Martin v. City of Trussville

• Decision Date: 08 August 1979
• Parties: Charles MARTIN, d/b/a Meadow Lane Apartments v. CITY OF TRUSSVILLE, a Municipal Corporation. Civ. 1933.
• Court: Alabama Court of Civil Appeals

Page 1089

376 So.2d 1089

Charles MARTIN, d/b/a Meadow Lane Apartments v. CITY OF TRUSSVILLE, a Municipal Corporation.

Civ. 1933.

Court of Civil Appeals of Alabama.

Aug. 8, 1979.

As Corrected On Denial of Rehearing Sept. 12, 1979.

John H. Alsbrooks, Jr., Birmingham, for appellant.

Donald B. Sweeney, Jr., Birmingham, for appellee.

BRADLEY, Judge.

Charles Martin, appellant here, and owner of Meadow Lane Apartments, filed a declaratory judgment action urging the trial court to find unconstitutional a municipal ordinance providing for the collection and disposal of garbage and the assessment of fees for providing such service. Alternatively, he asked that the ordinance not be considered compulsory in nature.

The ordinance in question reads in pertinent part as follows:

AN ORDINANCE FOR THE LEVY AND COLLECTION OF FEES FOR THE COLLECTION OF GARBAGE IN THE CITY OF TRUSSVILLE, ALABAMA.

SECTION 1. (a) A garbage collection, hauling, and disposal service shall be conducted and performed by City forces within the City of Trussville, Alabama (hereinafter referred to as "City").

1). The persons occupying each single family dwelling unit and each unit of a duplex where the City furnishes such collection service, shall pay to the City of Trussville a fee per residential unit as follows:

                Per month                      $ 3.00 per unit
                If paid annually (in advance)   30.00 per unit
                

2). Where the City furnishes such collection service, each apartment owner shall pay a fee for each apartment residential unit as follows:

                Per month per unit             $ 2.50
                If paid annually (in advance)   25.00
                

There will be one garbage pick up station for each 25 apartment units, or major fraction thereof, or one garbage pick up station for apartment of less than 25 units.

(g) The services and assessments herein provided Will be mandatory for all classes and categories as described in this ordinance. (Emphasis added.)

After hearing oral testimony, considering evidence presented, and reviewing the parties' briefs, the trial court rendered its judgment. It found that the city had authority to levy a garbage service fee based upon Code of Alabama 1975, § 11-47-135 and § 22-27-1 through § 22-27-7 respectively. These sections read in part:

§ 11-47-135. Establishment of incinerators, etc., for disposal of garbage, etc.; hauling and disposal of garbage and trash; fees.

All cities and towns of this state shall have the power to establish and maintain incinerators for the destruction of garbage and like substances or to otherwise dispose of garbage, either within or without the city limits, and to haul or cause to be hauled to such incinerators or other places of disposal trash and garbage of all kinds and cause the destruction of the same in such manner as may be deemed expedient by the proper municipal authorities And to fix and collect such reasonable fees as may be necessary to carry out the provisions of this section. (Emphasis added.)

§ 22-27-5. Authority of localities to establish charges, fees, etc., and enter (a) Fees, etc.; mutual agreements or contracts. The county commission or municipality undertaking the responsibility for providing services to the public under this article May establish fees, charges and Rates and may collect and disburse funds within cooperating areas or districts, inside or outside the corporate limits of municipalities or inside or outside of county boundaries, for the specific purpose of administering this article and providing and operating a solid waste program. (Emphasis added.)

into mutual agreements or contracts; licensing of private or corporate agencies; nonpayment of fees, etc.

The trial court further found that Garbage fees authorized by the Solid Wastes Act (I. e., §§ 22-27-1 through 22-27-7) were mandatory in the absence of the exception provided for in § 22-27-3(e). This section reads:

(e) Exception. A household, business, industry or any property owner may store, haul and dispose of his own solid wastes on his own land or otherwise, provided such storage, haulage or disposal is accomplished pursuant to a certificate of exception as provided in this subsection.

The trial court rejected Martin's contention that the imposition of the garbage fee on Owners of apartments and Occupants of single family dwellings amounted to a denial of equal protection under the state and federal constitutions. The trial court also, in effect, rejected Martin's contention that he had been denied due process of law because he was required to pay for each apartment owned regardless of occupancy by adopting a construction of the ordinance that required the owner of an apartment house to pay the garbage assessment only for a rented apartment. The trial court noted that the City of Trussville, in its brief, stated that the policy of the city was not to assess a garbage fee for unoccupied apartments, and the trial court observed that it saw no reason to construe the ordinance in a manner contrary to such policy. The trial court further found the garbage fees reasonable and ordered the sum of $1,205 paid into the court by Martin to be used to pay the City of Trussville for garbage collection from March 1, 1977 through July 1977.

Martin filed a motion for new trial which was denied. From the final judgment Martin appeals.

Martin raises six issues for review: (1) whether the city ordinance violates the equal protection clauses of the United States Constitution (Amend. XIV, § 1) and Alabama Constitution of 1901 (art. I, §§ 1, 6 and 22); (2) whether the ordinance violates due process of law; (3) whether the ordinance is a taxation ordinance exceeding the powers of taxation granted to a municipal corporation; (4) whether the trial court erred in finding the ordinance mandatory and that citizens must use the garbage service; (5) whether the mandatory language of section 1(g) of the ordinance is so vague and ambiguous as to be void; and (6) whether the trial court erred in relying on and citing material contained in the city attorney's trial brief when such was not formally in evidence.

As to the issue of whether the municipal corporation exceeded its taxation authority, we note 71 Am.Jur.2d State and Local Taxation § 11 (1973) recognizes that all revenue received by a city is not "accurately" characterized as a tax. A charge for removing garbage is listed among items which may not be regarded as a tax. Oral testimony reveals the ordinance was passed to defray the costs of garbage collection. The charge involved is actually a fee for a service provided by the city which had previously been provided at no cost to its citizens. Consequently, we will consider the garbage charge in this case a "service charge" rather than a tax. See: City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (1964).

Martin relies primarily upon the case of City of Russellville v. Citizens Bank and Savings Co., 207 Ala. 348, 92 So. 469 (1922) for his position that the ordinance in question is outside the power of the municipal authority. A careful reading of that case shows the supreme court decided the city More importantly, we find Code of Alabama 1975, § 11-47-135 authority for the city to levy a fee for garbage collection because it specifically provides that a city shall have the power to collect and dispose of garbage and to fix and collect reasonable fees therefor. In addition, Code of Alabama 1975, § 22-27-5(a) provides for a municipality to establish fees for the purpose of administering and operating a solid waste program.

could not tax for the collection of garbage. However, please note that the statutory provision involved in that case provided for the establishment of crematories and the city did not maintain crematories. We, therefore, consider the supreme court's decision that no tax could be imposed to be based on the failure to abide by the statute.

Martin argues that no mandatory language appears in either § 11-47-135 or § 22-27-5 to support the ordinance's mandatory provisions regarding the services or assessment. As previously noted herein, § 22-27-3(e) provides for a certificate of exception which allows a household, business, industry or any property owner to dispose of his own solid wastes. In the absence of evidence that Martin applied for or received a certificate of exception, we find the fees in the instant case mandatory and point out that the trial court also held that "without the exception," the garbage fees are mandatory.

An analagous situation was dealt with in the City of Lake Charles case. There the appellant objected to the garbage ordinance because it was compulsory. The Louisiana Supreme Court upheld the validity of the ordinance. Testimony indicated that if non-use was established by the city, the charge would not be...