City of Cleveland v. Terrill

• Decision Date: 02 June 1948
• Docket Number: 31109.
• Citation: 80 N.E.2d 115,149 Ohio St. 532
• Parties: CITY OF CLEVELAND v. TERRILL
• Court: Ohio Supreme Court

80 N.E.2d 115

149 Ohio St. 532

CITY OF CLEVELAND v. TERRILL

No. 31109.

Supreme Court of Ohio

June 2, 1948

Syllabus by the Court.

Section 794-1, Cleveland Municipal Code, making unlawful the bringing into the city or the possession of meat or meat products bearing no official inspection stamp, is a valid exercise of the police power, under Section 3, Article XVIII of the Constitution of Ohio, although the possession alone is made unlawful.

Appeal from Court of Appeals, Cuyahoga County.

Clyde Terrill, defendant, appellee herein, hereinafter called the defendant, was arrested on an affidavit charging that on or about September 27, 1946, he unlawfully had in his possession a side of beef which did not bear the official stamp of the government inspector or of the city inspector of Cleveland Ohio, contrary to an ordinance of such city (Section 794-1 Cleveland Municipal Code). Defendant was tried in the Municipal Court of Cleveland, found guilty and fined $100 and costs.

Upon appeal to the Court of Appeals, the conviction was reversed on the ground that Section 794-1, Cleveland Municipal Code, is unconstitutional.

The case is before this court following the allowance of a motion to certify the record.

Lee C. Howley, director of Law, Joseph Stearns, Police Prosecutor, and August Pryatel, all of Cleveland, for appellant.

Robert G. Quincy, of Cleveland, for appellee.

SOHNGEN, Judge.

The sole question presented here is the constitutionality of Section 794-1, Cleveland Municipal Code, which reads as follows: 'No person, firm, corporation or association shall bring into the city of Cleveland, or have in his possesion, any meat or meat products other than that bearing the official inspection stamp of the government inspector, of the inspector of the city of Cleveland, division of health or of the inspector of any other city whose inspection has been approved by the official charged with the enforcement of this section as being equivalent to that of the city of Cleveland. Nor shall any person, firm, corporation or association bring or have in his possession any meat or meat products from any food handling plant not having federal meat inspection or a license or permit from the food and drug administration of the Cleveland division of health.'

Section 3, Article XVIII of the Constitution of Ohio, provides: '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.'

Section 794-1, Cleveland Municipal Code, was enacted by authority conferred by such constitutional provision.

Defendant contends that Section 794-1 is unconstitutional because it is unreasonable, indefinite and uncertain, allows unequal and arbitrary administration, and interferes with private rights beyond the necessities of the situation. There is no contention that the ordinance in question conflicts with general laws, nor is the authority of the enacting body to exercise the police power questioned. It is and must be conceded that the preservation of the public health of a municipality falls within the purview of local police power, and that the inspection of food is in interest of the public health.

We come, therefore, to a consideration of the disputed and basic questions presented for determination.

Is Section 794-1 unreasonable in that it makes possession alone an offense rather than possession for the purpose of sale?

In the case of City of Dayton v. Jacobs, 120 Ohio St. 225, 165 N.E.2d 844, 847, this court said: 'Section 3, article XVIII, of the Constitution of Ohio, confers upon municipalities 'all powers of local self-government and to adopt and enforce within their limits such local police * * * regulations, as are not in conflict with general laws.' It is and must be conceded by the defendant in error that the preservation of the public health of the municipality falls within the purview of local police power; that the prevention within the municipality of the sale and offer for sale of unwholesome meat for human consumption tends to preserve the public health, and that an official ante mortem inspection of the animal and an official post mortem inspection of the carcass of the animal and an official approval or disproval of such animal and carcass from which the meat intended for such sale is obtained are appropriate means of preventing a sale or exposure for sale of diseased and unwholesome meat.'

The problem in that case squares with the problem in the instant case, except in the instant case only the element of possession is involved, not possession for sale. Does this difference warrant a judicial interpretation of the ordinance holding it to be unreasonable and beyond the necessities of the situation?

In 11 American Jurisprudence, 1092, Section 307, it is said: 'In accordance with the general principles governing the determination of the reasonableness of state legislation, the question of the reasonableness of an ordinance is one in the first instance for the determination of the body which enacted it. * * * it is not within the province of courts, except in...