Barnhill Sanitation Service, Inc. v. Gaston County , 87 N.C. App. 532 ( 1987 )

362 S.E.2d 161 (1987) 87 N.C. App. 532

BARNHILL SANITATION SERVICE, INC.
v.
GASTON COUNTY.

No. 8727SC116.

Court of Appeals of North Carolina.

November 17, 1987.

Kelso & Ferguson by Lloyd T. Kelso, Gastonia, for plaintiff-appellant.

Charles L. Moore, Co. Atty., Gaston County, Gastonia and Womble Carlyle Sandridge & Rice by Anthony H. Brett, Winston-Salem, for defendant-appellee.

JOHNSON, Judge.

Plaintiff appellant brings forth four Assignments of Error. Plaintiff contends that the trial court erred in failing to rule on plaintiff's motion to strike portions of the affidavits of Richard Wyatt and Philip Hinely, granting defendant's motion for summary judgment and denying plaintiff's motion for summary judgment.

Plaintiff in its first and second assignments of error contends that prior to the trial court ruling on motions for summary judgment, it was incumbent upon the trial court to rule on its motions to strike portions of the respective affidavits. More specifically, plaintiff contends that the information contained in defendant's supporting affidavits prejudiced plaintiff's arguments in attacking the landfill disposal fee.

While we agree that it was error for the judge not to rule on motions to strike portions of the affidavits prior to ruling on motions for summary judgment, we find that such error was not a clear abuse of discretion so as to preclude the plaintiff from presenting proper evidence in opposition to defendant's motion for summary judgment.

"[W]here matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). In Sullivan v. Johnson, 3 N.C. App. 581, 165 S.E.2d 507 (1969), the trial court failed to rule on plaintiff's motions to strike certain portions of defendant's answer on grounds that those portions were conclusions of law or allegations of evidentiary matter, and not allegations of ultimate facts. This court held that, the plaintiff having filed his motion in apt time, was entitled to be heard thereon. (Under G.S. 1-153, now repealed, a motion to strike made in apt time, was made as a matter of right.) "The right to make a motion to strike would be an empty one unless it included the right to have the motion ruled upon." Id. at 583, 165 S.E.2d at 508. The reason this Court reversed and remanded that case was that in addition to the court's failure to rule upon plaintiff's motion to strike, the court had no authority to make findings of fact on controverted issues, where the record did not show the hearing of evidence, the waiver of a trial by jury, or an agreement as to the facts. In the case sub judice, the record reveals that the court considered all the contentions of the parties and considered all the evidence presented by the parties before ruling on the motions before it. Although it was error for the court not to rule on plaintiff's motions to strike, we find that the record shows that the trial court did not abuse its discretion.

Plaintiff in its third Assignment of Error contends that the trial court erred in granting defendant's motion for summary judgment. We disagree. "The purpose of summary judgment ... [is] to bring litigation to an early decision on the merits without the delay and expense of a trial where it can be readily demonstrated that no material facts are in issue." Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971). The court is not authorized to decide an issue of fact but to determine if such an issue exists. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). The party moving for summary judgment has the burden of proving that no genuine issue of material fact exists. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). Once the moving party has submitted materials in support of the motion, however, the burden shifts to the opposing party to produce evidence establishing that the motion should not be granted. Id. at 370, 289 S.E.2d at 366.

First, Barnhill argues that the enactment of the fee was arbitrary, discriminatory, and in excess of statutory ratemaking authority because it allowed private citizens to use the landfill without charge, while it imposed fees on all commercial, industrial, and municipal haulers who used the landfill. We find that this argument is without merit.

"Counties are instrumentalities and agencies of the State government and are subject to its legislative control; they possess only such powers and delegated authority as the General Assembly may deem fit to confer upon them." High Point Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965). Thus, any power which a county possesses must be exercised in conformity with the laws of the state. G.S. sec. 153A-11. G.S. sec. 153A-275 grants counties the specific power to establish and operate a public enterprise, such as a landfill for the disposal of solid waste. "A county may by ordinance or resolution adopt adequate and reasonable rules and regulations to protect and regulate a public enterprise belonging to or operated by it." Id. Furthermore, G.S. sec. 153A-277(a) governs the authority of a county to fix fees:

A county may establish and revise from time to time schedules of rents, rates, fees, charges, and penalties for the use of or the services furnished by a public enterprise. Schedules of rents, rates, fees, charges, and penalties may vary for the same class of service in different areas of the county and may vary according to classes of service, and different schedules may be adopted for services provided outside of the county. (Emphasis added).

"Under this broad, unfettered grant of authority, the setting of such [fees] is a matter for the judgment and discretion of [county] authorities not to be invalidated by the courts absent some showing of arbitrary or discriminatory action." Town of Spring Hope v. Bissette, 53 N.C.App. 210, 212-13, 280 S.E.2d 490, 492 (1981).

It is clear to this Court that the county acted within its powers as authorized by G.S. sec. 153A-277(a). It was not a levy of an unreasonable discriminatory rate to charge only commercial, industrial and municipal haulers of garbage for the use of the landfills. "Rates may be fixed in view of dissimilarities in conditions of service, but there must be some reasonable proportion between the variance in the conditions and the variances in the charges. Classification must be based on substantial difference." Utilities Commission v. Mead Corp., 238 N.C. 451, 465, 78 S.E.2d 290, 300 (1953) (citations omitted). Furthermore, a county, like

[a] municipality has the right to classify consumers under reasonable classifications based upon such factors as the cost of service, the purpose for which the service or the product is received, the quantity or the amount received, the different character of the service furnished, the time of its use or any other matter which presents a substantial difference as a ground of distinction.

Wall v. City of Durham, 41 N.C.App. 649, 659, 255 S.E.2d 739, 745 (1979).

Since the county is allowed to establish a schedule of fees according to classes of service, the class of garbage haulers, whose volume of garbage delivered to the landfill is substantially more than private citizens and, whose commercial use of the landfill is substantially more than private citizens, perfectly justifies a reasonable distinction in the fees charged. Accordingly, Gaston County has a landfill fee schedule based upon the kind of service provided and consistent with G.S. sec. 153A-277(a).

Second, plaintiff contends that the landfill fee ordinance violates state and federal guarantees of equal protection. Plaintiff's argument is essentially based on the same premise preferred in argument one, i.e., that the disposal fee is arbitrary because it is not applied to all users of the landfill since individuals and users of the Green Boxes can dump garbage free of charge. We find defendant's contention is without merit.

"The equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirements that any legislative classification `be based on differences that are reasonably related to the purposes of the Act in which it is found.'" State v. Greenwood, 280 N.C. 651, 656, 187 S.E.2d 8, 11-12 (1972), quoting, Morey v. Doud, 354 U.S. 457, 465, 77 S. Ct. 1344, 1350, 1 L. Ed. 2d 1485, 1491 (1957).

Courts traditionally have employed a two-tiered scheme of analysis when evaluating equal protection claims. Texfi Industries v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980). The upper tier of equal protection analysis requiring strict scrutiny of a governmental classification applies only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantages of a suspect class. (Citations omitted). The "strict scrutiny" standard requires that the government demonstrate that the classification it has imposed is necessary to promote a compelling governmental interest. Id. at 11, 269 S.E.2d at 149.

When a governmental classification does not burden the exercise of a fundamental right, or operate to the peculiar disadvantage of a suspect class, the lower tier of equal protection analysis requiring that the classification be made upon a rational basis must be applied. "The `rational basis' standard merely requires that the governmental classification bear some rational relationship to a conceivable legitimate interest of government. Additionally, in instances in which it is appropriate to apply the rational basis standard, the governmental act is entitled to a presumption of validity." White v. Pate, 308 N.C. 759, 766-67, 304 S.E.2d 199, 204 (1983).

Plaintiff has not asserted membership in a suspect class such as race, religion or alienage nor argued that the ordinance discriminates on such a basis, and we perceive no basis for doing so. Nor has plaintiff alleged that the ordinance has burdened the exercise of a fundamental personal right. There being no fundamental right or suspect class involved in plaintiff's equal protection challenges, the "rational basis" test is appropriate. The record makes clear that the landfill fee ordinance is an economic regulation aimed at providing a viable solution to the growing depletion of available landfill space for the proper disposal of garbage. The county's classification of requiring all commercial, industrial and municipal haulers to pay a user fee, because they are the major users of the landfill, rationally furthers the purpose the county has identified as its objective in enacting the ordinance. The private citizens' use of the landfill is not commensurate with the volume of business utilized by the commercial haulers. Plaintiff contends that the county experiences no greater cost per ton in disposing of the residential waste dumped directly at the landfill by residential homeowners than in disposing of similar wastes that are either dumped directly into the landfills by citizens or dumped into Green Boxes. This argument adds no further credence to plaintiff's claim. The right to equal protection does not promise or guarantee economic or financial equality as long as the ordinance was rationally related to a legitimate governmental objective. The feasibility of the city utilizing a cost effective system to ameliorate the landfill availability problem was at issue, and was properly resolved by the landfill fee adopted by the county. The alleged economic disadvantage that plaintiff asserts is a cost it must bear. We conclude that there is a reasonable basis for the classification in the ordinance. Therefore, the classification does not violate the equal protection guarantees of either our state or the federal constitution.

Next, plaintiff contends that disposal fee at issue is an illegal tax. We find this contention is without merit.

While not discussed earlier, G.S. sec. 153A-292 authorizes Gaston County to collect the fees charged for use of the landfill. The county is also authorized under G.S. sec. 153A-292 to levy taxes to carry out the authority of this governing statute. G.S. sec. 153A-292 provides that:

The board of county commissioners of any county is hereby empowered to establish and operate garbage, refuse, and solid waste collection and disposal facilities, or either, in areas outside of incorporated cities and towns where, in its opinion, the need for such facilities exists. The board may by ordinance regulate the use of such garbage, refuse, and solid waste disposal facilities; the nature of the solid wastes disposed of therein; and the method of disposal.... The board may contract with any municipality, individual, or privately owned corporation to collect and dispose, or collect or dispose, of garbage, refuse, and solid waste in any such area provided no county shall be authorized by this Article to levy a disposal fee upon any municipality located in that county if the board of commissioners levy a countywide tax on property which provides in part for financing such disposal facilities. In the disposal of garbage, refuse, and solid waste, the board may use any vacant land owned by the county, or it may acquire suitable sites for such purpose. The board may make appropriations to carry out the activities herein authorized. The board may impose fees for the use of disposal facilities, and in the event it shall provide for the collection of garbage, refuse, and solid waste, it may charge fees for such collection service sufficient in its opinion to defray the expense of collection. Counties and municipalities therein are authorized to establish and operate joint collection and disposal facilities, or either of these, upon such terms as the governing bodies may determine. Such agreement shall be in writing and executed by the governing body of the participating units of local government.

The board of commissioners of each county is hereby authorized to levy taxes for the special purpose of carrying out the authority conferred by this section, in addition to the rate of tax allowed by the Constitution for general purposes, and the General Assembly hereby gives its special approval for such tax levies.... (Emphasis added).

A tax within the meaning of the constitutional prohibition against nonuniformity of taxation is a charge levied and collected as a contribution to the maintenance of the general government, and it is imposed upon the citizens in common at regularly recurring periods for the purpose of providing a continuous revenue. State ex rel Dorothea Dix Hospital v. Davis, 292 N.C. 147, 232 S.E.2d 698 (1977). However, the landfill fees, like sewer service charges, "are neither taxes nor assessments, but are tolls or rents for benefits received by the use of the [landfill] ..." Covington v. City of Rockingham, 266 N.C. 507, 511-12, 146 S.E.2d 420, 423 (1966). The record reveals that the Board of Commissioners adopted landfill fees as opposed to increased property tax as the most equitable source of revenue to fund sanitary landfill costs. It is clear to this Court that Gaston County did not levy a tax, as it had the power to do, but acted pursuant to its authority under G.S. sec. 153A-292 to set reasonable fees for the use of its available landfills.

Plaintiff next contends that the landfill fee schedule exceeds the county's statutory authority by imposing a disposal fee on municipal haulers. Defendant, in its brief, contends that plaintiff lacks standing to raise the rights of a municipality under G.S. sec. 153A-292. Plaintiff contends that it has standing to challenge the legality of the landfill disposal fee ordinance on behalf of the municipalities subject to it (as agent of municipality) and alternatively as a taxpayer.

For the reasons stated below, we find that the plaintiff lacks standing on either theory presented.

We first address plaintiff's allegation that it has taxpayer standing. In deciding a question on taxpayer standing, our Supreme Court in Nicholson v. State Education Assistance Authority, states that "[a] taxpayer, as such, does not have standing to attack the constitutionality of any and all legislation. A taxpayer, as such, may challenge, by suit for injunction, the constitutionality of a tax levied, or proposed to be levied, upon him for an illegal or unauthorized purpose." 275 N.C. 439, 447-48, 168 S.E.2d 401, 406 (1969). Having previously determined that the disposal fee was not a levy of a tax, plaintiff cannot seek to raise the question of the validity of a tax, where there is none.

We now address plaintiff's allegation that it has standing as an agent of the municipality. Our Supreme Court in State v. Trantham, 230 N.C. 641, 644, 55 S.E.2d 198, 200-01 (1949), laid down the following guidelines on the question of standing:

`Courts never anticipate a question of constitutional law before the necessity of deciding it arises.' They will not listen to an objection made to the constitutionality of an ordinance by a party whose rights it does not affect and who therefore has no interest in defeating it. (Citations omitted).

Furthermore, in Trantham, the Court said,

It is not sufficient to show discrimination. It must appear that the alleged discriminatory provisions operate to the hurt of the defendant or adversely affect his rights or put him to a disadvantage. (Citations omitted).

When the class which includes the party complaining is in no manner prejudiced, it is immaterial whether a law discriminates against other classes or denies to other persons equal protection of the law. He who seeks to raise the question as to the validity of a discriminatory statute has no standing for that purpose unless he belongs to the class which is discriminated against. (Citations omitted).

Id.

Plaintiff in its brief isolates a proviso of a sentence in G.S. 153A-292 which indicates that a disposal fee may not be levied upon any municipality in that county if the board of commissioners levy a county made tax on property which provides in part for financing such disposal facilities. However, the entire sentence reads;

The board may contract with any municipality, individual, or privately owned corporation to collect and dispose, or collect or dispose, of garbage, refuse, and solid waste in any such area provided no county shall be authorized by this Article to levy a disposal fee upon any municipality located in that county if the board of commissioners levy a countywide tax on property which provides in part for financing such disposal facilities. (Emphasis added.)

In order to obtain a proper interpretation of this sentence, the overall purpose of the proviso must be ascertained. In Propst v. Railroad, 139 N.C. 397, 398, 51 S.E. 920, 921 (1905), our Supreme Court provided the following on the purpose of a proviso:

The general office of a proviso is either to except something from the enacting clause or to qualify or restrain its generality or to exclude some possible ground of misinterpretation of it, and usually it is not permitted to enlarge the meaning of the enactment to which it is appended, so as itself to operate as a substantive enactment. It relates generally to what immediately precedes it and is confined by construction to the subject-matter of the section of which it is a part.

This proviso makes an exception for municipalities, but not for individual or privately owned corporations. The primary rule of statutory construction is that the intent of the Legislature controls. In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978). The intent of the Legislature may be ascertained from the phraseology of the statute as well as the nature and purpose of the act and the consequences which would follow from a construction one way or another. In re Hardy, supra. The record reveals that plaintiff is a privately owned corporation. As such, plaintiff cannot now assert the status of a municipality in order to challenge the validity of the ordinance as an agent of the municipality. To interpret the statute as plaintiff alleges would lead to an absurd result. See, Helms v. Powell, 32 N.C.App. 266, 231 S.E.2d 912 (1977).

Occupying the status of a non-municipality, therefore, plaintiff is not in the class it asserts is affected by the statute. Since plaintiff is not in the class affected, it has no standing to challenge the landfill ordinance at issue under G.S. sec. 153A-292.

The remaining two issues raised by plaintiff in its third Assignment of Error; whether a refund of fees paid pursuant to ordinances may be obtained and whether plaintiff may maintain this action as a class action, we find unnecessary to address in consideration of our previous findings.

Plaintiff's final argument cites as error the court's failure to allow plaintiff's alternative motion for summary judgment. Plaintiff contends that the only genuine issue of material fact is whether Gaston County does in fact use property tax revenues to finance disposal facilities. This argument is without merit. Plaintiff's contention on this issue rests upon its standing as a municipality under G.S. sec. 153A-292, where the county cannot charge disposal fees to a municipality if it also levys a property tax to finance the landfill. This issue has been settled because plaintiff has no standing to challenge this ordinance under that theory.

A careful examination of the entire record discloses that no genuine issue as to any material fact exists between the parties to this action. The judgment allowing defendant's motion for summary judgment and denying plaintiff's motion for summary judgment is

Affirmed.

ARNOLD and PARKER, JJ., concur.