Calhoun, In re

• Decision Date: 19 December 1949
• Docket Number: No. 2073,2073
• Citation: 87 Ohio App. 193,94 N.E.2d 388
• Parties: , 42 O.O. 401 In re CALHOUN.
• Court: Ohio Court of Appeals

Page 193

87 Ohio App. 193

94 N.E.2d 388, 42 O.O. 401

In re CALHOUN.

No. 2073.

Court of Appeals of Ohio, Montgomery County.

Dec. 19, 1949.

Syllabus by the Court.

1. Under Section 3, Article XVIII of the Ohio Constitution, municipalities have authority to enact ordinances relating to minor offenses and such authority is limited only by the proviso that such legislation shall not be in conflict with general laws on the same subject matter.

2. Whether a municipal ordinance is in conflict with general laws is not determined by the penalties prescribed but rather whether the ordinance permits or licenses that which the statute prohibits and forbids, and vice versa.

3. A conflict does not arise between a municipal ordinance and general laws from the fact that the municipal ordinance prescribes a penalty in excess of that permitted by Section 3628, General Code, and in excess of that prescribed by the state law for a like offense.

4. A municipal ordinance which prescribes a maximum penalty for assault or assault and battery of a fine of $1,000 and imprisonment in the workhouse for a period of one year, or both, does not violate Section 9, Article I of the Ohio Constitution, which forbids 'cruel and unusual punishments.'

5. The Dayton Municipal Court Act which provides that a jury must be demanded in writing in a criminal case, otherwise the case shall be tried by the judge, is not in violation of the constitutional provision guaranteeing the right to a jury trial.

6. Section 13442-4, General Code, does not supersede a provision in a municipal court act that a cause shall be tried by the judge unless a jury is demanded in writing.

Louis C. Capelle, Cincinnati, for petitioner.

Herbert S. Beane, City Attorney, and William P. Keane, Dayton, for respondent.

WISEMAN, Judge.

This is an action in habeas corpus, originating in this court, in which the petitioner seeks his release from the Dayton workhouse where he is now confined on two sentences imposed by the Municipal Court of Dayton. The petitioner claims that he is unlawfully restrained of his liberty on two grounds:

The petitioner was convicted in the Municipal Court of Dayton in case No. 91457 for assault and in case No. 71415 for assault and battery in violation of ordinance No. 943-2 of the city of Dayton, which he claims is a void ordinance for the reason that it is in conflict with the general laws of this state, particularly Section 12423, General Code. Petitioner claims that he pleaded not guilty and was tried by the court without the intervention of a jury in violation of Sections 1579-46 and 13442-4, General Code. Being found guilty on both charges, the petitioner was sentenced to one year imprisonment in the Dayton workhouse and the payment of a $1,000 fine in each case, the sentences to run consecutively.

The ordinance under which the petitioner was tried provides that the penalty for assault or assault and battery shall be 'not more than one thousand dollars ($1,000), or imprisoned not more than one (1) year in the city workhouse, or both.'

Section 12423, General Code, provides that the penalty for assault or assault and battery shall be 'not more than two hundred dollars or imprisoned not more than six months, or both.' Section 3628, General Code, is cited by the petitioner in support of his contention that the ordinance is invalid since it prescribes a penalty for a misdemeanor in excess of that prescribed by such Code section. Section 3628, General Code, confers authority on municipalities to provide punishment for violation of city ordinances, and provides as follows: 'To make the violation of ordinances a misdemeanor, and to provide for the punishment thereof by fine or imprisonment, or both, but such fine shall not exceed five hundred dollars and such imprisonment shall not exceed six months.'

Petitioner contends that ordinance No. 943-2 of the city of Dayton is invalid because it prescribes a penalty in excess of five hundred dollars and imprisonment in excess of six months.

Under the home-rule amendment of the Ohio Constitution, adopted in 1912, municipalities are given all powers of local self-government. Under this amendment, Section 3, Article XVIII, Ohio Constitution, municipalities derive their authority to enact municipal legislation relating to minor offenses and such authority is limited only by the proviso that such legislation shall not be in conflict with the general laws.

We have presented for determination the narrow question whether ordinance No. 943-2 is in conflict with the general laws of the state, since the penalty prescribed is in excess of that permitted under Section 3628, General Code, and greater than that prescribed in Section 12423, General Code. It has been held that since the adoption of the home-rule amendment Section 3628, General Code, is ineffective as a limitation on the powers of a municipality to enforce within their limits local police regulations. The only limitation which now exists is that such regulations shall not be in conflict with general laws upon the same subject matter. City of Youngstown v. Evans, 121 Ohio St. 342, 168 N.E. 844. Whether a municipal ordinance conflicts with the general laws is not determined by the penalties prescribed but rather whether the ordinance permits or licenses that which the statute prohibits and forbids, and vice versa. State ex rel. Cozart v. Carran, City Mgr., 133 Ohio St. 50, 11 N.E.2d 245; Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519; Kistler v. City of Warren, 58 Ohio App. 531, 16 N.E.2d 948; Village of Leipsic v. Folk, 38 Ohio App. 177, 176 N.E. 95; Ermekeil v. State, 8 Ohio Law Abst. 121; Marko v. City of Youngstown, 6 Ohio Law Abst. 477. In those cases it was held that a conflict did not arise between a...