Opinion
March 22, 1949.
April 11, 1949.
Municipalities — Third class cities — Collection of garbage — Grant of exclusive privilege — Power — Construction — Contracts.
1. A third class city has the power to enter into a contract granting to a person the exclusive right for hire to collect and dispose of garbage within the corporate limits. [487-8]
2. Where a contract of a municipality grants to another "the exclusive right and privilege of collecting garbage" within the corporate limits, the municipality may not enter into a contract with a third person permitting him to collect for hire garbage within the municipality but the municipality is not required to otherwise protect the contractor in the exercise of his exclusive right and it is not a defense to performance by the contractor that without legal authority third persons have collected garbage for hire within the municipality. [488]
Argued March 22, 1949.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.
Appeal, No. 50, March T., 1949, from judgment of Common Pleas, Butler Co., June T., 1948, No. 4, in case of City of Butler v. William E. Nuth, Jr., et al., trading as the Butler Refuse Collection Company. Judgment affirmed.
Assumpsit.
The facts are stated in the opinion by PURVIS, P. J., of the court below, as follows:
This is an action of assumpsit brought by the City of Butler, Pennsylvania, to recover from the defendants, William E. Nuth, Jr., and Richard F. Nuth, trading and doing business as the Butler Refuse Collection Company, the sum of $5,000.00 with interest thereon, alleged to be due under the terms of a written contract.
Briefly the facts are as follows:
The City of Butler, Pennsylvania, is a Third Class City; that some time prior to December 24, 1946 the City of Butler, desiring to enter into a contract for the removal and disposal of garbage and refuse matter in the city, by public notice submitted the matter for competitive bidding on terms and specifications set forth in the public notice; that the defendants, William E. Nuth, Jr., and Richard F. Nuth, trading and doing business as the Butler Refuse Collection Company, were the successful bidders and on December 24, 1946, the city and the defendants entered into a formal written contract, the material provision insofar as the present controversy is concerned, is as follows:
"That the exclusive right and privilege of collecting garbage in the City of Butler is by these presents granted to the parties of the second part for the term of three (3) years with the privilege on the part of the parties of the second part of continuing for an additional two (2) years from the first day of January 1947."
"The said parties of the second part hereby agree to provide all facilities which are necessary for the collection of garbage in the City of Butler, weekly, and agree that they will collect garbage weekly from the residences in the City of Butler, and in addition thereto, provide all facilities necessary for the collection of garbage from businesses located in said City, daily, if such collection be deemed necessary and to collect the same daily and that the opinion of the Board of Health in the City of Butler shall be final in determining whether such daily collection is or is not necessary; and, further, the parties of the second part agree to dispose of all garbage so collected, said disposal to be made in a manner to be approved by the Board of Health of the City of Butler and in compliance with all of the rules and regulations of the Department of Health of the Commonwealth of Pennsylvania."
The contract further provided for a schedule of fees the parties of the second part were permitted to charge, both residences and business houses, for the services to be rendered and provided that the parties of the second part, the defendants here, should pay to the City of Butler, the sum of $5,000.00 per annum, payable semiannually, the first day of June and the first day of December, for and during the term of the contract.
The complaint in this case avers the failure of the defendants to make payment under the terms of the contract referred and for the recovery thereof this suit is brought.
An answer was filed by the defendants admitting the facts set forth in the complaint, their defense being that the City of Butler failed to comply with the terms of its contract and give the defendants the exclusive right to collect and remove garbage and refuse; that others had engaged in the business of collecting garbage and as a result the defendants are not liable to the city as they agreed.
The matter is now before us on a motion for judgment for the plaintiff on the pleadings.
The matter of this garbage contract was before us in a bill in equity brought by the City of Butler and William E. Nuth, Jr., and Richard F. Nuth, trading and doing business as the Butler Refuse Collection Company, asking an injunction restraining Ralph Dreher, Alex T. Fisher and John Doe, alias, from collecting and disposing of garbage in the City of Butler (see Equity No. 10, March Term 1947).
In our opinion at the above number and term we said inter alia: the Act of June 23, 1931, known as "The Third Class City Law," Article XXIV, Section 2403, Powers of City, provides: "In addition to other powers granted by this act, the council of each city shall have power, by ordinance: . . . 6. Collection and Removal of Garbage — To provide for the collection and removal of garbage, ashes and other waste or refuse material."
We have not been referred to nor have we found a case in point by our appellate court as to whether a Third Class City has the right to contract, giving the exclusive right to collect and dispose of garbage. The case of Book v. Hall, 339 Pa. 470, does decide that a third class city has the legal power to contract for the collection and disposal of garbage.
Without attempting a recital of the historical development of our third class city law, we consider our duty clear to give the legislation such a construction as will effect the intention of the legislature and give the governing body of the City of Butler a practical method of providing for and controlling the collection of garbage within the city limits.
To this end we are convinced that under this law the City of Butler had the authority and legal right to enter into a contract with the Butler Refuse Collection Company granting it the exclusive right for hire, to collect and dispose of garbage within the corporate limits and to fix the maximum charge for such service.
To construe it otherwise would only result in confusion and would destroy the control of the municipality of a matter that might affect the health of the community.
What is the meaning of the expression, "The exclusive right and privilege of collecting garbage in the City of Butler"? It means that the City of Butler will enter into no contract with another permitting him to collect for hire, garbage within the municipality and by such language it places it within the power of these defendants to protect the right granted. It certainly could not mean that no third person would attempt to invade the right nor does the city have to stand by and protect these defendants in the exercise of their exclusive right. It is their duty to protect themselves.
We have heretofore given these defendants the protection they were entitled to under their contract. We have restrained others from collecting garbage for hire within the City of Butler. It is no part of our duty to discuss the merits of this contract. These defendants got from the City what it agreed to give them and they should not be permitted now to resist complying with their part of the contract.
For the reasons herein set forth we are of the opinion the answer filed by William E. Nuth and Richard F. Nuth, trading and doing business as the Butler Refuse Collection Company, is not a good defense to the complaint filed.
Defendants appealed.
J. Campbell Brandon, with him Carmen V. Marinaro, for appellants.
Luther C. Braham, City Solicitor, with him Darrell L. Gregg, for appellee.
The judgment is affirmed on the opinion of President Judge PURVIS.