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.
*124Notwithstanding this testimony elicited from city officials, the record shows that the city’s enforcement of the garbage fee is unreasonable, discriminatory and palpably arbitrary.
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.
Celebrezze, C.J., and C. Brown, J., concur in the foregoing dissenting opinion.