City of Portsmouth, Ohio v. Lester Kinker, 84-LW-2195

CourtUnited States Court of Appeals (Ohio)
PartiesCITY OF PORTSMOUTH, OHIO, Plaintiff-Appellant v. LESTER KINKER, Defendant-Appellee
Docket Number1450,84-LW-2195
Decision Date11 September 1984

COUNSEL FOR APPELLEE: Franklin T. Gerlach, 1030 Kinney's Lane Portsmouth, Ohio 45662.

COUNSEL FOR APPELLANT: Richard T. Schisler, City Solicitor, 728 Second Street, Portsmouth, Ohio 45662.



This is an appeal from the Portsmouth Municipal Court in Scioto County. A criminal complaint was filed in the Portsmouth Municipal Court against Appellee, Lester Kinker, for failure to pay the service harge for garbage and refuse collection and disposal, in violation of ] 941.14(D) of the Portsmouth Municipal Code. A motion to dismiss the indictment was filed by Kinker's attorney. A hearing was held on the motion. The trial court found charging the fee to a non-user "violates Article I ] 1 of the Ohio Constitution and the due process clause of the Federal Constitution." (tr. ct. journal entry pg. 3) The trial court sustained Mr. Kinker's motion to dismiss the indictment and Portsmouth appeals, alleging one assignment of error.

"The trial court erred in ruling that the garbage collection fee is 'illegal and unconstitutional for a collection of a fee for a service to persons who do not use the service."'

The record reveals the following facts. Mr. Kinker was repeatedly hospitalized during the time he was charged with non-payment. Mr. Kinker had notified the City he had no garbage to be collected and would not pay the fee. (tr. pgs.50-54) The City did not contest the substance of Mr. Kinker's claim. At the time Mr. Kinker was charged, the City was aware of 700-800 delinquent accounts. (tr. pg. 6)

Both sides agree the garbage fee is a fee for service rendered. We therefore analyze this case as a fee for a service rendered, not as an assessment or a tax. While there is no dispute the City may exact a fee for the removal of garbage, the controversy arises over the City's theory every resident must pay the fee. The City's contention flies in the face of the Constitution.

In Thompson v. Green, (1943) 28 Ohio Op. 99, a similar situation was presented to the Franklin County Common Pleas Court. At issue was the City of Columbus' attempt to collect a garbage fee from every family dwelling, regardless of whether each family used the service. In comparing that situation to the one in Dayton, et. al. v. Jacobs, (1929) 120 Ohio St. 225, a case dealing with a fee for inspections of places selling meat, the trial court stated:

"In that case the ordinance did not attempt to require the inspection of or charge those slaughter houses whose meats were inspected by the Federal Government. The court held that the fact that those slaughter houses did not require or receive the service of the city and were not charged an inspection fee, did not make the ordinance discriminatory in exacting a fee for inspection from those slaughter houses which did not receive such service from the Federal Government. The pertinent feature of the decision, however, is that if no service is rendered, no fee could be exacted.
* * * *
Both are based solely upon th etheory that the municipality is rendering a service and that for that service it may make a charge. It follows, then, that no charge may be made against those who do not require the service. The court is of the opinion, therefore, 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, as claimed by the plaintiff, and also the 'due process' clause of the Federal Constitution. (Id. pgs. 102, 103)

The city's position is weakened even further by the language of the ordinance itself which refers to garbage service "subscribers". From that language it is clear that the city instituted a garbage system based on a fee for service and did not impose a tax. One does not "subscribe" to become a taxpayer. One is made a taxpayer by a valid ordinance, but such ordinance must be applied equally and universally under Ohio's Constitution. Everyone pays school taxes whether they have children in school or not. Fees, however, are charged only to users of services such as persons seeking building permits, inspections, marriage licenses.

Nothing in our opinion should be construed to hold that the City of Portsmouth may not enact a valid enforcible tax for garbage collection. The trial court stated that the use of criminal sanctions to enforce the collection of fees for services not used is in violation of Art. I, Section I of the Ohio Constitution and the Fourteenth Amendment of the United States Constitution. We affirm that decision.

Assignment of error one is overruled.

The judgment of the trial court is affirmed.



STEPHENSON J. DISSENTS, with attached dissenting opinion

Stephenson, J. - Dissenting

The court below dismissed on pre-trial motion a minor misdemeanor complaint filed against Lester Kinker, appellee herein, averring a violation of a city ordinance making it an offense to refuse to pay a service fee imposed against him as a householder for collection and disposition of residential garbage by employees of the city. The reason for dismissal was based upon the conclusion that the municipal ordinance requiring such payment was constitutionally invalid when imposed upon a resident who did not desire and refused to use such service. The majority of this court affirms. I refuse to join in such a myopic viewing of the scope of the police power of an Ohio home rule municipality. As will be hereinafter demonstrated, both under the facts and the law, not even a colorable showing of unconstitutionality of the ordinance was made below and the holding of unconstitutionality and dismissal of the complaint for that reason by the court below, as well as the affirmance in the majority opinion, is palpably erroneous.

In 1982 the Council of the City of Portsmouth by ordinance adopted a plan providing, inter alia, for the collection and disposal of residential garbage, which ordinance appears as Title Five, Chapter 941, of the Codified Ordinance of the city. Pertinent sections are as follows:

"Sec. 941.01. DEFINITIONS.
(f) "Subscriber" means any householder within the City of Portsmouth, Ohio.
(g) "Householder" means 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.
It shall be 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.
To provide necessary funds for equipment, personnel, and other expense in connection with the collection and disposal of residential garbage and refuse in the City, a service charge is levied against every subscriber for municipal garbage and refuse collection and disposal as follows: . . ." (In substance, the fee of $5.35 per month, or $58.85 per year payable in advance, with a fee of $4.85 per month for the head of household who is 65 years old)
The following is further provided:
"Service shall be discontinued if the charges herein provided are not paid when due or within fifteen (15) days thereafter. The City Manager may discontinue service in case of violation by the person served, by any provision of this chapter or of any lawful rules and regulations enacted thereto, provided that notice of such violation is first given to the party served.
Sec. 941.99. PENALTY.
Whoever violates any of the provisions of Sections 941.01 througn 941.21 of this chapter shall be deemed guilty of a minor misdemeanor and fined not more than twenty-five dollars ($25.00) for the first offense, and fifty ($50.00) for each subsequent offense. Each day's continued violation shall constitute a separate offense."

Construing the various sections of the ordinance in pari materia, it is manifest that the council legislatively determined the health problem of residential garbage accumulation and disposal could best be met by providing that only city employees should collect, transport and dispose of such garbage and that each subscriber, as defined, would be required to utilize such service and pay a fee to provide funds for such collection and disposal. Although the use of the word "subscriber" suggests a voluntary contractual arrangement, it is apparent, both from the definition of householder and the whole of the ordinance, that the utilization was to be mandatory by householders accumulating garbage and particularly so since private transportation and disposition of residential garbage is proscribed.

On June 11, 1982 the City of Portsmouth, appellant herein, filed a criminal complaint pursuant to Sec. 941.14(D) averring, inter alia, that "Lester Kinker did knowingly refuse to pay the service charge levied against every subscriber for municipal garbage and refuse collection and disposal due by the fifteenth of the month, to-wit: Lester Kinker owes 10.70 to the City of Portsmouth, in Garbage Tax, (also the payment for June 5.35, has not been received)."

Lester Kinker, appellee herein, filed a multi-based motion to dismiss, the part here pertinent is that underlined, which averred that: "Ordinance 82-14 passed March 9, 1982, is unconstitutional in that it requires every household to pay fee regardless of usage, provides discriminatory fee discounts in...

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