City of Portsmouth v. McGraw

Holmes, J. 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. 500.3 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 [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 [120] 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, swpra, at paragraph six of the syllabus; DeMoise, supra, at 96-97; Ohio Edison Co. v. Power Siting Comm. (1978), 56 Ohio St. 2d 212, 218 [10 O.O. 3d 371]. 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 [121] 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 [14 O.O. 413], and to charge residents who require the collection service a reasonable fee, Thompson v. Green (C.P. 1943), 12 Ohio Supp. 1 [28 O.O. 99], 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.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, at 103), and may be arbitrary and unreasonable,8 we are not here concerned with such a case. Ap [122] pellee 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 not require such service, as appellee does not fall within such arguments and lacks standing to present them on behalf of others. 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. Locher, Douglas and Wright, JJ., concur. Celebrezze, C.J., Sweeney and C. Brown, JJ., dissent. Footnotes [3] 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.” [4] 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.” [5] 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.” [6] 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. [7] 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.) [8] 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. [122] Because it is reasonable for the city to assume that all living quarters accumulate garbage and are thereby being serviced, the city’s establishment of a hardship committee to hear variances is a rational means of determining individuals’ circumstances which rebut such a presumption. There is no question that the establishment of such a committee was within the powers granted to the city manager in Section 941.02 to make such rules and regulations relating to garbage collection as may be necessary. The appearance of several citizens who claimed that their circumstances were such that they should be excused from paying the fee obviously necessitated, in the city manager’s eye, the hardship committee, created by executive letter dated April 15, 1982, two weeks after the garbage collection fee went into effect. Several variances have been recommended to, and granted by, this committee. There is no reason why others cannot also, in this manner, notify the city that they have no garbage and cannot be billed under the ordinance. [9] 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.