Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

11/18/83 JOSEPH RUBIN v. CITY WAUWATOSA

November 18, 1983

JOSEPH RUBIN, MORTON LUCK AND PHILLIP RAND, PARTNERS, D/B/A MADISON PARKVIEW COMPANY, A WISCONSIN GENERAL PARTNERSHIP, ON BEHALF OF ITSELF AND ALL OTHER PROPERTY OWNERS IN THE CITY OF WAUWATOSA SIMILARLY SITUATED, PLAINTIFFS-RESPONDENTS
v.
CITY OF WAUWATOSA, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT



Appeal from an order of the circuit court for Milwaukee county: Elliot N. Walstead, Reserve Judge.

Petition to review denied.

Wedemeyer, P.j., Moser and Brown, JJ.

The opinion of the court was delivered by: Wedemeyer

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. *fn1 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 "commercial." 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, Wauwatosa 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. *fn2 When statutory language 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 surplusage.

A historical legislative reconnaissance reveals no compelling reason for a city to create "a district" or "districts" 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.