concurring and dissenting.
I concur in much which is stated in the majority opinion, and write only to express my reluctance to join the majority in its decision that the action of the city in the instant case was a “taking” of respondent’s “property.” I agree with the majority that the question need only be considered from the standpoint of our state Constitution without recourse to the provisions of the Constitution of the United States. In my view the majority gives insufficient consideration to the question, while at the same time painting with such a broad brush that the police powers of municipalities within the state may be severely inhibited in the future.
I deem it clear that a municipality is authorized within the limits of its police power to regulate or prohibit certain activities when such exercise of authority bears a reasonable relationship to the public health, safety, morals or general welfare of its citizens. In some instances, while the exercise of that authority may have harmful effects on some of its citizens, if the exercise of that authority is reasonable and not arbitrary any injury occasioned thereby must be considered a servitude inherent under our system of government, and damages from such injury must be considered as damnum absque injuria. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964). In the instant case there appears no question raised by the parties but that the collection, hauling and disposal of solid waste is within the legitimate regulatory authority of the municipality. Likewise, I see no question raised that the city was acting arbitrarily, capriciously, or unreasonably in its action. In any event, it should be noted that the instant action comes before us as a result of summary judgment being issued against the city, and if any questions were presented relating to the above matters, they were improperly resolved at summary judgment.
It is appropriate to note that in this state, and in other jurisdictions, a substantial distinction has been drawn between cases involving the “taking” of real property and interests therein, as contrasted with the taking of intangible property such as the contract rights of the respondent in the instant case. As to the “taking” of intangible rights through the exercise of the police powers of municipalities, there is a scarcity of authority in this and other jurisdictions.
I would note that most eases dealing with the question of inverse condemnation, have done so in the context of the taking of real property. Robison v. H. & R.E. Local #782, 35 Idaho 418, 207 P. 132 (1922), obviously dealt with different times. There the Court stated:
A right to conduct a business is property. Incident to this property right is the goodwill of the business, and the right to appeal to the public for patronage. One may conduct his business in his own way, and may employ whom he will upon such terms as may be agreed upon, and may discharge any employee at will unless restrained by a valid contract so long as he violates no law. These rights are entitled to protection of the law.
That statement, however, was made in the context of reviewing an injunction issued by the trial court prohibiting picketing by a Labor union of certain business premises. The Court upheld in modified form the injunction issued to prohibit the picketing.
O’Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401 (1949), involved the validity of a municipal zoning ordinance which prohibited certain businesses in a certain area of the municipality. The plaintiff had owned certain property, and conducted a business thereon which would in effect be zoned out of existence. The Court struck down the ordinance stating:
An ordinance which prohibits the continuation of existing lawful businesses within a zoned area is unconstitutional as a taking property without due process of law and being an unreasonable exercise of the police power ... The effect of the provision of the ordinance here complained of is to deprive respondents of their property by preventing the sale of their business and restricting their leas*595ing of the real property for use in connection therewith.
A zoning ordinance deals basically with the use, not ownership, of property. The provision in question declaring a change in ownership to be a new business is an arbitrary and unreasonable exercise of the police power and violates the constitutional protection given by the due process clauses.
The decree of the trial court declaring said ordinance void and of no effect, and enjoining the city from applying it, was affirmed.
The case of Winther v. Village of Weippe, 91 Idaho 798, 430 P.2d 689 (1967) was, as noted by the Court, similar to O’Connor v. City of Moscow, supra, in that the trial court had adjudged a municipal ordinance to be unconstitutional and void when it attempted to restrict the number of beer licenses in the village. The Court said: “The facts in the instant case are indicative of a plan or scheme designed to eliminate respondents’ business under color of municipal authority attempted to be exercised not only retroactively, but in an unreasonable, arbitrary and discriminatory manner.”
The cases of Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958) and Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964) both involve real property and access thereto from public streets. As the Court stated in Johnston: “This Court has consistently held that access to a public way is one of the incidents of ownership of land bounding thereon. Such right is appertenant to the land and is vested right.” Hence, I view neither of said cases as bearing on the question presented‘in the instant case.
The only case in this jurisdiction which in my -view bears even peripherally on the instant case is Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968). There, Unity provided electrical energy in an area which became annexed to the city of Burley. Unity continued to serve its members in the annexed areas and continued to maintain its poles and transmission lines in the newly annexed area, although the city had never granted any franchise to Unity for that purpose. Burley also operated a municipal power system furnishing electrical energy to inhabitants of the city. Burley instituted proceedings seeking to condemn certain lines and other facilities of Unity. In my view the opinion of the Court is somewhat confusing since the $500.00 damages to Unity represented a taking of “property rights, including power lines, ...” and for contract interference. However, as noted by the Court in its opinion, the trial court’s order (affirmed on appeal) restraining Burley from interfering with the operation of Unity, was at least partially based on a statutory “anti-pirating law.”
As I view the majority opinion, the only case close to the circumstances of the instant matter is Parker v. Provo City Corp., 543 P.2d 769 (Utah 1975). There the court held a municipal ordinance to be void as applied to the plaintiff. The ordinance made unlawful the collection, removal or disposal of garbage or waste matter, but the court held, “nowhere in the record do we find that this waste is garbage, kitchen refuse, or a by-product which may be deemed deleterious to the public health. The definition section of the subject ordinance makes a definite distinction between garbage and waste.” In my view, the brief and terse opinion of the Utah court sheds no light on the matter in question here.
On the other hand, the cases from two other jurisdictions are remarkably similar to the instant case. In City of Estacada v. American Sanitary Service, 41 Or.App. 537, 599 P.2d 1185 (1979), Sanitary had a franchise from the county to perform solid waste collection services in unincorporated areas, and Walker had a franchise from the city to perform like collection service within the city’s boundaries. “After the city annexed part of Sanitary’s area, Walker claimed the right to serve that area. The city initiated this action, asking for a declaration that Sanitary 'has no vested property right or legally protected interest in the continuance of its service to areas encompassed in its county franchise which have been annexed____’ Sanitary counterclaimed for damages based on a taking by *596the city.” The trial court held that Sanitary had “a vested property interest” in the annexed area and that a taking had occurred for which Sanitary was entitled to damages. The court of appeals reversed the holding of the trial court. In its opinion the court stated:
The Idaho Supreme Court in Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968), arrived at a compromise by holding that the city could not ‘pirate’ the state created franchisee’s customers in the annexed area for its own utility operation, but the city could refuse to allow the franchisee to expand its service to new customers in the area. While that solution has a certain facial attractiveness, it is difficult to discern the operating principal being applied, for the result was to amend judicially the terms of the very franchise being protected. The opinion rests on the concept that the franchise was both a valuable property and was subject to the same degree of regulation by the state after annexation as it was before.
We do not have before us a franchise created by a higher authority than the city. Nor do we have a situation where the city is directly or indirectly taking tangible assets of the franchisee for a public use____
In those circumstances we do not believe the city may be prevented from exercising its own power without first paving off the value of the county-created franchise. The trial court erred in holding that a failure by the city to honor the county franchise would be a taking within the meaning of article 1, section 18 of the Oregon Constitution.
City of Estacada v. American Sanitary Service, supra, was essentially followed in Stillings v. Winston-Salem, 311 N.C. 689, 319 S.E.2d 233 (1984). There the court stated:
The primary question presented for review is a matter of first impression for this Court: Does an exclusive solid waste collection franchise granted by a county remain effective in areas subsequently annexed by a city and thereby entitle the franchisees to compensation for a taking when the city, pursuant to statutory mandate, begins providing its own garbage collection service? For the reasons stated here, we answer the question in the negative and conclude that the Court of Appeals erred in finding a “taking” requiring compensation by the city of Winston-Salem.
In essence, plaintiffs contend that the City’s extension of solid waste collection services into their franchise areas represented a governmental taking of their property for which plaintiffs are entitled to just compensation under the fifth and fourteenth amendments to the United States Constitution and under article 1 section 19 of the Constitution of North Carolina____
The franchisees in this case have no absolute rights with respect to their franchises. All rights are limited by neighboring rights, and when the rights of these franchisees are considered in the light of the rights of the public through the city of Winston-Salem, the franchisees’ rights are subject to the rights of these others. The City, by exercising its duty, has not impinged upon or violated any of the rights of the franchisees. Furthermore, not every damage to private property by the government is subject to compensation. We conclude, then, that plaintiffs have no compensable injury-
The court further resolved the United States constitutional question noting Loretto v. Teleprompter Manhatten CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Larsen v. South Dakota, 278 U.S. 429, 49 S.Ct. 196, 73 L.Ed. 441 (1929); Charles River Bridge v. Warren Bridge, 36 U.S. (11 Peters) 420, 9 L.Ed. 773 (1837).
Hence, based on all of the above, I would hold that at the point of summary judgment the city’s ordinance prohibiting the collection, hauling or disposal of solid waste is presumed valid, as against the claim of Coeur d’Alene Garbage, and Coeur d’Alene Garbage is effectively precluded *597from operating within the newly annexed areas of the municipality. Further, I find nothing in the law of this jurisdiction which requires the payment of compensation for such loss of business, nor do I find any persuasive authority therefor in any other jurisdiction. If the opinion of my brethren might somehow be restricted solely to the instant case, abstract concepts of fairness might impel me to concur. However, as stated earlier, I believe the majority paints with a broad brush and future applications of the principles laid down here will, I believe, seriously impede upon the police powers of the municipalities in this state in the future.