Schmidt v. Masters

• Decision Date: 08 February 1972
• Parties: John E. SCHMIDT, dba Schmidt's Sanitary Service, Appellant, v. William J. MASTERS et al., Respondents.
• Court: Oregon Court of Appeals

Page 1029

490 P.2d 1029

7 Or.App. 421

John E. SCHMIDT, dba Schmidt's Sanitary Service, Appellant, v. William J. MASTERS et al., Respondents.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Oct. 26, 1971.

Decided Nov. 26, 1971.

Rehearing Denied Dec. 21, 1971.

Review Denied Feb. 8, 1972.

John J. Haugh, Portland, argued the cause for appellant. With him on the briefs were O'Connell, Goyak, Haugh & Loew, Portland.

Edward J. Sullivan, County Counsel, Hillsboro, argued the cause and filed the brief for respondents.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

This appeal is from judgment of the circuit court on petitioner's Writ of Review of action of the Board of County Commissioners for Washington County in awarding a sanitary service (for waste collection and disposal) certificate pursuant to Ordinance No. 59 of Washington County. The Board awarded petitioner substantially less than all of the territory for which he had applied. The petition attacked the ordinance on grounds that the county had no authority to enact the ordinance; that the ordinance provides no standards for the establishment of the service areas provided therein; that it violates Art. I, §§ 18, 20 and 21 of the Oregon Constitution, and Art. I, § 10 and the Fourteenth Amendment to the United States Constitution. ¹ The trial court held that Ordinance No. 59 was within the authority of the county to enact, and that there was no violation of the Oregon and United States Constitutions as alleged by the petitioner.

Ordinance No. 59 was enacted for the purpose of '* * * providing a co-ordinated county-wide program for the safe, economical and efficient collection, storage, transportation and disposal of wastes * * * and to insure adequate standards of service * * *' therefor. Ordinance No. 59, Section 2. The ordinance reserves to the Board of County Commissioners, upon advice of the County Health Department and a Solid Waste Advisory Committee, which is set up under provisions of the ordinance, the granting of certificates for waste collection and disposal.

Section 8 requires applicants for certificates to state the types of service proposed for service areas specified by the applicant, what rates are to be charged, and, if he already provides service to all or part of the area, a statement of the number of customers served therein.

Section 9 provides that persons providing service must, within 30 days of the time the ordinance becomes effective if they are to continue, make application for a certificate, and that the applicant must show to the satisfaction of the Board that he has the majority of service accounts in the area for which he applies; that he has available equipment, facilities and personnel sufficient to meet the standards of equipment provided by Ordinance No. 59 and ORS ch. 459 and regulations promulgated thereunder, and that he has good moral character. He is also required under this section to give a statement of all disposal sites used and that he will dispose of all solid waste at sites approved by the Board, and provide a surety bond. This section also provides that applications can be made to serve an area by an applicant who is not already serving the area if it is not certified to another, or being inadequately served by another.

Section 10 provides for review of the applications by the County Health Department and the Solid Waste Advisory Committee and for their recommendations to the Board, together with their recommendations of whether additional areas should be included in any certificate issued or additional service and equipment required.

Section 11 provides procedure whereby persons providing service to an area on or before January 1, 1969, but who did not serve a majority of the customers therein as required under Section 9 for certification, may, nevertheless, continue to serve customers they had in that area.

Section 12 provides, in part, that

'* * * in all cases where the Board finds that the applicant is able to provide adequate service within the service area, it shall issue an exclusive certificate for that area to the applicant.'

The foregoing review of Ordinance No. 59 is not comprehensive, but sufficient for this opinion.

Ordinance No. 59 was enacted on July 22, 1969. The record before us does not show the date on which it was introduced, although an indistinct filing stamp mark on the first page of the ordinance copy indicates it was filed with someone signing the name 'Roger Thomssen' on July 3, 1969. From the record we glean this: the petitioner had commenced a sanitary service operation in the general area for which he applied for an exclusive license in 1967. On his application petitioner stated that he had 360 customers on January 1, 1969. He did not have a majority of the customers in any particular part of the area. His attorney stated at a meeting of the Advisory Committee in December 1969, that petitioner had 300 customers on January 1, 1969, and 'almost 700' then (December 1969). Frank's Sanitary Service, which applied for and was certified a larger exclusive area than the petitioner, had slightly more than 1400 customers on January 1, 1969, and had been in business in the area for a much longer period of time than had petitioner. Besides the exclusive area awarded petitioner, he was specially awarded an area which included a few motels. He made no application for a special certificate under Section 11 of the Ordinance, which would have allowed him to continue service to the customers he had in the area not awarded to him.

The attack on the county Board's authority to enact Ordinance No. 59 is partly based upon petitioner's assertion that the ordinance was passed before the effective date of ORS 459.210 et seq. (Oregon Laws 1969, ch. 90), which gives all counties authority to franchise and regulate waste collectors. In answer to this, Washington County says it adopted a Home Rule Charter in 1963, containing a general grant of powers to the county, ² vesting exercise thereof in the Board of County Commissioners. The county contends that its authority thereunder, in fields of authority such as waste collection and disposal, is as great as that of a city with home rule powers; that it has been ruled cities may, and they do, franchise, limit and regulate waste collection; hence, home rule counties may do so, regardless of statutes giving all counties such authority. Petitioner contends that the state by enactment of the sections of ORS ch. 459 preceding ORS 459.210 et seq., which sections provide generally for regulation of waste collection and disposal, had preempted the field and therefore has removed such authority as the county might otherwise have.

The County Home Rule Amendment to the Oregon Constitution (Art. VI, § 10, adopted in 1958), states that

'* * * A county charter may provide for the exercise by the county of authority over matters of county concern.'

Washington County accepted this general offer of authority in its charter in broad terms:

'* * * to the full extent granted or allowed by the Constitution and laws * * * of * * * Oregon.'

It takes no documentation to observe that urbanization of areas outside of incorporated cities and resultant need for more sophisticated services than thinly populated areas require has resulted in a confusing and inefficient proliferation of special service districts; that a major reason for offering to counties broadening of authority under home rule was the need for a more sophisticated form of government than existed for such areas, carrying with it authority to do in localities what needs to be done there to seek order where there is confusion, and efficiency in public affairs where inefficiency increases, and to promote the public health, peace and safety. County home rule was an adaptation of city home rule, with limitations thereon to assure that state functions traditionally imposed upon counties by the state be continued. ³ We conclude that with reference to matters of local concern, the authority of a county under a home rule charter may be as broad as that of a city.

In Spencer et al. v. City of Medford et al., 129 Or. 333, 276 P. 1114 (1929), it was held that a city has the authority, under the general police power conferred on it by charter, to regulate and provide for the disposal of garbage, and that an ordinance doing that was valid, although it prohibited all but one named entity from collecting garbage in the city. The court quoted with approval from State v. Orr, 68 Conn. 101, 102, 35 A. 770, 34 L.R.A. 279 (1896):

"Any occupation comes within the range of the police power, which is such as to be naturally liable to create a nuisance unless subjected to special regulation; whether it be so conducted as in fact to create a nuisance, or not." 129 Or. at 340, 276 P. at 1116.

The Oregon Supreme Court said:

'* * * The ordinance was not passed with reference to the manner in which one or two individuals carry on the business, but with reference to the manner in which all individuals engaged in the business were conducting it, or thereafter, might conduct it. It is easier to control the operations of a single concern than to watch and supervise the activities of two or half a dozen, and solicitude for the public health might well suggest to a city council the propriety of so centralizing the service as to have it under the municipal thumb without employing a large number of watchers or supervisors.' 129 Or. at 341, 276 P. at 1116.

In Dunn v. Gray, 238 Or. 71, 392 P.2d 1018 (1964), an exclusive sanitary service franchise had been granted by the City of Salem and such action was under challenge. Citing Spencer et al. v. City of Medford et al., supra, the court said:

'A city has the unquestioned power to grant an exclusive license or franchise for the purpose of collecting and disposing of garbage.'

We have no doubt that these holdings are as applicable to all solid waste collection...