City of Hobbs v. Chesport, Limited

• Decision Date: 01 August 1966
• Docket Number: No. 7872,7872
• Parties: CITY OF HOBBS, a Municipal Corporation, Plaintiff-Appellee, v. CHESPORT, LTD., d/b/a Rex Arms Apartments, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 210

417 P.2d 210

76 N.M. 609

CITY OF HOBBS, a Municipal Corporation, Plaintiff-Appellee, v. CHESPORT, LTD., d/b/a Rex Arms Apartments, Defendant-Appellant.

No. 7872.

Supreme Court of New Mexico.

Aug. 1, 1966.

Seth, Montgomery, Federici & Andrews, Santa Fe, for appellant

Donald D. Hallam, Hobbs, for appellee.

OPINION

JOE W. WOOD, Judge, Court of Appeals.

This appeal involves the authority of plaintiff as a municipality to provide for its exclusive removal of garbage and the procedure followed by plaintiff in attempting to collect unpaid charges from the defendant. The numerous points raised by defendant will be stated and answered separately.

The statutory grant to municipalities for garbage removal is § 14--32--1 through § 14--32--11, N.M.S.A.1953 (now repealed). This appeal does not involve the 'refuse' provisions enacted in 1965 which appear at §§ 14--49--1 through 14--49--7, N.M.S.A.

Plaintiff, by ordinance, provided for a general system of garbage collection and disposal. The ordinance vested in plaintiff the exclusive right to gather and collect garbage within the city, and provided the method of assessing costs for collection of the garbage. Plaintiff made classifications and set fees for the collection of the garbage according to these classifications.

The city clerk filed a list of delinquent garbage assessments with the governing body of plaintiff, and published a notice of the filing of this delinquent list. The notice stated a time and place for interested persons to appear and object to the regularity of the proceedings. The city commission heard the protests at the time specified in the notice. The protests were overruled, and a claim of lien for delinquent garbage assessments was filed with the county clerk.

This suit was instituted for judgment in the amount of the lien and for foreclosure of the lien. Defendant was one of the persons against whom an assessment was made and a claim of lien was asserted. The trial court rendered judgment against defendant and ordered foreclosure of the line for unpaid assessments covering the period from October 1, 1962, to April 30, 1963.

Defendant notified plaintiff that he would collect and dispose of his own garbage and refuse, and did so beginning December 1, 1962. After that date plaintiff did not collect garbage from defendant although plaintiff was ready, willing and able to do so and regularly stopped at defendant's property with the purpose of collecting garbage.

In this court the defendant has filed a motion to dismiss plaintiff's complaint on the ground that it fails to state a claim upon which relief can be granted. In support of his motion defendant argues that the complaint does not allege that there was a determination of special benefits to the property involved, and that under § 14--32--6, N.M.S.A.1953, there must be a determination of special benefits before there can be an assessment for garbage removal. Defendant relies on Teutsch v. City of Santa Fe, 75 N.M. 717, 410 P.2d 742. That case dealt with the benefits to property in determining paving assessments and dealt with them as a substantive matter rather than as a matter of pleading.

Here the complaint was for foreclosure of a lien. The complaint alleged that the garbage assessments on which the lien claim is based were made 'in accordance with Section 14--32--5 through Section 14--32--10, New Mexico Statutes 1953 Annotated.' This allegation is sufficient under § 21--1--1(9) (h), N.M.S.A.1953. The motion is denied.

Defendant asserts that plaintiff does not have authority to give itself the exclusive right to collect and dispose of garbage. Gomez v. City of Las Vegas, 61 N.M. 27, 293 P.2d 984, held that a municipality could by contract give a private organization the exclusive right to collect and dispose of garbage. The issue then is not whether there can be an exclusive right, but whether a municipality may take this exclusiveness upon itself.

Relying on City of Clovis v. Crain, 68 N.M. 10, 357 P.2d 667, 88 A.L.R.2d 1243, defendant asserts that plaintiff could not give itself the exclusive right to remove garbage. In that case, the municipality had been collecting the garbage, and its right to do so was not an issue in the appeal. What Crain decided was that §§ 14--32--6 to 14--32--11, N.M.S.A.1953, provided the method for collecting delinquent garbage assessments and that a suit for debt was not a proper method under the statute.

Attacks on ordinances giving the municipality the exclusive right of collection and disposal of garbage have usually been unsuccessful. The right of the municipality to this exclusiveness has been upheld as a proper exercise of the municipality's police or other powers. 83 A.L.R.2d 819.

Section 14--32--3, N.M.S.A.1953, authorizes municipalities to provide for the enforcement of a general system of garbage collection and disposal. Under § 14--32--4, N.M.S.A.1953, the municipality may designate or select garbage collectors by 'appointment, contract or otherwise.' What plaintiff has done is designate its employees as the exclusive collectors of garbage.

The ordinance providing for garbage collection and disposal is a health measure. Gomez v. City of Las Vegas, supra. Section 14--25--1 N.M.S.A.1953 gives a municipality authority to provide, by ordinance, for carrying out the powers conferred by law and to provide, by ordinance, for proper measures to preserve the health of the community. The authority to enforce a general system under § 14--32--3, N.M.S.A.1953, and the authority to establish health measures, is authority for the municipality to place garbage collection and disposal exclusively with itself.

Defendant claims that he has a right to dispose of his own garbage. The definition of 'person' in § 14--32--1, N.M.S.A.1953, includes the defendant. In the exercise of the authority to provide for a general system of garbage collection under § 14--32--3, N.M.S.A.1953, plaintiff may require a 'person' to provide 'suitable receptacles' and 'to deposit therein all garbage and to place such receptacle conveniently for removal.' Under this statute defendant cannot do as he wishes with his garbage. The municipality has authority to determine how the garbage is to be handled. Further, a right in defendant to dispose of his own garbage would be inconsistent with an exclusive system of garbage collection and disposal.

Defendant claims that plaintiff cannot make a garbage assessment or claim a lien against his property for unpaid assessments when plaintiff did not remove garbage from his property. Section 14--32--4, N.M.S.A.1953, states that the municipality:

'* * * may provide that such garbage collector or collectors shall receive and collect from every person owning or controlling any house, shop, residence, establishment or place of business within such city, town or village, a reasonable sum, the amount and manner of payment to be fixed by the legislative or governing bodies thereof. * * *' (emphasis added)

The statute does not make collection of the garbage assessment dependent on the actual removal of garbage from the premises. The sum is to be collected from every person included within the definition of person in § 14--32--1, N.M.S.A.1953.

Defendant claims that to charge him for garbage assessments when no garbage was removed from his premises is a taking of his property without due process of law in violation of Article II, § 18 of the Constitution of New Mexico and the Fourteenth Amendment of the Constitution of the United States.

The charges made are not just for removing garbage from defendant's premises. The sum to be collected under § 14--32--4, N.M.S.A. 1953, is to 'defray the expenses of such garbage collection and disposal.' This involves the entire system--the general system authorized by § 14--32--3, N.M.S.A.1953.

Defendant is a person who receives benefits from the general system. These benefits are in the removal of garbage from premises of adjoining property and in plaintiff's spraying of the alleys and garbage cans to prevent flies. The charges made include cost of the services provided to property of others from which defendant's property benefits. Thus it is not true that defendant did not receive any benefits in connection with the charges made.

Further, the measure involved here is a police measure involving the health of all members of the community. In Gomez v. City of Las Vegas, supra, it was claimed that in providing for an exclusive system of garbage collection by contract with one party, the plaintiff was deprived of the right to engage in a lawful business, thereby depriving him of property rights without due process of law. In rejecting this claim the court stated:

'* * * the power of a municipality to move in the exercise of its police power to prevent disease and satisfy ordinary sanitary requirements is unquestioned and measured only by the exigencies of the situation, * * *.'

Defendant was not deprived of his property without due process by being required to pay the assessments. He received benefits in the collection and disposal of garbage from other premises in the community. The problem involved being a health problem, its solution bound defendant as well as other members of the community. Under § 14--32--3, N.M.S.A.1953, plaintiff can enforce the general system. Methods of enforcement other than the one used here are available under the provisions of § 14--32--5, N.M.S.A.1953. Plaintiff used the mildest of the enforcement provisions--collection of the assessment; such is not a denial of due process.

Defendant next asserts that before the plaintiff can make an assessment and claim of lien for non-payment of garbage fees (1) the property owner must have failed or refused to dispose of his own garbage and (2) the garbage has in fact been removed and disposed of by the municipality. Defendant makes this claim under § 14--32--6, N.M.S.A.1953.

Section 14--32--6, N.M.S.A.1953, provides for an...