January 31, 1978
Subject:
State Departments, Institutions and Agencies, Municipalities, Taxation, Refuse Collection, Fees.
Requested By:
Joseph W. Grimsley, Secretary Department of Administration
Question:
May the State of North Carolina pay fees to a municipality for refuse collection?
Conclusion:
Yes.
Municipalities have no inherent police power and exercise power only as expressly conferred thereon by the General Assembly or necessarily implied therefrom. Town of Conover v. Jolly, 277 N.C. 439 (1970).
G.S. 160A-192 authorizes municipalities to enact ordinances respecting the manner of disposal by its citizens of solid waste and impose charges for its collection and disposal. G.S. 160A-314 gives municipalities further authority to fix and enforce charges for municipal services. However, these statutes are not binding upon the State because the State is not expressly mentioned in them. Yancey v. Highway Commission, 222 N.C. 106 (1942).
Neither can a municipality impose ad valorem tax upon State-owned governmental property. The fees established by a municipality pursuant to these statutory authorizations are not taxes. See, for example, Covington v. Rockingham, 266 NC 507 (1966).
The municipality cannot by ordinance force the State to use its refuse collection service and enforce the fee provisions regarding it.
The collection and disposition of refuse generated by State government is necessary to protect the health and public welfare. The State can provide its own facilities in this regard or can obtain such service as a contractual service under the provisions of Article 3 of Chapter 143 of the General Statutes. The Advisory Budget Commission under G.S. 143-53 has authority to promulgate rules and regulations governing acquisition by the State of contractual services by competitive bidding or "other suitable means". G.S. 143-49(3).
The rules or contracting procedures promulgated by the Advisory Budget Commission for contractual services set forth competitive procedures. However, there is an exception from these rules when the services are provided directly by an agency of "local government" performing the service as part of their normal governmental function. Additionally, the State Purchasing Officer is authorized to exempt services. 5D NCAC .0302.
It would therefore appear that the State may enter into a contract with a municipality for refuse collection and pay reasonable fees therefor.
Rufus L. Edmisten Attorney General
T. Buie Costen Special Deputy Attorney General