Town of Douglas v. York

• Decision Date: 15 October 1968
• Docket Number: No. 3683,3683
• Citation: 445 P.2d 760
• Parties: TOWN OF DOUGLAS, a municipal corporation, Appellant (Defendant below), v. Donald L. YORK and Donna L. York, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 760

445 P.2d 760

TOWN OF DOUGLAS, a municipal corporation, Appellant (Defendant below), v. Donald L. YORK and Donna L. York, Appellees (Plaintiffs below).

No. 3683.

Supreme Court of Wyoming.

Oct. 15, 1968.

Alfred G. Kaufman, Jr., Douglas, for appellant.

W. J. Wehrli, of Wehrli & Williams, Casper, for appellees.

Before HARNSBERGER, C. J., and GRAY, McINTYRE and PARKER, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Mr. and Mrs. Donald L. York sought recovery of damages against the Town of Douglas for loss sustained to grazing land when a fire from the town's dump for disposal of refuse and garbage started a range fire. The fire was the one involved in Town of Douglas v. Nielsen, Wyo., 409 P.2d 240.

Insurance coverage was adequate to pay the judgment obtained in the Nielsen case and the question of governmental immunity was not involved. There was insurance enough to cover only part of the claim of the Yorks against the town. The amount available was paid to Yorks, and they sought the balance of their claim from the town.

The defense of governmental immunity was interposed on behalf of defendanttown, and the resulting issue tried to the district court was whether the garbage disposal activity of the town was a governmental or proprietary function. A trial to the court without a jury resulted in a judgment for plaintiffs against the town, and it has appealed.

There is in many jurisdictions a tendency to lean away from the allowance of governmental immunity to municipalities. This is pointed up in the recent case of Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45, 51-52, where damages were claimed for the negligent operation of a city garbage truck. The Arkansas Supreme Court rejected the rule of stare decisis and said the test is whether it is more important that the matter remain settled than that it be settled correctly.

We deem it unnecessary, however, to disturb the rule of stare decisis. Our court has not adopted any change in its attitude on governmental immunity, and we find in this jurisdiction ample stare decisis authority for upholding the judgment against the Town of Douglas.

The case at hand is different form any previously dealt with by our court, in that the Town of Douglas charges its residents for the removal and disposal of all refuse and garbage. We find ample authority for the proposition that when a municipality charges a fee or receives compensation for collection and disposal of refuse and garbage, it is exercising a proprietary function.

In order to avoid the impact of this authority, it has been suggested the fee charged by Douglas is for collection of refuse and that no fee is charged for disposing of it after it is collected. It is hard to believe that such a distinction would be seriously relied upon. Common sense would tell us that if a town collects refuse it would have to get rid of it.

But be that as it may, suffice it to say a fair and reasonable reading of the Douglas garbage ordinance makes it abundantly clear residents are charged for the 'removal and disposal' of refuse and garbage. Section XII of this ordinance is entitled REMOVAL. It specifies the town shall have direct 'supervision' of the 'removal and disposal' of all refuse and garbage. Section XIV prescribes fees for the inspection, supervision and removal of garbage and refuse 'as defined herein.'

Regardless of whether we apply the words 'as defined herein' to 'supervision' or to 'removal', the definition includes 'removal and disposal.' Also, the title of the ordinance expressly states that it has to do with regulating the collection, removal and disposal of garbage and refuse.

But even if we disregard the meaning of words used in the garbage ordinance and say there is a distinction between collecting and disposing, we still have to deal with the argument that there is a stronger inclination of courts to impose liability for damages resulting from fire or negligence in disposing of collected refuse. City of Denver v. Porter, 8 Cir. (1903), 126 F. 288, 293-294; Schmidt v. City of Chicago, 284 Ill.App. 570, 1 N.E.2d 234, 235-239.

We are impressed with what Chief Justice Blume said in Town of Pine Bluffs v. State Board of Equalization, 79 Wyo. 262, 333 P.2d 700, 710-712.

In that case the city protested the assessment and valuation of municipally-owned electric plants. Justice Blume drew a distinction and said the furnishing of electricity for the purpose of lighting streets, directing traffic and providing lights for offices occupied by city offices was a governmental function, and hence municipally-owned electric plants were exempt from taxation insofar as they were for these purposes. On the other hand, the furnishing of electricity for sale to ratepayers was held to be a proprietary function, and that portion of the value of plants devoted to this purpose was said to be taxable.

In Baumgardner v. City of Boston, 304 Mass. 100, 23 N.E.2d 121, 125, the court said a city is not liable for negligence in the conduct of strictly public functions, from which it receives no profit or advantage. Then it said:

'* * * On the other hand, a city or town is liable for negligence in the conduct of commercial enterprises voluntarily undertaken for profit or to benefit its corporate interests, although a public need is ultimately subserved. * * *'

To the same effect is Sloper v. City of Quincy, 301 Mass. 20, 16 N.E.2d 14, 17; and Foss v. City of Lansing, 237 Mich. 633, 212 N.W. 952, 953, 52 A.L.R. 185. The Foss case said the rule in Michigan is that if a municipality is engaged in governmental work with an incidental profit, it is liable the same as a private corporation would be.

The Michigan Supreme Court relied partly upon a former holding to the effect that a municipality is discharged from liability in furnishing electric service for lighting its public streets, public places and buildings; yet is liable for negligence in furnishing electricity to its inhabitants for remuneration-a holding quite similar to the holding of our court in Town of Pine Bluffs v. State Board of Equalization, supra.

In 18 McQuillin, Municipal Corporations (3rd Ed. Revised) § 53.29, p. 192, it is said the underlying test, for distinguishing governmental from corporate functions, is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary profit. If it is, there is no liability; if it is not, there is liability.

The case of Hutton v. Martin, 41 Wash.2d 780, 252 P.2d 581, 584, involved an action for damages for wrongful death arising out of negligence on the part of the driver of a city garbage truck. The city was held to be liable because it was charging for its services. The court said whether the city...