Please help before court date

I originally posted this on 1/30/02 but received only one response, asking several questions about the ordinance that I could not answer. So I thought I would repost along with a copy of the ordinance. I live in a small town in Texas. One night while watching t.v. A police officer came to my door and issued me a ticket for failure to subscribe to the city’s garbage service. How can a city demand you subscribe to a service and fine you for failing to do so? I thought this was still a free country. If my garbage was piled up and I was endangering the health or safety of others I could understand, but this is not an issue, since I take my garbage to my job where we have large dumpsters. I never even have garbage in my trashcans outside.
Is it lawful for a city to implement an ordinance like this? If so what is to prevent the city council from having a friend or relative start a service such as an lawn service and then implement an ordinance that demands everyone subscribe to and pay for the city lawn service.

ORDINANCE NO. 230-E
AN ORDINANCE AMENDING SECTION 15-27 OF THE CODE OF ORDINANCES, CITY OF WEST ORANGE, TEXAS REQUIRING GARBAGE SERVICE AND PROVIDING THAT VIOLATIONS WILL BE UNLAWFUL
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST ORANGE, TEXAS:
That Section 15-27 of the Code of Ordinances, City of West Orange, Texas is hereby amended to read as follows:
Sec. 15-27. Garbage Pickup Required.
(a) Every owner or occupant within the City of West Orange, Texas is at all time required to be enrolled with a garbage pickup service that has a franchise to provide collection services within the city of the city garbage service.
(b) Every owner or occupant within the City of West Orange, Texas who is enrolled with a garbage pickup service must provide proof of enrollment to any city
employee requesting said proof,
(c) It shall be unlawful for any person to violate any of the provisions of this article.
PASSED, APPROVED AND AUTHENTICATED this the 26th day of February 2001.




Roy McDonald, Mayor

"Is it lawful for a city to implement an ordinance like this?"
Yes. As long as it is for the 'common good'.

I am only responding to find out more. Hope you can help Halket.

The Texas Constitution
Article 1 - BILL OF RIGHTS
Section 26 - PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS
Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.


en·tailed, en·tail·ing, en·tails
To have, impose, or require as a necessary accompaniment or consequence

With this, could it be said that the ordanance is un-constitutional?

It could be 'said' that it is unconstitutional, but it isn't in law. No more than a lot of other city sanctioned services that fall under this scenario... like telephone service, cable service, street maintenance, public works, waste treatment and even fire and police services. To some extent these are all 'single provider' monopolies either directly provided by the local government or sanctioned by them.

But, that does NOT make them unconstitutional. And if I were at my office when responding (instead of out of town), I might be able to provide caselaw to support the right of the local government to provide these 'exclusive' service providers (usually called municipal franchises).
(Suggestion: you might check the Texas Local Government Code).

http://www.capitol.state.tx.us/statutes/lgtoc.html

SUBTITLE D. GENERAL POWERS OF MUNICIPALITIES

CHAPTER 51. GENERAL POWERS OF MUNICIPALITIES

SUBCHAPTER A. GENERAL PROVISIONS

§ 51.012. Ordinances and Regulations

The municipality may adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic.

Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987.

I do understand the idea of "for the common good", but it still seems that the ordanance goes against state law.

Rather than continue this "coulda, shoulda" debate on what can or can't be done by a local government (I use this term to include town, municipality, city, county, etc.), I'll tell 'ya what to do....

Gather up $10 to $15,000 and hire an attorney to bring action against the local government making the same claims that you are... (even though you have even cited the statute allowing this action). Then, lets see what the courts say.

And while you're at it... lets take on all the other 'govmint' actions that are directly contrary to the founding laws, both state and federal. For example, the US Bill of Rights is VERY clear in the rights that it establishes for the FEDERAL 'govmint'. These mainly pertain to INTERSTATE and INTERNATIONAL commerce and protection, etc. And it clearly says (Amendment 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".

Some examples of the VIOLATIONS of this very basis and simple statement are (and I ask ANYONE to show me where these 'programs' are specifically allowed in the Constitution):
- federal welfare programs
- federal medicare programs
- federal money used for INTRASTATE roads or airports
- Dept of education (this is NOT interstate!)
- intrastate commerce (FDCPA, FCRA, FCBA)
- school segregation
- abortion rights
- Social Security
- and on and on.....

Not only are these legal issues which are violations of the "States Rights" issue, but we even fought a war over them!!! And the separtists lost.

Read:
http://www.theatlantic.com/issues/2001/03/genovese-p1.htm

Very well put.

Almost makes me want to throw my hands in the air and give up.

Almost

Hey Guys

Thanks for all the input. I' m just a small town Texan who is feed up with government intrusion it our lives. The fine that I may have to pay doesn’t bother me, it’s the law.

Halket, I think you are exactly right in your lasts post. The way I see it there are three kinds of people when it comes to the constitutionality of many laws. 1.Those who don't care 2. Those who can't afford to care. 3 Those who have the money to fight but because of their wealth they aren’t worried about such things.

Crager34, I’m with you. It almost makes me want to throw my hands in the air and give up.
ALMOST.

Thanks again. As long as there are people willing to discuss and debate even small issues such as mine. I know there is hope

Heck, if you really want to get riled up... take a look at the case, Ruiz v. Estelle. This was a case where a TEXAS inmate in a TEXAS prison sued because he felt that Texas prison life was too harsh. So, the federal government (Judge William Wayne Justice in Tyler, Texas), took it upon himself to become the king of Texas prisons and made the Texas prisons into a plush and easy time for the convicted felons.
(Ruiz v. Estelle, 503 F.Supp. 1265, 1390; S.D.Tex.1980).

Realize that prior to this horrendous decision, prison life in Texas was indeed harsh (sorry, but prison isn't supposed to be a paid vacation). Each prisoner was assigned a job and they did it. Texas prisons were one of the only self-sustaining prison systems in the country. The prisoners grew their own food, made their own clothes, repaired their own vehicles, the cost to the taxpayers was very little (with all the low-priced prison labor!). Simply when a prisoner came into 'the system' he was asked which of the list of 'occupations' he wanted.. and had to take at least one of them. You could virtually guarantee that a prisoner would have some work qualifications when he came out.

Then along came Ruiz. It suddenly wasn't 'fair' to force them to work. Now, when someone is brought in, their first question is "Do you want to work?". If the answer is no, then they are free to watch TV, hang around, play basketball, read magazines, lift weights... better vacation than a lot of people 'on the outside'.

Now, my question... what the heck does a FEDERAL judge have getting involved in a clearly TEXAS issue (NO federal dollars were used by the Texas prison system)??? Judge Justice (what a name??) said that the prison deprived the prisoners of their Constitutional rights!!! And this federal intervention into a clear state right lasted TWENTY YEARS, until an appellate court finally stood up to this idiot!!!

Here is a link to more information:
http://www.houstonreview.com/articles/levin/ML20010429.html
http://www.fed-soc.org/Publications/barwatchbulletin/barwatchapril2001.htm