Carpenter, In re, 71-409

• Decision Date: 21 March 1972
• Docket Number: No. 71-409,71-409
• Citation: 287 N.E.2d 399,31 Ohio App.2d 184,60 O.O.2d 287
• Parties: , 60 O.O.2d 287 In re CARPENTER.
• Court: Ohio Court of Appeals

Page 184

31 Ohio App.2d 184

287 N.E.2d 399, 60 O.O.2d 287

In re CARPENTER.

No. 71-409.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 21, 1972.

Syllabus by the Court

1. Under the Ohio Constitution, Section 3, Article XVIII, municipalities have authority to adopt and enforce local police ordinances not in conflict with general laws.

2. A municipal ordinance which limits the conduct of a person must not be unreasonable, arbitrary or capricious and must bear a real and substantial relationship to the public health, safety, morals or general welfare.

3. A municipal ordinance which provides that no person under the age of 18 years be upon or about public streets within the city during the hours when his attendance is required at either private or public schools is complementary to the general laws in respect to compulsory school attendance, is not in conflict with general laws, and bears a reasonable and substantial relationship to the general public welfare.

George C. Smith, Pros. Atty., and C. William Brownfield, Jr., Columbus, for appellee the state of Ohio.

Theodore G. Fisher, Denis J. Murphy and Jonathan W. Marshall, Columbus, for appellant.

TROOP, Presiding Judge.

Robert William Carpenter, 14 years of age, was charged, by the affidavit of a police officer, with a violation of the Columbus Code (hereafter referred to as C.C.), Section 2359.08, on May 28, 1971, as follows:

'He was in a public place at 2:00 p. m. during the hours when he was required to be in attendance at his school.'

The minor, Carpenter, was brought before and tried to, the juvenile division of the Common Pleas Court, and at a hearing October 6, 1971, counsel for the defense renewed a motion, previously addressed to the court, 'to have the ordinance declared to be unconstitutional.' It appears from the transcript that defense counsel urged disposition of the motion in the abstract. Upon refusal of the court to proceed without being acquainted with the facts in the case, a stipulation of facts resulted from agreement between counsel for the state and defense.

Stipulated facts relating to the matter of Robert William Carpenter and the incident of May 28, 1971, are as follows:

'It is stipulated by and between counsel that on the date on or about May 28, 1971, there was in effect in the City of Columbus, County of Franklin, State of Ohio, a daylight curfew. This ordinance is 2359.08.

'It is further stipulated by and between counsel that the Defendant, Robert Carpenter, is 15, years of age and on or about the 28th day of May, 1971, was a regularly enrolled student at Indianola Junior High School within the City of Columbus, County of Franklin, State of Ohio. That on or about the 28th day of May, 1971, classes were in session at Indianola Jnior High School and that on May 28, 1971, Robert Carpenter was not excused from class attendance.

'It is further stipulated by and between the parties that on May 28, 1971, Robert Carpenter was arrested on a public street within the City of Columbus, County of Franklin, State of Ohio, by two Columbus Policemen.'

And as corrected the balance of the stipulation reads:

'It is further stipulated by and between counsel that on or about May 28, 1971, when Robert Carpenter, age 15, was arrested by two Columbus Police Officers, he gave no reason for not being present at Indianola Junior High School.'

Defense counsel remarked, 'For not being on the street.' The court responded: 'That's the same thing. He offered no excuse or reason for his presence on the street when he should have been in school.'

In a carefully written and comprehensive 'opinion,' filed November 3, 1971, the trial court overruled the defense motion asking to have the ordinance declared unconstitutional. The formal journal entry of the court was filed November 19, 1971, and recites that the court found '* * * Robert William Carpenter to be an unruly minor' and imposed sentence. It is from this order that this appeal is taken, even though the defendant was later, on December 1, 1971, placed on probation, detention being set aside, and ordered to comply with C.C. 2359.08 until further order.

Counsel for the defendant develop five formal assignments of error in support of this appeal. Four of the five are essentially and basically the same as the four contentions made to the trial court in counsel's attempt to persuade the court to declare the challenged ordinance unconstitutional. This additional assignment of error, numbered 4, urges that C.C. 2359.08 is unconstitutional because the city council lacks authority to legislate in the area of compulsory school attendance. Attention is directed first to this assignment of error since it infers at least that the effort of the legislative body of the city is in 'conflict' with the 'law' of Ohio.

Section 3, Article XVIII of the Constitution of Ohio provides as follows:

'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.'

The argument of defense counsel is to the effect that the offending ordinance is in conflict with the compulsory school attendance laws. A brief review of these laws might assist in considering this problem.

Compulsory school age is defined in R.C. § 3321.01, the nub of which is as follows: 'A child between six and eighteen years of age is 'of compulsory school age' for the purpose of' R.C. § 3321.01 to § 3321.13, inclusive. There is a chance for slight variation temporarily. R.C. § 3321.02 states that every child resident in this state is amenable to the law. That attendance is required is equally clear. As provided in R.C. § 3321.03, 'every child of compulsory school age * * * shall attend a school * * *.' The only exceptions are children employed under a work certificate and those found and determined to be of such mentality that they would be unable to profit by attendance.

Every city school district is required to have an attendance officer (R.C. § 3321.14) who may investigate any case of nonattendance of a child under 18 (R.C. § 3321.16). Such attendance officer 'shall be vested with police powers,' according to R.C. § 3321.17. The officer may serve warrants and take into custody any youth of school age not legally employed, 'who is not attending school and shall conduct such youth to the school he has been attending or should rightfully attend.'

With this brief background, the language of the ordinance which defendant challenges becomes important. It is as follows:

'No person under the age of 18 years shall be upon or about public streets, public places or places of amusement and entertainment within the City during the hours when said person is required to be in attendance at either a public or private school * * *.'

The constitutionality of the compulsory school laws and the power of the school authorities established by the laws noted stand undisputed. Parr v. Ohio (s927), 117 Ohio St. 23, 157 N.E. 555, makes constitutionality clear. After citing abundant authority holding that 'their constitutionality is beyond dispute,' the court adds: 'but we regard the constitutionality of such laws as so well established that other citation is unnecessary.' The constitutionality of compulsory school attendance is accepted and unchallenged by the defendant.

A glance at the problem of 'conflict' with 'general laws' is suggested by the contention that there is something exclusive about school attendance laws. The decision in Leis v. Cleveland Ry. Co. (1920), 101 Ohio St. 162, 128 N.E. 73, deals with a city ordinance, which regulated the conduct of motormen, claimed to be in conflict with the 'general' law-general meaning common law. The court said that Section 3, Article XVIII, refers to 'regulations as are not in conflict with general laws, the words 'general laws' refer to laws passed by the Legislature which are of general application throughout the state.'

The Supreme Court in City of Akron v. Scalera (1939), 135 Ohio St. 65, 19 N.E.2d 279, held that an ordinance which prohibited the sale of beer was not in conflict with the provisions of the liquor control act because they are not 'general laws' as to hours.

An ordinance to fix hours for barber shops is the subject of the decision in City of Cincinnati v. Correll (1943), 141 Ohio St. 535, 49 N.E.2d 412, which is illustrative of a conflict. Reversing an earlier decision which had held a comparable ordinance not in conflict under Section 3, Article XVIII, the court held Sections 3 and 7 not to be so interpreted because the legislative powers of the General Assembly in matters of hours of labor are set out in Section 34, Article II of the Ohio Constitution, making the ordinance in conflict with general law. The court generalizes at page 539, 49 N.E.2d at page 414, saying:

'Laws or ordinances passed by virtue of the police power which limit or abrogate constitutionally guaranteed rights must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the object sought to be obtained, namely, the health, safety, morals or general welfare of the public.'

A Cleveland ordinance restricted the operation of heavy trucks on certain streets of the city. The pronouncements of the Court of Appeals in City of Cleveland v. Antonio (1955), 100 Ohio App. 334, 124 N.E.2d 846, are worthy of note, as follows:

'1. The burden of showing that an ordinance is unconstitutional is upon the one challenging it. The degree of proof that an ordinance is unconstitutional must be clear and convincing. The courts will not hold an ordinance unconstitutional unless it is clear that it has no real or substantial relation to public health, safety, morals or welfare, or is unreasonable or arbitrary and infringes rights secured by fundamental law.'

The court held that the ordinance was...