial pollution thereof, in the event of an epidemic of typhoid fever or other like communicable diseases in the town of Louisburg, constitutes a continuing menace to the public health of the city of Rocky Mount and in a lesser and diminishing degree, to that of the towns of Tarboro and Greenville." That below Louisburg on said stream the towns of Rocky Mount, Tarboro, and Greenville draw their municipal water supply therefrom, and also have a sewerage system discharging into said stream below after same has been subjected to treatment as required by law. That on complaint of the authorities of Rocky Mount, and with a view of protecting the water supply of that city from contamination, plaintiff board, etc., had, by resolution duly passed and communicated, and otherwise, endeavored to induce a compliance with the law on part of defendant town and had made repeated and insistent demands thereto, but the latter had thus far failed and refused to comply, asserted their right to discharge the untreated sewage into said stream, and expressed the purpose to continue so to do. In connection with these allegations, a report of an expert was submitted, giving a description of the stream and its tributaries, the fall, volume of water, etc., and stating the sources of contamination that could be reasonably apprehended. Defendants, admitting that they were discharging their sewage into the river without any treatment looking to its purification, and that the municipalities below were now obtaining their water supply from the river, answer the complaint, and allege that they have now maintained their water supply and sewer system for 13 years, commencing long before the cities mentioned began taking their water supply from the river; that the nearest of these towns, Rocky Mount, was by actual measurement and as the river winds 75 miles below Louisburg, and on account of the comparitively small amount of their sewage, the volume and flow of the water, etc., there was absolutely no danger of pollution to the inhabitants of the lower towns, but that the water by the time it reached them, or either of them, was as well purified as it could possibly be by any known method of treatment; that this was not only true as a scientific fact, but defendant had caused the same to be tested by experts at points not more than halfway down the stream and it was thereby ascertained that the waters of the river were as free from noxious germs, etc., as they were above Louisburg and before any sewage was discharged into the river. Defendants denied that plaintiffs, or any of them, had any legal right to maintain the suit, and averred, further, that they had never been given any proper hearing before the board of health and that the latter had never made or supplied any plan or system to be pursued by defendants, and by means of which the sewage could be properly treated, etc. To this answer plaintiff demurred, and, the matter having been heard on the pleadings attached thereto, the court gave judgment that defendants be restrained, unless a proper system of sewage treatment was installed and put in operation within 90 days, etc. From which judgment defendant town excepted and appealed.

Wm. H. Ruffin and Tarborough & Beam, all of Louisburg, for appellant.

L. V. Bassett, of Rocky Mount, for appellees.

HOKE, J. (after stating the facts as above). In section 33, Laws 1911, c. 62, a statute to collect and amend the laws more directly appertaining to the public health, it is enacted that:

"No person, firm, corporation, or municipality shall flow or discharge sewage above the intake into any drain, brook, creek or river from which a public drinking water supply is taken, unless the same shall have been passed through some well-known system of sewage purification 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 (chapter 159, § 13) and contained in Revisal 1905, § 3051, has been very fully considered and upheld in several decisions of the court (Shelby v. Power Co., 155 N. C. 196, 71 S. E. 218, 35 L. R. A. [N. S.] 48S, Ann. Cas. 1912C, 179; Durham v. Cotton Mills, 144 N. C. 705, 57 S. E. 465, 11 L. R. A. [N. S.] 1163; Durham v. Cotton Mills, 141 N. C. 615, 54 S. E. 453, 7 L. R. A. [N. S.] 321); 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 river, 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 are 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. Prichard v. Com'rs, 126 N. C. 908-913, 36 S. E. 353, 78 Am. St. Rep. 679; Hopper v. Covington, 118 U. S. 148-151, 6 Sup. Ct. 1025, 30 L. Ed. 190; Equitable Assurance v. Brown, 213 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682; Groeff v. Equitable Insurance, 160 N. Y. 19, 54 N. E. 712, 49 L. R. A. 288, 73 Am. St. Rep. 659; Griffin v. Railroad, 72 Ga. 423; Branham v. Mayor, 24 Cal. 585; 6 Pl. & Pr. 336-338; 31 Cyc. 333-337. While a demurrer might be taken as an admission 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 its act a misdemeanor and in effect declares such conduct and the conditions thereby created an indictable nuisance. True, in the cases up-holding 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...