Benjamin v. City of Columbus

• Decision Date: 07 February 1957
• Citation: 4 O.O.2d 439,104 Ohio App. 293,148 N.E.2d 695
• Parties: , 78 Ohio Law Abs. 600, 4 O.O.2d 439 BENJAMIN et al., Appellees, v. CITY OF COLUMBUS et al., Appellants. FERGUSON et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.
• Court: Ohio Court of Appeals

Page 293

104 Ohio App. 293

148 N.E.2d 695, 78 Ohio Law Abs. 600, 4 O.O.2d 439

BENJAMIN et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.

FERGUSON et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.

Court of Appeals of Ohio, Franklin County.

Feb. 7, 1957.

Syllabus by the Court

1. An application for an injunction is addressed to the sound discretion of the court to be exercised in the light of all the circumstances bearing upon the petitioner's right to relief.

2. The mere declaration in an ordinance having no reasonable relation to the morals of the people of a municipality, that it is enacted to protect public morals, will not render it valid under the police power, but an ordinance declaring that certain games are detrimental to public morals, reciting the specific grounds which in the opinion of the council of the municipality makes such games detrimental, may not be declared invalid unless such legislation is clearly arbitrary, unreasonable and has no relation to the morals or welfare of the community.

3. In determining the constitutional validity of an ordinance, a court may not substitute its judgment for that of the municipal council as to the expediency, necessity for, or wisdom of the legislation.

4. A presumption of legality and good faith attends the adoption of an ordinance until it be clearly established that the council has exceeded its powers, has acted in bad faith, or has abused its legislative discretion, or that the enactment bears no reasonable relation to the morals, health, safety and welfare of the people of the community.

5. The cardinal rule in the interpretation of ordinances is to ascertain, declare and give effect to the legislative intent to be gathered from the provisions of the enactment and its apparent purpose, as applied to the evil at which it is aimed.

6. A clear incompatibility between an ordinance and the Constitution must exist before the courts may declare such ordinance unconstitutional. The party asserting unconstitutionality must clearly show it, and if the question is debatable the legislation must be upheld.

7. The power of a municipality to adopt within its limits such local police sanitary and other similar regulations, as are not in conflict with general laws, includes the power to prohibit that which is inherently as well as potentially evil.

8. If a business is not harmful, the prosecution of it may not be prohibited to one who will conduct such business in a lawful manner; but a municipality, in the exercise of its police power, may prohibit that which has evil potentialities, such as pin games which the council has declared tend to encourage gambling, register odds or scores, are readily convertible to free play and a nuisance.

Chalmers P. Wylie, City Atty., and Russell Leach, Columbus, for appellants.

McLeskey & McLeskey and Owen B. Sherwood, Columbus, for appellees.

FESS, Judge.

These are appeals on questions of law and fact from a judgment entered in the case of Ferguson v. City of Columbus, No. 187,169 in the Common Pleas Court, permanently enjoining the defendant from the enforcement of ordinances numbered 156-53, 157-53 and 1615-54. The case of Benjamin v. City of Columbus, No. 191,975, was consolidated with the Ferguson case in the trial court, Ohio Com.Pl., 136 N.E.2d 641, and, upon the appeals, the two cases are consolidated herein for retrial. The Ferguson case attacks the constitutionality of ordinances Nos. 156-53 and 157-53, whereas the Benjamin case relates to ordinance No. 1615-54. By stipulation, it is agreed that each action includes the three ordinances in question.

A digest of the averments of the petition as well as the salient provisions of the 1953 ordinances are reported in Ferguson v. City of Columbus, Ohio App., 128 N.E.2d 198, and are not repeated herein. The answer in the Ferguson case admits that the city threatens to enforce the provisions of the ordinances against plaintiffs and merchants with whom plaintiffs have contracts.

On July 19, 1954, the Common Pleas Court, based upon a well considered opinion, in which it concluded that the 1953 ordinances were not violative of constitutional provisions, entered judgment for the defendant upon the pleadings. Upon an appeal on questions of law, this judgment was reversed, essentially on the ground that issues of fact that required a trial were presented upon the pleadings. Ferguson v. City of Columbus, supra, 128 N.E.2d 198, 201. In its opinion, the Court of Appeals made certain suggestions with respect to the licensing and seizure provisions of the 1953 ordinances, which are carried in the headnotes of its opinion. ¹

In its opinion, the Court of Appeals concludes 'that the ordinances given full force and effect, if the averments of the petition are proven, do not authorize, nor purport to empower, the defendant officers with the right to confiscate the machines, or to arrest and imprison the merchants with whom plaintiffs have contracts.' The court also says that 'it is not necessary to decide the issues of the constitutionality of the ordinances except insofar as is required to determine if upon any theory the sustaining of the motion for judgment on the pleadings was proper,' and that 'we do not hold the ordinance is invalid because it characterizes as a nuisance the operation of a machine, therein described, 'which tends to encourage gambling'. It is the method of making determination of this essential of a nuisance as a basis of a seizure of the machine which we cannot support.'

After the Court of Appeals decision in the Ferguson case was announced, the defendant, no doubt as a result of such decision, enacted ordinance No. 1615-54 on December 7, 1954. This ordinance provides that whoever shall have in his possession, custody or control any table game or device commonly known as 'pin game,' 'pin-ball game' or 'marble game,' the operation, use or play of which is controlled by placing, therein any coin, plate, disk, plug, key or other token, or by the payment of a fee, shall be guilty of a misdemeanor, etc. The purpose of this supplementary ordinance is rather ineptly stated in the preamble. ²

These ordinances, tacked onto the chapter of the Columbus Code relating to gambling, are complex, contradictory, and bear the mark of having been hastily drawn and considered without that degree of care and clarity of expression which should attend legislative enactments. We concur in the suggestions made in the Ferguson case, supra, 128 N.E.2d at page 207, that the ordinances should be shortened and codified into simple, concise and clear phraseology.

In March, 1955, the Benjamin case was filed, attacking the 1954 ordinance. On May 9, 1956, the Common Pleas Court found that a municipality has no authority to prohibit the use and operation of pinball machines which are merely designed and utilized for amusement purposes only. Benjamin v. City of Columbus, Ohio Com.Pl., 136 N.E.2d 641. A decree was entered permanently enjoining the defendant from interfering with the ownership, etc., of pin games by the plaintiffs and any merchant with whom plaintiffs have contracts for the operation of such games so long as they are not used for gambling. ³

A century ago an eminent jurist declared that an application for injunction is addressed to the sound discretion of the court. Spencer, J., in Commercial Bank v. Bowman, 1855, 1 Handy 246, 12 Ohio Dec. Reprint 125. This discretion reposed in a court of equity is to be exercised in the light of all circumstances surrounding the application for relief by way of the injunctive process.

The council of Columbus, in the exercise of its legislative function pursuant to its inherent police power and as conferred upon it by the Ohio Constitution, has declared that pin games (not gaming devices per se) are detrimental to public morals in that they tend to encourage gambling, register odds or a score, or are adapted, or may be readily converted into a machine, device or instrument that is adapted for use in violation of other provisions of the chapter relating to gambling. ⁴ The ordinance also characterizes the operation of such a machine a nuisance. We are aware that the Supreme Court of Ohio has said that the mere declaration in an ordinance that it is enacted to protect public safety, health or morals will not render it valid under the police powers. City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St. 654, 148 N.E. 842, 43 A.L.R. 662. And if a municipal ordinance has no reasonable relation to the morals, health and safety of the people of a municipality, it is an unauthorized exercise of the police power. City of Youngstown v. Kahn Bros. Bldg. Co., supra; 37 American Jurisprudence, 927, Section 288.

But the ordinances in the instant case not only contain a general declaration that pin games are detrimental to public morals, but also the specific grounds which in the opinion of the legislative body make such games detrimental. Council may have recognized the ancient adages that 'a foles bolt is soone shotte' (Taverner, 1539), and 'a fool and his money is soon parted' (Howell, 1645). Council in its wisdom may have concluded that mechanical whirr accompanied by the glitter of the flickering lights engendered by the erratic peregrination of the metallic balls recording mounting scores appeals to the gambling instinct and cupidity of the moronic wastrels who may play the machines for amusement only. Council has concluded that there are devices in addition to 'one-arm bandits' which entice the gullible to gleefully fiddle away their time and substance in parting with their nickels and dimes.

An ordinance of a municipality can not be overthrown by a court unless such legislation is clearly arbitrary, unreasonable or unrelated to the public health, morals, safety, or welfare of the community. It is not for the courts to determine the wisdom of the legislation, but its constitutional validity, and a court may not...