Tayloe v. City of Wahpeton

• Decision Date: 31 December 1953
• Docket Number: No. 7393,7393
• Citation: 62 N.W.2d 31
• Parties: TAYLOE v. CITY OF WAHPETON et al.
• Court: North Dakota Supreme Court

Page 31

62 N.W.2d 31

TAYLOE v. CITY OF WAHPETON et al.

No. 7393.

Supreme Court of North Dakota.

Dec. 31, 1953.

Syllabus by the Court.

1. Municipal ordinances enacted for the purpose of protecting the public health, safety and welfare of the community are founded on the police power inherent in the state and granted by the state to the municipality.

2. Under such power a municipality has the authority to pass ordinances to regulate the collection and disposal of garbage for the protection of health and suppression of disease.

3. There is a presumption that unless the contrary appears on the face of an ordinance it is valid and the burden is upon the party attacking it to show the invalidity thereof.

4. Under Sec. 40-0501, subsection 45, NDRC 1943, it is left with the municipal authorities to determine the method of carrying out garbage collection and removal for the purpose of the protection of health and suppression of disease.

5. In choosing the method of carrying out garbage collection and disposal the city may carry that on by its own employees or by a contractor hired by the city or by a single individual or firm to whom an exclusive license may be granted.

6. The granting of an exclusive license to an individual or concern for the collection and disposition of garbage, which is essentially the work of the municipal authorities, does not come within the prohibition by the constitution against the granting of a monopoly or special privilege.

7. The fixing of the fees and charges payable by the householder for the collection of garbage is a part of the means for carrying out the ordinance and comes within the power of the municipal authority.

8. In determining whether an ordinance providing for the collection and disposal of garbage is passed for the promotion of health or for the raising of revenue for the city the test is whether the regulation in question is a bona fide attempt to enact regulations for the promotion of health or is actually a revenue measure passed under the guise of being a public health measure.

9. The ordinance in question is examined and held to be a public health measure and not passed for revenue purposes.

10. That an ordinance for the collection and disposal of garbage may deprive an individual of the right to do that work privately and may authorize the collection of waste matter not in itself harmful does not make in invalid as taking property without due process of law.

11. The motives of the members of the city council in passing an ordinance will not be inquired into for the purpose of determining the validity of the ordinance.

12. When the constitutionality of an ordinance is drawn in question, he who alleges it to be unconstitutional must point out the particular constitutional provisions which he claims have been violated.

Forbes & Forbes, Wahpeton, and Norton M. Hatlie, Wahpeton, for plaintiff and appellant.

Clifford Schneller, Wahpeton, for defendant and respondent, City of Wahpeton.

GRIMSON, Judge.

The plaintiff brings suit to enjoin the City of Wahpeton from enforcing an ordinance which purports to regulate and control the collection, disposition and hauling of garbage and rubbish within the city and the charges therefor. He obtained a temporary restraining order and an order to show cause why that order should not be continued during the pendency of the action. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. After argument on the demurrer and on the order to show cause the court sustained the demurrer and dissolved the restraining order. Plaintiff appeals from the order sustaining the demurrer.

In his complaint the plaintiff alleges that he is a taxpayer engaged in the business of collecting and disposing of garbage in the City of Wahpeton and owns $5,000 worth of equipment for that purpose. He objects to the ordinance on the grounds that it is 'invalid, void, illegal and unconstitutional' for the following reasons:

(1) That the ordinance provides for the awarding of an exclusive license to collect, dispose of and haul garbage and rubbish in the city to the person that would agree to pay the largest amount for such license and enforces his services upon the people. He claims this amounts to the granting of a special privilege contrary to law.

(2) That the ordinance delegates to the department of sanitation the right to fix and set the charges and fees that should be charged by said highest bidder for the collection, disposal and hauling of such garbage and rubbish without authority of law.

(3) That the ordinance deprives the plaintiff of his property rights and liberty to carry on his garbage collection business without due process of law and without any compensation, contrary to the Constitution of the State and the United States.

(4) That the ordinance is uncertain, unreasonable and arbitrary in its terms and provisions.

(5) That the city council in the enactment and adoption of said ordinance was guilty of fraud, deceit and collusion in that prior to the preparation of said ordinance the city council agreed upon the fixed and established charges that should be made for the work of garbage disposal and that license should be given and awarded to the defendant, S. F. Mittag and Son.

(6) That the ordinance prevents and prohibits the collection, disposal and hauling of articles of property which are not in and of themselves noxious or dangerous to public health, safety, morals or general welfare of the inhabitants and residents of the City of Wahpeton, and therefore 'unauthorized, illegal and void.'

Municipal ordinances intending to protect the public health, safety and welfare are founded upon the police power inherent in the State and granted by the State to the municipality.

'The police power is an attribute of sovereignty itself, under which life, liberty, and property are made safe. It is necessary for the preservation of the state and the welfare of society. It is a legislative function without limitation, except that it must not conflict with the state or federal Constitution, and unless the statute is clearly repugnant to some constitutional guaranty, the courts cannot interfere. The police power is one of the most essential powers of the government, and one of the least limitable, and the imperative necessity for its existence precludes any limitation upon it when not arbitrarily used. All rights are subject to the police power.' City of Bismarck v. Hughes, 53 N.D. 838, 208 N.W. 711, 713.

The plaintiff does not deny that the City of Wahpeton had the authority under the police power granted it by the State to pass an ordinance regulating garbage collection and disposal for the promotion of health and suppression of disease. He, however, contends that the ordinance exceeds the authority so given to the city. The burden is on him to show wherein the ordinance exceeds that authority. State v. Armour & Co., 27 N.D. 177, 145 N.W. 1033, L.R.A.1916E, 380; State v. Ligaarden, 59 N.D. 475, 230 N.W. 729, 70 A.L.R. 126; Baird v. Rask, 60 N.D. 432, 234 N.W. 651.

There is a presumption that the ordinance as passed is valid.

'A legal presumption exists in favor of validity, and unless the contrary appears upon the face of the ordinance, the burden is upon the party attacking it as invalid to show by clear and unequivocal evidence that the regulation imposed by it is so arbitrary, unreasonable, or confiscatory as to amount to depriving such party of property without due process of law. [Citing cases.]' City of Scottsbluff v. Winters Creek Canal Co., 155 Neb. 723, 53 N.W.2d 543, 548.

In passing upon the validity of such ordinances the courts will not declare them invalid unless such ordinances are clearly arbitrary, unreasonable and without relation to public health, safety, morals or public welfare. Soderfelt v. City of Drayton, N.D., 59 N.W.2d 502 and cases cited.

Subsection 1, Sec. 40-0501, NDRC 1943, grants the governing body of a municipality the power to adopt such ordinances not repugnant to the constitution and laws of the State, as may be proper and necessary to carry into effect the powers granted to such a municipality or as the general welfare of the municipality may require. Subsection 45 of that section gives the municipality the specific authority 'To make regulations necessary or expedient for the promotion of health or for the suppression of disease.'

Plaintiff claims, first, that the provision of the ordinance which provides for the granting of an exclusive license for the purpose of collection and disposal of garbage is beyond the authority granted by the statute. He contends that the ordinance thus creates a monopoly in restraint of trade contrary to the constitution. The collection and disposition of garbage is not a private enterprise. It is a municipal duty, which the city under the police power granted to it, must carry on by itself or by its agents. The constitutional provision against the granting of special or exclusive privileges does not apply. It is held in Smiley v. MacDonald, 42 Neb. 5, 60 N.W. 355, 27 L.R.A. 540, that such a constitutional provision does not prohibit cities from making an exclusive contract for the removal of garbage and other noxious and unwholesome matter. In the city of Grand Rapids v. De Vries, 123 Mich. 570, 82 N.W. 269, 273, the court passed on a similar ordinance for garbage collection and removal. In reference to the question of awarding the work to one exclusive individual or concern the court said:

'The gathering of garbage is not a trade, business, or occupation in any proper sense, and such employment does not come under the doctrine in reference to monopolies, or in reference to legislation in restraint of trade. It is a matter in which the public agencies are authorized to pursue the best means to protect the public health.'

In 9 McQuillin, Municipal Corporations, 3d Ed., p. 305, it is said regarding the...