Ennis v. City of Ray

• Citation: 595 N.W.2d 305
• Decision Date: 18 June 1999
• Docket Number: No. 980300,980300
• Parties: Ed ENNIS, Plaintiff and Appellant, v. CITY OF RAY, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 305

595 N.W.2d 305

1999 ND 104

Ed ENNIS, Plaintiff and Appellant, v. CITY OF RAY, Defendant and Appellee.

No. 980300.

Supreme Court of North Dakota.

June 18, 1999.

Rehearing Denied July 13, 1999.

Ed Ennis, Williston, Pro se.

John H. MacMaster, MacMaster Law Firm, Ltd., Williston, for defendant and appellee.

VANDE WALLE, Chief Justice.

¶1 Ed Ennis appealed from a judgment awarding the City of Ray a judgment for unpaid garbage collection fees and a water connection fee. We affirm.

I

¶2 Ennis purchased a home in Ray and began receiving water and sewer service from the City in July 1996. The City also billed Ennis $12.00 per month for garbage collection service. Ennis protested the monthly garbage fee, stating he wished to handle his own garbage removal. Although the City Auditor initially had difficulty locating the ordinance which provided for mandatory garbage removal service for all residents, the ordinance was eventually found. Ennis was advised by letter on December 13, 1996, that his water service would be shut off if he failed to pay the delinquent garbage fees. When Ennis still refused to pay, his water was shut off.

¶3 Ennis filed an action in small claims court alleging constitutional and statutory violations, and seeking compensatory and punitive damages. The City removed the action to district court and filed a counterclaim for the unpaid garbage fees and a $20.00 water connection fee Ennis had refused to pay when his water service was started in July 1996. Ennis subsequently moved for dismissal of his complaint without prejudice, and sought a temporary restraining order requiring the City to reconnect his water. The court dismissed Ennis's claims without prejudice and granted the motion for a temporary restraining order.

¶4 On July 13, 1998, the district court granted the City's motion for summary judgment on its counterclaim. Judgment was entered against Ennis for $92.00 for the unpaid garbage and water connection fees, plus statutory costs and interest.

II

¶5 Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Smith v. Land O'Lakes, Inc., 1998 ND 219, p 9, 587 N.W.2d 173. In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, p 6, 567 N.W.2d 345. Questions of law are fully reviewable on appeal. Id.; Keator v. Gale, 1997 ND 46, p 7, 561 N.W.2d 286.

III

¶6 Ennis has raised issues which relate solely to his original claims in this action, particularly the City's authority to shut off his water service for nonpayment of the garbage fees. The validity of the City's authority to shut off water service does not affect the City's authority to collect fees for garbage service. Ennis's complaint was dismissed on his own motion, and the issues raised therein are not properly before us on this appeal. We therefore do not consider them.

IV

¶7 Ennis asserts the City is prohibited from making garbage service mandatory to all residents, and may not charge fees for garbage service if a resident declines the service. The relevant portions of the ordinance provide:

Section 1: UTILITY ESTABLISHED--There is herewith created a Public Utility of the City of Ray to be known as Waste Collection and Disposal Utility. Such utility shall be responsible to carry out the provisions of this ordinance and shall supervise and arrange for a garbage collection system, disposal grounds, and landfill disposal system. The utility shall have the power and authority to purchase, contract, lease or otherwise acquire in the name of the City of Ray such lands as are necessary for disposal of garbage; to purchase, lease or hire such equipment as may be necessary.

....

Section 12: GARBAGE CHARGES AND COLLECTION--The City Auditor of Ray is hereby authorized to charge for this and remittance shall be paid to the City Auditor upon monthly bills from the said department.

No person within the City of Ray shall be permitted to refuse such garbage service and the failure to receive such service shall not exempt him from payment of charges herein before set forth....

Ennis asserts the mandatory nature of the service and the authorization to collect the fee even if the resident refuses service violate due process and exceed the statutory powers of municipalities under North Dakota law.

A

¶8 It is well settled that collection and disposal of waste fall within a municipality's police power to protect public health, safety, and welfare. A & H Services, Inc. v. City of Wahpeton, 514 N.W.2d 855, 857 (N.D.1994); Tayloe v. City of Wahpeton, 62 N.W.2d 31, 35 (N.D.1953). Ordinances regulating waste removal therefore carry a strong presumption of validity:

Once it is determined that a city has the general authority to regulate a certain subject matter, the burden is upon the party challenging an ordinance to demonstrate how that authority was exceeded. Meyer v. City of Dickinson, 451 N.W.2d 113, 116 (N.D.1990). The ordinance is presumed valid, and a court will not declare the ordinance invalid unless it is "clearly arbitrary, unreasonable and without relation to public health, safety, morals or public welfare." Meyer v. City of Dickinson, supra, 451 N.W.2d at 116; Tayloe v. City of Wahpeton, supra, 62 N.W.2d at 35....

A & H Services, at 857. When a municipality has general authority to regulate a particular subject matter, the manner and means of exercising those powers, where not specifically prescribed by the legislature, are left to the discretion of the municipal authorities. Meyer, at 116; Haugland v. City of Bismarck, 429 N.W.2d 449, 453-54 (N.D.1988). Leaving the manner of exercising municipal powers to the discretion of municipal authorities "implies a range of reasonableness within which a municipality's exercise of discretion will not be interfered with or upset by the judiciary." Meyer, at 116 (quoting Haugland, at 454).

¶9 The overwhelming majority of cases addressing a city's authority to impose mandatory garbage service and fees have upheld the ordinances against constitutional and statutory challenges. See, e.g., Martin v. City of Trussville, 376 So.2d 1089, 1093-95 (Ala.Civ.App.1979); City of Glendale v. Trondsen, 48 Cal.2d 93, 308 P.2d 1, 6 (1957); Stone v. Town of Mexico Beach, 348 So.2d 40, 42 (Fla.Dist.Ct.App.1977); Zerr v. Tilton, 224 Kan. 394, 581 P.2d 364, 371 (1978); Cassidy v. City of Bowling Green, 368 S.W.2d 318, 319-20 (Ky.1963); Craig v. City of Macon, 543 S.W.2d 772, 774-75 (Mo.1976); City of Hobbs v. Chesport, Ltd., 76 N.M. 609, 417 P.2d 210, 214 (N.M.1966); City of Portsmouth v. McGraw, 21 Ohio St.3d 117, 488 N.E.2d 472, 475 (1986); City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536, 539 (1995). But see Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476, 480-81 (1996). The majority view is aptly expressed in 7 Eugene McQuillin, Law of Municipal Corporations § 24.250 (3d rev. ed.1997) (footnotes omitted):

Municipal corporations frequently perform the service of collecting and removing all garbage, trash, and similar substances, and prohibit any other persons from engaging in that business. A municipality may do this under its police or general power to provide for the health of its inhabitants and to prevent and abate nuisances....

A special charge, tax, or assessment may be made by a municipal corporation, reasonably commensurate to the cost of removal of garbage and refuse.... [O]ne cannot avoid paying a city's garbage collection fee by hauling one's own garbage since a city can constitutionally require everyone to use the city's garbage collection service in the interest of uniform sanitation. A property owner cannot opt out of a municipal solid waste disposal system by simply not requesting the service.

¶10 Notwithstanding the numerous authorities holding that mandatory garbage services and fees are valid exercises of a municipality's police power, Ennis asserts the City's ordinance is prohibited by proscriptions on municipal authority under N.D.C.C. §§ 40-05-01.1 and 40-34-05. Section 40-05-01.1, N.D.C.C., provides:

[W]henever a municipality for the general welfare, public health, fire protection, or public safety establishes by ordinance and maintains and operates a garbage and rubbish collection and removal system, the cost of such service may be charged to the owner or occupant of the property served.

Similarly, N.D.C.C. § 40-34-05 authorizes municipalities to own and operate garbage disposal plants, and to "establish just and equitable rates and charges to be paid for the use of ... such garbage disposal plant or system ... by a person ... whose premises are served thereby." Ennis asserts his property is not "served" by the City's garbage collection utility because he disposes of his own garbage. Relying upon Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996), he therefore asserts the ordinance violates N.D.C.C. §§ 40-05-01.1 and 40-34-05.

¶11 In Winside, the court considered a Nebraska statute which authorized cities to provide facilities and systems for solid waste disposal and to charge fees for use of such facilities and systems "by each person whose premises are served by the facility or system." Winside, 553 N.W.2d at 479 (quoting Neb.Rev.Stat. § 13-2020(4)). The city had enacted an ordinance creating a mandatory garbage collection service and authorizing garbage fees against all residences and buildings within the city's corporate limits. Jackson, who owned a four-unit apartment complex in the city, refused the city's garbage...