City of Lake Charles v. Wallace

170 So. 2d 654, 247 La. 286, 1964 La. LEXIS 2856

• Court: Supreme Court of Louisiana
• Decided: July 1, 1964
• Docket: No. 47131
• Status: Published

Opinions

SANDERS, Justice.

The question presented in this proceeding is the validity of Ordinance No. 1381 of the City o£ Lake Charles, adopted by the City Council on January 24, 1963, imposing a service charge on proprietors of residences and apartment houses to defray the cost of garbage disposal and sanitation.

The City of Lake Charles brought this action in the City Court of Lake Charles against the defendant, Allen K. Wallace, seeking to recover the sum of $10.00, the garbage disposal charge for five months. Wallace admitted the correctness of the amount due under the ordinance, but attacked the validity and constitutionality of the ordinance on various grounds. Assigning written reasons, the City Court of Lake Charles upheld the ordinance and rendered judgment against the defendant as prayed for. The defendant has appealed to this Court.¹

Defendant’s attack upon the ordinance takes various forms. However, the principal grounds are: The City of Lake Charles, is without legal authority to impose the charge; the charge is a tax that exceeds, the allowable millage under Article XIV, Section 12 of the Louisiana Constitution;, the charge cannot be imposed without a vote of the electorate; it is excessive and unreasonable; and it is discriminatory because it does not apply equally and uniformly to all residents.

We find no merit in the attack upon the ordinance. The City Court of Lake Charles, in our opinion, correctly disposed of all contentions.

The assailed ordinance declares the collection and disposal of garbage to be a revenue producing utility and imposes a service charge to defray the expenses of disposal and the maintenance of sanitation.²

Such an ordinance is clearly authorized without a vote of the electorate. LSA-R.S. 33:4161 defines "revenue producing public utility” to include garbage disposal and “other like services.” Garbage disposal, of course, includes its collection. LSA-R.S. 33:4163 further provides:

“The municipal corporation, parish, political subdivision, or taxing district may sell and distribute the commodity or service of the public utility within or without its corporate limits and may establish rates, rules, and regulations with respect to the sale and distribution.”

Relating as it does to the public health and welfare, the disposal of garbage is within the police powers of the City.³

The service charge is not a tax within the millage limitations of the constitution.⁴ We had occasion to consider the nature of a fee to cover the cost of laundry inspection in City of New Orleans v. Hop Lee, 104 La. 601, 29 So. 214. There we stated:

“It is neither a tax nor the imposition of a license for revenue purposes.”

See also Oubre v. City of Donaldsonville, 167 La. 625, 120 So. 30.

The defendant asserts that the charge is excessive, that it produces more revenue than is required to defray the cost of the sanitation program, and that the funds collected have been used for other services. After a review of the audits and testimony, the court below found no factual basis for this contention. The finding, in our opinion, is correct.

To establish lack of uniformity, the defendant attempted to show that the City did not collect the charge from indigent persons. We find no merit in this attack. The ordinance exempts no proprietor because of indigence. It applies uniformly to all proprietors of residences and apartment houses.

We find no infirmity in the ordinance. Hence, we sustain it.

For the reasons assigned, the judgment of the City Court of Lake Charles is affirmed.

1 . Art. VII, Section 10(1), Louisiana Constitution, LSA.

2 . “WHEREAS, is order to promote the health and welfare of the citizens of the City of Lake Charles, it is necessary to provide for the collection and disposal of garbage, trash and other refuse, and to provide for the maintenance of general cleanliness and sanitation of the City, and

“WHEREAS, it is no longer possible to provide these services without cost or charge, and

“WHEREAS, the City in the exercise of its police powers, deems it necessary to levy a service charge to defray the cost of the collection and disposal of garbage, trash and other refuse, and the cost of the maintenance of tbe general cleanliness and sanitation of tbe City:

“NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OP THE OITY OP LAKE CHARLES, LOUISIANA, in Special Session convened that:

“SECTION 1: Tbe Code of tbe City of Lake Charles, 1966, is hereby amended by adding Section 11-19.1 to 11-19.5 inclusive, to Chapter 11, which additional sections shall provide as follows:

“Section 11-19.1

“The furnishing by the City of the service of collection and disposal of garbage, trash and other refuse is hereby declared to be a revenue producing public utility.

“Section 11-19.2

“In order to provide for the health and welfare of the citizens of the City of Lake Charles, there is hereby levied a service charge to defray the expenses of the collection and disposal of garbage, trash and other refuse, and the expenses of the maintenance of the general cleanliness and sanitation of the City, to be assessed and collected monthly, as follows:

“(a) Upon each proprietor of a residence .$2.00

“(b) Upon each proprietor of an apartment house.$2.00 per apartment

“Section 11-19.3

“For the purposes of this Section, the word “apartment” shall be construed to mean a living or residential unit containing usual and ordinary kitchen facilities.”

3 . Rhyne, Municipal Law (1957), § 26-60, p. 626; 37 Am.Jur., Municipal Corporations, § 299, p. 946; Annotation, 15 A.L.R. 287, 292.

4 . Art. XIV, Section 12, Louisiana Constitution; Oubre v. City of Donaldsonville, 167 La. 625, 120 So. 30; City of New Orleans v. Hop Lee, 104 La. 601, 29 So. 214; 51 Am.Jur., Taxation, § 16, pp. 48-49 ; 7 McQuillin, Municipal Corportions (3rd ed.), § 24.250, pp. 89-90.