Opinion No. ( 1991 )

The Honorable Bobby G. Newman State Representative P.O. Box 52 Smackover, AR 71762

Dear Representative Newman:

This is in response to your request for an opinion concerning the garbage and trash collection system for the unincorporated area of Union County whereby the county places garbage bins at designated locations throughout the county wherein residents of the unincorporated area of the county may deposit their garbage and trash. For this service, the county charges a monthly fee of $4.00.

You state that your constituents are concerned that it is only the residents of the unincorporated area who are required to pay the fee, and that some feel this is unlawfully discriminatory. You have asked for an opinion as to whether it is unconstitutionally discriminatory for the Union County quorum court to establish this mandatory garbage collection program for the residents of the unincorporated areas of the county.

You have not indicated under what authority the garbage and trash collection system was established. I assume, however, from the fact that the fee is only collected from residents of the unincorporated areas, that the county is only providing the service outside the corporate limits of any municipality in the county.¹

The county is specifically authorized to provide a solid waste management system for unincorporated areas under A.C.A. § 8-6-212 (as amended by Act 1007 of 1991), wherein it states:

(a)(1) Each county of the state is authorized to provide, and shall provide, if required to meet the purposes of this subchapter, a solid waste management system adequate to handle solid wastes generated or existing within the boundaries of the county and outside the corporate limits of any municipality in the county.

Subsection (b) of § 8-6-212 authorizes the county to "levy and collect such fees and charges and require such licenses as may be appropriate to discharge the county's responsibility for a solid waste management system or any portion thereof." This subsection, when read together with subsection (a)(1) of § 8-6-212, authorizes the county to levy and collect the fees and charges in the unincorporated areas, where the system is established to handle solid wastes generated "outside the corporate limits of any municipality in the county." A.C.A. § 8-6-212(a)(1), supra.

This code section is presumed constitutional, and will not be held invalid for repugnance to the constitution unless the conflict is clear and unmistakable. See generally Buzbee v.Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932). There is, in my opinion, no clear basis for challenging the constitutionality of this provision. The mere fact that the fee is levied only on residents of the unincorporated areas does not give rise to a constitutional claim. There is, it seems, a valid basis for that levy where the system is provided for those areas. If the concern is focused upon the manner in which the system is managed or operated, such matters are appropriately addressed to the local officials in charge of the operations. While fact questions may arise in the regard, we cannot state as a matter of law that the system in place is unconstitutional on its face.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ The county may, by agreement or contractual arrangement, provide a solid waste management system for one or more municipalities. See A.C.A. § 8-6-212.