CITIES AND TOWNS ‑- SECOND, THIRD AND FOURTH CLASS CITIES ‑- GARBAGE ‑- NONEXCLUSIVE FRANCHISE ‑- AUTHORITY TO ISSUE LICENSE ‑- DURATION ‑- SERVICE RATE

CITIES AND TOWNS ‑- SECOND, THIRD AND FOURTH CLASS CITIES ‑- GARBAGE ‑- NONEXCLUSIVE FRANCHISE ‑- AUTHORITY TO ISSUE LICENSE ‑- DURATION ‑- SERVICE RATE.

 (1) Cities of the second, third and fourth class may issue a license which grants to the recipient the nonexclusive right to collect anddispose of garbage within a municipality.

(2) There is no requirement under state law that a license be issued on an annual basis, but no licensing system can be established which would in any way restrict the future discretion of the city council in the exercise of its police power to protect the public health.

(3) The city may establish the rate which a garbage collector may charge a customer.

(4) The city council may establish the annual license fee at either a fixed sum or a percentage of the gross receipts of the licensee provided the amount fixed is reasonable under the circumstances.

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                                                               December 19, 1962

Honorable Martin J. Durkan
State Senator, 47th District
908 Olympic National Bank Building
Seattle, Washington

                                                                                                              Cite as:  AGO 61-62 No. 185

 Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following questions:

            "1.) May second, third and fourth class municipalities issue a license which grants to the recipient the non-exclusive right to collect and dispose of garbage within the municipality, the service to be rendered to its recipient who voluntarily contracts with the licensee?

            "2.) May such a license be issued for a period exceeding one year.

             [[Orig. Op. Page 2]]

            "3.) May the service rate be prescribed by the municipality?

            "4.) May the annual license fee be either a fixed sum or a percentage of the gross receipts of the licensee?"

            We answer your first, third and fourth questions in the affirmative, and your second question in the affirmative as qualified in the analysis.

                                                                     ANALYSIS

            From your letter we understand that you are in possession of an opinion of this office written to the Honorable Donald H. Webster, Director, Bureau of Governmental Research and Services, March 14, 1960, which will be referred to in this opinion as AGO 59-60 No. 106.  That opinion answered questions similar to the present ones, but with reference to the granting of exclusive licenses for garbage collection.

            Question 1:

            Section 1, chapter 270, Laws of 1943, (cf. RCW 35.21.120) states:

            "Any city or town, through its legislative authority, shall have power by ordinance to provide for the establishment, maintenance and operation of a system of garbage collection and disposal for the entire city or town or for districts or portions thereof; to require all persons within the town or district to use the system and to dispose of their garbage as provided in the ordinance; to award contracts for such collection and disposal or to provide for the collection and disposal of garbage by and under the direction of officials and employees from the city or town; . . ."

            In AGO 59-60 No. 106 this office expressed the opinion that the above statute was permissive.  A city need not act under that statute if another method of handling garbage is more satisfactory.

            Before cities began to provide garbage service or grant exclusive contracts for garbage collection, this service was provided by private enterprise, if at all, and it was a subject of contract between  [[Orig. Op. Page 3]] the householder or business and the garbage collector.  See,Smith v. Spokane, 55 Wash. 219, 104 Pac. 249 (1909), where the plaintiff was in the private business of collecting garbage, andCornelius v. Seattle, 123 Wash. 550, 213 Pac. 17 (1923), where the plaintiffs were proprietors of restaurants and other businesses who had contracts with hog ranchers for the sale of garbage.  However, since improper disposition of garbage may endanger public health, the occupation or business of garbage collection may be regulated or even abolished under the police power.  Smith v. Spokane, supra; Cornelius v. Seattle, supra; see, annotation, Regulation and Licensing of Private Garbage or Rubbish Removal Services, 83 A.L.R. (2d) 799 (1962).

            Long before the statute quoted above was enacted in 1943, our courts had held that cities had the power to regulate or provide for garbage collection under general grants of police power.  One source of this power is Article XI, § 11, of the Washington Constitution, which states:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            State v. Lovelace, 118 Wash. 50, 54, 203 Pac. 28 (1921);State v. Spiller, 146 Wash. 180, 186, 262 Pac. 128 (1927).  Second class cities have statutory authority to regulate garbage collection by § 29, chapter 241, Laws of 1907 (cf. RCW 35.23.440).  City Sanitary Service Co. v. Rausch, 10 Wn. (2d) 446, 117 P. (2d) 225 (1941).  Third class cities have similar power under § 14, chapter 184, Laws of 1915, (cf. RCW 35.24.290).  State v. Lovelace, supra.  Fourth class cities (towns) have similar statutory powers.  Section 4, chapter 378, Laws of 1955, (cf. RCW 35.27.370).  As indicated in AGO 59-60 No. 106, these powers of cities under prior law were not restricted by the 1943 act.

            Acting under its general police power, a city or town may license garbage collectors without making the license exclusive.  See, 7 McQuillin, Municipal Corporations, § 24.242; Annotation:  Regulation and Licensing of Private Garbage or Rubbish Removal Services, 83 A.L.R. (2d) 799, § 6, pp. 824-27.  Appellate cases on nonexclusive licenses for garbage collectors are relatively rare, but reference to such licenses and the ordinances under which they were issued are found inFinney v. Estes, 130 Colo. 115, 273 P. (2d) 638 (1954);Serv-U-Garbage Co. v. Board of Health, 107 Cal. App. 386, 290 Pac. 519 (1930); andState v. Orr, 68 Conn. 101, 35 Atl. 770 (1896).

            We conclude that cities of the second, third and fourth class may license collectors of garbage on a nonexclusive basis.

             [[Orig. Op. Page 4]]

            Question 2:

            The duration for which a license may be granted is not controlled by statute.  There is no requirement that the license be issued on an annual basis.  See, AGO 59-60 No. 106.  However, it should be kept in mind that the licensing here considered is an exercise of the police power and is done to protect the health of residents of the municipality.  No licensing system could be set up in a way which would restrict the future discretion of the city council in the exercise of its power to protect the public health.  See, 11 Am.Jur., Constitutional Law, § 254.

            Question 3:

            The establishment of the rate which a garbage collector may charge a customer could be a reasonable regulation of the garbage collection business.  AGO 59-60 No. 106.  See,P. & A. Carting Co. v. City of New York, 158 N.Y.S. (2d) 296 (1956),Serve‑U-Garbage Co. v. Board of Health, supra.

            Question 4:

            By § 29 (9), chapter 241, Laws of 1907 (cf. RCW 35.23.440 (9)), § 14 (g), chapter 184, Laws of 1915 (cf. RCW 35.24.290 (7), and § 4 (9), chapter 378, Laws of 1955 (cf. RCW 35.27.370 (9)), cities of the second, third and fourth class, respectively, are permitted to impose license fees upon all occupations and trades for the purpose of revenue and regulation.  Either a fixed sum or a percentage of the gross receipts of the licensee would be a satisfactory measure of the license fee, if it were reasonable in amount under the circumstances where it is applied.  See, AGO 59-60 No. 106.

            We trust the foregoing will be of some assistance to you.

 Very truly yours,

 JOHN J. O'CONNELL
Attorney General