Auxter v. City of Toledo, 37352

• Decision Date: 27 June 1962
• Docket Number: No. 37352,37352
• Citation: 173 Ohio St. 444,20 O.O.2d 71,183 N.E.2d 920
• Parties: , 20 O.O.2d 71 AUXTER, d.b.a. Vic's Carry Out, Appellant, v. CITY OF TOLEDO et al., Appellees.
• Court: Ohio Supreme Court

Page 444

173 Ohio St. 444

183 N.E.2d 920, 20 O.O.2d 71

AUXTER, d.b.a. Vic's Carry Out, Appellant, v. CITY OF TOLEDO et al., Appellees.

No. 37352.

Supreme Court of Ohio.

June 27, 1962.

Syllabus by the Court

1. Section 25-2-3 of the Toledo Municipal Code, prohibiting the sale of beer and other intoxicating liquors in Toledo without a Toledo license to do so, is a police regulation within the meaning of Section 3 of Article XVIII of the Ohio Constitution.

2. A C-2 permit issued pursuant to the Ohio Liquor Control Act authorizes the person to whom it is issued to carry on at the place specified therein the business of selling beer and other intoxicating liquors as that business is described in Section 4303.12, Revised Code, and a municipal ordinance which prohibits the carrying on by such person of such business at that place without a city license to do so, that is obtainable only upon paying a fee, would conflict with Sections 4303.12 and 4303.27, Revised Code. (Paragraph two of the syllabus of Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519, and paragraph two of the syllabus of Niehaus, Bldg. Inspr. v. State ex rel. Board of Education of City School Dist. of City of Dayton, 111 Ohio St. 47, 144 N.E. 433, approved and followed Paragraph three of the syllabus of Stary v City of Brooklyn, 162 Ohio St. 120, 121 N.E.2d 11, limited and distinguished.)

3. By reason of the provisions of Section 3 of Article XVIII of the Ohio Constitution, Section 25-2-3 of the Toledo Municipal Code is invalid because it is in conflict with Sections 4303.12 and 4303.27, Revised Code.

Plaintiff filed a petition in the Common Pleas Court of Lucas County alleging that he operated a beer and wine carry-out store in Toledo, and that he held a C-2 permit from the state authorizing him to sell beer and certain intoxicating liquors in packages not for consumption on his premises. The prayer of the petition is for a declaratory judgment as to the validity of Section 25-2-3 of the Toledo Municipal Code, which ordinance prohibits the sale of beer or intoxicating liquor in Toldo without a city license, and for an injunction against enforcing that prohibition and against the collection of the fees required for such a license by other provisions of the Toledo Municipal Code.

Section 4303.12, Revised Code, provides for the issuance of a C-2 permit to the owner of a retail store to sell beer and certain specified intoxicating liquors not for consumption on the premises; and Section 4303.27, Revised Code, reads so far as pertinent:

'Each permit issued under Sections 4303.02 to 4303.23, inclusive * * * shall authorize the person named to carry on the business specified at the place * * * described * * *.'

Section 25-2-3 of the Toledo Municipal Code reads:

'No person shall sell or offer for sale within the corporate limits of the city of Toledo any beer or intoxicating liquor without first having obtained a license therefor from the Commissioner of Licenses and Assessments of the city of Toledo.'

Section 25-2-13 of the Code provides a penalty for violation of Section 25-2-3; and Section 25-2-6 requires payment of a $15 fee for such a license.

Section 3 of Article XVIII of the Ohio Constitution reads:

'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.'

By its judgment, the Common Pleas court found that Section 25-2-3 of the Toledo Municipal Code was a valid ordinance and dismissed plaintiff's petition.

That judgment was affirmed by the court of Appeals which found that its judgment of affirmance is in conflict with the judgment of the Court of Appeals for Cuyahoga County in Spisak v. Village of Solon (1941), 68 Ohio App. 290, 39 N.E.2d 531, and, for that reason and pursuant to Section 6 of Article IV of the Ohio Constitution, certified the record of the case to this court for its review and final determination.

Green & Green, Toledo, for appellant.

Louis R. Young, director of law, and John J. Burkhart, Toledo, for appellees.

TAFT, Judge.

Both parties agree that the only question to be determined in the instant case is whether Section 25-2-3 of the Toledo Municipal Code conflicts with the general laws of the state. If that section of the Toledo Municipal Code is a police regulation and does so conflict, then the limitations of Section 3 of Article XVIII of the Ohio Constitution will prevent it from being effective.

It is apparently contended in a brief filed in this case on behalf of certain amici curiae that that section of the Toledo Municipal Code is not a police regulation. As a basis for this contention, it is stated that a license is merely a device for regulation. However, the power to license is a part of the power to regulate. It seems obvious therefore that a municipal ordinance prohibiting the doing of something without a municipal license to do it would be a municipal police regulation. Calling it a device for regulation does not prevent it from being such a regulation.

In our opinion, any municipal ordinance, which prohibits the doing of something without a municipal license to do it, is a police regulation within the meaning of Section 3 of Article XVIII of the Ohio Constitution. It follows that Section 25-2-3 of the Toledo Municipal Code, prohibiting the sale of beer and other intoxicating liquors in Toledo without a Toledo license to do so, is a police regulation.

As Section 4303.27 states, a C-2 permit issued pursuant to the Ohio Liquor Control Act authorizes the person to whom it is issued to carry on at the place specified therein the business of selling beer and other intoxicating liquors as that business is described in Section 4303.12, Revised Code.

It would seem to follow that any municipal ordinance which prohibits the carrying on by such person of such business at that place without a city license to do so, that is obtainable only upon paying a fee, would conflict with Sections 4303.12 and 4303.27, Revised Code.

Thus, in Village of Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph two of the syllabus reads:

'In determining whether an ordinance is in 'conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.'

In the instant case, the ordinance forbids and prohibits what the statute permits and licenses. Even though plaintiff has a state license authorizing him to carry on the business of selling beer in Toledo, the ordinance prohibits him from doing so if he does not pay for and secure a municipal license to do so.

In Niehaus, Bldg. Inspr. v. Stare ex rel. Board of Education of City School Dist. of City of Dayton (1924), 111 Ohio St. 47, 144 N.E. 433, paragraph two of the syllabus reads:

'The General Assembly * * * having enacted a general law requiring the building inspection departments of municipalities having a regularly organized building inspection department to approve plans for the construction of public school buildings erected within such municipalities, a municipality is without power to thwart the operation of such general law by the enactment of an ordinance requiring the payment of a fee as a condition precedent to compliance therewith.'

The ordinance involved in that case had apparently been enacted independently of and without reference to the statute and was a comprehensive ordinance providing for a building inspection department to approve plans for the construction of various kinds of buildings (not specifically public school buildings) erected in the municipality and for the issuance of building permits upon payments of certain fees therefor. This court affirmed a judgment which allowed a writ of mandamus requiring issuance of a permit without payment of the fee required by the provisions of the ordinance.

In our opinion therefore Section 25-2-3 of the Toledo Municipal Code is in conflict with Sections 4303.12 and 4303.27, Revised Code. We believe that further support for this...