April 4, 1975

Mr. Ralph C. Hoggatt
Box 883
Lead, SD 57754

OFFICIAL OPINION NO. 75-68

Lead city garbage contract

Dear Mr. Hoggatt:

You have asked whether the city of Lead may contract with a private in­dividual to collect garbage. Specifically you have asked whether the city may also delegate the billing to the private concern and whether the city may make participation mandatory.

SDCL 9-32-11 permits the city to:

collect and dispose of and regulate the manner of handling of gar­bage and other waste material. . .and to fix and collect charges for such services, and to contract with one or more persons for the col­lection and hauling of garbage. . .

The authority of the city is clear. It may "contract with one or more persons for collection and hauling of garbage. . .”

To answer your first specific question, the city must handle billing itself. The statute does not provide for a delegation of billing as it does for hauling. If the Legislature had intended to permit the city to delegate billing, it would have done so expressly.

To answer your second specific question, the city may provide for man­datory participation in the municipal garbage collection system by the residents of the city of Lead. The power to provide for the system must be accompanied by the power to require its usage; otherwise, the system would be useless. Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W. 2d 89, 94-95 (1944); SDCL 9-32-1.

The system to which you have made reference apparently will be submitted to a vote of the people. You have asked whether the city would be liable on the contract in the event the ordinance is defeated at the election. In Roush v. Town of Esmond, 73 S.D. 406, 43 N.W. 2d 547 (195.0), the South Dakota Supreme Court held that a contract is void if not made in accordance with the procedures set forth by the law including the referendum procedures. The court also held that a municipal contract is subject to referendum. Therefore, it is my opinion that the contract for garbage collection is sub­ject to referendum. If the voters defeat the measure, the contract is void and the city will not be liable to the contractor. The contractor was bound to know of the limitations which the referendum places on the contracting power of the municipality.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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