*1 24116. In Bank. No. Mar. A. 1957.] [L. Appellant, GLENDALE, v. CHRISTINE CITY OF Respondent. TRONDSEN, In No. Bank. Mar. A. 24117. 1957.] [L. JARMER, GLENDALE, Appellant, v. CHARLES
CITY OF Respondent. 12, 1957.] In Mar. 24118. Bank. A. No.
[L. TISDALE, E. Appellant, v. R. GLENDALE, OF CITY Respondent.
Henry City McClernan, Attorney, John H. Lauten, Assist- City ant Attorney, Joseph W. Rainville, Deputy City Attorney, Appellant. for
Roger Arnebergh, City Attorney (Los Angeles), Bourke Jones James A. Doherty, City Assistant Attorneys, and Moses A. Berman, Deputy City Attorney, as Amici Curiae on Appellant. behalf of
Jack B. Tenney and Cecil W. Collins Respondents. for Plaintiff, a CARTER, chartered city, enacted an ordi J. pertaining nance to provides rubbish. It that rubbish includes Every combustible аnd person noneombustible material.* “charge place having any any or control” where rubbish placed specified accumulates shall it to be receptacles cause permit to for periods shall accumulate over certain — — (combustible week; time one noncombustible one month). provide The shall for its collection certain person pays No intervals. who the “minimum charge for shall out collection” set for specified collection more than a quantity; quantities if additional are to be collected, extra By shall be made. section council “. . . periodic finds collection places of rubbish from all City occupants places premises in the benefits City occupants . . . and therefore all such are made liable for rubbish prescribed by collection fees this ordinance.” (Ordinance 8.) then There are set forth a schedule varying according of “fees” to the nature of the use of per such occupied, as 75 cents for “single month family dwellings,” and different apartments amount for or plаces of business. The fees added light are electric occupant. bills of the Extra are rubbish specified. excess the amounts imposed by “A fee . . . ordinance shall be a owing City civil debt [the] . . . occupant from the receiving the service.” (§ 9(e).) Compliance with necessary the ordinance pro cure the collection and removal thereof shall be defense prosecution dispose for failure to or remove of rubbish. A violation of shall punish ordinance be misdemeanor specified. able as plаintiff city commenced three actions which were con- together
sidered on demurrer persons each of three they the. several paid months had not trees, paper, leaves, chips, grass, *Bubbish includes ‘‘. . Christmas . pasteboard, clothing, books, carpets, magazines, straw, packing material, barrels, boxes, crates, cartons, rags, furniture and all other similar by ordinary articles or materials which will burn temperature with contact flames rejected producer owner or thereof worthless, useless, ‘garbage’ shall include term thereof, City "providing in the defined ordinance collection quantities Manager thereof determined materials *4 City’s large bum in or too hazardous . . . too the incinerator. ‘Non- ashes, crockery glass Bubbish’ shall include broken and combustible containers, bottles, metals, tin cans and articles other similar (3) cubic feet non-combustible and not to exceed three materials building rejected by producer the owner or thereof materials which purposes useless, shall and for of this ordinance worthless quantities by thereof determined include those materials City’s large Manager to burn in incin- or too hazardous to be too 1.) (Ordinance 1764, erator.” person named alleged that the It is ordinance. levied city; in residence occupied single-family as defendant “enjoyed the use occupancy defendant during his term of privilege premises and the of the said occupancy of the storage of and noncom- accumulation, and combustible use, plaintiff’s agents thereon”; that and refuse rubbish bustible at of defendant to collect regularly the homеs have called community large general benefit of “to the rubbish lessening conditions, of unhealthful prevention in the presence air pollu- hazard and the diminution fire City.” (smog) in said made under the tants paid. allegation not been There is no that have ordinance any any rubbish to be or that defendants had collected general from collected them. Defendants’ demurrers for allegations make such were sustained with failure to leave but plaintiff judgments to amend failed to amend and appeals. dismissal the actions were entered. Plaintiff Plaintiff contends that the rubbish ordinance is both police taxing and valid in measure both respects; that portion does not violate the charter. Defendants charge against occupants assert that the is not a valid special tax nor assessment, property, excise or tax, license charge police proper nor is it a regulation; that it is for having the service rubbish allega- removed there is no any tion here that rubbish was from removed their property by plaintiff. any If it is a tax of kind it is on occupancy property beyond power levy under its charter.
No by plaintiff contention is made that it is a property possibly subject and hence provisions of the Con stitution on taxation.* Nor is there any contention special that assessment levied on property according to the benefits received from the use of money thereby raised, or license tax for regulation. revenue or It is not claimed is for services performed, is, rubbish, the collection of inasmuch as there is allegation no complaint rubbish was cоllected from defendants and the fixed section 8 of the ordinance, supra, applies generally occupants to all whether or not rubbish although collected, alleged it that the service was available enjoyed defendants who privilege of using *All proportion the state shall he taxed to its value. XIII, 1.) (Cal. Const., $ art. *5 98 agent plaintiff’s and has of rubbish the accumulation occupied by at for rubbish regularly called
defendants. city having of taxes a a levy and collection municipal is a affair. The under our Constitution charter only by limited the charter being power broad, City (Fox Bakersfield, 36 Corp. etc. v. Cal. Constitution. of 879].) Bryant, It is said in Ainsworth v. 2d 136 P.2d [222 “It P.2d : is well settled 469 465, 34 Cal.2d 564] [211 corporation operating power municipal of under free impose ‘for purposes, taxes revenue charter ... holders’ strictly municipal pur affair’ including taxes, license grant people of the direct constitutional suant to Advertising 6; West Coast v. XI, art. Co. San (Const., state 516, 138]), 14 524 P.2d and that ‘the Francisco, Cal.2d [95 power only on of that are restrictions the exercise limita appearing in the restriсtions Constitution tions and 526.) (Ibid, p. it was said in the the charter So itself.’ of Ex parte pages Braun, 204, earlier 141 Cal. 209- case quoting in United 210 P. from Mr. Justice Field [74 : Orleans, New 98 381 ‘A States v. U.S. [25 225] body power of taxation would be municipality without pur incapable serving no life, acting, of useful without power corporation of poses. created, . When such . . an for all it, attribute, is vested in as essential taxation express be in purposes its unless its exercise existence, of accomplishment purposes, prohibited. terms For the of these corporation, must have authorities, its however limited the ’ ” (Em expenditure. power money and control its to raise by accepting . that phasis added.) And further: “. . powers city all privilege autonomous rule the has over of subject only lawfully exercised, municipal affairs, otherwise explicit limitations and restrictions contained clear and operates grant as The charter charter. instrument limitation and restriction on power, but an power municipal the exercise over affairs powers does not is assumed to and the еnumeration possess; (West Advertis or limitation. Coast constitute exclusion ing Francisco, 516, 521-522, 14 525 P.2d Co. v. San Cal.2d [95 City Williams, Oakland 15 Cal.2d cited; and cases 138] v. 542, ; Boyd, Francisco 17 550 P.2d San v. Cal. [103 168] Kennedy 1036]; Ross, 617-618 P.2d v. Cal.2d 2d Ayres Los An 904]; v. Council 569, P.2d Thus geles, ante, pp. 31, P.2d 1]. [34 Cal.2d] [207 respect municipal subject gen affairs the is not except may provide. (Heilbron eral law the charter v. Sumner, Cal. 409]; P. Muehleisen Forward, recog- 4 Cal.2d As 17, 19 [46 Advertising ease, in West levy nized Coast taxes city purposes municipal affair; is a treat collection, disposal city sewage making ment and the of cоntracts municipal (Loop therefor likewise Lumber affairs Co. v. Sels, Van 600]), Loben 173 Cal. P. and neither *6 may except expressly be held to be circumscribed as limited by provisions. statutory the rules charter All con of applied provisions struction as to charter . . . are subordinate controlling guide—that to principle. this The former mu nicipalities powers only have conferred those neces sarily A in incident thereto. ... construction of the favor power any of the of limita exercise the existence tion or exprеssly restriction thereon which in is stated clearly guided, charter is indicated. So reason dictates power permitted that exercise except the full of as clearly explicitly construing city’s curtailed. Thus in municipal charter a on the power may restriction exercise of implied.” (Emphasis Valley not be added; Grass Walkinshaw, Cal.2d 598-599 P.2d It not necessary, specific that therefore, there be authority charge (the for the nature of the is dis By here later) power cussed levied. virtue of its as a city plaintiff power chаrtered has make it unless it expressly power by denied such the charter or Constitution. that
Defendants assert there are such limitations provides 12 of article XI thereof charter. Section that when public requires council determines ever interest expenditure municipal purpose an for a which cannot be ordinary city provided revenue, “may” out submit proposition a providing to the voters for a “special tax” issuing or the election held adoption bonds. No for the question. of the ordinance correсtly This contention is by City met Glendale v. Co., Crescenta etc. Water Cal.App.2d 784, pointed where it is out that an tax imposed excise without a as vote section only 12 of property article XI referred the court taxes, stating; “Respondent asserts a violation of 12, arti section XI claiming special cle of the a charter, this is tax which is invalid for failure to submit to the That electors. section must light provisions. be construed in of related Section year any for one rate shall says: total tax ‘The special a valuatiоn, unless per cent of the assessed exceed one provided chapter; . . And sec- this authorized,
tax be shall determine the Council tion 12: ‘Whenever municipal pur- expenditure for an demands public interest ordinary provided out of for which cannot be poses, qualified to the voters City, it submit revenue of the provide a special election, proposition regular or at by issu- by levying special tax, or either expenditure, such be levied nor ing special no such shall bonds, by the votes issued, authorized affirmative such bonds unless ’ voting at such election. . . . of two-thirds electors exclusively refer as to 10 and 11 are so worded Sections says in effect to ad taxes. Section valorem may be valuation per basic rate of one cent assessed by special people. increased tax voted to the extent of only implements This could mean tax. Section phrase special authorized, ‘unless a by submitting provided It does so charter; in this . . .’ special proposal general election voters at a ordinary provide еxpenditure revenues cannot tax, levying special provide by meet—to ‘either same approved two-thirds issuing bonds’; must be same payment, authorizes 22 of vote. Section the same article any part council, election *7 Metropolitan public surplus fund. out the service of passage than by This was later the done amendment unduly or It would be amendment of section 11 or section 12. straining requires hold that it meaning 12 to of section special any part of to for the Metro- election raise funds politan paid surplus оf the fund. tax which is not to be out only property 12 relates taxes.” Section to 6 of article XXIII point Defendants section also nothing per- Obviously of the this is more than charter.* provides adopt procedure may im- *It council "... provement alleys streets, public places, or removal of or other may dirt, growths rubbish, of and materials which weeds and other rank injure endanger neighboring property or health the welfare or the or grounds buildings, vicinity, of inhabitants and the from lots opposite thereto, making enforcing sidewalks assеssments and for property thereby from which such benefited or affected made, removal, improvements removal cost of such superior make such assessments a lien on such to all other thereon, State, taxes, except County Municipal claims or liens prevent proceeding no such ordinance shall from under Council general purposes.” (Glendale Charter, 1921, p. laws for said 2204 Stats. amended.)
101 required to by which rubbish method missive we limitation on other methods when and not a removed power as shown of chartered cities consider nature and other cases and by and Walkinshaw cases the Ainsworth authorities cited therein. charge chief contention is
Defendants’ merely a tax but a fee for ordinance is not services rendered alleged they it is not and that since received the serv- complaint fails to state a of that a ices, action; cause charge presumably for services not rendered invalid as a taking process due of of without law. questioned provisions respect
It is not
with
proper
police power
exercise of the
(see
rubbish are
In re
;
Cal. 328
Zhizhuzza, 147
P.
Reduction
[81
955] California
Sanitary
Works,
Co. v.
Reduction
199
U.S. 306
S.Ct.
[26
;
50
In
Pedrosian,
Cal.App.
L.Ed.
re
124
692
P.2d
204]
[13
City
;
Fresno,
Cal.App.2d
v.
Glass
17
555
P.2d
389]
[62
Burastero,
Cal.App.2d
Ponti
765];
v.
112
597];
846
P.2d
[247
Ana,
Cal.App.2d
Davis v.
Santa
108
669
[239
656]).
power
city
pass police regulations
The
on
subject
being
of rubbish
we
clear,
must look to
if
see
objection
there
constitutional
im
here
posed.
analogous
case is
requirement
city
premises
that all
connect
system
with the
sewer
at the
expense of the property
making
owners
therefor
though
premises
even
adequate
have other
sewer facilities.
objection
is no constitutional
requirement.
There
to such a
(See Sanitation
County
Dist. No.
v. Campbell,
of Jefferson
-
-Ky.
;
S.W.2d
District
Columbia
[249
v.
767]
Brooke, 214
U.S.
S.Ct.
;
Hutchin-
[29
941]
City Valdosta,
son v.
U.S.
S.Ct. 290, 57 L.Ed.
[33
Farquhar
520];
v. Board
Supervisors, 196
Va.
[82
Fenton
;
City,
S.E.2d
v. Atlantic
parcel upon containing a sewer which abuts a street part required, the system, of or served sewer to connect his government, with the consent of the local building with and cease to use other method of the sewer sewagе disposal. charges system If use of the the the paid days becoming due, Authority after are within 30 the disconnect from the water the sewer and/or suspend and system, or otherwise services recover the amount in due a civil action. . . . necessary provisions implements sanitary of a
“Such system operated by agency constructed of the State organized public good. which was created . .. provisions question hold in We to be constitutional as being police power exercise of the reasonable the Statе bearing protection pres a substantial relation to the public p. C.J.S., Health, 2, 811, ervation of the health. 39 § p. p. 835; Am.Jur., Health, 3, pro 287. Like § frequently upheld charge visions have been being rights.” an invasion of constitutional In the many respects police instant in case the ordinance is meas supra, provides every occupant in that ure. Section effect buildings pay must for rubbish collection which they pay they that means must whether or not use collec is, question tion This so far as constitutional service. anything, stringent requirement if than concerned, less they authorities, supra, use the service as held dealing with sewer and In those cases it held water. was charge though could be made for the service even occupants charge did not want In most it. of those eases the said not to be a tax but it rather service important phase whether, on this case, be called justified police a tax or a it is charge; service under the power. long As is no there restriction the Constitution or charter the ordinance must held It valid. is not claimed discriminatory (a is excessive or denial of equal appears protection), and it that a benefit is received occupants probabilities of all all point existence the accumulation of rubbish described occupied property. all the ordinance on The benefit is the availability occupants—the collection service to regular right service of collection and the to accumulate rub bish, sewage although like the benefit of occupant facilities does not choose to use As said in them. Carson v. Brockton Sewerage Com., 182 U.S. S.Ct. 45
103 1 think the court ‘Notwithstanding case, we the former : 1151] and other petitioner holding in this case that the was correct in public sewer did abutted on this property owners whose lots inhabitants receive benefit not common being permitted discharge into it the contents generally, private such was sewers, of their that the amount of benefit there city council, determinable and that its action nothing (See violative of the Federal Constitution.” City Chattanooga, Patterson v. 192 267 Tenn. S.W.2d [241 Sharp 291]; Hall, 972].) v. 198 P.2d Okla. 678 [181 County County English, 182 Com’rs Anne Arundel v. Rapa Haines, (Ohio App.) Md. 514 A.2d 101 v. point they N.E.2d are not in a tax 733, involved for revenue purposes. foregoing
In
charge
discussion we have assumed that the
for the
system
charge
rubbish collection
is a
for a service under
police power
and valid as such but it is also
if
valid
designated
powers
as a
seen,
tax. As
has
of taxation
except
as limited
its charter and the Constitutions, state
and federal.
many police
While the ordinance has
regulations as
shown,
above
there is no
it perform
obstacle to
ing both functiоns,
taxation and regulation,
may
and it
be
upheld
powers.
as valid under either
(See
or both
Redwood
Theatres,
City Modesto,
Cal.App.2d
Inc. v.
907 [196
; Gundling
Chicago,
v.
119]
U.S.
S.Ct.
Bradley
;
L.Ed.
Richmond,
v.
“As to the days associated, and later were many in colonial excises enjoyment рrop or the use of intimately, with more or less if no then prove, even others were erty. This would not accepted subject then the forms were known, that truth But in other were enlargement. excises [Citations.] early (6 Thus in since times. 1695 & 7 known, and known passed granted an Parliament act which ‘to III, 6), c. Wm. upon Majesty Marriage, Rates Duties Births certain His purpose ‘carrying all for the of on the War Burials,’ (See Opinion Vigour.’ Justices, Against with Prance commodity No was N.E. affected Mass. industry supplied apter has an of counsel us with The there. tax not different in was substance from illustration where challenged In before our invalid. Con the one now upon employers laid Convention, Parliament stitutional shillings ‘every ‘duty’ male em annual Servant’ point forms of work. is ployed in stated [Citation.] upon tax use of male as a distinction luxury. upon a thought of a tax servants was [Citation.] husbandry employments in or business. This not touch It did historically argument that an excise is a is to throw over attempted But upon enjoyment of commodities. tax thought in- validity, be of its is distinction, whatever applicable Virginia passed Therе statute 1780. shillings eight pence tax of six was to be pounds, three every twenty-one paid age male tithable above the years (with exceptions), ‘every stated and like white except apprentices age under whatsoever, servant twenty years.’ one colonial Our forebears knew [Citation.] ways taxing than of their more about some descendants willing to be seem concede. prop prop failing, prop
“The historical or fancied principle employment We learn that remains. for lawful gain a ‘natural’ or ‘inherent’ or right, ‘inalienable’ ‘privilege’ not a But all. natural so rights, called, are as subject rights much importance. to taxation as less An excise limited to vocations or activities that prohibited altogether. It is not limited to those that are the outcome of It extends franchise. to vocations or activities pursued right. as of common .. . Whether the tax is to be classified as ‘excise’ in truth importance. not of critical an. If not it is an that, ‘impost.’ capitation ... A or other certainly ‘direct’ tax ‘Although is not. there havе been from time to time might intimations that there some not a direct tax nor included under the words *11 “duties, imposts excises,” and such a tax for than more one years hundred of national yet existence has as remained un discovered, notwithstanding particular the stress of circum thorough investigation stances has invited into sources of ’ Loan, powers. Pollock v. Farmers’ Co., & Trust 157 429, U.S. 557 673, S.Ct. 39 L.Ed. no departure There is [15 759]. thought from that in later cases, emphasis but rather a new Thus, on it. in Thomas States, v. United 363, 370 U.S. 481], S.Ct. it was said the words ‘duties, [24 impost ‘they and excises’ that comprehensively were used imposed cover customs and duties excise importation, on consumption, manufacture and sale of commodities, certain particular privileges, business transactions, vocations, occu ” pations and the like.’ (Emphasis added.) Such as here involved have been called . a large part taxes: “. . of the system cost the sewer City Philadelphia abutting property owners. by assessments
was raised any regard imposed whatever the extent Being without or whether facilities, made of the sewer оf the use value in charge provided is, the ordinance made, use pay obligation it undoubtedly and the legal tax, effect, City’s general only by exercise of its could be created Philadelphia, (In Petition taxing power.” re And somewhat A.2d Pa. upheld valid that here involved has been as analogous to (Ohio App.) 733; N.E.2d Haines, (Rapa v. excise involving a fixed tax on auto trailers affd. 113 N.E.2d contrary habitation). A result was reached human used for County English, supra, County Anne Arundel Com’rs of on a but was based denial 135], A.2d 514Md. on placed where a fiat tax was of the law protection equal on other habitations off none trailers with wheels auto based on Those value. that it was and on the factors men The tax is things present are not here. discriminatory. contrary, On the reasonable and is not tioned classifications are made. charge may called an tax on excise
Since the privilege accumulating property for occupants of real having available collection service therefor rubbish occupant their interest in the a tax on thus not unjust and thеre is no we possessor thereof, classification, provision or charter which invalidates find no constitutional such a tax. judgments
The are reversed. Traynor, J., Schauer, J., Spence, Gibson, J., J., C. concurred. McGomb, J., judgments and the
SHENK, J.
I concur
opinion
discussion
opinion contains well considered
reversal.
municipal
applied
to á munici
subject of
affairs
If the
a freeholder’s charter.
same
pality operating under
subject
applied
given
been
had been
consideration