[No. 16670. Department Two. December 19, 1921.]
THE STATE OF WASHINGTON, Respondent, v. ALMANSON
M. LOVELACE et al., Appellants. «1»
MUNICIPAL CORPORATIONS (319) - HEALTH REGULATIONS -
ORDINANCE - POWERS OF CITY. An ordinance of a city of the third
class for the disposal of garbage is a valid exercise of municipal
power under Const., art. 11, SS 11, giving any city power to make
such local sanitary regulations as are not in conflict with
general laws, and Rem. Code, SS 7671-14, subd. (r) especially
authorizing cities of the third class to enact and enforce local,
police, sanitary and other regulations.
SAME (44) - ORDINANCES - VALIDITY - FRANCHISE. An ordinance
providing for entering into a contract with the most satisfactory
bidder for the disposal of garbage is not one granting a
franchise, since no right or privilege is thereby granted.
SAME ( 99 ) - HEALTH REGULATIONS - ORDINANCE - VALIDITY -
AWARD OF CONTRACT TO BIDDER. Where an ordinance authorizing
the letting of a contract for the disposal of garbage to the
highest bidder means to such person as the city council shall deem
best qualified and equipped for the performance of the contract
who would perform it for the lowest charge to the people served,
and where there is no showing of its being productive of revenue,
it cannot be held invalid.
«1» Reported in 203 Pac. 28.
_
STATE v. LOVELACE. 51
Dec. 1921 Opinion Per HOVEY, J.
SAME (45) - ORDINANCE - VALIDITY - SUBJECT AND TITLE. The title
of an ordinance reciting that it is one for the letting of an
exclusive contract for the disposal of garbage and rubbish and
providing certain penalties, is broad enough to cover a section
requiring any person disposing of his own garbage at any
designated dump to first pay to the city clerk a fee of one dollar
and a half for each lead.
SAME (45). The objection that the penalty of an ordinance is
not covered by its title cannot be raised by one who is not
charged with a violation of the ordinance.
Appeal from a judgment of the superior court for
Clarke county, Simpson, J., entered July 14, 1921, upon
a trial and conviction of violating an ordinance. Affirmed.
E. N. Livermore, for appellants.
Wm. C. Bates, for respondent
HOVEY, J. - In this case the defendants were convicted
of violating an ordinance of the city of Vancouver
relative to the disposal of garbage. The case was
disposed of upon an agreed statement of facts, and
the only question presented is the validity of the
ordinance.
Vancouver is a city of the third class, organized
under the laws of this state relative to cities of that
class. On August 16, 1920, the city passed an ordinance,
a portion of which is as follows:
"An Ordinance providing for the. letting of exclusive
contract for the removal of manure, garbage, offal,
refuse, rubbish, dead animals and all vegetable or animal
matter detrimental to health and providing certain
penalties and repealing Ordinance No. 578.
"The City Council of the City of Vancouver Do Ordain
As Follows:
"Section I. That the city council shall, every five
years or as frequently as may be required, let to the
highest bidder for cash the exclusive right to collect,
remove and dispose of all manure, garbage, offal, refuse,
rubbish, dead animals, night soil, waste or refuse
52 STATE v. LOVELACE.
Opinion Per HOVEY, J. 118 Wash.
substances or any vegetable or animal matter
detrimental to health.
"Section II. Upon direction of the city council, the
city clerk shall advertise for bids for the contract above
provided, in conformity with the ordinances of the city
of Vancouver, Washington, the first publication of said
call for bids to be at least seven days prior to the
time for opening same. The city council shall have the
power to refuse any and all bids and shall award said
contract to the person in their mind best qualified and
equipped for performance of its contract. In
submitting bids every person bidding shall specify the
rates and charges and times of collection to be made
by him.
"Section III. Every successful bidder shall furnish
surety bond to the city of Vancouver in the sum of
one thousand ($1,000) dollars, conditioned upon the
faithful performance of his contract and compliance
with all the ordinances of the said city, and such bidder
shall maintain an office within said city equipped with
a telephone.
"Section IV. It shall be unlawful for any person to
perform any of the things herein enumerated except
the person to whom such contract is awarded, provided,
however, that this shall not prohibit any person from
anywise disposing or removing his own garbage to any
designated city dump, nor shall it apply to such
businesses that have garbage for sale for cash or its
equivalent.
"Section V. Every contract entered into by virtue
of this ordinance shall specify that the city of
Vancouver may terminate such contract upon sixty days
written notice, upon condition that the city purchase all
equipment used in connection therewith at a value to
be determined by a board of appraisers, one to be
appointed by said contractor, one by the city and the
third by the two thus appointed.
"Section VI. Any person disposing of his own
garbage at any designated dump shall first pay a fee of
one and 50/100 ($1.50) dollars for each load removed
by him, to the city clerk."
STATE v. LOVELACE. 53
Dec. 1921 Opinion Per HOVEY, J.
Thereafter the city advertised for bids, as provided
in the ordinance, and from the bids received accepted
the one presented by Sherman Drew and made a contract
with him in accordance with the terms of the
ordinance.
The first contention made is that the city is without
authority to enact an ordinance of this kind because the
subject is not specifically mentioned in the law relative
to cities of the third class. Appellants rely upon
Wilson v. Beyers, 5 Wash. 303, 32 Pac. 90, 34 Am. St.
858. That was a case where a town was held not to
have the power to impound live stock running at large
in the streets, because of the fact that the law relative
to the town was a part of the general statute (Laws
1889-90) relative to cities and towns in which the power
was specifically given to the higher class municipalities
but was not mentioned in defining the powers of towns.
It was, however, said in that case that the power would
probably be embraced within the police powers of the
town and covered by its general welfare clause, if the
act did not seem to show an intent by the legislature to
withhold the power from this class of municipalities.
The general law relative to all municipalities was
subsequently superseded as to cities of the third class
by a complete law as to such cities, passed by the
legislature in the year 1915, and since that time each class
seems to have been separately treated by the
legislature, except for certain general laws on special
subjects. By subdivision (a) of SS 14, p. 655, of the act of
1915 (Rem. Code, SS 7671-14; P. C. SS 797), the city is
given power "to pass ordinances not in conflict with
the constitution and laws of this state or of the
United States." Subdivision (r) p. 658, Laws of 1915,
reads as follows:
"To make all such ordinances, by-laws, rules,
regulations and resolutions, not inconsistent with the
54 STATE v. LOVELACE.
Opinion Per HOVEY, J. 118 Wash.
constitution and laws of the state of Washington, as may be
deemed expedient to maintain the peace, good government
and welfare of the corporation and its trade, commerce
and manufactures, and to do and perform any
and all other acts and things necessary or proper to
carry out the provisions of this chapter, and to enact
and enforce within the limits of such city all other
local, police, sanitary and other regulations as do not
conflict with general laws."
In our opinion, one of the most important functions
of a city is to provide for the health of its inhabitants,
and it cannot be doubted but what the non-removal of
the matter defined in the ordinance would be a serious
menace. The right of a city to function in this manner
seems to be generally recognized. Article 11, SS 11, of
the constitution reads as follows:
"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."
In Smith v. Spokane, 55 Wash. 219, 104 Pac. 249, 19
Ann. Cas. 1220, an ordinance on this subject was sustained
as to cities of the first class, and a great many
authorities are cited in support of the right under the
general powers of a city. We are satisfied that this
first objection is not well taken.
For their second contention, appellants maintain that
the ordinance is one granting a franchise and is invalid
because passed upon the day of its introduction, in
violation of SS 7671-12, Rem. Code (P. C. SS 795), which
requires that ordinances of this character shall not be
passed until five days after their introduction and
without being first submitted to the city attorney, and they
cite Sanitary Reduction Works v. California Reduction
Co., 94 Fed. 693, to the effect that an ordinance
granting the exclusive right to one person of this privilege
STATE v. LOVELACE. 55
Dec. 1921 Opinion Per HOVEY, J.
is an ordinance granting a franchise. In our opinion,
it is not necessary to decide the effect of such an
ordinance under our laws, as the ordinance in question
simply provides the method by which the city proposes
to take care of garbage and no right or privilege is
granted by it. The subject-matter in this case is disposed
of by contract, and the city in so acting is merely
providing an agency for the carrying into effect of one
of its corporate functions.
The third point made by appellants is that the
ordinance is void because it requires the contract to be
awarded to the highest bidder. Appellants cite one
case, Dreyfus v. Boone, 88 Ark. 353, 114 S. W. 718. We
are not supplied with a copy of the contract made under
this ordinance, but we gather from the briefs that the
contract was in fact let to the person best equipped to
do the work who would perform it for the lowest charge
to the people served, and if any revenue whatever is
derived by the city, no showing is made to that effect.
We believe that a contract of this sort is what the
ordinance contemplates, construed as a whole, and if
any revenue is derived by the city it would be merely
incidental to the main purpose of cleaning up the city
at the lowest cost possible consistent with efficient
results.
The fourth point made by the appellants is that the
ordinance is void because by SS 6 a charge of $1.50 per
load is made to the individuals who haul their own
garbage to a city dump, which provision they claim is not
covered by the title of the act. The appellants are not
in any position to raise this question, as the charge
against them is not the violation of this section, but
we are asked by respondent to dispose of the question.
We believe that it is covered by our previous decisions
establishing the rule that the title of an act is sufficient
56 HERREN v. HERREN.
Syllabus. 118 Wash.
if it covers the general subject-matter and it is not
necessary that it be an index. Seattle v. Barto,
31 Wash. 141, 71 Pac. 735.
The judgment is affirmed.
PARKER, C.J., MAIN, HOLCOMB, and MACKINTOSH, JJ.,
concur.