Summary
concluding that city's provision of trash removal service was consistent with its police power to protect the health and general welfare of its residents under section 31-12-301, C.R.S. (recodified at 31-15-401(1)(b))
Summary of this case from South Fork Water v. Town of South ForkOpinion
No. 27271
Decided June 6, 1977. Opinion modified and as modified rehearing denied August 22, 1977.
Appeal by authorized common carriers from a district court ruling which upheld an ordinance authorizing the City of Northglenn to provide municipal trash collection services to persons residing in residential buildings containing not more than five units.
Affirmed
1. JUDGMENT — Summary — Proper — No Issues — Facts — Resolved — Matter of Law. Summary judgment is proper only when there are no genuine issues as to any material fact, and that the issues can be properly resolved as matters of law.
2. Factual Issues — Disposition. In summary judgment, reviewing court disposes of the asserted presence of factual issues by assuming all of the plaintiff's allegations to be true, and resolving all factual contentions of the plaintiffs in their favor.
3. Summary — Ordinance — Authorize — City — Trash Removal — Proper. In action by plaintiffs against city challenging an ordinance authorizing city to engage in trash and garbage removal services to houses, mobile homes, and apartment buildings containing five units or less, summary judgment in favor of defendant city was proper assuming all of plaintiffs' allegations to be true and resolving all factual contentions of plaintiffs in their favor.
4. MUNICIPAL CORPORATIONS — City Council — Determination — Binding — Reviewing Court — Exception. Unless a city council acts arbitrarily or capriciously, its determination is binding on the reviewing court.
5. Statutes — Power — Provide — Safety — Health. Colorado statutes give municipal corporations power to provide for the safety and preserve the health of the inhabitants.
6. Regulation — Relation — Protection — Police Power. A municipal regulation, having a fair relation to the protection of human life and the protection of public convenience and welfare, constitutes a reasonable use of the police power.
7. Ordinance — Trash Collection Service — Reasonable — Health — Police Power. Ordinance authorizing city to provide municipal trash collection services to persons residing in residential buildings containing not more than five units constituted a reasonable regulation concerning the health and general welfare of society and, therefore, was for a proper purpose under the police power.
8. Ordinance — Due Process. Due process requires only that a municipal ordinance enacted under the police power shall not be unreasonable, arbitrary or capricious, and that it bears a rational relation to a proper legislative object sought to be obtained.
9. Ordinance — Trash Collection — Health — Safety — Welfare — Reasonableness — Due Process. Ordinance — authorizing city to provide municipal trash collection services to persons residing in residential buildings containing not more than five units — was enacted out of a valid concern for, and a reasonable relationship to, the public health, safety, and general welfare; and since a presumption of reasonableness attaches to ordinances promulgated for the health, safety and welfare of the public, due process guarantees have therefore not been violated.
10. CONSTITUTIONAL LAW — Trash Collection — City — Taking Without Compensation — Lack of Merit. Contention of plaintiffs — that entry by the city into the trash collection and disposal business constituted a taking without compensation — is without merit, since the ordinance in question does not destroy plaintiffs' rights to collect and dispose of trash and garbage.
11. STATES — Legislature — Police Regulations — Interference — Private Property. The legislature may make police regulations, although they may interfere with the full enjoyment of private property, and although no compensation is made.
12. TOWNS AND CITIES — Public Utilities Commission — Interfere — Police Power — Prohibited — Ordinance — Trash Collection — Conflict — Negative. Colo. Const. Art. XXV — which provides that (1) the Public Utilities Commission cannot interfere with towns and cities in the exercise of their police power, and (2) that the Commission has no jurisdiction over municipally owned utilities — clearly negates the argument that Art. XXV preempts the power of a city to operate a refuse collection business; enactment of ordinance authorizing city to prove trash collection and disposal services does not conflict with authority delegated to Commission.
13. Ordinance — Trash Collection — "Paying Twice" — Negative — Classification of Units — Valid. There is no merit to plaintiffs' argument that there are those who are "paying twice" for trash service; further, reviewing court approves trial court's ruling that the classification of units and establishments — pursuant to ordinance authorizing city to provide trash collection and disposal services — was reasonable and valid.
Appeal from the District Court of Adams County, Honorable Oyer G. Leary, Judge.
William Andrew Wilson, for petitioners-appellants.
Carroll and Bradley, John S. Carroll, for defendants-appellees.
This is an appeal from a district court ruling which upheld an ordinance authorizing the City of Northglenn to provide municipal trash collection services to persons residing in residential buildings containing not more than five units. We affirm.
On October 13, 1971, Northglenn enacted Ordinance No. 112, which authorized the city to engage in trash and garbage removal services to houses, mobile homes, and apartment buildings containing five units or less. The ordinance excluded dwellings of over five units, hotels, motels, restaurants, and other commercial or industrial buildings. The ordinance stipulated that no fees would be charged for trash collection and disposal service, except for "special pick-up services." Occupants of dwellings eligible for city trash collection nevertheless could provide their own refuse disposal, or contract with persons other than the city for trash collection and disposal.
The plaintiffs (appellants here) commenced action against the city alleging: (1) the ordinance constitutes an invalid use of police power; (2) under the ordinance there is an unconstitutional taking of the plaintiffs' property, being their common carrier rights represented by the certificates issued to them by the Public Utilities Commission (P.U.C.); (3) the ordinance unconstitutionally usurps power, since the state preempted the power to regulate the refuse industry by delegation of authority to the P.U.C.; (4) since the ordinance deprives the plaintiffs of property without notice or compensation, it constitutes an invalid condemnation by the city; and (5) the ordinance penalizes city residents because those who use the plaintiffs' services would be "paying twice" for trash service, once by paying the plaintiffs' fees, and again by paying city taxes which support the city's refuse services. Judgment for substantial damages and an injunction were prayed.
The court granted Northglenn's motion for summary judgment. On appeal we accepted jurisdiction from the Colorado Court of Appeals.
I.
The plaintiffs contend that the police power issue can be determined only upon resolution of specific questions of fact and, therefore, the court was precluded from granting the motion for summary judgment.
[1-3] Summary judgment is proper only when there are no genuine issues as to any material fact and, therefore, the issues can be properly resolved as matters of law. See, e.g., Enger v. Walker Field, 181 Colo. 253, 508 P.2d 1245 (1973); Abrahamsen v. Mountain States T. T., 177 Colo. 422, 494 P.2d 1287 (1972). We dispose of the asserted presence of factual issues by assuming all of plaintiffs' allegations to be true, and resolving all factual contentions of the plaintiffs in their favor. Viewing the case in this posture, summary judgment was proper.
II.
[4,5] In adopting the ordinance the city council found that it was necessary for the preservation of health and safety. Unless a city council acts arbitrarily or capriciously, such a determination is binding upon us. Lyman v. Town of Bow Mar, 188 Colo. 216, 533 P.2d 1129 (1975). Our statutes give municipal corporations power to provide for the safety and preserve the health of the inhabitants. Section 31-12-301, C.R.S. 1973. Portions of section 31-12-101, C.R.S. 1973 provide as follows: "(12) To do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease."
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"(20)(d) To regulate and prevent the throwing or depositing of ashes, garbage, or any offensive matter in . . . any street, avenue, alley or public ground;"
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"(79) To pass all ordinances and rules and make all regulations proper or necessary to carry into effect the powers granted to cities or towns. . . ."
[6,7] It is well settled that a municipal regulation, having a fair relation to the protection of human life and the protection of public convenience and welfare, constitutes a reasonable application of the police power. See Denver v. D. R. G. Company, 63 Colo. 574, 167 P. 969 (1917), aff'd, 250 U.S. 241, 39 S.Ct. 450, 63 L.Ed. 958 (1919). It follows that this ordinance constituted a reasonable regulation concerning the health and general welfare of society and, therefore, was for a proper purpose under the police power. See Combined Communications Corporation v. Denver, 186 Colo. 443, 528 P.2d 249 (1975).
III.
The plaintiffs contend that the ordinance deprives them of property without due process and compensation.
[8,9] Due process, as it applies in this case, requires only that a municipal ordinance enacted under the police power shall not be unreasonable, arbitrary or capricious, and that it bear a rational relation to a proper legislative object sought to be attained. See Pleasure Bay Apartments v. City of Long Branch, 66 N.J. 79, 328 A.2d 593 (1974). As already indicated, this ordinance was enacted out of a valid concern for, and a reasonable relationship to, the public health, safety, and general welfare. A presumption of reasonableness attaches to ordinances promulgated for the health, safety and welfare of the public. Due process guarantees, therefore, have not been violated.
[10,11] As to the condemnation issue, it is conceded that trash collection is a regulated industry. The P.U.C. certificates held by the plaintiffs gave them a non-exclusive right to engage in trash collection and disposal. The ordinance in question does not destroy plaintiffs' rights to collect and dispose of trash and garbage. The vehicular P.U.C. certificates held by the plaintiffs do not guarantee them the right to do business as a monopoly. See Miller Bros. v. P.U.C., 185 Colo. 414, 525 P.2d 443 (1974); and Red Ball Motor Freight v. P.U.C., 185 Colo. 438, 525 P.2d 439 (1974). The contention that entry by the city into the trash collection and disposal business constituted a taking without compensation is without merit.
"'The clause prohibiting the taking of private property without compensation is not intended as a limitation of those police powers which are necessary to the tranquility of every well-ordered community. . . . It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and although no compensation is made.'" California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 50 L.Ed. 204, 26 S.Ct. 100 (1905).
IV.
[12] The plaintiffs claim that Northglenn, as a statutory municipality, has unlawfully preempted the power of the P.U.C. In engaging in trash removal the plaintiffs and the city were operating public utilities. In this, the plaintiffs are under the jurisdiction of the Public Utilities Commission and Northglenn is not. In granting authority to the Commission, Colo. Const. Art. XXV provides:
"Nothing herein shall effect the power of municipalities to exercise reasonable police and licensing powers, nor their power to grant franchises; and provided, further, that nothing herein shall be construed to apply to municipally owned utilities."
This provision establishes that (1) the Commission cannot interfere with towns and cities in the exercise of their police power, and (2) that the Commission has no jurisdiction over municipally owned utilities. This in itself negates the plaintiffs' argument that Art. XXV preempts the power of a city to operate a refuse collection business. They base their contention upon Givigliano v. Veltri, 180 Colo. 10, 501 P.2d 1044 (1972). It is, however, inapplicable. There the city of Trinidad adopted an ordinance giving itself the exclusive right to engage in trash removal within the city and prohibited others from doing so. We held that the city could not prohibit other trash haulers from doing business. Northglenn has not made this prohibition, and does not restrict others from refuse collecting.
Further, the case of City of Thornton v. P.U.C., 157 Colo. 188, 402 P.2d 194 (1965), supports the proposition that the regulation of trash collection by the P.U.C. does not preclude Northglenn from establishing its own municipal trash service. In Thornton, we cited Colo. Const. Art. V, § 35, which provides:
"The general assembly shall not delegate to any special commission . . . any power to make, supervise or interfere with any municipal improvement. . . ."
In that opinion, we stated that:
"By force of this article the legislature could not, by any law, vest in the Public Utilities Commission or any agency with like powers and duties jurisdiction to interfere with the municipal improvements such as the water and sewage facilities acquired by Thornton. . . ."
In that case, Thornton was authorized expressly by statute to obtain and operate water and sewer utilities. Subsections 31-12-101(34-40), C.R.S. 1973. As already stated, we rule that there is statutory authorization giving Northglenn the power to establish trash collection and disposal services. Enactment of the ordinance does not conflict with authority delegated to the P.U.C.
V.
[13] We find no merit in the argument that there are those who are "paying twice" for trash service. An enterprise which employs night watchmen cannot validly complain that it is paying twice for night police service. Further, we approve the trial court's ruling that the classification of units and establishments was reasonable and valid. See Glendale v. Trondsen, 48 Cal.2d 93, 308 P.2d 1 (1975).
Judgment affirmed.
MR. JUSTICE LEE, MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dissent.