City of Portsmouth v. McGraw

• Decision Date: 22 January 1986
• Docket Number: No. 84-1824,84-1824
• Citation: 21 OBR 422,21 Ohio St.3d 117,488 N.E.2d 472
• Parties: , 21 O.B.R. 422 CITY OF PORTSMOUTH, Appellant, v. McGRAW, Appellee.
• Court: Ohio Supreme Court

Page 117

21 Ohio St.3d 117

488 N.E.2d 472, 21 O.B.R. 422

CITY OF PORTSMOUTH, Appellant, v. McGRAW, Appellee.

No. 84-1824.

Supreme Court of Ohio.

Jan. 22, 1986.

Syllabus by the Court

A municipality properly exercises its police power over sanitation and public health when it enacts and enforces an ordinance 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.

This appeal arises out of the Portsmouth City Council's enactment of amendments to Chapter 941 of the Codified Ordinances of the city of Portsmouth on March 9, 1982. The vehicle for such amendments, Ordinance No. 14, pertains to " * * * the collection and disposal of garbage and refuse, and fees for collection of [the] same," and establishes, in Section 941.99, that "[w]hoever violates any of the provisions of Sections 941.01 through 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 dollars ($50.00) for each subsequent offense. * * * "

In April, with the initiation of a garbage collection fee, LaVeeda McGraw, a resident of the city of Portsmouth, called the public utilities office to notify the city that she did not want to use the city garbage collection service or to pay the fee authorized to be levied by Section 941.14 of Ordinance No. 14. The city sent appellee monthly bills which she left unpaid. Then, after McGraw notified the public utility company in person that she would not set her garbage out, use the garbage collection service, or pay her fee, the Public Utilities Director of the city of Portsmouth, Ray W. Thompson, filed a complaint on July 22, 1982 against her for failure to pay the garbage service charge in violation of Section 941.14 of Portsmouth's codified ordinances. ¹ That section provides in pertinent part:

"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:

" * * * [the fee of $5.35 per month, or $58.85 per year payable in advance, or $4.85 per month, $53.35 per year, for heads of households over the age of 64];

" (d) Date of Payment. All such payments shall be payable, in advance, at the Department of Utilities, City Building, Portsmouth, Ohio, by the fifteenth day of each month."

On August 5, 1982, appellee filed a motion to dismiss the complaint. At the evidentiary hearing thereon, appellee admitted that she did accumulate trash, but had it hauled away in friends' trucks. The Portsmouth Municipal Court overruled appellee's first, second, and fifth reasons for dismissal for lack of evidence, overruled her third reason for dismissal for lack of sufficient evidence, ² but upheld her fourth reason, that the ordinance was in violation of Section 1, Article I of the Ohio Constitution and the "due process" clause of the United States Constitution. It reasoned that, since the ordinance authorizes "a charge for a service, it would be illegal and unconstitutional for a collection of a fee for a service to persons who do not use this service." The court of appeals affirmed the trial court's decision.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Richard T. Schisler, City Solicitor, for appellant.

Franklin T. Gerlach, Portsmouth, for appellee.

HOLMES, Justice.

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, 166 N.E. 583. ³ The home rule provision of the Ohio Constitution, Section 3, Article XVIII, provides that:

"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, 407 N.E.2d 1369 , certiorari denied (1981), 450 U.S. 911, 101 S.Ct. 1349, 67 L.Ed.2d 334, 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, 140 N.E. 519; Youngstown v. Evans (1929), 121 Ohio St. 342, 168 N.E. 844. 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, 461 N.E.2d 1286, quoting Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854, paragraph five of the syllabus ; Porter v. Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363 ; Downing v. Cook (1982), 69 Ohio St.2d 149, 431 N.E.2d 995 ; and California Reduction Co. v. Sanitary Reduction Works (1905), 199 U.S. 306, 318-319, 26 S.Ct. 100, 103, 50 L.Ed. 204.

The questions of whether an exercise of the police power is really and substantially related to the public health, safety, morals or general welfare of the public, and whether such exercise is unreasonable or arbitrary, are questions initially committed to the judgment and discretion of the legislative body and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them. Benjamin, supra, at paragraph six of the syllabus; DeMoise, supra, 10 Ohio St.3d at 96-97, 461 N.E.2d 1286; Ohio Edison Co. v. Power Siting Comm. (1978), 56 Ohio St.2d 212, 218, 383 N.E.2d 588 .

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," ⁴ and of requiring such residents to use the city's garbage collection service. ⁵ The reasonableness of the fee or the right of the city to assess a reasonable fee for services rendered is not contested. We deal only with the contentions of a Portsmouth resident, who maintains living quarters which admittedly create garbage or refuse, that she need not use the city's garbage collection service, and that enforcing payment of a fee for a service she does not use deprives her of property without due process. Since the enacting legislative body specifically found that "the collection and disposal of garbage and refuse from within the City limits is a matter which affects the public health and welfare of all local residents," and that the ordinance at issue was necessary "for the preservation of the public peace, property, health and safety of the citizens of the City of Portsmouth, Ohio," we must decide, according to the test set out in the above analysis, whether such findings are clearly erroneous.

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 make an exclusive contract for the collection and removal of garbage, notwithstanding the fact that it has some commercial value. Moock, supra. ⁶ Also, cities have the authority to limit garbage hauling to duly authorized city employees, Canton v. Van Voorhis (1939), 61 Ohio App. 419, 421, 22 N.E.2d 651 , and to charge residents who require the collection service a reasonable fee, Thompson v. Green (C.P.1943), 12 Ohio Supp. 1 .

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, 165 N.E. 844, paragraph one of the syllabus. ⁷ This court may, and does, take judicial notice of the effect of garbage on the public health. Without the ability to require every resident of the city upon whose premises garbage or refuse accumulates to conform to a uniform regulation, the city would be unable to tackle all the health problems which would result from a helter-skelter approach of allowing each citizen to individually strew his garbage throughout the city as he sees fit. We hold that Portsmouth City Council's requirement that each family or individual who maintains living quarters in the city, on which garbage or refuse are created, use the city's garbage collection service is a proper exercise of the city's powers of self-regulation granted under the home rule provision of Ohio's Constitution. This statutory scheme is really and substantially related to protection of the public from disease and, therefore, to the public health and welfare.

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, 28 O.O. at 103), and may be arbitrary and unreasonable, ⁸ we are not here concerned with such a case. Appellee admitted she had garbage; she therefore required the garbage collection service. In the interest of uniform sanitation, the city can constitutionally require her to use the city's garbage collection service, rather than hauling it in friends' trucks, and can impose a reasonable service fee. See Dayton v. Jacobs, supra. ⁹ We therefore need not address appellee's arguments regarding citizens who do...