294 N.C. 262 | N.C. | 1978
Plaintiffs contend that the payments to the city for garbage collection service were made as a result of coercion, on the part of the city, which rendered the payments involuntary. Plaintiffs rely upon the following language from 66 Am. Jur. 2d, Restitution, Section 98, page 1039:
A rule that has been frequently applied is that to constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, for which the latter has no other means of immediate relief than by making the payment. [Emphasis ours.]
Plaintiffs further rely upon Chicago v. Insurance Co., 218 Ill. 40, 75 N.E. 803, and Brewing Ass’n. v. St. Louis, 140 Mo. 419, 37 S.W. 525, to support their position that threatened discontinuance of trash collection is coercion sufficient to render the subsequent payment of fees involuntary and subject to recovery.
In Chicago v. Insurance Co., supra, the City of Chicago threatened to discontinue water service to all of plaintiff’s properties unless it paid outstanding water bills incurred by previous owners. The insurance company paid the bills and then instituted suit to recover the sums paid. In holding for plaintiffs, the Illinois court reasoned that such payments had in fact been coerced because the city had the only source of water and plaintiff was thereby faced with a choice of paying for services which it had
The Supreme Court of Missouri faced a somewhat different problem in Brewing Ass’n. v. St. Louis, supra. There the city had established different billing rates for its water service, and plaintiffs sought recovery of the difference between the higher rate it had paid and what it would have paid under the lower rate. The court found the rate differentiation to be reasonable and denied recovery. However, the court noted that if the differentiation had been unreasonable or arbitrary, coercion would have resulted because the city system was the only source of water and nonpayment would have resulted in a discontinuance of water service which would have completely shut down plaintiff’s brewing operations.
These cases are distinguishable from instant case in that the services there involved were indispensable to the business efforts of the respective plaintiffs, and it was established that the city controlled the only source from which such services could be obtained. While not a crucial distinction, we note that trash removal is not as acute or as indispensable to a business operation as is the furnishing of water or electricity. The more important distinction to be drawn is that in each of the cited cases, the city controlled the only source of water and the plaintiffs had “no other means of immediate relief than by making the payment.” 66 Am. Jur. 2d, Restitution, Section 98, page 1039. Such a situation is not present in instant case.
Section 10-2 of the High Point Code of Ordinances provides:
No persons, other than those under the direction of the superintendent of the division of sanitation, shall haul or remove any garbage or other refuse set out for collection as in this chapter provided, except by written consent of the superintendent of the sanitary division.
The language of this section of the Code makes it clear that the city’s control of trash collection and removal does not preclude individuals or private contractors from engaging in the same activity.
There is nothing in the record before us which indicates that plaintiffs ever attempted to obtain permission to remove their
The court’s Conclusion No. 4 that plaintiffs failed to show that they requested the City not to service the boxes, as plaintiffs could have done under another section of the ordinance, misses the point. While the record is silent here, it can be presumed that plaintiffs could have hauled away their own trash, or contracted with someone else to haul it away. However, if it was coercion for the City to force plaintiffs to pay the City fees under color of an unconstitutional ordinance, then it also would be coercion for the City, by discontinuing service, or threatening to discontinue service, to force plaintiffs to pay the extra cost to a private contractor, or increase their own cost, when but for the unconstitutional ordinance the City would have performed the service at no extra cost to plaintiffs.
The Court of Appeals seems to proceed under the assumption that the city is required to furnish this service to its inhabitants and to do so without charge. We find nothing in the statutes or case law which supports such an assumption. A municipality may provide the service of collecting and removing garbage as an exercise of police powers delegated to it, but a municipality is under no compulsion to provide such service. Further, a municipality which does provide garbage collection services may impose a charge reasonably commensurate with the cost of this service upon the householder or building occupant. Under proper classification, the rates charged need not be uniform and a business may be charged at a rate different from individuals. Finally, a municipality need not provide such services to one who refuses to pay the charge imposed and may discontinue this service in the event of non-payment. Brewing Ass’n. v. St. Louis, supra; McQuillin, 7 Municipal Corporation, Section 24.250; 56 Am. Jur. 2d, Municipal Corporations, Etc., Section 456, pages 506-507, and Section 461, page 512. See also, G.S. 160A-311 and G.S. 160A-312.
As a result of Judge Barbee’s unappealed judgment declaring portions of Section 10-6 of the High Point Code of Ordinances unconstitutional, the remaining valid part of that section now provides:
(b) All persons firms or corporations, except single family residences, apartments, and public schools, desiring to have dumpster boxes shall pay a fee of four dollars ($4.00) each time the dumpster box is serviced, said fee shall be billed monthly and failure to pay the bill within ten (10) days shall result in a discontinuance of service .... [Emphasis ours.]
The Court of Appeals held that the record evidence does not support Judge Rousseau’s fourth finding of fact to the effect that plaintiffs “desired the dumpster service by the City of High Point.” In so holding, that court seems to rely heavily on the requirement imposed by the regulation of the director of public works that plaintiffs use dumpster boxes. It must be borne in mind that plaintiffs do not seek to recover damages growing out of the purchase or maintenance of the dumpster boxes; neither have they shown that their use of dumpster boxes was the result of coercion on the part of the city. Plaintiffs seek merely to recover fees paid to the city for services rendered by it.
Even prior to the enactment of the challenged ordinance, plaintiffs were required by the city to maintain these receptacles in order to obtain trash removal services and plaintiffs complied without complaint. There would appear to be no reason to comply with such a requirement unless plaintiffs desired the service. Further, plaintiffs’ actions in continuing to accept the service and refusing to pay the fees imposed and their final decision to pay under protest when the service was discontinued dispel any notion that the service was not desired. It seems clear that plaintiffs desired the service but did not desire to pay for it.
There was ample evidence to support the trial judge’s findings, and these findings of fact are conclusive. Highway Commis
We, therefore, hold that the fees charged for trash collection services were validly imposed by the City of High Point and that plaintiffs have failed to show that the payments were made under such coercion as to render them involuntary.
The decision of the Court of Appeals is
Reversed.
