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, *125tenants and occupants of all premises upon which garbage or refuse, or both are created.” The preamble of the Portsmouth ordinance describes the charge as a fee for the collection of garbage. At trial, the city manager characterized the charge as a “fee for service to be rendered.”
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 *126users of the service and, therefore, a non-user may not be criminally prosecuted for her failure to pay a fee for a service she did not use.
Accordingly, I would affirm the judgment of the court of appeals.
Celebrezze, C.J., and Sweeney, J., concur in the foregoing dissenting opinion.