Town of Eclectic v. Mays

• Court: Alabama Supreme Court
• Writing for the Court: ALMON; HOUSTON; HOUSTON
• Citation: Town of Eclectic v. Mays, 547 So.2d 96 (Ala. 1989)
• Decision Date: 16 June 1989
• Parties: TOWN OF ECLECTIC and Jesse Estes in his capacity as Mayor of the Town of Eclectic v. Mike MAYS, et al. Mike MAYS, et al. v. TOWN OF ECLECTIC and Jesse Estes in his capacity as Mayor of the Town of Eclectic. 87-907, 87-947.

Page 96

547 So.2d 96

TOWN OF ECLECTIC and Jesse Estes in his capacity as Mayor of the Town of Eclectic v. Mike MAYS, et al.

Mike MAYS, et al. v. TOWN OF ECLECTIC and Jesse Estes in his capacity as Mayor of the Town of Eclectic.

87-907, 87-947.

Supreme Court of Alabama.

June 16, 1989.

John I. Cottle III of Bowles & Cottle, Tallassee, for appellants/cross-appellees.

G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellees/cross-appellants.

ALMON, Justice.

Mike Mays and others, representing the water customers of the town of Eclectic, filed an action seeking injunctive and declaratory relief from an Eclectic ordinance that required all water customers of the town of Eclectic to use Eclectic's garbage service. The trial court entered an order declaring that the ordinance and garbage service fee schedules adopted pursuant to the ordinance were void, because they violated the equal protection provisions of the Alabama and United States constitutions; the order also declared that Eclectic was using its garbage service fees to raise general revenue for the town, which, according to the trial court, is illegal under both Ala.Code 1975, § 11-47-135, and Martin v. City of Trussville, 376 So.2d 1089 (Ala.Civ.App.), cert. denied, 376 So.2d 1095 (Ala.1979). The trial court ordered a refund of the garbage service fees paid under the ordinance in the amount that the revenues raised by the garbage service fees exceeded the cost of operating the garbage service; the trial court made the judgment of liability final pursuant to Rule 54(b), A.R.Civ.P., though the court retained jurisdiction of the action for the purpose of entering orders to effectuate the judgment.

On December 1, 1980, the town council of Eclectic enacted Ordinance 34. The ordinance states:

"Section 1. From and after the effective date of this ordinance, all water customers within the Town of Eclectic and its police jurisdiction shall be required to purchase garbage services from the Town of Eclectic and pay the effective monthly garbage fee imposed by the Town Council. The Town of Eclectic shall furnish garbage pickup services to all water customers within the territorial limits of the Town and its police jurisdiction from and after the effective date of this ordinance and all water customers of the Town of Eclectic shall be required to purchase said services and pay for same to the Town of Eclectic.

"Section 2. The Town of Eclectic shall furnish written notice to all water customers within the Town territorial limits and its police jurisdiction thereof during the month of December, 1980 of the effective date of this ordinance and the terms thereof. Any water customer, residential, commercial, business, or manufacturing, that willfully and intentionally refuses to use and utilize the garbage services of the Town and pay the effective monthly garbage fee therefor shall be guilty of a misdemeanor and may be fined not less than One Dollar ($1.00) and not more than Five Hundred Dollars ($500.00) and imprisoned in the Town jail for a term of not more than six (6) months or both.

"Section 3. The effective date of this ordinance shall be January 1, 1981. ¹

"Section 4. If any part, section or subdivision [of] this ordinance shall be held unconstitutional or invalid for any reason, such holding shall be construed [sic] to invalidate or impair the remainder of this ordinance, which shall continue in full force and effect notwithstanding such holding."

From the time the ordinance was enacted, some water customers vigorously objected to complying with it. There was evidence that the town responded by threatening to arrest those who did not pay their garbage fees and by threatening to turn off their water if they did not pay their garbage fees.

From August 1985 to April 1986 the Elmore County Health Department issued to three individuals "certificates of exception" pursuant to Ala.Code 1975, § 22-27-3(e), which allows individuals who meet the requirements of that provision to dispose of their own solid waste. Mayor Jesse Estes of Eclectic met with Cherie Williams of the Elmore County Health Department, and he requested that she issue no more certificates of exemption. Williams agreed to the mayor's request, although, after this lawsuit was filed, the health department granted some of the plaintiffs' requests for certificates of exception.

Mike Mays and others filed this action on August 4, 1986. Their complaint, as amended, named as defendants the town of Eclectic, Jesse Estes in his official capacity as mayor of Eclectic, and Cherie Williams, Joe Scott, and Bobby Bryan as employees of the Elmore County Health Department. The complaint, alleging violations of 42 U.S.C. § 1983 and various state laws, requested that the action be maintained as a class action pursuant to Rule 23, A.R.Civ.P., with the class being defined as "persons who are water customers of the town of Eclectic or who have in the past been water customers of the town of Eclectic"; that Ordinance 34 be declared void for violating the equal protection and due process clauses of the United States and Alabama constitutions; that Eclectic be enjoined from enforcing Ordinance 34; that the defendants reimburse the plaintiffs' class for money collected pursuant to Ordinance 34; that the employees of the Elmore County Health Department be required to grant certificates of exception to members of the plaintiffs' class who qualified for the exception of Ala.Code 1975, § 22-27-3(e); and, finally, that the court award attorney fees and other relief that the plaintiffs' class was entitled to receive.

In April 1987, the trial court entered an order granting class certification pursuant to Rule 23, A.R.Civ.P., with the class being defined as "those persons who are water customers of the town of Eclectic or who have, at any time since January 1, 1981, been customers of the town of Eclectic." The order also preliminarily declared valid that portion of Ordinance 34 that imposes fines and imprisonment for refusing to use Eclectic's garbage service. The order noted that Alabama law gave Eclectic the right to establish a garbage service and that with that right went the right to enforce the use of the garbage service. The court stated that under Ala.Code 1975, § 11-45-1, Eclectic's ordinance was valid to the extent that it provided that individuals who refused to use the service could be sentenced to jail for as long as 6 months or fined up to $500 or both. However, regarding the portion of the ordinance that provided that a person who did not pay the garbage service fees could be fined up to $500 and imprisoned in the town jail for as long as 6 months, the trial court ruled in favor of the water customers and declared that that portion of Ordinance 34 was inconsistent with state law. The trial court noted that Ala.Code 1975, § 22-27-5(e), gives the specific remedy for what a municipality may do in the event that the garbage service fee is not paid.

In September 1987 the trial court entered a summary judgment for the water customers, declaring that plaintiffs who had obtained a certificate of exception pursuant to § 22-27-3(e) were not subject to Ordinance 34 and its related fees. The next week the trial court held a final hearing. On the morning the final hearing began, the trial court, on the plaintiffs' motion, recertified the class under Rule 23(b)(1) and 23(b)(2), A.R.Civ.P., with the same definition for the class. Also, before the hearing began, the water customers and the Elmore County Health Department reached a settlement and filed a motion for consent judgment, which the trial court later granted. After the final hearing, the trial court granted most of the relief that the water customers requested. The order stated that these two issues were presented to the court:

"1. Whether the garbage collection fees of the Town of Eclectic are in reality illegal taxes?

"2. Whether ordinance thirty-four of the Town of Eclectic violates the equal protection clauses of the United States and Alabama Constitutions?"

The trial court made these pertinent findings of fact:

"2. The Town of Eclectic has a garbage ordinance (Ordinance 34) which requires all persons who are water customers of the Town of Eclectic to subscribe to the garbage service and to pay a monthly fee to the Town of Eclectic. Some of these water customers reside outside the corporate limits of the Town but within the Police Jurisdiction. Persons who are not water customers do not have to use the garbage service although non-water customers may voluntarily make use of the garbage service by paying the fee. Those persons who 'opt in' and voluntarily use the garbage service are billed by the Town Clerk whereas the required users are billed by the Water Board of the Town of Eclectic.

"....

"4. At all times relevant to this proceeding, the monies collected from the garbage service have been paid into the general fund of the Town of Eclectic. At no time have these garbage service monies been separated or segregated into any separate account.

"5. At all times relevant to this proceeding, the expenses of the police and fire departments and other governmental expenditures have been paid from the general fund of the Town of Eclectic.

"6. No money raised by the garbage service has been set aside for replacing capital equipment used in providing the garbage service. Any serious discussion concerning replacement of capital equipment began after the filing of this lawsuit.

"7. The Town of Eclectic was not aware of its financial position relative to the garbage service (i.e., whether it was making or losing money) until an analysis was performed. This analysis was performed after this lawsuit was filed.

"8. For the fiscal year ending September 30, 1983, the revenues of the Town of Eclectic's garbage service were less than the expenditures, resulting in a net loss of $1,609.01.

"9. For the fiscal year ending September 30, 1984, the...