City of Akron v. Williams

• Decision Date: 14 December 1960
• Citation: 113 Ohio App. 293,177 N.E.2d 802
• Parties: , 17 O.O.2d 317 CITY OF AKRON, Appellant, v. WILLIAMS, Appellee. *
• Court: Ohio Court of Appeals

Page 293

113 Ohio App. 293

177 N.E.2d 802, 17 O.O.2d 317

CITY OF AKRON, Appellant, v. WILLIAMS, Appellee. ^*

Court of Appeals of Ohio, Ninth District, Summit County.

Dec. 14, 1960.

Syllabus by the Court

A charter city, operating under the provisions of Section 3 of Article XVIII of the Constitution of the state of Ohio, may validly enact an ordinance prohibiting the possession, within the city, of a firearm, by one previously convicted of a felony.

Harry N. Van Berg, Director of Law, and Thomas F. Lynett, Jr., Akron, for appellant.

Thomas S. E. Brown, Akron, for appellee.

STEVENS, Judge.

The defendant was charged, by affidavit filed in the Municipal Court of Akron, with a violation of Chapter 25, Section 78, of the Akron City Code (now Section 369.02, Code of the city of Akron, 1960), which prohibits the possession of a firearm by a person who has been convicted of a felony.

The defendant demurred to the affidavit, for the reasons that:

'1. The facts stated therein do not constitute an offense against the laws of the state of Ohio, and that:

'2. Further, the facts stated therein are not set forth with sufficient certainty and particularity so as to apprise defendant of the nature of the charge against him;

'3. And further, the offense charged in the said affidavit is based upon an unconstitutional and invalid ordinance, in that the said ordinance is in violation of the rights of this defendant guaranteed under Article I, Section 9, of the Constitution of the United States, and Article I, Section 14, and Article II, Section 28, of the Constitution of Ohio.'

That demurrer, upon consideration by the Municipal Court, was sustained, and the prosecution dismissed, the court holding the ordinance in question to be an unconstitutional enactment.

From the judgment entered in accordance with the court's ruling, an appeal on questions of law has been prosecuted to this court.

The ordinance provides:

'(a) No person who has been convicted of a felony in any court of the United States, the several states, territories, possessions, commonwealth countries or the District of Columbia, or who is a fugitive from justice or of unsound mind or a drug addict or an habitual drunkard, shall possess a firearm within this city.

'(b) No person who is a member of a subersive organization shall possess a firearm within this city.

'(c) No person under the age of eighteen shall possess a pistol. The provisions of this paragraph shall not apply to the issue of pistols to members of the Armed Forces of the United States, active or reserve, State Militia, or ROTC, when on duty or training, or to the temporary loan of pistols for instruction under the immediate supervision of a parent, guardian or adult instructor.

'(d) No person shall sell, lease, lend or otherwise transfer a pistol to any person under eighteen years of age except as provided in paragraph (c) above. (Ord. 982-1957. Passed 10-29-57.)'

The defendant, for the purposes of the demurrer, admits that he was previously duly convicted of a felony, and that he had in his possession a firearm in violation of the provisions of the above ordinance.

The city of Akron is a charter city, operating under the provisions of Section 3, Article XVIII of the Constitution of the state of Ohio.

That article and section provide:

'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.'

A municipal ordinance, passed under the above constitutional grant, must not be arbitrary, discriminatory, capricious, or unreasonable, and must bear a real and substantial relation to the health, safety, morals or general welfare of the public. City of Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412.

Section 1, Article I of the Constitution of Ohio provides:

'All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.'

Section 4, Article I, thereof, provides:

'The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.'

It is necessary, in evaluating the foregoing ordinance in the light of the above constitutional provisions, to consider the pronouncement of the Supreme Court of the United States, in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, at page 31, 25 S.Ct. 358, at page 363, 49 L.Ed. 643, wherein the court, speaking through Mr. Justice Harlan, stated the following:

'* * * If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.' (Italics ours.)

See, also, State Bd. of Health v. City of Greenville, 86 Ohio St. 1, at page 21, 98 N.E. 1019, to the same effect.

The ordinance of...