Silver v. City of Los Angeles

• Decision Date: 12 June 1963
• Citation: 217 Cal.App.2d 134,31 Cal.Rptr. 545
• Court: California Court of Appeals Court of Appeals
• Parties: Phill SILVER, Plaintiff and Appellant, v. The CITY OF LOS ANGELES, Council of the City of Los Angeles, and Los Angeles By-Products Co., Defendants and Respondents. Civ. 26690.

Page 545

31 Cal.Rptr. 545

217 Cal.App.2d 134

Phill SILVER, Plaintiff and Appellant, v. The CITY OF LOS ANGELES, Council of the City of Los Angeles, and Los Angeles By-Products Co., Defendants and Respondents.

Civ. 26690.

District Court of Appeal, Second District Division 4, California.

June 12, 1963.

Hearing Denied Aug. 7, 1963.

Phill Silver, Hollywood, in pro. per.

Roger Arnebergh, City Atty., Bourke Jones and Ralph J. Eubank, Asst. City Attys., for defendants and respondents City of Los Angeles and Council of City of Los Angeles.

Adams, Duque & Hazeltine, Henry O. Duque and Bruce A. Beckman, Los Angeles, for defendant and respondent Los Angeles By-Products Co.

BURKE, Presiding Justice.

Plaintiff, instituted a taxpayer's suit for declaratory relief seeking to nullify, as unconstitutional, City of Los Angeles Ordinance No. 118900 relating to rubbish collection, and to set aside a contract awarded for the sale of metals collected.

Plaintiff has made six separate but futile attempts to state a cause of action by filing various amendments and supplements to his original complaint. Ultimately a general demurrer was sustained to his third amended and supplemental complaint, without leave to amend. Judgment was entered dismissing the action with prejudice, from which judgment plaintiff appeals.

Four causes of action are asserted by plaintiff:

1. The ordinance is invalid because, (a) it is unreasonable; (b) it violates public policy; (c) it is not for the preservation of the health and convenience of the City but for the benefit of a private corporation; (d) it is not a proper revenue measure; (e) it is impractical in compliance and impossible in performance; (f) it is ultra vires; (g) it is an improper police regulation to raise revenue; and (h) it subjects the citizenry to greater, not less, inconvenience, in requiring greater accumulations of exposed tin cans containing food particles, offensive in odor, more attractive to flies, rodents and vermin, and accordingly more dangerous to the health of the City.

2. The ordinance is unconstitutional because it excludes hotels, motels and trailer courts.

3. The City may not validly contract for the sale of the metal (mostly tin cans) under such an invalid ordinance.

4. The ordinance incites to damage suits against the City for unconstitutional discrimination against certain groups such as hotels and motels.

Plaintiff argues that as long as his complaint alleges the existence of an actual controversy and raises questions of fact his case should have been tried on the merits. As questions of fact purportedly raised he enumerates: (1) The segregation of metals is not a health measure but was enacted for the benefit of a private corporations; (2) the garbage collection as required increases the accumulations of rotting food particles and is a greater menace to health; (3) householders are subjected to increased expense (requiring purchase of new receptacles); (4) the ordinance was intended as a revenue measure; (5) greater inconvenience is caused; and (6) the comfort of the citizenry is disturbed by increasing offensive and unwholesome odors; from all of which plaintiff concludes the ordinance is fatally unreasonable, ultra vires, and therefore invalid.

A trial court may properly sustain a general demurrer to a declaratory relief action without leave to amend when the controversy presented can be determined as a matter of law. The City Council had full power to adopt an ordinance changing the frequency of the collection of garbage, combustible and noncombustible rubbish, and decreasing the amount of segregation of rubbish to be required of householders as a condition to municipal collection thereof. (Cal.Const., art. XI, §§ 6, 8 and 11; Los Angeles City Charter, § 2, subds. (4), (6), (9), (11)b, § 3, subd. (14); City of Glendale v. Trondsen, 48 Cal.2d 93, 308 P.2d 1; In re Zhizhuzza, 147 Cal. 328, 81 P. 955; In re Pedrosian, 124 Cal.App. 692, 13 P.2d 389; In re Santos, 88 Cal.App. 691, 264 P. 281.)

Thus, while a city may provide exclusive regulations for the disposal of garbage and rubbish as a proper exercise of its police power, under the authorities just cited, we note that the ordinance under attack here does not regulate the collection and disposal of garbage and rubbish. It provides a municipal service without a direct collection charge to the householder which they are free to use of not use. It does not create an exclusive method; the householders may make other arrangements, with private collectors to collect as their agents, if they desire. The ordinance establishes the City policy of collection of waste materials by municipal forces.

Essentially, plaintiff challenges the City's power of enactment of the ordinance in question. One of the earliest California decisions, In re Zhizhuzza, supra, 147 Cal. 328, 335, 81 P. 955, 958, held: 'The removal and disposition of garbage, as well as the regulation of slaughter houses, in cities and towns, is peculiarly a subject of municipal control, as without proper regulation either might become an intolerable nuisance and dangerous to the health and lives of the citizens.'

In its decision in the case just cited the court upheld an ordinance of the City of Oakland providing that the city shall have the exclusive right to gather and collect garbage. Later cases follow this holding. (Matula v. Superior Court, 146 Cal.App.2d 93, 303 P.2d 871; In re Sozzi, 54 Cal.App.2d 304, 129 P.2d 40; Glass v. City of Fresno, 17 Cal.App.2d 555, 62 P.2d 765.)

The courts have evolved a simple test to determine whether an ordinance constitutes a valid exercise of the police power: (a) Is its object a proper governmental objective, and (b) if so, are the means chosen reasonably related to that objective? (Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Allied Properties v. Dept. of Alcoholic Beverage Control, 53 Cal.2d 141, 346 P.2d 737.)

The California Supreme Court stated the matter as follows in Southern Pac. Co. v. Railroad Commission, 13 Cal.2d 89, at page 121, 87 P.2d 1055, at page 1071: 'Primarily, in the enactment of a statute the question of its reasonableness is one for prior legislative determination, and ordinarily the legislative conclusion in that respect is regarded as final. It will be disturbed by a contrary judicial conclusion in that regard only when the questioned legislation is so manifestly unnecessary for the promotion or the preservation of the public welfare that the tribunal charged with the duty of adjudicating the matter may fittingly declare that no rational ground existed as a reason for its enactment * * *.'

There can be no question that a proper governmental objective under the police power is served by the ordinance in question in providing a municipal rubbish and garbage collection and disposal service for the citizens. In determining whether the means provided in the ordinance are reasonably designed to accomplish that objective the determination of the legislative body is conclusive. (Wholesale Tobacco Dealers Bureau v. National Candy and Tobacco Co., 11 Cal.2d 634, 82 P.2d 3, 118 A.L.R. 486; Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 55 P.2d 177.)

No householder has a vested right in the initiation or continuance of a municipal service for disposal of waste. It is the householders' duty to dispose of household waste in a manner not violative of laws and ordinances prohibiting the maintenance of nuisances and safeguarding public health. The provisions in the ordinance for wrapped garbage and watentight receptacles with tight-fitting lids are specially directed to the sanitary feature of the program serving the public health. Since the service is not mandatory, but relieves the householder of his duty to privately dispose of his waste, and in the opinion of the legislative body is sufficiently frequent for purposes of public health and convenience, the ordinance, under the above cited authorities, may well be considered as a matter of law to be entirely valid and not violative of any constitutional mandates.

Plaintiff's contentions that the ordinance was intended for the financial benefit of a private corporation (the Los Angeles By-Products Co.) and that it was intended solely as a revenue measure are without legal effect. No evidence would have been admissible to support them. In Sunny Slope Water Co. v. City of Pasadena, 1 Cal.2d 87, 99, 33 P.2d 672, 677, the court states: '* * * the purpose or motive of the city officials in passing an ordinance is irrelevant to any inquiry concerning the reasonableness of the ordinance. * * * 'If the conditions justify the enactment of the ordinance, the motives prompting its enactment are of no consequence. If the conditions do not justify the enactment,...