Zerr v. Tilton

• Decision Date: 15 July 1978
• Docket Number: No. 48742,48742
• Parties: Marcella ZERR et al., Appellants, v. Lloyd TILTON et al., Individually and as the Gove County Commission, Appellees, R. E. Ringer, Intervenor.
• Court: Kansas Supreme Court

Page 364

581 P.2d 364

224 Kan. 394

Marcella ZERR et al., Appellants, v. Lloyd TILTON et al., Individually and as the Gove County Commission, Appellees R. E. Ringer, Intervenor.

No. 48742.

Supreme Court of Kansas.

July 15, 1978.

Syllabus by the Court

In an action by Gove County residents seeking an injunction to prevent the Gove County Commission from assessing fees for a solid waste management system established under K.S.A. 65-3401 Et seq., the record is examined and it is Held : The trial court did not commit error in (1) finding that the resolution adopted by the commission establishing the solid waste management system did not violate the equal protection clauses of the United States Constitution and Kansas Constitution Bill of Rights; (2) finding the resolution of the commission did not exceed the statutory authority granted by K.S.A. 65-3401 Et seq.; and (3) finding the contract for solid waste collection entered into by the commission was valid and enforceable.

Alan L. Rupe, of Holland & Rupe, Russell, argued the cause and Allen Shelton, of Clark & Shelton, Hill City, attorney for intervenor, was with him on the brief for appellants.

John R. Eland, of Sloan & Eland, Hoxie, argued the cause and was on the brief for appellees.

Allen Shelton, of Clark & Shelton, Hill City, argued the cause and was on the brief for intervenor.

PER CURIAM:

This action was filed by several Gove County residents to enjoin the Gove County Commission from assessing fees, pursuant to a resolution adopted by the Commission, for collection of solid waste materials by the county's designated solid waste collector. The trial court found that the Gove County solid waste resolution and the contract between the Commission and R. E. Ringer, for collection of the waste, were valid and enforceable and denied the petition for a permanent injunction. Several of the original plaintiffs have appealed.

In the spring of 1975 the Gove County Commission adopted a resolution to put into effect a solid waste management system in compliance with K.S.A. 65-3401, Et seq., and also entered into a contract with R. E. Ringer for the collection of the solid waste. As Ringer had an interest in the issues before the court, he was allowed to intervene.

The learned trial judge filed his memorandum opinion and judgment as follows "On August 18, 1976, the plaintiffs herein filed an action for a temporary and a permanent injunction against the Board of County Commissioners of Gove County, to restrain them from holding hearings or assessing fees or charges under a resolution adopted March 31, 1975, establishing a solid waste management system for Gove County.

"On September 14, 1976, a hearing was held on plaintiffs' application for a temporary injunction. The plaintiffs appeared by their attorney, Alan L. Rupe. The defendants appeared by their attorney, John Eland. R. E. Ringer was permitted to intervene and appeared by his attorney, Allen Shelton. The facts necessary to the determination of that issue were stipulated by the parties. From these stipulated facts it appeared that there were essentially two groups of plaintiffs. The first and largest group consisted of Gove County residents who admittedly create solid waste at their residence or other establishment, but who claim the right to dispose of such waste by some method other than the use of the contractor provided for in the resolution and by contract of the County Commission with R. E. Ringer, executed March 24, 1975. This group sought to enjoin the placement of delinquent service fees or charges as an assessment against their real estate for collection as an ad valorem tax on the grounds that the resolution was unconstitutional as applied to them and illegally exceeded the authority of the enabling statutes.

"The Court declined to issue a temporary injunction to this group on the grounds that no irreparable injury would result from placing their delinquent charges on the ad valorem tax rolls inasmuch as the Court, upon final hearing on the petition for permanent injunction, could enjoin the collection of such tax or proceedings to enforce collection, if the tax were found illegal, under K.S.A. 60-907(A ).

"The second and smaller group of plaintiffs consisted of persons who claimed to generate no solid waste during certain months, or who had been doubly charged, or who were entitled to a low income allowance. The resolution provides for hearings before the Board of County Commissioners for correction of errors in charges, and the resolution exempts people who generate no solid waste during certain periods and allows a reduced charge for low income. The Court declined to enjoin the scheduled hearing before the Board of County Commissioners with respect to plaintiffs in this second group, on the grounds that such a hearing was the proper forum to resolve their complaints in the first instance.

"On October 19, 1976, this case came on for trial on the issuance of a permanent injunction. The appearances were the same as at the hearing on the temporary injunction, and the parties again stipulated to the facts necessary for decision. The matter was then argued and taken under advisement by the Court.

"From the pleadings, the stipulated facts, the briefs and arguments of counsel, the Court finds as follows:

FACTUAL CONCLUSIONS

"There is no factual dispute and the stipulations of fact, numbered 1 through 9 and filed October 19, 1976, are incorporated herein. Summarized for purposes of this opinion, the facts are as follows:

"On March 31, 1975, the Gove County Commission adopted a resolution establishing a solid waste management system for Gove County, Kansas. The Commission had previously, on March 24, 1975, contracted with R. E. Ringer to provide for collection of solid waste in Gove County and maintenance of the solid waste disposal area. The contract is for a five year term which exceeds the terms of the present commissioners.

"The resolution provides for collection, at least once each week, from all residences billed for city water in the five cities in Gove County, and from commercial, industrial, governmental and institutional establishments in Gove County whether billed for water service or not. The resolution provides a schedule of fees with single family residences set at the lowest rate and commercial, industrial, governmental and institutional divided into categories depending upon volume. Unpaid service charges, after a hearing before the Board of County Commissioners, are placed on the tax rolls as liens against the real property.

"The plaintiffs are generally persons whose fees are unpaid and constitute persons who dispose of and claim the right to continue to dispose of their solid waste by composting, burning, transporting to land owned or rented by them, using another contractor, or generating less than one bushel of solid waste per week. At least some of these persons could qualify to transport solid waste in compliance with all regulations of the state.

LEGAL CONCLUSIONS

"1) The plaintiffs challenge the resolution on the grounds that its classifications violate equal protection and that it is contrary to the authority granted in the Kansas Solid Waste Collection Act, K.S.A. 65-3401 Et seq. They further challenge the legality of the contract with R. E. Ringer because it extends beyond the term of the present commission.

"2) The Constitutional Issue:

"It is apparent that the Gove County Resolution distinguishess between city residences and agricultural property or farm residences because it classifies as residential for service purposes, only, property within cities or so close thereto as to be on city water. It is also apparent that volume of use has been considered with respect to institutional, industrial, commercial, or governmental use where several categories of charges are provided but not in respect to residential use where one minimum charge is created. The plaintiffs' argument is that a distinction between city and farm property is unreasonable, or a distinction between agriculture and commercial enterprises is unreasonable and that all Gove County property should, to some extent, bear a proportionate burden of the solid waste management problem. The plaintiffs further suggest that to allow charges for differing volumes within the commercial, industrial, institutional and governmental class and not with the residential class is likewise unreasonable.

"To some extent plaintiffs constitutional argument is premised upon their interpretation of SECTION 4(a) of the resolution which permits the contractor At his option to pick up solid waste from areas other than those for which a service charge is made. The plaintiffs' argument is that this permits farms to utilize the service at no charge while placing the entire burden on city residences or commercial and other enterprises. There is nothing in the contract or resolution which prohibits the contractor from charging for such optional service or requires the contractor to furnish such service. There is nothing in the stipulated facts indicating such free service has ever been furnished or contemplated. The Court concludes that plaintiffs' interpretation of SECTION 4(a) of the resolution is erroneous and that this section has no bearing on the constitutionality of the classifications of the resolution.

"Some general principles regarding equal protection are in order. '. . . Traditionally, the test utilized in determining if a legislative enactment violates equal protection principles is whether the classification bears a rational relation to the purpose of the legislation. . . . The legislature is presumed to act within its constitutional power despite the fact the application of its laws may result in some inequity. . . . The equal protection clause goes no further than to prohibit invidious discrimination.' Manzanares v. Bell, 214 Kan. 589 (522 P.2d 1291 (1974)), at page 609.

"'. . . There is no precise...