Refuse Ordinance Update: 2-18-2012

A few weeks ago, we were informed by Mayor Smith that the city lawyer would contact us to show their basis for limiting the number of refuse hauling permits in the city.

 We have never disputed the fact that municipalities are authorized to contract with an exclusive hauler under the contracts statute. It is well documented that exclusive contracts are authorized. There are numerous Attorney General Opinions on the subject of exclusive haulers under contract. Even the Illinois Municipal Code states they can contract, and does not mention limiting of licenses. The same goes for every city that Mayor Smith referred to during the city council meeting. All of them are in exclusive contracts with refuse haulers.

The justification we were given for the new city ordinance was a legal case from 1960 that stated municipalities have the authority to limit licenses of scavengers. Keep in mind, that this decision was rendered prior to the "Powers Over Certain Businesses" law, prior to the Illinois Municipal Code, and prior to the 1970 Illinois Constitution.

 The difference, is this ordinance is the limiting of the number of refuse licenses issued, which they do not have the authority to do. The “Powers Over Certain Businesses” (65 ILCS 5/ - Illinois Municipal Code) lists, in detail, every business that the city has the power and authority to license, tax, regulate, locate or prohibit. Refuse hauling is not one of the businesses listed; therefore, the city does not have the power to regulate refuse hauling (outside of an exclusive contract).

 Article VII, Sec. 8 of the 1970 Illinois Constitution states in part, these governments – shall have only the powers granted by law. A Supreme Court Justice, developed a legal principle, know as Dillon’s Rule, saying that if there is no statute allowing government to perform a function or service, the government may not carry out that function regardless of how much it’s needed or wanted. If the statutes are silent (or do not mention) regarding a particular power or function, it does not exist. If the power doesn’t exist, the government (or official) may not perform the function or service.