Appeal from the United States District Court for the Northern district of Illinois, Eastern Division. No. 72-C-722 PHILIP W. TONE, Judge.
Swygert, Chief Judge, Cummings and Stevens, Circuit Judges.
Samuel Goldstein, plaintiff-appellant, and the class that he alleges to represent, appeal from the dismissal of their complaint for failure to state a claim upon which relief can be granted. The class action plaintiffs are owners of condominium living units located in Chicago. The defendants are the City of Chicago, various city officials in charge of garbage and refuse removal, and the Treasurer of Cook County. The Treasurer was named a defendant because he is the legal custodian of the funds collected from property taxes and is responsible for disbursing those funds to the city officials in charge of garbage removal.*fn1
The suit was brought under 42 U.S.C. § 1983. The city officials are alleged to have violated the equal protection and due process clauses of the Fourteenth Amendment by refusing to provide condominium dwelling units with the garbage removal mandated by sections 14-3 and 14-11 of the Municipal Code of Chicago.*fn2 Goldstein argues that the class action plaintiffs that he represents pay property taxes to cover the expense of the garbage removal, but do not receive it; they are forced to hire private scavengers. It is contended that they should receive garbage removal just as individual homeowners do. The officials reply that they are under no duty to provide garbage removal to the condominium owners since section 99-18 of the Municipal Code of Chicago places the duty of garbage collection on the condominium owners themselves. Section 99-18 provides in relevant part:
"Except in the case of a multiple dwelling containing less than five living units, a multiple dwelling producing less than thirty-two gallons of refuse per week, or a multiple dwelling each living unit of which is individually heated by the tenant, it shall be the duty of the owner of every multiple dwelling to cause to be removed at his own cost and expense at least once each week all refuse produced therein."
The district court decided that Goldstein had failed to state a claim upon which relief could be granted. The judge, relying on Bradford Township v. Illinois State Toll Highway Authority, 463 F.2d 537 (7th Cir. 1972), stated: "The determination of the issue presented depends entirely upon a question of state law, i.e., the interpretation of the ordinance. If defendants' interpretation is correct, as it would seem to me to be if I were a state judge presented with the issue, plaintiffs state no cause of action, for they do not, even alternatively, attack the validity of the ordinance. Even if plaintiffs' interpretation were correct and defendant officers were thus violating implicit affirmative duties with respect to plaintiffs, that violation would not give rise to a federal cause of action. Failure to follow a state statute does not, of itself, constitute a violation of a federally protected right."
In analyzing the constitutional issue, the district judge found that refuse collection was "one of the numerous social welfare benefits which governmental units have voluntarily undertaken to provide," but was "certainly not a fundamental right." He relied on Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), and found no violation of the equal protection clause.
We accept the interpretation which the city places on its ordinance.*fn3 The question then is: Does the city deny the plaintiffs the equal protection of the laws? Before we can answer we must first determine by what constitutional standard the ordinance should be tested. Is the applicable test one involving a "fundamental" right protected by the Constitution or must the city show only that there is a rational basis for the different classifications in the ordinance?
Owners of a multiple dwelling with more than five units which has more than thirty-two pounds of garbage are not an inherently "suspect" class. The seminal case dealing with inequality of law enforcement by local officials is Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1885). In that case, unlike here, the inequality was focused upon certain people because of their race and national origin.*fn4 Suspect classifications identified by the Supreme Court are race, national origin, alienage, indigency, or illegitimacy. San Antonio School District v. Rodriguez, 411 U.S. 1, 61, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973) (Stewart, J., concurring). Multiple dwelling owners is not such a suspect class.
Nor is the right to public garbage collection a fundamental right, such as the right to travel interstate or the right to vote. In San Antonio School District, the Supreme Court held that education was not a fundamental right. Mr. Justice Powell, speaking for the Court in San Antonio School District, in defining the criteria for determining what is a fundamental right, quoted from Mr. Justice Stewart's opinion in Shapiro v. Thompson, 394 U.S. 618, 642, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969):
"The Court today does not 'pick out particular human activities, characterizes them as "fundamental," and give them added protection . . . .' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands." San Antonio School District, 411 U.S. at 31.
Mr. Justice Powell later expanded on Mr. Justice Stewart's language. Although he was there speaking about education, we think that it is similarly applicable to garbage collection.
"It is not the province of this Court to create substantive rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is 'fundamental' is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 ...