ATTORNEY GENERAL LOVING HAS RECEIVED YOUR LETTER REQUESTING AN ATTORNEY GENERAL OPINION ADDRESSING, IN EFFECT, THE CONSTITUTIONALITY OF SECTION 2-10-802(B) OF THE OKLAHOMA SOLID WASTE MANAGEMENT ACT, 27A O.S. 2-10-101 (1993) ET SEQ. ("THE ACT").
YOUR QUESTION MAY BE ANSWERED BY REFERENCE TO CONTROLLING STATUTES AND CASE LAW. THEREFORE, THE ISSUANCE OF A FORMAL OPINION OF THE ATTORNEY GENERAL IS NOT NECESSARY. THE DISCUSSION WHICH FOLLOWS IS, THEREFORE, NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL; IT REPRESENTS, RATHER, THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
27A O.S. 2-10-802(B)1 OF THE ACT PROVIDES IN PERTINENT PART THAT:
"B.1. THERE IS IMPOSED UPON EACH CUSTOMER OF A SOLID WASTE SERVICE OPERATED BY OR ON BEHALF OF A POLITICAL SUBDIVISION OR PUBLIC TRUST OF WHICH IT IS BENEFICIARY A USER FEE OF TWENTY FIVE CENTS ($.25) PER MONTH OR THREE DOLLARS ($3.00) PER YEAR. THE FEE SHALL BE IN ADDITION TO ANY PERIODIC CHARGES FOR SOLID WASTE SERVICES. THE USER FEE SHALL BE INCLUDED IN THE BILLING CYCLE, STATED SEPARATELY FROM ANY OTHER PERIODIC CHARGES, AND SHALL BE IDENTIFIED AS A FEE FOR PURPOSES OF ADMINISTERING THE OKLAHOMA SOLID WASTE MANAGEMENT ACT(.)"
YOUR LETTER ASKS WHETHER THE ABOVE QUOTED PROVISION IS UNCONSTITUTIONAL SPECIAL LEGISLATION BECAUSE THE FEE IS NOT APPLICABLE TO ALL USERS OF SOLID WASTE SERVICES.
THE GENERAL PRESUMPTION IS THAT A LAW IS CONSTITUTIONAL AND, UNTIL ITS UNCONSTITUTIONALITY IS JUDICIALLY ESTABLISHED, SUBORDINATE FUNCTIONARIES MUST TREAT IT AS SUCH. CARUTH V. STATE. 223 P.186 (OKLA.1924). SCOTT RICE V. OKLAHOMA TAX COMMISSION, 503 P.2D 208 (OKLA.1972).
THE OKLAHOMA CONSTITUTION ARTICLE V, SECTION 59 PROVIDES:
"LAWS OF A GENERAL NATURE SHALL HAVE A UNIFORM OPERATION THROUGHOUT THE STATE, AND WHERE A GENERAL LAW CAN BE MADE APPLICABLE, NO SPECIAL LAW SHALL BE ENACTED."
SPECIAL LAWS, PROHIBITED BY ARTICLE V, SECTION 59 ARE THOSE LAWS WHICH APPLY TO LESS THAN A WHOLE CLASS OF PERSONS, ENTITIES OR THINGS STANDING UPON THE SAME FOOTING OR IN SUBSTANTIALLY THE SAME SITUATION OR CIRCUMSTANCES. BY DEFINITION, SPECIAL LAWS DO NOT HAVE UNIFORM OPERATION. MOORE V. STATE EX REL. COMMISSIONERS OF LAND OFFICE, 194 P.2D 852 (OKLA.1948). OKLAHOMA CITY V. GRIFFIN, 403 P.2D 463 (OKLA.1965).
IN DETERMINING WHETHER AN ENACTMENT IS A SPECIAL LAW AS DISTINGUISHED FROM A GENERAL LAW, THE OKLAHOMA SUPREME COURT STATED:
"(I)N DECIDING THIS QUESTION WE MUST LOOK TO SEE IF THERE WAS PROPER AND LEGITIMATE CLASSIFICATION AND THAT SUCH CLASSIFICATION WAS NOT ARBITRARY OR CAPRICIOUS, BEARING A REASONABLE RELATIONSHIP TO THE OBJECT TO BE ACCOMPLISHED. SANCHEZ V. MELVIN, 418 P.2D 639, 641 (OKLA.1966)"
FOR A LAW TO BE GENERAL IN NATURE, IT MUST NOT APPLY EXCLUSIVELY TO ANY PARTICULAR LOCALITY, PERSON, OR THING AND IT MUST OPERATE EQUALLY UPON ALL SUBJECTS WITHIN THE CLASS FOR WHICH IT WAS ADOPTED. ELIAS V. CITY OF TULSA, 408 P.2D 517 (OKLA.1965).
THE PURPOSE OF THE ACT MAY BE FOUND AT 27A O.S. 2-10-102 (1993) WHICH PROVIDES:
"IT IS THE PURPOSE OF THE OKLAHOMA SOLID WASTE MANAGEMENT ACT AND IT IS HEREBY DECLARED TO