Teresa D. v. City of Fruitland

Justice SCHROEDER,

Dissenting.

I respectfully dissent from the conclusion of the Court that Idaho Code section 50-344(1) does not authorize cities to provide for exclusive franchises for solid waste collection. Admittedly, subparts (b) and (d) do not specify that the franchises may be exclusive, but read in context it is clear that the legislature intended to confer that power to the cities. This follows from the fact that use of the term “franchises” is surplus language unless it carries with it the meaning that an exclusive right may be granted. The Court notes that in Alpert v. Boise Water Corp., 118 Idaho 136, 141, 795 P.2d 298, 303 (1990), the Court acknowledged that Idaho Code section 50-344 permits monopoly public service for solid waste collection. While that statement was not essential to the decision in the case, it represented a clear statement of interpretation that recognized the meaning of the word “franchises” when surrounded by other language that would render the term pointless if not read to mean an exclusive right. The district court properly relied upon Alpert in construing the statute, recognizing that it stated the interpretation of this Court in dealing with a major question of municipal authority left unchanged by the Legislature since the pronouncement in Alpert.