City of Akron v. Scalera

• Decision Date: 08 February 1939
• Docket Number: 27191.
• Citation: 19 N.E.2d 279,135 Ohio St. 65
• Parties: CITY OF AKRON v. SCALERA.
• Court: Ohio Supreme Court

19 N.E.2d 279

135 Ohio St. 65

CITY OF AKRON v. SCALERA.

No. 27191.

Supreme Court of Ohio

February 8, 1939

Syllabus by the Court.

1. The authority conferred by Section 3, Article XVIII of the state Constitution upon municipalities to adopt and enforce police regulations is limited only by general laws in conflict therewith upon the same subject-matter.

2. An ordinance of a municipality prohibiting therein the sale of beer on Sunday is a valid local police regulation and is not in conflict with the provisions of the Liquor Control Act (Section 6064-1 et seq., General Code).

The defendant, Joe Scalera, was charged with the offense of selling beer on Sunday in violation of the provisions of an ordinance of the city of Akron prohibiting the sale of beer in that city on Sunday. The validity of the ordinance was challenged by a motion to dismiss. That motion was sustained by the Municipal Court and the defendant ordered discharged on the ground that the ordinance 'is in conflict with the general laws of the state of Ohio, and is, therefore unconstitutional.'

Upon appeal, the Court of Appeals reversed the judgment of the Municipal Court and remanded the cause to what court for further proceedings. Whereupon the case was appealed to this court.

A J. Bianchi and C. T. Pflueger, both of Akron, for appellant.

Wade DeWoody, Director of Law, and James E. Alpeter, both of Akron, for appellee.

MATTHIAS, Judge.

The single question presented for consideration and decision is the validity of the provisions of the Akron ordinance in so far as they prohibit the sale of beer in that city on Sunday. Akron is a charter city, but in the view this court entertains of the questions presented that fact is immaterial. All municipalities in this state have the power expressly and directly conferred by Section 3, Article XVIII of the state Constitution 'to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'

This language is clear and simple and casily understood. The General Assembly cannot withdraw from municipalities powers expressly conferred upon them by the Constitution. The power granted to municipalities to adopt and enforce police regulations is limited only by general laws in conflict therewith upon the same subject-matter. City of Fremont v. Keating, 96 Ohio St. 468, 118 N.E. 114; Heppel v. City of Columbus, 106 Ohio St. 107, 140 N.E. 169; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519; City of Youngstown v. Evans, 121 Ohio St. 342, 168 N.E. 844.

The ordinance in question constitutes a local police regulation. Therefore, the test of its validity in the respect now challenged is made by the question: 'Is it in conflict with any general law?' It is contended by counsel for the defendant that the provisions of the so-called Liquor Control Act embodied in Section 6064-1 et seq., General Code completely and exclusively cover the matter of trafficking in beer and intoxicating liquor in this state, including the places where sold and the hours when sale is permitted, and that municipalities have only such power of regulation as the act expressly confers. The General Assembly, in Section 6064-1, General Code, has defined the terms 'beer' and 'intoxicating liquor,' distinguishing the former from the latter. As there defined, beer includes all beverages containing one-half of one percentum but not more than 3.2 per centum of alcohol by weight, while intoxicating liquor includes any and all liquids and compounds containing more than 3.2 per centum of alcohol by weight and fit for beverage purposes.

By the provisions of Section 6064-22, General Code, certain restrictions are set forth under which sales of beer and intoxicating liquor may be made under any and all classes of permits authorized by the Liquor Control Act which, as there stated, are in addition to those restrictions lawfully imposed by the rules, regulations or orders of the department. This statute prohibits the sale of beer to any person under 18 years of age and intoxicating liquor to any person under 21 years of age, and prohibits the sale of intoxicating liquor after 2:30 a. m. on Sunday or any election day between the hours of 5:00 a. m. and 7:30 p. m. This statute then provides as follows:

'Nothing in this section shall prevent a municipal corporation or village from adopting an earlier closing hour for the sale of intoxicating liquor on Sunday or to provide that no intoxicating liquor may be sold on Sunday.'

It is to be observed that this statute contains no regulation or restriction of, in fact no reference to, the sale of beer other...