WEDEMEYER, P.J.
The City of Wauwatosa appeals from the trial court’s declaratory judgment determining that ch. 8.26 of the Wauwatosa Code of Ordinances and its implementing resolution R-81-797 are not authorized by the statutes of the state of Wisconsin and are unconstitutional.
The assignment of error by Wauwatosa
essentially presents two questions: (1) Did Wauwatosa exceed its statutory authority in adopting ch. 8.26(b) and resolution No. R-81-797; and (2) Did this legislative
action deny the respondents equal protection of law contrary to the United States and Wisconsin Constitutions ? Concluding that the legislative action of Wauwatosa is not
contrary to statutory laws and the equal protection clauses, we reverse.
Wauwatosa, in preparing its 1982 budget and in endeavoring to alleviate the onerous costs of government
to its citizens, decided to charge for the collection of refuse from properties defined as “commerical.” Collection of refuse from properties defined as “residential” was to continue without charge, but in an effort to
further reduce costs, residents of residential properties were required to transport refuse containers to curbside for pickup.
To implement this policy change, the Wauwatosa council enacted ch. 8.26 and passed resolution R-81-797. The ordinance created a commercial collection district
defining the types of property to be included while the resolution authorized a service charge reasonably related to costs. Dwelling buildings exceeding four units were included in the term “commercial.”
Respondents commenced this class action suit in May of 1982. The certified class was stipulated to, and an undisputed stipulation of factual evidence was presented to the trial court. The trial court in an order entered December 21, 1982, ruled that ch. 8.26 and R-81-797 were illegal and void. Wauwatosa appeals from this order.
STATUTORY AUTHORITY
Respondents first argue that Wauwatosa was not authorized to create a single citywide commercial collection district defined by the type of property. They next argue that once Wauwatosa determines to provide refuse collection service to certain properties, as it has, Wauwa-tosa does not have the power to change its past policy and to charge some properties by one method of payment and others by a different method. Because we conclude that Wauwatosa did not exceed its statutory authority by causing such a change, we disagree.
The two statutes pertinent to this discussion are secs. 66.049 and 66.60(16) (a), Stats.
When statutory lan
guage is clear and unambiguous, no judicial rule of construction is permitted, and courts must implement the express intention of the legislature by giving the language its ordinary and accepted meaning.
DNR v. Wisconsin Power & Light Co.,
108 Wis. 2d 403, 408, 321 N.W.2d 286, 288 (1982) ;
see also
sec. 990.01(1), Stats. Determining that the language of both statutes has not been challenged and that the language is clear and unambiguous, we shall give the language its ordinary and accepted meaning.
Section 66.049, Stats, authorizes a city to collect refuse from such classes of property that its legislative body decides. This grant of power is permissive. Additionally,
the statute, again in permissive terms, allows a city to create districts and to remove refuse from certain of the districts if desirable. The last sentence of the statute authorizes three methods of payment for the service. They are as follows: (1) a special assessment may be made against the property serviced; (2) a general tax may be levied against the property in any created district; or (3) a general tax may be levied on all of the property of the city. Section 66.60(16) (a) provides a fourth method to defray the cost. A special charge for all or part of the service may be imposed on the property served.
From a plain reading of these statutes, we conclude that a city may collect refuse from whatever classes of property it chooses. If it wishes, it may establish districts to implement and perhaps facilitate the rendering of the service, but it need not. To liquidate the cost of the service, the city may assess the classified type of property served. It may levy a general tax on the property defined to be in a district if a district is created. It may levy a general tax on all of the property in the city or it may charge the property served all or part of the cost of the service.
Section 66.049, Stats., mentions both “classes” and “districts.” There exists no language to indicate that these terms are mutually exclusive. It is possible that under given circumstances the terms “classes” and “district” may overlap in purpose, but their coterminous existence does not necessarily create statutory surplusage. Here, because we conclude that their existence may create desired flexibility, there is an absence of sur-plusage.
A historical legislative reconnaissance reveals no compelling reason for a city to create “a district” or “dis
tricts” for the purposes of refuse collection. If, however, a city council in the discretionary exercise of its broad police powers desires to utilize a nominal “district” concept, we can perceive no reasonable basis for requiring per se that more than one district must be created as long as the legislative result is not arbitrary and has a rational basis.
Because of current financial pressures our state’s municipal governments cry out for creative methods to legitimately serve the public interest. This need will not be met if past proven modes are not reenergized with the appropriate degree of flexibility to encourage much needed solutions.
We acknowledge that historically the administrative concept of “district” possessed solely geographic connotations, but we can find no persuasive precedent for the concept to have only that characteristic if it is well enough defined to be reasonably understood. The law of zoning has addressed this problem and breathed new vitality into old concepts. By analogy, to satisfy changing needs, a municipality’s ability to liquidate the cost of services it provides ought to be accorded the same reasonable measure of flexibility.
See
R. Anderson, American Law of Zoning sec. 8.02 (1968).
Doubtless, cities of our state have four methods to liquidate the costs of refuse collection.
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WEDEMEYER, P.J.
The City of Wauwatosa appeals from the trial court’s declaratory judgment determining that ch. 8.26 of the Wauwatosa Code of Ordinances and its implementing resolution R-81-797 are not authorized by the statutes of the state of Wisconsin and are unconstitutional.
The assignment of error by Wauwatosa
essentially presents two questions: (1) Did Wauwatosa exceed its statutory authority in adopting ch. 8.26(b) and resolution No. R-81-797; and (2) Did this legislative
action deny the respondents equal protection of law contrary to the United States and Wisconsin Constitutions ? Concluding that the legislative action of Wauwatosa is not
contrary to statutory laws and the equal protection clauses, we reverse.
Wauwatosa, in preparing its 1982 budget and in endeavoring to alleviate the onerous costs of government
to its citizens, decided to charge for the collection of refuse from properties defined as “commerical.” Collection of refuse from properties defined as “residential” was to continue without charge, but in an effort to
further reduce costs, residents of residential properties were required to transport refuse containers to curbside for pickup.
To implement this policy change, the Wauwatosa council enacted ch. 8.26 and passed resolution R-81-797. The ordinance created a commercial collection district
defining the types of property to be included while the resolution authorized a service charge reasonably related to costs. Dwelling buildings exceeding four units were included in the term “commercial.”
Respondents commenced this class action suit in May of 1982. The certified class was stipulated to, and an undisputed stipulation of factual evidence was presented to the trial court. The trial court in an order entered December 21, 1982, ruled that ch. 8.26 and R-81-797 were illegal and void. Wauwatosa appeals from this order.
STATUTORY AUTHORITY
Respondents first argue that Wauwatosa was not authorized to create a single citywide commercial collection district defined by the type of property. They next argue that once Wauwatosa determines to provide refuse collection service to certain properties, as it has, Wauwa-tosa does not have the power to change its past policy and to charge some properties by one method of payment and others by a different method. Because we conclude that Wauwatosa did not exceed its statutory authority by causing such a change, we disagree.
The two statutes pertinent to this discussion are secs. 66.049 and 66.60(16) (a), Stats.
When statutory lan
guage is clear and unambiguous, no judicial rule of construction is permitted, and courts must implement the express intention of the legislature by giving the language its ordinary and accepted meaning.
DNR v. Wisconsin Power & Light Co.,
108 Wis. 2d 403, 408, 321 N.W.2d 286, 288 (1982) ;
see also
sec. 990.01(1), Stats. Determining that the language of both statutes has not been challenged and that the language is clear and unambiguous, we shall give the language its ordinary and accepted meaning.
Section 66.049, Stats, authorizes a city to collect refuse from such classes of property that its legislative body decides. This grant of power is permissive. Additionally,
the statute, again in permissive terms, allows a city to create districts and to remove refuse from certain of the districts if desirable. The last sentence of the statute authorizes three methods of payment for the service. They are as follows: (1) a special assessment may be made against the property serviced; (2) a general tax may be levied against the property in any created district; or (3) a general tax may be levied on all of the property of the city. Section 66.60(16) (a) provides a fourth method to defray the cost. A special charge for all or part of the service may be imposed on the property served.
From a plain reading of these statutes, we conclude that a city may collect refuse from whatever classes of property it chooses. If it wishes, it may establish districts to implement and perhaps facilitate the rendering of the service, but it need not. To liquidate the cost of the service, the city may assess the classified type of property served. It may levy a general tax on the property defined to be in a district if a district is created. It may levy a general tax on all of the property in the city or it may charge the property served all or part of the cost of the service.
Section 66.049, Stats., mentions both “classes” and “districts.” There exists no language to indicate that these terms are mutually exclusive. It is possible that under given circumstances the terms “classes” and “district” may overlap in purpose, but their coterminous existence does not necessarily create statutory surplusage. Here, because we conclude that their existence may create desired flexibility, there is an absence of sur-plusage.
A historical legislative reconnaissance reveals no compelling reason for a city to create “a district” or “dis
tricts” for the purposes of refuse collection. If, however, a city council in the discretionary exercise of its broad police powers desires to utilize a nominal “district” concept, we can perceive no reasonable basis for requiring per se that more than one district must be created as long as the legislative result is not arbitrary and has a rational basis.
Because of current financial pressures our state’s municipal governments cry out for creative methods to legitimately serve the public interest. This need will not be met if past proven modes are not reenergized with the appropriate degree of flexibility to encourage much needed solutions.
We acknowledge that historically the administrative concept of “district” possessed solely geographic connotations, but we can find no persuasive precedent for the concept to have only that characteristic if it is well enough defined to be reasonably understood. The law of zoning has addressed this problem and breathed new vitality into old concepts. By analogy, to satisfy changing needs, a municipality’s ability to liquidate the cost of services it provides ought to be accorded the same reasonable measure of flexibility.
See
R. Anderson, American Law of Zoning sec. 8.02 (1968).
Doubtless, cities of our state have four methods to liquidate the costs of refuse collection. The recognition of these four alternatives, however, does not logically necessitate that only one method of payment must be provided for all classes of property, if the safeguards of equal protection are present.
Here, we find no evidence of Wauwatosa’s failure to follow the well-recognized
rubrics of equal protection. We hold that Wauwatosa did not exceed its statutory authority by creating collection districts defined by the type of property served and employing different methods of payment as between the districts.
EQUAL PROTECTION
Respondents next argue that they were denied equal protection because there are no facts existing or rationale set forth which would reasonably justify any distinction between commercial and residential classes. The respondents also argue that Wauwatosa has artificially distinguished between certain types of residential property and that, therefore, ch. 8.26 is unconstitutional because it denies equal protection of law.
Absent a “fundamental right” or of an “inherently suspect classification,” there is a strong presumption that a classificatory scheme established either by statute or by ordinance is valid.
City of New Orleans v. Dukes,
427 U.S. 297, 303 (1976). When a classification is challenged as violative of the equal protection requirements, the challenger assumes a heavy burden and must prove misuse of legislative discretion beyond a reasonable doubt.
Sambs v. City of Brookfield,
97 Wis. 2d 356, 370, 293 N.W.2d 504, 511,
cert. denied,
449 U.S. 1035 (1980).
Although the collection of refuse is one of numerous governmental functions, its existence does not give rise to a vested right to its continuation or the creation of a “fundamental right.” Nor, for that matter, can we ascertain any basis for concluding that the owners of multiple unit buildings of five or more and other properties defined as commercial are an “inherently suspect class.”
Goldstein v. City of Chicago,
504 F2d 989, 991 (7th Cir. 1974) ;
see also Carpenter v. Commissioner of Public
Works,
115 Wis. 2d 211, 218-19, 339 N.W.2d 608, 611 (1983).
The appropriate standard for review of a classificatory scheme is whether there is a rational basis for the classification.
Sambs, swpra,
at 370-71, 293 N.W.2d at 511-12. The challenged classification must rationally relate to a legitimate state interest. The basic test is not whether some inequality results from the classification, but whether there exists any reasonable basis to justify the classification,
Omernik v. State,
64 Wis. 2d 6, 19, 218 N.W.2d 734, 742 (1974) ; or which reasonably may be conceived to justify the class.
McGowan v. Maryland,
366 U.S. 420, 426 (1961). If the legislative body has not set forth its rationale for creating a classificatory scheme and imposing service charges:
[I] t is the court’s obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination. The rationale which the court locates or constructs is not likely .to be undisputable. But it is not our task to determine the wisdom of the rationale or the legislation. The legislature assays the data available and decides the course to follow.
Sambs, supra,
at 371, 293 N.W.2d at 512.
Our review of the entire record discloses that, prior to the adoption of ch. 8.26 and the accompanying resolution R-81-797, Wauwatosa never had a separate ordinance for commercial refuse collection. There existed but one refuse collection ordinance which established rules and regulations for all uses except those defined as industrial. Over a period of time, however, a practice developed to distinguish and treat the commercial collection of refuse differently from residential collection. Ninety-five percent of all of the commercial establishments were served by what was designated as three commercial two-
man crews. The collection for these properties involved different procedures. Different types of wheeled containers were used which necessitated special dumping equipment. To facilitate the process, segregated routes were initiated. In fact, a commercial collection system was in existence prior to the enactment of ch. 8.26.
The city council requested reports concerning the cost of commercial refuse collection versus the costs for residential collection. Surveys were taken and comparable cost studies were rendered. Components of the survey included the amount by weight of residential versus commercial refuse collection, the number of containers used for commercial purposes and the total cost of the entire system. The cost for the commercial part of the system took into account direct labor costs, fringe benefits, equipment and other miscellaneous expenses. Based on these studies and the determination of the cost of commercial collection, a rate schedule was formulated to reasonably approximate the costs.
At the very same time that the commercial collection data was being gathered and analyzed, a parallel study was completed to reduce residential collection costs. Possessing this information, the city council, as a matter of policy, in effect, created two refuse collection classifications. If the owners of the types of buildings defined as commercial desired refuse collection, they could obtain it from Wauwatosa at a rate reasonably approximating the cost. On the other hand, residential occupants were required to make a contribution to the labor costs by conveying their refuse containers to curbside for pickup, a task previously performed by Wauwatosa employees. To reduce costs, a municipal interest, the city council, by ordinance, legitimized the two different refuse collection systems, which in fact already existed. The distinctions for these two systems were based on the data gathered in the surveys and cost studies.
Since the classification of multiple dwelling units of five or more and other defined commercial buildings is not “inherently suspect” and since garbage collection is not a “fundamental right,” we must only determine whether the rational basis test has been satisfied. From the data included in the undisputed evidence it is not unreasonable to conclude that there are valid distinctions in the methods, procedures and costs for refuse collection of property defined as commercial. In recognizing these distinctions, Wauwatosa changed its policy to reduce the costs of collections for both categories of properties. To accomplish this goal new classifications were legitimately established based on the assembled data.
The reasons for the two classifications were the distinctions made manifest by the surveys and reports submitted to the city council and the conclusions drawn from them by the city manager. We conclude that there is a reasonable basis for the two classes; that the Wauwatosa city council did not misuse its legislative discretion; and that the respondents did not meet their burden of proof. Therefore, ch. 8.26 does not violate the protection provided by the equal protection provisions of the fourteenth amendment and the Wisconsin Constitution.
By the Court.
— Order reversed and cause remanded.