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District Court of Appeal, Second District, Division 2, California.

CITY OF GLENDALE, a municipal corporation, Plaintiff and Appellant, v. Christine TRONDSEN, Defendant and Respondent.

CITY OF GLENDALE, a municipal corporation, Plaintiff and Appellant, v. Charles JARMER, Defendant and Respondent.

CITY OF GLENDALE, a municipal corporation, Plaintiff and Appellant, v. R. E. TISDALE, Defendant and Respondent.*

Civ. 21732–21734.

Decided: July 31, 1956

Henry McClernan, City Atty., John H. Lauten, Asst. City Atty., Joseph W. Rainville, Deputy City Atty., Glendale, for appellant. Jack B. Tenney and Cecil W. Collins, Los Angeles, for respondents. Roger Arnebergh, City Atty., Bourke Jones, James A. Doherty, Asst. City Attys., Moses A. Berman, Deputy City Atty., Los Angeles, for amicus curiae, City of Los Angeles.

These three actions, consolidated for purposes of appeal, were brough by the city of Glendale to recover exactions imposed upon Trondsen, Jarmer and Tisdale as occupants of single dwellings within the city pursuant to ordinance No. 1764 entitled ‘An Ordinance Regulating the Keeping, Collecting, and Disposing of Rubbish in the City of Glendale.’ The amounts sought to be recovered are $24.75, $24.75 and $26.25, respectively. The city contends that the exactions in question are taxes; defendants argue that they are service charges for services not actually rendered to defendants or, if taxes, are invalid on several different grounds. The trial judge agreed that these items are taxes but held that they are imposed upon mere occupancy of property and that that is not a proper subject of taxation. Demurrers to the complaints were sustained with leave to amend but plaintiff having elected to stand on its pleading judgment went for each defendant. The city appeals.

The ordinance, as indicated by its title, creates a comprehensive plan for the handling and disposition of combustible and non-combustible rubbish within the city. Paragraph VI of each complaint alleges: ‘The plaintiff in pursuance of said ordinance has at all times mentioned herein contracted with responsible contract agents for the collection, hauling and disposal of combustible and non-combustible rubbish and refuse, and, by said contract agents, has at all times collected rubbish and refuse throughout all parts of the City of Glendale and has operated at all such times a municipal incinerator disposing of combustible waste, and the said contract agents have called at the place of occupancy of defendant, together with those of all other occupants within the City of Glendale, once a week collecting combustible rubbish and once every two weeks collecting non-combustible rubbish, to the general benefit of the community at large in the prevention of unhealthful conditions, the lessening of fire hazard and the diminution of the presence of air pollutants (smog) in said City.’

The ordinance provides for collection and disposition of rubbish throughout the city by a Contract Agent of the municipality but leaves those who produce rubbish free to dispose of same through other channels. It forbids accumulation of rubbish for a period of more than one calendar week if combustible, and for more than one calendar month if non-combustible; provides for collection by the Contract Agent at regular intervals; prescribes the use of certain receptacles by those who desire the service of the agent; forbids the placing of any such container or any rubbish on any highway or in any alley except on days designated for collection by the agent; and further says in section 6(b): ‘No person in charge of any place or premises other than a place of business shall set out or cause to be set out for collection during any one week more than twelve (12) cubic feet of combustible rubbish per dwelling or dwelling unit on such place or premises. If collection of additional quantities of combustible rubbish is desired, arrangements shall be made in advance for such special service, such service to be charged for at rates specified elsewhere in this ordinance.’ Section 8(a) is as follows: ‘Liability of Occupants. The Council finds that the periodic collection of rubbish from all places in the City benefits all occupants of places and premises in the City of Glendale, and therefore all such occupants are made liable for the rubbish collection fees prescribed by this ordinance. In the case of premises containing more than one dwelling unit or place of business or both which are served by a single electric meter, such fees may be billed to the landlord, who shall collect such fees levied against the occupants of the dwelling units or places of business located on said premises, and shall transmit the amount so collected to the City. In the event said landlord fails to collect said fees from any such occupant and remit same to City, said landlord shall be liable to the City for the payment of such fees.’ Subdivision (b) thereof fixes a flat fee of $.75 per month or major fraction thereof for collection, removal and disposal of combustible and non-combustible rubbish from single family dwellings and $.50 for each unit of a multiple dwelling. For places of business a minimum charge of $1 a month is fixed with increased amounts prescribed for larger quantites than five cubic feet of each type of rubbish per week and for more frequent collections, graduated according to volume and frequency of collection. Section 8(c) reads: ‘Special Service. The City Manager, or his duly authorized representative, in his discretion, may provide for the collection and removal of rubbish from any place or premises at times in addition to those when regular collection service is provided or in a manner different from the herein prescribed method of collection. Any such additional or different service shall be charged for at the rate of $5.00 per hour.’ Section 9(e): ‘Debt. A fee imposed by this ordinance shall be a civil debt owing to the City of Glendale from the occupant of the property receiving the service.’ Section 15 makes any violation of the ordinance a misdemeanor. The instant cases directly involve only the minimum charge imposed upon nonparticipating occupants of single dwellings.

In defense of the ruling below respondents contend that the charges imposed by this ordinance, assuming them to be taxes, are invalid because no specific authority therefor is found in the city charter, which argument misconceives the source and nature of the taxing power of a charter city. Glendale has had a freeholders' charter since 1921. The absence of a specific grant of power to levy any type of local tax is inconsequential for the charter constitutes a grant of power flowing from the constitution,—the right of home rule in all municipal affairs; local taxation is such an affair; the city possesses all the taxing power of the sovereign state with reference thereto and express charter provisions on the subject can operate only by way of limitation or prohibition; an enumeration of powers does not constitute an exclusion or limitation; the maxim expressio unius est exclusio alterius does not apply. West Coast Advertising Co. v. City and County of San Francisco, 14 Cal.2d 516, 524, 95 P.2d 138; City of Grass Valley v. Walkinshaw, 34 Cal.2d 595, 598–599, 212 P.2d 894; City of Glendale v. Crescenta, etc., Water Co., 135 Cal.App.2d 784, 796, 288 P.2d 105.

Respondents further take the position that this tax, if tax it be, is violative of the limitation found in § 12 of Article XI of the charter because it is a ‘special tax’ which has not been approved by the voters at a special election. This argument must prove sterile for the matter has been ruled adversely in the Crescenta Mutual Water case, supra. It is there said, 135 Cal.App.2d at pages 798–799, 288 P.2d at page 115: ‘Respondent asserts a violation of section 12, article XI of the Charter, claiming this is a special tax which is invalid for failure to submit to the electors. That section must be construed in the light of related provisions. Section 11 says: ‘The total tax rate for any one year shall not exceed one per cent of the assessed valuation, unless a special tax be authorized, as provided in this chapter; * * *.’ And Section 12: ‘Whenever the Council shall determine that the public interest demands an expenditure for municipal purposes, which cannot be provided for out of the ordinary revenue of the City, it may submit to the qualified voters at a regular or special election, a proposition to provide for such expenditure, either by levying a special tax, or by issuing bonds, but no such special tax shall be levied nor any such bonds issued, unless authorized by the affirmative votes of two-thirds of the electors voting at such election.’ * * * Sections 9, 10 and 11 are so worded as to refer exclusively to ad valorem property taxes. Section 11 says in effect that the basic rate of one per cent of assessed valuation may be increased to the extent of a special tax voted by the people. This could mean only a property tax. Section 12 implements the phrase of 11 ‘unless a special tax to be authorized, as provided in this charter; * * *.’ It does so by submitting to the voters at a general or special election a proposal to provide for an expenditure which ordinary revenues cannot meet,—to provide for same ‘either by levying a special tax, or by issuing bonds'; same must be approved by two-thirds vote. * * * Section 12 relates only to property taxes. The trial judge did not err in so holding.’ Clearly the tax at bar is not a property tax; it creates no lien and is only a debt collectible by civil action or indirectly by criminal prosecution.

Section 6 of Article XXIII is also invoked by respondents. It provides, ‘that the Council may by ordinance adopt a procedure * * * for the removal of dirt, rubbish, weeds and other rank growths and materials which may injure or endanger neighboring property or the health or the welfare of inhabitants of the vicinity, from buildings, lots and grounds * * * and for making and enforcing assessments against property benefited or affected thereby or from which such removal is made, for the cost of such * * * removal, and may make such assessments a lien on such property * * *.’ In terms the section is permissive and the assertion that it is a limitation upon the power of the city over the matter of removal of rubbish, a limitation to the imposition of special assessments upon benefited property, is refuted by the cited case of City of Grass Valley v. Walkinshaw, supra, 34 Cal.2d 595, 212 P.2d 894. The court there said, 34 Cal.2d at page 598, 212 P.2d at page 896: ‘The charter operates not as a grant of power, but as an instrument of limitation and restriction on the exercise of power over all municipal affairs which the city is assumed to possess; and the enumeration of powers does not constitute an exclusion or limitation.’ At page 599 of 34 Cal.2d, at page 896 of 212 P.2d: ‘The former guide—that municipalities have only the powers conferred and those necessarily incident thereto, City and County of San Francisco v. Boyle, 195 Cal. 426, 233 P. 965—is inapplicable. A construction in favor of the exercise of the power and against the existence of any limitation or restriction thereon which is not expressly stated in the charter is clearly indicated. So guided, reason dictates that the full exercise of the power is permitted except as clearly and explicitly curtailed. Thus in construing the city's charter a restriction on the exercise of municipal power may not be implied.’ Mr. Justice Schauer in his dissent says, 34 Cal.2d at page 605, 212 P.2d at page 900: “The foregoing cited cases leave no doubt that such a charter is no longer a grant of powers, but is rather an instrument which accepts the privilege granted by the Constitution of complete autonomous rule with respect to municipal affairs, and which otherwise serves merely to specify the limitations and restrictions upon the exercise of the powers so granted and accepted. Therefore any such power not expressly forbidden may be exercised by the municipality, and any limitations upon its exercise are those only which have been specified in the charter.”

The major contention of respondents is that the charge in question is not a tax at all, but a special charge made for services rendered, and that the complaint is fatally defective for failure to allege that defendants enjoyed the benefit of any such service. The allegation of the complaint is that ‘defendant enjoyed the use and occupancy of the said premises and the privilege of the use, accumulation, and storage of combustible and noncombustible rubbish and refuse thereon.’ The city does not claim that defendants took advantage of the services of its Contract Agent, merely that they were available, and that the charge imposed upon the householder is a tax for revenue because exacted from each occupant of such premises without regard to any special benefit. In effect respondents' counsel claim that this exaction is an exercise of the police power, and the city that it is an assertion of the taxing power. Neither side questions the public purpose of a charge for handling rubbish or the applicability of the police power to prevention of air pollutants and resulting smog. Cf. In re Pedrosian, 124 Cal.App. 692, 13 P.2d 389; In re Zhizhuzza, 147 Cal. 328, 81 P. 955; California Reduction Company v. Sanitary Reduction Works of San Francisco, 199 U.S. 306, 26 S.Ct. 100, 50 L.Ed. 204. We have concluded that the contentions of both parties are partially correct and that the ordinance should be upheld as a simultaneous exercise of both police and tax powers; that is to say, the minimum charge, which must be paid regardless of any use of the city's proffered service, is a tax for revenue, and the other charges for handling excess quantities and making more frequent collections fall within the category of a charge made as an incident to exercise of the regulatory police power, a charge which must be measured (in a large sense) by the value of the services rendered by the municipality.

Speaking of a compulsory sewer charge the court said in City of Madera v. Black, 181 Cal. 306, 310, 184 P. 397, 400: ‘A ‘tax,’ in the general sense of the word, includes every charge upon persons or property, imposed by or under the authority of the Legislature, for public purposes. Perry v. Washburn, 20 Cal. [318] 350; People v. McCreery, 34 Cal. [432] 454. The word ‘impost,’ in its broader sense, means ‘any tax or tribute imposed by authority, and applies as well to a tax on persons as to a tax on merchandise.’ Smith v. Turner (Passenger Cases) [7 How, 283, at page 407], 48 U.S., [283] at page 407, 12 L.Ed. 702 [see, also, Rose's U.S. Notes]. A toll is a ‘sum of money for the use of something, generally applied to the consideration which is paid for the use of a road, bridge, or the like, of a public nature.’ Bouvier's Dictionary, tit. Toll. The money for which the plaintiff sued was a charge upon persons; it was imposed by the legislative authority of the city of Madera for public purposes, and under these definitions it was a tax; also, it was a tribute or contribution required by legislative authority and to be used for public purposes, and so comes within the definition of the word ‘impost.’ It may also be considered as a charge made for the use of the sewer constructed and acquired by the city. If so, it would come within the definition of a toll as fully as would the charge for the use of a public street or road. Such tolls are imposed by or under the sanction of public authority.' In re Petition of City of Philadelphia, 340 Pa. 17, 16 A.2d 32, involved a sewer charge imposed upon each parcel of land “having any connection with or being available for connection with the sewer system of the City.” 16 A.2d at page 33. The controlling question was whether that charge constituted a tax. The court said, 16 A.2d at page 35: ‘[I]t is manifest that the charge here in question can not be sustained on the theory by which sewer and water rentals have heretofore been upheld by this court and the Superior Court in cases already referred to; the burden of this charge being imposed in invitum, no implied assent to its payment can possibly be deduced. Nor, can the charge be sustained on any theory of supposed special benefits arising from the mere presence or availability for use of the facility. * * * Being imposed without any regard whatever to the extent or value of the use made of the sewer facilities, or whether any use is made, the charge provided for by the ordinance is, in legal effect, undoubtedly a tax, and the obligation to pay it could be created only by the City's exercise of its general taxing power. [Citing numerous authorities.]’ Bellington v. Township of East Windsor, 17 N.J. 558, 112 A.2d 268, dealt with an ordinance licensing and regulating trailer camps. At page 271 of 112 A.2d the court said: ‘There is a basic distinction between a local legislative act primarily regulative of a business, trade, profession, or calling in the exercise of the police power to serve the common need and the use of the delegated power to tax the pursuit for revenue. In the first case the license fee is ordinarily the means of defraying the expense fairly attributable to the regulative process, while the broader sovereign power to tax for revenue to serve a public purpose of a general nature is confined by constitutional limitations, the terms of the grant itself, and the rule of reason and good discretion.’ And at page 272 of 112 A.2d: ‘The powers are essentially different: one is to license and regulate under the police power; the other, to raise revenue under the general ower to tax. But the two may be ‘unitedly exercised.’ Becker v. Pickersgill, Sup.Ct.1928, 105 N.J.L. 51, 143 A. 859. See City of Chicago v. R. & X. Restaurant, Sup.Ct. 1938, 369 Ill. 65, 15 N.E.2d 725, 117 A.L.R. 1313. And the assessment may still constitute a license fee proper rather than a tax for revenue even though the fee charged be in excess of the regulatory expenses and burdens. Where the primary object is police regulation, it does not necessarily matter that the incidental result is revenue above the actual cost of supervision and control of the business; that is not enough to render the return a tax for revenue rather than a license tax; e contra, where revenue is the principal objective of the tax, it is not sustainable under the police power alone.'

Though the definition of ‘excise tax’ is so flexible as to be somewhat elusive, the minimum charge here in question appears to be an excise, just like the water users tax in the Crescenta case, supra, the compulsory sewer tax in the City of Philadelphia case, supra, the ‘replenishment assessment’ levied by the Orange County Water District and discussed in Orange County Water Dist. v. Farnsworth, 138 Cal.App.2d 518, 292 P.2d 927, or the San Francisco “Purchase and Use Tax” reviewed in Ainsworth v. Bryant, 34 Cal.2d 465, 475, 211 P.2d 564, 565. ‘It is, however, difficult to arrive at any all-inclusive definition of the term ‘excise tax,’ since it has long since been changed from its original connotation of an impost upon a privilege. In its modern sense an excise tax is any tax which does not fall within the classification of a poll tax or a property tax, and embraces every form of burden not laid directly upon persons or property.' 51 Am.Jur. § 33, p. 61. ‘[A]n excise tax in the modern sense is any tax not falling within the classification of a poll or property tax, and embraces and includes every form of burden or taxation not laid directly on persons or property, and every form of charge imposed by public authorities for the purpose of raising revenue on the performance of an act, enjoyment of a privilege, or the engaging in an occupation.’ 84 C.J.S., Taxation, § 121, p. 245. It is evident also that this charge, both the minimum and the increased exaction for service actually received, has a definitely regulatory purpose and effect, but that does not necessarily vitiate a tax for revenue. United States v. Sanchez, 340 U.S. 42, 44, 71 S.Ct. 108, 95 L.Ed. 47; Sonzinsky v. United States, 300 U.S. 506, 513–514, 57 S.Ct. 554, 81 L.Ed. 772. Moreover, both functions, taxation and regulation under the police power, may be exercised simultaneously in a single ordinance and a charge thereby imposed will be upheld if attributable to either or both of the underlying powers. Redwood Theatres v. City of Modesto, 86 Cal.App.2d 907, 919, 196 P.2d 119; Gundling v. City of Chicago, 177 U.S. 183, 188–189, 20 S.Ct. 633, 44 L.Ed. 725; Wiggins Ferry Co. v. City of East St. Louis, 107 U.S. 365, 375–376, 2 S.Ct. 257, 27 L.Ed. 419; Bradley v. City of Richmond, 227 U.S. 477, 480–481, 33 S.Ct. 318, 57 L.Ed. 603; 51 Am.Jur. § 69, p. 98; 38 Am.Jur. § 321, pp. 14, 15; 84 C.J.S., Taxation, § 4, p. 45; 53 C.J.S., Licenses, § 10 b, p. 477. These authorities support the instant ordinance unless perchance there be substance to the contention that it is a tax on mere occupancy of real property and hence a levy upon an impermissible basis.

Advancing that thesis counsel for respondents rely upon County Com'rs of Anne Arundel County v. English, 182 Md. 514, 35 A.2d 135, 142, 150 A.L.R. 842, which held invalid a tax upon an automobile trailer when used as living quarters. The owner-occupant had paid a motor vehicle license fee and a county tax upon the trailer. A statute required payment of a further fee of $30 a year for a license to occupy same as a dwelling; non-payment would result in a lien upon the trailer. This so-called license tax was held to be a revenue producing measure, not an exercise of the police power, essentially a property tax and as such a violation of the rule against double taxation. In effect the case holds that “to levy a tax by reason of ownership of property is to tax the property” and that a license to occupy one's own property falls in the same category.

In Rapa v. Haines, Ohio Com.Pl., 101 N.E.2d 733, plaintiff complained of an annual tax of $18 upon each house trailer used as a habitation, levied upon each such trailer regardless of its value. Referring to the statute the Common Pleas judge said, at page 736: ‘Therein the legislature defines house trailers used for human habitation as motor vehicles and a specific use tax can be levied upon motor vehicles for their use upon the roads of this state; what then, is to prevent the legislature from enacting a specific tax for house trailers used for human habitation and which are classified by the legislature as motor vehicles, when the purpose of the specific act is for their use and occupation, and not according to their value? * * * It should be noted that ownership alone is not the basis for the tax but that the house trailer must be occupied for human habitation before tax liability under this section attaches.

‘This court, upon examination of the aforementioned authorities and the definition by sister states and the Supreme Court of the State of Ohio of the words ‘excise tax’ as a license tax or use tax and a license tax is no more than a license for the use of the property. This court is of the opinion the tax upon trailers, as provided for in Section 6292–2 of the General Code of the State of Ohio is an excise tax for the use of trailers for human occupancy and is not in contravention of any constitutional guaranty, state or federal.' The Court of Appeals affirmed in 113 N.E.2d 121, saying: ‘One of the principal questions presented is the nature of the tax imposed under the act. Is it a real property tax or is it a tax for the enjoyment of a privilege, to wit: the right to use a house trailer as a place for human occupancy? If it is the latter the case comes within the legal principles pronounced in the case of Saviers v. Smith, 101 Ohio St. 132, 128 N.E. 269, syllabus 4 of which provides: ‘An excise is a tax imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege, and by the provisions of section 10, article XII of the Constitution, specific authority has been conferred for the levying of such a tax.’ We think the Court was correct in its classification of the tax.' The Anne Arundel and Rapa cases, supra, seem to be the only decisions directly upon this point and they reach opposing results. It is not necessary here to attempt to resolve the conflict. The question at bar must be treated as one of first impression.

It should be noted that the tax is not aimed at ownership but at certain aspects of occupancy. It creates only a debt which is owed by the occupant, whether he be owner or tenant. The owner whose land is vacant incurs no obligation at all, and the tax, while imposed upon the occupant, is directed at a specified use of the property, a use whose regulation is a matter of public concern, one which may be regulation under the police power. Vacant lands do not originate substantial amounts of rubbish and resulting air pollutants; hence, those who own or control the same are not subjected to the tax. It is the use of the property in a manner which is potentially a nuisance and thus concerns the body politic which is taxed and regulated. Appellant's opening brief aptly says: ‘It is the occupancy which generates and accumulates rubbish that is the subject of taxation.’ No case has been called to our attention, or been found by us, which holds that an excise cannot be levied upon the use of real property, or that the only permissible tax with respect thereto is an ad valorem assessment or other form of direct property tax. Innumerable uses of realty have been subjected to excises, e. g., use of water thereon, enjoyment of sewerage connection, drilling of oil well thereon, conducting a restaurant or hotel on the premises, or a saloon, or a shooting gallery, or a motion picture or other type of theater. The case at bar is on the same plane as these activities. The tax is imposed upon a use which is properly the subject of taxation and of regulation under the police power, with its resultant service charge. It is assessed against the person who presumptively produces the debris liekly to contribute air pollutants to the acute current smog nuisance. We perceive no infirmity in the tax under consideration. The complaint states a cause of action.

The judgment in each case is reversed with instructions to overrule the general demurrers, permit defendants to answer within a reasonable time, and for other proceedings not inconsistent with the views herein expressed.

ASHBURN, Justice.

MOORE, P. J., and concurs. FOX, J., did not participate in the determination of this matter.

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