21 Ohio St. 3d 117 | Ohio | 1986
Lead Opinion
The sole issue presented is whether a municipality may validly adopt and enforce ordinances requiring its residents who accumulate garbage to use its garbage collection service and pay it a reasonable fee. For the reasons set forth below, we reverse the appellate court’s ruling and uphold the municipality’s sanitation regulation.
It is fundamental that Ohio’s cities are authorized to regulate local sanitation. State, ex rel. Moock, v. Cincinnati (1929), 120 Ohio St. 500.
“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
In Garcia v. Siffrin (1980), 63 Ohio St. 2d 259, 269 [17 O.O.3d 167], certiorari denied (1981), 450 U.S. 911, we noted that “[t]his amendment has repeatedly been interpreted by this court as being a direct grant of authority to a municipality to enact local self-government and police regulations,” citing Struthers v. Sokol (1923), 108 Ohio St. 263; Youngstown v. Evans (1929), 121 Ohio St. 342. In fact, this court must uphold such regulations if they bear “ ‘a real and substantial relation to the public health, safety, morals, or general welfare of the public’ ” and if they are “ ‘not unreasonable or arbitrary.’ ” DeMoise v. Dowel (1984), 10 Ohio St. 3d 92, 96, quoting Benjamin v. Columbus (1957), 167 Ohio St. 103, paragraph five of the syllabus [4 O.O.2d 113]; Porter v. Oberlin (1965), 1 Ohio St. 2d 143 [31 O.O.2d 236]; Downing v. Cook (1982), 69 Ohio St. 2d 149 [23 O.O.3d 186]; and California Reduction Co. v. Sanitary Reduction Works (1905), 199 U.S. 306, 318-319.
The questions of whether an exercise of the police power is really and
Portsmouth’s regulatory scheme has the effect of levying a garbage collection fee upon every family or individual who maintains living quarters in the city in which “garbage or refuse, or both, are created,”
R.C. 3707.43 provides legislative authority to a municipal corporation to contract “for the collection and removal of the garbage * * * at the expense of persons responsible for the existence of such waste substances.” Accordingly, Ohio courts have held that a municipality has the power to
Municipalities clearly have authority to establish the standard to which sanitation and garbage disposal must rise. See Dayton v. Jacobs (1929), 120 Ohio St. 225, paragraph one of the syllabus.
Although imposition of a garbage collection fee upon those not accumulating garbage, and thus not requiring the service, may violate the owners’ due process rights (Thompson, supra, at 103), and may be arbitrary and unreasonable,
It is our conclusion that a municipality properly exercises its police power over sanitation and public health when it enacts and enforces an ordinance, Chapter 941 of the Codified Ordinances of the city of Portsmouth, that requires all householders who accumulate residential garbage to use the municipal garbage collection service, assesses a reasonable fee for such service, and prescribes a criminal penalty for violations of such ordinance.
Therefore, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
The Moock court stated at 505 that the power to enact regulations concerning public health and providing for the collection and disposition of garbage has been conferred upon municipalities by what are now R.C. 715.37 and 715.43 as well as by the home rule provisions of the Constitution.
R.C. 715.37 provides in pertinent part:
“Any municipal corporation may:
“(A) Provide for the public health;
“(B) Secure the inhabitants of the municipal corporation from the evils of contagious, malignant, and infectious diseases; * * *”
R.C. 715.43 provides:
“Any municipal corporation may provide for the collection and disposition of sewage, garbage, ashes, animal and vegetable refuse, dead animals, and animal offal, and may establish, maintain, and regulate plants for the disposal thereof.”
Section 941.14 imposes a fee on every “subscriber” to the garbage collection service. Section 941.01 defines “subscriber” as “any householder within the City of Portsmouth, Ohio,” and defines “householder” as “the head of a family or one maintaining his or her separate living room or quarters in the City and shall include owners, tenants, and occupants of all premises upon which garbage or refuse, or both, are created.”
Section 941.11 makes it unlawful “for any person, firm or corporation other than the Director of Service of the City of Portsmouth or his authorized agent who holds a lawful contract with this City to collect, remove, transport, or dispose of residential garbage and refuse within this City.”
Furthermore, Section 941.13 provides:
“No owner, tenant, or occupant of any dwelling shall allow garbage and/or refuse to accumulate in or on his premises for a period in excess of the time interval between the collection trip schedule established by the City. No owner, tenant, or occupant of any place of business shall allow garbage and/or refuse to accumulate in or on his premises for a period in excess of seven (7) days fermenting, putrefying, or odoriferous garbage and/or refuse in containers uncollected or dumped in the open shall be deemed a nuisance and the person or persons responsible shall be liable to prosecution.”
The Moock case upheld as reasonable the city manager’s opinion that “in order to handle the garbage of the entire city, it was essential that its collection should be handled by a single operator in order to make it better capable of supervision.” 120 Ohio St., at 503.
There, this court held:
“It is within the police power of a municipality, under Section 3 of Article XVIII of the Constitution of Ohio, for the preservation of the public health, to prohibit the sale or exposure for sale of diseased and unwholesome meat * * * and, for the accomplishment of such purpose, to provide that * * * it be first inspected and approved by a duly constituted officer of the municipality, according to a standard established by such municipality * * (Emphasis added.)
This court voted to deny a motion for certification of the record in the case of Portsmouth v. Kinker (Sept. 11, 1984), Scioto App. No. 1450, unreported. Kinker alleged that he did not accumulate garbage and that any imposition of a fee for a service not rendered is a deprivation of property without due process. Although we agree with his argument, we note that the ordinance only imposes a fee on subscribers, i.e., those who maintain or otherwise occupy “premises upon which garbage or refuse, or both, are created.” Sections 941.01(f), and (g). Therefore, the ordinance does not authorize imposition of a fee on those whose living quarters do not create garbage.
The Jacobs court held that, even though certain slaughtering establishments received an inspection service (from the federal government) that met the municipality’s standard, and therefore did not require the municipality’s inspection service and were not charged any inspection fee by the municipality, such did not invalidate “the exaction by the municipality of a fee for inspection service from establishments which are not entitled to and do not receive inspection service from the federal government and do require and receive inspection service from the municipality.” Jacobs, supra, at paragraph three of the syllabus.
Dissenting Opinion
dissenting. According to the majority, the city of Portsmouth may make LaVeeda McGraw an offer of services which she
I question the wisdom of the city’s decision to arbitrarily slap McGraw, a Portsmouth senior citizen, with a criminal prosecution for failing to pay the fee for garbage collection service which she did not use. Further, I fail to see the fairness in the manner in which the city has selectively enforced this ordinance. Other non-users of the city’s garbage collection service and literally hundreds of persons whose payments were delinquent were not prosecuted as was appellee. McGraw’s only “offense” was making a quite sensible objection to the payment of a fee for a service which she neither wanted nor needed.
I join the well-reasoned dissents of Justices Brown and Sweeney and support their conclusion that the city of Portsmouth may not constitutionally prosecute appellee for her failure to pay for a service which she did not use.
Dissenting Opinion
dissenting. Given the unconstitutional nature of the Portsmouth ordinance before us, and the capricious manner in which it has been enforced, I must vigorously dissent from the majority’s disposition herein.
In addition to the cogent analysis articulated by Chief Justice Celebrezze and Justice Clifford Brown, I wish to elaborate on other instances of the appellant-city’s “enforcement” of its ordinance that reveal the arbitrary manner in which compliance of the ordinance was sought.
A companion case consolidated in the trial court with the case of appellee, LaVeeda McGraw, is City of Portsmouth v. Kinker (Sept. 11, 1984), Scioto App. No. 1450, unreported, motion to certify overruled (January 22, 1986), case No. 84-1902. As set forth in the record submitted by appellant to this court, and as set forth in appellee’s brief, Lester Kinker, a resident of Portsmouth who was also charged with violating Section 941.14(D), had no need for the garbage collection service because he had been hospitalized. Kinker stated explicitly in his testimony before the trial court that he had no garbage to be collected and that the city had not removed any refuse from his premises. This testimony was uncontroverted by the city. Kinker stated that he had been told by city officials that he had to pay the fee or go to jail.
Testimony given by the Portsmouth Public Utilities Director revealed that residents who were “going to be away for a couple months” did not have to pay the garbage fee. Testimony at trial by the Portsmouth City Manager indicated that if a citizen lives in Florida several months of the year and is not at home, that citizen is not required to pay the garbage fee. The city manager further testified that if a person eats all his meals out, and no garbage is generated at his residence, no charges will be imposed.
Upon a careful review of the testimony given at trial, it appears that if you reside in the city of Portsmouth and are affluent enough and fortunate enough to maintain a winter home in Florida, you are exempt from paying the garbage fee during the course of your absence. However, if you are less fortunate and are confined in a hospital, as Kinker was, or if you take care of your own rubbish, as is the case with McGraw, then the appellant-city will bring a criminal action against you for failing to pay the garbage fee.
The inherent injustice within such a scheme is manifest. Certainly the police power possessed by all governments was never intended to be so capricious and unreasonable.
I believe that this court’s prior pronouncement in Dayton v. Jacobs (1929), 120 Ohio St. 225, should be applied to the instant causes: “But for the service, the fee, as such, could not be lawfully exacted * * *.” Id. at 236. Likewise, the reasoning employed by the court in Thompson v. Green (C.P. 1943), 12 Ohio Supp. 1 [28 O. O. 99], should be adopted by this court. In Thompson, the city of Columbus attempted to collect a garbage fee, similar to the one in issue, from persons who did not use the city’s garbage collection service. In relying on our decision in Jacobs, supra, the court stated at 5 that “* * * insofar as the ordinance attempts to charge for the collection of garbage and rubbish, owners of dwellings who do not require such service, it violates the Constitution of Ohio * * * and also the ‘due process’ clause of the Federal Constitution.”
Based upon the foregoing, I would affirm the court of appeals in its determination that the use of criminal sanctions to enforce the collection of fees for services not used is in violation of Section 1, Article I of the Ohio Constitution, as well as the Fourteenth Amendment to the United States Constitution.
Dissenting Opinion
dissenting. I must respectfully dissent from the majority’s approval of criminal sanctions for nonpayment of a city-imposed mandatory “service charge” for garbage collection.
On March 9, 1982, the Portsmouth City Council enacted Ordinance No. 1982-14 which imposes a “service charge” upon each “subscriber” to the city’s garbage collection operation. The term “subscriber” is defined by the ordinance as “any householder within the City of Portsmouth, Ohio.” The term “householder” is further defined as including “owners,
Appellee, LaVeeda McGraw, had no need for the city’s garbage collection service. She disposed of her own garbage by hauling it to the dump. She told city officials she did not want the garbage collection service and did not wish to be billed for it. Nevertheless, the city billed her for the service she did not use; McGraw refused to pay.
The city responded by criminally prosecuting McGraw, claiming that “* * * LaVeeda McGraw, did knowingly fail to pay the Garbage Service Charge for City of Portsmouth garbage and refuse collection * * * in violation of Section 941.14(D) of the Codified Ordinances of the City of Portsmouth, Ohio.” At the time McGraw was prosecuted, approximately seven to eight hundred fee accounts were delinquent. However, only six other Portsmouth residents who publicly refused to pay were so prosecuted. The city manager testified that persons who planned to be absent from home for a couple of months were not required to pay the fee, and that if a person ate all meals out, so that no garbage was generated at his residence, no charges were imposed. He testified further that the city continued to pick up garbage whether people paid or not, and never discontinued service to anyone.
It must be noted that the city did not prosecute McGraw for illegally hauling her garbage, an activity which was also subject to criminal penalties. She was prosecuted only for her failure to pay a service fee for a service she did not want and did not use. Both the trial court and court of appeals held that the city’s imposition of a service fee is unconstitutional as applied to those who do not use the service.
In Dayton v. Jacobs (1929), 120 Ohio St. 225, this court considered the validity of an ordinance which required certain city inspections, and charged a fee for city inspection service only as to establishments which were not already federally inspected. Finding that such an ordinance did not unlawfully discriminate as to those who were required to accept the city’s inspections and pay the resulting fee, this court stated:
“But for the service, the fee, as such, could not be lawfully exacted; and since reinspection of an animal and carcass inspected and approved by the federal government would be neither a service to the person engaged in the occupation requiring inspection, nor the performance of a duty to the public, the municipality could not lawfully impose such reinspection upon the establishments slaughtering and offering for sale federally] inspected and approved meat, and could not charge a fee, as such, for a service not rendered or intended to be rendered.” Id. at 236.
Applying this sound principle to the case at bar, I would hold that a service charge for garbage collection may only be lawfully exacted from
Accordingly, I would affirm the judgment of the court of appeals.
