American Cancer Soc. v. City of Dayton

• Decision Date: 01 July 1953
• Docket Number: No. 33395,33395
• Citation: 51 O.O. 32,114 N.E.2d 219,160 Ohio St. 114
• Parties: , 51 O.O. 32 AMERICAN CANCER SOCIETY, Inc. et al. v. CITY OF DAYTON.
• Court: Ohio Supreme Court

Page 114

160 Ohio St. 114

114 N.E.2d 219, 51 O.O. 32

AMERICAN CANCER SOCIETY, Inc. et al. v. CITY OF DAYTON.

No. 33395.

Supreme Court of Ohio.

July 1, 1953.

Syllabus by the Court.

1. The solicitation of funds and the dissemination of knowledge for and with reference to a worthy charitable organization are within the protection of the guaranties of freedom of speech, freedom of the press, and liberties of the individual as enunciated in the Constitution of Ohio and the Constitution of the United States.

2. A city may, by ordinance, reasonably regulate the hours and places of such a solicitation and protect the citizens of a community from fraudulent appeals, but such regulations must apply equally to all and must not be arbitrary or discriminatory.

3. An ordinance which gives a board or commission the authority to deny the right to an admittedly worthy charitable organization to solicit funds and promote education with reference to its objective, upon a finding only that the objective of such organization is adequately covered, and that it will be without benefit to the people of the community, will be an undue or unwarranted burden upon the class of persons to be solicited and will interfere with, hinder or prevent the activity of a person or organization to which a permit has already been granted, without laying down any rules or standards, properly within the police power, for such decision, grants an arbitrary power to interfere with constitutional rights and is void.

On July 18, 1950, appellees, American Cancer Society, Inc., and Ohio Division, American Cancer Society, Inc., instituted an action in the Common Pleas Court of Montgomery County against appellant, the city of Dayton, praying for a declaration of plaintiffs' rights in reference to sections 638 to 641 of the ordinances of the city of Dayton and for an injunction against such city from enforcing such ordinances against the plaintiffs, on the ground that the ordinances are in violation of provisions of the Constitution of Ohio and the Constitution of the United States.

After hearing, the Court of Common Pleas entered judgment that the ordinances are void as contrary to provisions of the Constitution of Ohio and the Constitution of the United States and enjoining the enforcement thereof.

On appeal by the defendant to the Court of Appeals, that court affirmed the judgment of the Court of Common Pleas.

The cause is before this court upon the allowance of a motion to certify the record and as a matter of right.

Taft, Stettinius & Hollister, David G. Gamble and William V. Finn, Cincinnati, for appellees.

Herbert S. Beane, City Atty., and M. J. Gilbert, Dayton, for appellant.

STEWART, Judge.

The writer of the opinion of the Court of Appeals stated the essential facts in this cause so accurately that we are quoting and adopting his statement as our own. It is as follows:

'The American Cancer Society, Inc., is a membership corporation, not for profit, incorporated under the laws of the state of New Yrok, and the Ohio Division, american Cancer Society, Inc., is a corporation, not for profit, organized under the laws of the state of Ohio. The city of Dayton has a commission-manager form of municipal government. The Ohio division of the society has been functioning in Ohio several years prior to 1950, and it has an organized unit in Montgomery county, operating in the city of Dayton and Montgomery county; that through the local units the general program of the state and national organizations is implemented; that the local unit functions as such under the direction of a local executive committee, maintaining a local office under the direction of a salaried executive secretary. The corporate franchise of the Ohio division of the society provides:

"Collect and disseminate information concerning the symptoms, diagnosis, treatment and prevention of cancer; to investigate the conditions under which cancer is found and to compile statistics in regard thereto; to co-operate with and promote the work of the American Cancer Society, inc., to solicit, collect, receive, hold, invest, reinvest, distribute and disburse donations, subscriptions, gifts, bequests and other funds for the purposes of this corporation; to aid, in co-operation with state and local medical societies, departments of health, cancer commissions, and other approved and interested health organizations, in the promotion of cancer programs and projects; to establish, maintain and administer units, branches, committees, field armies, and carry on any other activities, within the state of Ohio, to effect and carry out the purposes of this corporation; and the doing of any and all things necessary or incident thereto.'

'The franchise of the parent organization issued by the state of New York contains similar powers. For several years prior to 1950, the local unit had been conducting in Dayton and Montgomery county, an annual, combined educational membership and funds solicitation campaign in the month of April, simultaneously with like campaigns throughout the nation; that since 1946, such local campaigns have been conducted under a permit issued to the local unit by the city of Dayton under the ordinance in question; that in 1950, the local membership of said society consisted of approximately four thousand members; that the funds collected and retained for local use were placed in a local bank; that the accounts have been audited; that at no time during its operation has there been any complaint charging it with fraudulent acts or mishandling of funds; that the funds collected were allocated and distributed according to a definite plan and policy, a certain percentage being retained by the local unit, a portion being distributed to the state organization, and a portion to the national organization; that on February 2, 1950, an application was made by the society for a permit to conduct its annual funds campaign, which was duly prepared, filed and acted upon by the solicitations advisory board, which on February 17, 1950, passed a resolution rejecting said application on the ground that the permit granted to it for 1949 was conditioned upon the society becoming a member of the Dayton community chest organization, and that the Dayton community chest had collected $25,000, which was available for use in a campaign against cancer; that from this ruling an appeal was taken to the city commission, as provided in said ordinance, which passed a resolution as follows:

"Whereas, the Montgomery county unit of the American Cancer Society, Inc., heretofore appealed, under the city ordinance granting such appeals, from the recommendation of the soliciations advisory board against the issuance of a permit to conduct a public campaign in the city of Dayton between April 15 and April 30, 1950; and

"Whereas, the commission having heard the various claims made on behalf of the said society in support of its application, finds that there has been allocated from funds publicly solicited in this community and is presently available to the society for the year 1950, the sum of twenty-five thousand dollars ($25,000), and that, prior to the said application, a permit had been issued for a campaign in behalf of the Miami Valley Hospital in this city to be conducted within the same period; and

"Whereas, the commission therefore does not and cannot find that the object of the proposed cancer drive is not already adequately covered or that it will not be an unwarranted burden upon the persons to be solicited, or that it will not hinder the activity of any other organization to whom a permit has already been granted, or that such solicitation would not be incompatible with the public welfare; now, therefore,

"Be it resolved by the commission of the city of Dayton:

"Section 1. That, though the commission fully recognizes the constructive nature of the work of the said organization and is in sympathy with it, the application of the said Montgomery county unit of the American Cancer Society, Inc., referred to above, be and the same hereby is denied.'

'The court found that during the year 1950 the solicitations advisory board approved thirty-seven applications for permits for the solicitation of funds in the city of Dayton, by various organizations. The court further found that at the time the application for permit was refused, the plaintiff-organization was the sole organization in the city of Dayton devoting its time exclusively to combating cancer and and maintaining an office and organization for such purpose; that there was at said time no organization in the Dayton community chest or any organization allied with the Dayton community chest engaged in such work. The court further found that the society could not have used the funds indicated as being in the community chest without becoming a member thereof, and that the administration of such funds by the society would have been under the supervision of the community chest. The court found that the program and work of the society was for the public benefit, public welfare and health, and that the said program was not injurious to the public in the city of Dayton; and that the solicitation of funds was not attended by fraud or injury to the public of said city.

'We now set forth the several applicable sections of the ordinance which were in full force and effect at the time the application for permit was made and refused. Section 638 provides as follows:

"No person, organization, society, association or corporation, and no agent, member, or representative thereof, shall solicit money, donations, property, or financial assistance of any kind, sell or offer to sell any article, service, publication, advertisement, ticket or subscription, on the direct or implied plea that such solicitation or sale is for charitable, educational, civic, patriotic, religious, or philanthropic purposes, on the streets, in office or business buildings, by house to...