City of Spokane v. Carlson

• Decision Date: 19 January 1968
• Docket Number: No. 39277,39277
• Citation: 436 P.2d 454,73 Wn.2d 76
• Parties: The CITY OF SPOKANE, Appellant, v. Lars CARLSON, Jr., Respondent.
• Court: Washington Supreme Court

Page 76

73 Wn.2d 76

436 P.2d 454

The CITY OF SPOKANE, Appellant, v. Lars CARLSON, Jr., Respondent.

No. 39277.

Supreme Court of Washington, En Banc.

Jan. 19, 1968.

Norman DePender, Corp. Counsel, Edward E. Shaw, Dudley L. Wilson, Don R. Shaw, Jr., Robert Atkinson, John Cooney, Spokane, for appellant.

Randall, Danskin, Lundin & Allison, Paul J. Allison, David L. Broom, Spokane, for respondent.

ROSELLINI, Judge.

The defendant was convicted in justice court of violation of Spokane City Ordinance No. C 13451, ¹ under the provisions of which the city reserved to itself the exclusive right to collect garbage and refuse in the city. He appealed to the superior court, which set the conviction aside, holding that the ordinance was unconstitutional insofar as it included within its definition of garbage the inorganic refuse picked up and hauled by the defendant. The city has appealed.

The evidence showed that the defendant obtained a permit from the Washington Public Service Commission (now the Washington Utilities and Transportation Commission) which gave him the right to operate '(i)ntrastate, irregular route, non-radial service as a carrier of industrial and trade waste and refuse (local cartage) in the City of Spokane and in the County of Spokane.' The permit was issued June 21, 1961. The evidence also showed that the waste which he carted was inorganic, consisting of cardboard boxes, wooden pallets and steel bands.

The trial court did not dispose of the defendant's contention that his permit authorized him to operate in violation of the city ordinance, but based its disposition of the case on its conclusion that the ordinance, as applied to the defendant's operation, was unconstitutional.

The theory of the trial court was expressed in this language:

The defendant has a constitutional right to carry on his business and the City only had a right to deprive the defendant of this right under the exercise of its police power, wherein the City could control the collection and disposition of unhealthy, unwholesome, noxious matter, matter offensive to the senses or dangerous to health.

The trial court found that the items carried by the defendant did not fall within the above description.

In City Sanitary Service Co. v. Rausch, 10 Wash.2d 446, 117 P.2d 225 (1941), this court cited Gardner v. People of State of Michigan, 199 U.S. 325, 26 S.Ct. 106, 50 L.Ed. 212 (1905) wherein it was said that the city has the obligation to protect the health of its people in all lawful ways having relation to that object, and that if, in its judgment, fairly and reasonably exercised, the presence of garbage and refuse in the city would endanger the public health, by causing the spread of disease, then it could rightfully cause such garbage to be removed and disposed of, even though it contained some elements of value. In such circumstances, the United States Supreme Court said, the property rights of individuals must be subordinated to the general good.

Also cited in that case was Smith v. City of Spokane, 55 Wash. 219, 221, 104 P. 249, 250 (1909), in which this court held that a garbage ordinance was a valid exercise of the police power, even though, in pursuance thereof, the contract was let to an individual to collect and dispose of the garbage. It was pointed out in that opinion that such ordinances are almost universally sustained, as follows:

But that the removal and destruction of the noxious, unwholesome substances mentioned in these ordinances tends directly to promote the public health, comfort, and welfare would seem to be beyond question. If so, an ordinance which tends to accomplish these results is a proper exercise of the police power; and from this power is necessarily implied the duty to determine the means and agencies best adapted to the end in view. That that object can best be attained by entrusting the work in hand to some responsible agency under the control of the city, possessing the facilities for carrying it on which dispatch, and with the least possible inconvenience, must be apparent to all. Ordinances conferring the exclusive right to collect garbage and refuse substances upon some department of the city government, or upon a contractor with the city, have almost universally been sustained. Smiley v. MacDonald, 42 Neb. 5, 60 N.W. 355, 27 L.R.A. 540, 47 Am.St.Rep. 684; Walker v. Jameson, 140 Ind. 591, 37 N.E. 402, 39 N.E. 869, 28 L.R.A. 679, 49 Am.St.Rep. 222; In re Van Dine, 6 Pick. 187, 17 Am.Dec. 351; State v. Fisher, 52 Mo. 174; River Rendering Co. v. Behr, 7 Mo.App. 345; Alpers v. San Francisco, C.C., 32 F. 503; National Fertilizer Co. v. Lambert, C.C., 48 F. 458; Ex parte Zhizhuzza, 147 Cal. 328, 81 P. 955.

The ordinance in that case was sustained as against a contention that it deprived the plaintiff of his right to engage in a lawful occupation to earn a livelihood for himself and his family. The ordinance made it unlawful for any person other than those authorized by the city to carry through the streets 'any garbage, night soil, ashes, or any waste or refuse substances, except manure.'

This court said in Smith, supra, at 220, 104 P. at 250:

This contention cannot be sustained. In all matters pertaining to the public health, nearly if not the entire police power of the state is vested in municipal corporations of the first class. Under its charter and the general laws of the state the city of Spokane may define and abate nuisances, regulate and prohibit the carrying on of occupations which are of such a nature as to affect the public health, and make all needful rules and regulations for the health, comfort, safety, and well-being of the city and its inhabitants. * * *

In accord are Wallis v. Fidelity & Deposit Co., 155 Wash. 618, 285 P. 656 (1930); Cornelius v. City of Seattle, 123 Wash. 550, 213 P. 17 (1923) and State v. Lovelace, 118 Wash. 50, 203 P. 28 (1921).

Smith v. City of Spokane, supra, is cited in an annotation in 83 A.L.R.2d 799, at 819 (1962), as placing this state among the great majority which hold valid ordinances which give the governmental body itself the exclusive right or privilege of operating garbage or rubbish removal services.

The cases, insofar as we have been able to ascertain, make no distinction between organic and inorganic garbage or refuse. In fact, it is the general rule that a municipality may make reasonable regulations governing the removal of ashes and other rubbish from private premises. See annotation 15 A.L.R. 309 (1921).

An ordinance regularly enacted is presumed constitutional, and the burden of establishing the invalidity of an ordinance rests heavily upon the party challenging its constitutionality. If a state of facts justifying an ordinance can reasonably be conceived to exist, such facts must be presumed to exist and the ordinance passed in conformity therewith. Lenci v. City of Seattle, 63 Wash.2d 664, 388 P.2d 926 (1964) and cases cited therein.

The mere fact that the particular refuse picked up and disposed of by the defendant may not have been injurious to the public health does not mean that the city could not reasonably decide that the control of the disposition of such materials was necessary for the protection of the public health and sanitation. It is a matter of common knowledge that inorganic refuse is frequently mixed with organic refuse. The legislative body of the city could reasonably determine that the possibility of such mixture renders it advisable that all refuse, whether innocuous in itself or not, be dealt with in a controlled and uniform manner. This in itself is sufficient justification for the ordinance regulating the disposition of inorganic as well as organic refuse.

In addition, the city could reasonably find that the manner of disposing of such refuse was a matter of serious public concern, affecting the public health and well-being, and that the public interest required that such disposition be conducted under controlled conditions. ²

In the case of City of Indianapolis v. Ryan, 212 Ind. 447, 453--454, 7 N.E.2d 974, 976 (1937), annotated at 135 A.L.R. 1305 (1941), the supreme court of Indiana said:

But the city was not burdened with the responsibility of showing that the product was offensive or harmful as handled. The Legislature has the right to regulate the disposal of the material if it is dangerous to the public health or welfare, or if it May become dangerous. Once it is conceded that there is a public interest in the disposal of such substances, and it cannot be questioned that there is, the government is not required to prove that in each specified case the particular items and substances were handled in such a manner as to be offensive and harmful. * * * Since it may be reasonably believed that a uniform system of collecting and disposing of garbage is necessary in order to protect the public from danger, the Legislature had power to provide for such a uniform system, notwithstanding that in some cases it would otherwise be disposed of without harm to the public. * * *

The statute must be construed as requiring the sanitary department to haul away and dispose of all kitchen refuse from cooking food, which is discarded as a human food, and as forbidding any other person to collect or remove such substances, without regard to the manner in which they are handled, or to whether the substances removed in any particular case are offensive or harmful as handled. It cannot be doubted that private individuals may equip themselves to remove such substances from a few, or many, or all, of the kitchens in the city, in a manner that is...