Request By:
Mr. James H. Lambert
Attorney at Law
P.O. Box 278
Church Street
Mt. Vernon, Kentucky 40456
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Rockcastle County Fiscal Court recently enacted an ordinance dealing with garbage. The fiscal court issued a franchise under § 164, Kentucky Constitution, to a private corporation to collect and dispose of garbage in the county. That contract, you say, is directly funded out of the county's general fund. You have a problem with citizens who live outside of Rockcastle and who are dumping their refuse and garbage into Rockcastle County garbage containers. A great amount of "foreign" garbage is being brought out of Berea, which is about 2 miles from the Rockcastle County line. The ordinance provides that it is illegal for persons of other cities or counties to bring garbage into Rockcastle County and dump it into your county trash containers. Also it provides that it is illegal for anyone, including citizens of Rockcastle County, to place garbage, other than household bagged garbage, into your county trash containers.
Specifically, your first question, as county attorney, is whether it is a violation of Kentucky law, or can it be made a violation of a county ordinance, to place garbage in trash containers if the garbage is not bagged?
The fiscal court has broad police powers in connection with public sanitation, the exclusive management of solid wastes, and garbage collection and disposal service. See KRS 67.083(3)(c)(o) and (r). Thus a fiscal court has the authority to enact reasonable ordinances designed to provide a garbage collection and disposal service system for the health and convenience of its county citizens. See KRS 67.075 (definitions of "county ordinance" ). As is written in McQuillin, Municipal Corporations, Vol. 7, § 24.242, "Quite obviously, the expeditious removal and disposal of waste substances are essential to protect against health menaces, danger of fire, and offensive and unwholesome smells. . . . A municipal corporation may fix a schedule for collection of waste products, require that garbage be placed in proper receptacles for removal, compel the proper disposal of animal carcasses, and prohibit the scattering or dumping of garbage and trash in public places or private property." Elsewhere in McQuillin, § 22.248, this is written: "Municipalities may require that all garbage be placed in proper receptacles convenient for removal. "
It is our opinion that the ordinance provision prohibiting anyone to place garbage other than household or business bagged garbage into the county trash containers is legal under the broad police powers of fiscal court. The fiscal court in such an ordinance may prescribe reasonable penalties for violation thereof. KRS 67.083(7).
Next, various persons from other counties are bringing truck loads of garbage into Rockcastle County. They are clogging up Rockcastle County containers. Your question is whether the Rockcastle County ordinance, with accompanying criminal penalties, may legally prohibit citizens from other counties from dumping their trash and garbage into Rockcastle County trash containers. The Rockcastle County fiscal court has the exclusive authority to enact local ordinances within Rockcastle County territory, except for municipal authority within cities of Rockcastle County, provided they are not in conflict with state statutes or the constitution. See City of Radcliff v. Hardin County, Ky., App., 607 S.W.2d 132 (1980), holding that KRS Chapter 109 does not grant a county the right to grant an exclusive franchise for garbage collection within incorporated areas of cities. Otherwise the fiscal court has the authority to regulate garbage collection within its area. McQuillin, Vol. 7, § 24.245.
Under Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), a fiscal court has only those powers expressly delegated to it by the General Assembly. Those implied powers necessary to carry out the expressly delegated powers extend to fiscal courts. Bruner v. Jefferson County Fiscal Court, 239 Ky. 613, 40 S.W.2d 271 (1931). Thus under KRS 67.083(3)(c)(o) and (r), a fiscal court has the power to enact ordinances relating to garbage collection and disposal. Here the courts would inquire into whether the prohibition against bringing in garbage from other counties has a definite and reasonable relation to the police-power purpose of garbage collection and disposal, and public sanitation (see KRS 67. 083(3)(c)). Otherwise, it could run afoul of § 2, Kentucky Constitution, which prohibits arbitrary action. See Krol v. County of Well, 38 Ill.2d, 587, 223 N.E.2d 417 (1968) 419.
Courts of other states have differed on the legality of ordinances prohibiting dumping of garbage from areas outside of the particular city or county. 56 Am.Jur.2d, Municipal Corporations, § 464, pages 515-516.
The District Court of Appeals, Fourth District, California, in Ex Parte Lyons, Cal., 80 P.2d 745 (1938), ruled that a county ordinance prohibiting the bringing into the particular county of garbage from another county was, under the California Constitution, arbitrary and void. The court wrote this at page 749:
"It is, or course, as clearly a discrimination against the inhabitant of another county than Orange to forbid him to dispose of his garbage in Orange county, as it would be to exact from him a higher license fee for conducting some business in Orange county than would be required of a resident of that county for engaging there in the same business."
The court, in Ex Parte Lyons, held in effect that the power to deal with and regulate the collection of garbage within the county did not include the power to prohibit such dumping or importation from outside the county.
An ordinance, in Lutz v. Armour, 395 Pa. 576, 151 A.2d 108 (1959), prohibited the hauling into the township, for dispostion there, of garbage and waste material from other areas. The court held the ordinance was arbitrarily capricious and discriminatory, since there was no evidence that it interfered with health standards or that the quantity of such imported garbage was so much out of proportion to that of township garbage that its limitation was necessary to protect the health and general welfare of township residents. Thus, the court said, the township by ordinance merely sought to introduce a distinction between outside and township garbage, which was artificial, devoid of merit, and not within the protective health interests of the community.
However, the Superior Court of New Jersey, in Shaw v. Byram TP., 86 N.J. Super. 598, 207 A.2d 570 (1965), in which a township ordinance prohibited the bringing of garbage into the township from outside the township, upheld the ordinance. There was evidence that approximately 40 yards of garbage per week was being collected in the township, while 450 yards per week would be collected outside the township. The court wrote this at page 572 in response to the argument contending that the ordinance was arbitrary:
We do not agree. Garbage or refuse is unsightly, smelly, attracts flies and rodents, and is a potential fire hazard. It is a prime source of disease and contamination. It has been called a necessary evil because it is a by-product of civilized society. Ordinarily, some provision is made for its collection and disposal by the local government. However, problems of public health and welfare are involved, and no matter how carefully regulated, garbage dumps present some hazard to a community, the degree of hazard being directly related to the amount of garbage dumped. A local government may properly make suitable provisions for the disposal of its own garbage and refuse. At the same time it can prevent its area from becoming a dumping ground for other municipalities and thus aggravating the hazard inherent in this type of operation.
Elsewhere in Shaw v. Byram, this was written:
The issue was directly considered in Wiggins v. Town of Somers, 4 N.Y.2d 215, 173 N.Y.S2d 579, 149 N.E.2d 869 (Ct. App. 1958), where it was held that a municipality, in the proper exercise of its police power, could prohibit the dumping within the municipality of garbage originating outside the municipality. In so holding, the court said:
"Garbage dumps are obnoxious in every sense of the word and a town is entitled to restrict such operations. But it is met also with the fact that disposition must be made of the garbage of its residents. The ordinance in question impresses us as a precise accommodation between these conflicting interests. Where the latter interest ceases, the former prevails. Appreciating the complexities of the situation - the inherent obnoxiousness of garbage dumps, the aggravation of the condition by increased dumping, the growth of the community, the need for disposal of community garbage, etc. - it is impossible to stamp this ordinance as arbitrary and capricious." (173 N.Y.S.2d, at p. 584, 149 N.E.2d, at p. 873.)
In view of the increased load effected by the garbage of outside areas, and the attendant implications of the public health of citizens of Rockcastle County by way of increasing health problems or hazard, it is our opinion that the ordinance is a valid, not arbitrary, exercise of the fiscal court's police powers. This view is buttressed by the fact that the outside citizens pay nothing toward the maintenance of the garbage, while the citizens of Rockcastle County directly support the garbage operation through the county's general fund.