City of Cincinnati v. Thomas Soft Ice Cream, Inc.

• Decision Date: 23 November 1977
• Docket Number: No. 77-67,77-67
• Citation: 369 N.E.2d 778,6 O.O.3d 277,52 Ohio St.2d 76
• Parties: , 6 O.O.3d 277 CITY OF CINCINNATI, Appellee, v. THOMAS SOFT ICE CREAM, INC., Appellant.
• Court: Ohio Supreme Court

Page 76

52 Ohio St.2d 76

369 N.E.2d 778, 6 O.O.3d 277

CITY OF CINCINNATI, Appellee, v. THOMAS SOFT ICE CREAM, INC., Appellant.

No. 77-67.

Supreme Court of Ohio.

Nov. 23, 1977.

Syllabus by the Court

1. Where there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence. (Paragraph one of the syllabus in State ex rel. Myers v. Chiaramonte, 46 Ohio St.2d 230, 348 N.E.2d 323, approved and followed.)

2. Pursuant to R.C. 718.06(B), a prosecution for the failure to file a municipal income tax return may be commenced within six years after the commission of the offense.

On June 18, 1975, the city of Cincinnati filed a complaint alleging that Thomas Soft Ice Cream, Inc., on or about February 28, 1972, failed to file with the Tax Commissioner of the city of Cincinnati a municipal income tax return for the year 1970, in violation of Section 311-99(a) of the Cincinnati Municipal Code. ¹

Appellant was arraigned on this misdemeanor charge in the Hamilton County Municipal Court, and a trial date was set. Thereafter, appellant filed a motion to dismiss for the reason that the prosecution was barred by the two-year statute of limitations set forth in R.C. 2901.13(A)(2). ² The trial court subsequently granted the motion to dismiss.

The city of Cincinnati appealed this decision to the Court of Appeals for Hamilton County. On December 13, 1976, the appellate court reversed the judgment of the trial court and remanded the cause for further proceedings.

The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.

Thomas A. Luebbers, City Sol., Paul J. Gorman and Robert H. Johnstone, Jr., Cincinnati, for appellee.

Jacobs, Kleinman, Martin & Seibel and Kenneth F. Seibel, Cincinnati, for appellant.

CELEBREZZE, Justice.

Appellant is correct in its contention that the General Assembly may limit the time within which an action may be brought in the courts of this state, even where such action is based upon the alleged violation of a municipal ordinance. In Akron v. Smith (1968), 14 Ohio St.2d 247, 237 N.E.2d 396, this court held that a municipal ordinance could not extend the period of time, within which an income-tax related offense could be prosecuted, beyond the statute of limitations specified by the General Assembly for the prosecution of any offense made punishable by a municipal ordinance. Our holding in Akron is however, inapposite to the situation presently before the court.

It will be observed that the period of limitation designated in the municipal ordinance here under dispute is identical to the statute of limitations set forth in R. C. 718.06(B), ³ which section is codified in the municipal income tax chapter. Therefore, the sole issue presented by the instant appeal is whether R. C. 2901.13(A)(2) or 718.06(B) is controlling as to the time within which a prosecution must be commenced for an alleged failure to file a municipal income tax return.

In essence, it is appellant's position that R. C. 718.06(B), effective July 25, 1969, was impliedly repealed by the enactment of R. C. 2901.13(A)(2), effective July 1, 1974. This argument runs contrary to a long-standing rule of statutory interpretation, which provides that courts will not hold prior legislation to be impliedly repealed by the enactment of subsequent legislation unless the subsequent legislation clearly requires such a holding. Ludlow v. Johnston (1828), 3 Ohio 553, states, at page 564:

"* * * When the provisions of two statutes are so far inconsistent with each other that both can not be enforced, the latter must prevail. But if, by any fair course of reasoning, the two can be reconciled, both shall stand. When the legislature intend to repeal a statute, we may, as a general rule, expect them to do it in express terms, or by the use of words which are equivalent to an express repeal. No court will, if it can be consistently avoided, determine that a statute is repealed by implication." Accord, Lucas County Commrs. v. Toledo (1971), 28 Ohio St.2d 214, 217, 277 N.E.2d 193.

It is understandable that courts disfavor repeals by implication, since it may properly be assumed that the General Assembly had knowledge of the prior legislation when the subsequent legislation was enacted, and had the General Assembly intended to nullify such prior legislation it would have done so, by means of an express repeal thereof. In this regard we note that R. C. 718.06 was enacted approximately 11 months after the decision in Akron, supra, as a specific, limited exception to the general statutes of limitation then in effect, R. C. 1.18 and 1905.33. ⁴ Five years later, at the same time that R. C. 2901.13 was enacted, both general statutes of limitation referred to above were specifically repealed by the very same legislative product, Am.Sub.H.B.No. 511. ⁵ There was, however, no mention made of R. C. 718.06 in this bill, the first comprehensive redaction of the entire substantive criminal law of Ohio.

In 1972 the General Assembly codified the inveterate judicial policy of disfavor toward repeals by implication, in R. C. 1.51. That section provides:

"If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions in irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail."

We believe that the conflict between R. C. 2901.13(A)(2) and 718.06(B) is irreconcilable, since R. C. 718.06(B) appears to be an exception to the general statute of limitations contained in R. C. 2901.13, and the introductory phrase of R. C. 2901.13 would appear to admit to only those exceptions "otherwise provided in this section." Clearly, R. C. 2901.13 was enacted subsequent to R. C. 718.06. Therefore, pursuant to R. C. 1.51, the later, general provision, R. C. 2901.13(A)(2), shall control over the special provision, R. C. 718.06(B), only if this court determines that the "manifest intent" of the General Assembly is that the general provision shall prevail. State ex rel. Myers v. Chiaramonte (1976), 46 Ohio St.2d 230, 348 N.E.2d 323.

In light of the history of R. C. 718.06, and with particular regard for the survival of this section despite the numerous express repeals in Am.Sub.H.B.No. 511, we are unable to agree with the trial court's conclusion that R. C. 718.06 is "mere surplusage." Although the introductory language of R. C. 2901.13 is a source of confusion, it is not, in our opinion, an indication of manifest ...