McClellan v. Kenai Peninsula Borough

565 P.2d 175, 1977 Alas. LEXIS 426
CourtAlaska Supreme Court
DecidedJune 8, 1977
DocketNos. 2493, 2543
StatusPublished
Cited by2 cases

This text of 565 P.2d 175 (McClellan v. Kenai Peninsula Borough) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClellan v. Kenai Peninsula Borough, 565 P.2d 175, 1977 Alas. LEXIS 426 (Ala. 1977).

Opinion

OPINION

BURKE, Justice.

This is an appeal.by John W. McClellan, d/b/a Alpine Refuse, and Homer Transfer Co. Inc., from an order granting summary judgment to Kenai Peninsula Borough; R. F. Miller Enterprises, Inc. d/b/a Peninsula Sanitation Co.; and Burton Carver & Co., Inc. The controversy centers on the power of the Borough of Kenai to set up intermediate sites for the disposal of solid waste products and to contract with private refuse companies to transfer the solid waste to final landfill areas. The dispute requires us to construe AS 29.48.033(b) and AS 42.-05.221(f), both of which provide in pertinent part:

“. . .A political subdivision of the state1 may not provide for a garbage, refuse, trash or other waste material collection and disposal service in any area to the extent it lies within an area granted to a garbage, refuse, trash or other waste material carrier by a certificate issued by the [Alaska Public Utilities] commission to the carrier until it has purchased the certificate, equipment and facilities of the carrier or that portion of the certificate which would be affected at fair market value. .

On June 20 and June 27, 1974, the Borough allowed contractors to bid on one year contracts covering all hauling of refuse to sanitary landfills and maintenance and operation of transfer sites.2 Pursuant to these bids, contracts were awarded to Peninsula Sanitation and Burton Carver & Co.

Appellants, holders of certificates issued by the Alaska Public Utilities Commission allowing them to provide garbage and refuse collection and disposal utility service in the Kenai Peninsula Borough,3 filed suit in the superior court against the Borough praying for injunctive relief and a declaratory judgment. The Borough made a cross-motion for summary judgment, establishing substantial agreement as to the facts. Judge Eben Lewis, in an order handed down March 10, 1975, granted the Borough’s motion and held that:

. the" system of disposition of solid waste ... of the Borough utilizing large boxes as intermediate disposal [177]*177facilities to be subsequently transported to permanent disposition sites by its own forces or through a contractor employed through normal contracting procedures does not preempt without compensation the regulated utility function of going to customers for the immediate collection of solid waste.4

The question presented to this court is one of statutory interpretation. As one commentator has stated, “[it] seems that anyone looking for principles of interpretation would first hit upon the rather obvious idea that the statute should be given the meaning which will express the actual intention of the legislator when the law was enacted.”5 In this case we have been unable to find any legislative guidance which would illuminate our path.

In the situation at bar the dispute may be centered on the meaning of the phrase “collection and disposal” as used in AS 29.48.033(b) and AS 42.05.221(f). As has been stated:

It is . . .a basic rule of [statutory] construction that general words should be given a general construction; that is they should be given their full and natural meaning, unless the statute in some manner reveals that the legislative intent was otherwise.6

Given this principle we note that Webster’s Seventh New Collegiate Dictionary (1969) defines collection as “the act or process of collecting” or “something collected.” Collect is defined as the “bringing] together into one body or place.” The fact pattern presented is clear on the point that refuse was gathered at the various intermediate sites and was hence collected.

To accept the lower court’s interpretation that dumpsters serving as intermediate dump sites qualify as the functional equivalent of final landfill sites would allow the Borough to place dumpsters in such a pervasive fashion as to completely vitiate the requirement of AS 29.48.033(b) and AS 42.-05.221(f) that certificate holders be compensated for their interests. Such a result is not a reasonable reading of the statute.

In awarding Alpine Refuse and Homer Transfer their certificates of public convenience and necessity for the collection of refuse, the Alaska Public Utilities Commission, in an order dated February 26, 1974, endeavored to clarify the confusion generated by the legislature’s failure to define “disposal” in AS 29.48.033(b) and AS 42.05.-221(f). The Commission found:

. that disposal in this instance means the act of passing over the control of solid waste to the operators of a disposal site. Hence, the operation of garbage disposal sites does not constitute a utility service; it is only the passing over of control of solid waste to the disposal site operator which is regulated as a utility function, (emphasis added)7

The Commission in apparent anticipation of the Borough’s actions went on to state that they considered

drop-boxes and dumpsters, which are used as intermediate disposal facilities, to be garbage and refuse containers. Thus, if in the future the Borough program includes the placement of drop-boxes, large disposal dumpsters, or large disposal containers as intermediate disposal facilities, the Commission is of the opinion that suitable arrangements can be made for the certificated utility in that area to service those facilities.8

We agree with this interpretation of AS 29.48.033(b) and 42.05.221(f). Therefore, we hold that the Borough of Kenai is liable to the appellants for the fair market value of their certificates of public convenience and necessity or that portion of the certificate that would be affected and remand to the superior court for findings as to such value.

[178]*178CROSS-APPEAL

At the hearing on the parties’ cross-motions for summary judgment, cross-appellant Borough made an additional motion for change of venue. Judge Lewis ruled that if both motions for summary judgment were denied, venue for trial would be changed from Anchorage to Kenai. Thus, he denied the motion for change of venue for the purpose of hearing the motions for summary judgment.

Cross-appellants urge that the court erred in failing to grant their motion for change of venue prior to a hearing on the summary judgment motions. Their argument is predicated on AS 22.10.030(d) which states in pertinent part:

Subject to § 40 of this chapter, a trial and any precedent or antecedent hearings in an action shall be conducted in a senate district within the judicial district at a location which would best serve the convenience of the parties and witnesses. However, if there is any part of more than one senate district within the boundaries of a borough, the trial and related hearings shall be conducted within the borough’s boundaries at a location which would best serve the convenience of the parties and witnesses. . . . (emphasis added)

That the word “shall” is generally considered to signal a mandate from the legislature is buttressed by its definition in Bal-lentine’s Law Dictionary (3rd ed. at 1171) that it is

[ojrdinarily, a word of mandate in a statute, the equivalent of ‘must’ where appearing in a statute.

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565 P.2d 175, 1977 Alas. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclellan-v-kenai-peninsula-borough-alaska-1977.