City of Columbus v. Kraner

• Decision Date: 23 February 1960
• Parties: , 83 Ohio Law Abs. 312, 13 O.O.2d 462 CITY OF COLUMBUS, Plaintiff-Appellee, v. Raymond F. KRANER, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 484

111 Ohio App. 484

169 N.E.2d 44, 83 Ohio Law Abs. 312, 13 O.O.2d 462

CITY OF COLUMBUS, Plaintiff-Appellee, v. Raymond F. KRANER, Defendant-Appellant.

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

Feb. 23, 1960.

James Maxwell, Jr., Columbus, for defendant-appellant.

Russell Leach, City Atty., and Bernard T. Chopka, City Prosecutor, Columbus, for plaintiff-appellee.

DUFFY, Judge.

The defendant-appellant was found guilty of a violation of the City of Columbus income tax law and was sentenced by the Municipal Court of that city. In the Municipal Court the defendant-appellant made a motion for the court to dismiss the action for the reason that the City of Columbus did not commence its prosecution within one year after the violation of the ordinance as required by Section 1905.33 of the Revised Code.

The defendant-appellant has appealed to this court and the only questions presented for out consideration were whether the trial court erred in overruling the motion for dismissal and was the action barred within one year from the date of the commission of the offense under the provisions of Section 1905.33 of the Revised Code, or did the City have three years within which to commence the action as provided by the ordinances of that city.

The City contends that their ordinance providing for a three year limitation is not unconstitutional as being in conflict with Section 1905.33 of the Revised Code because under the home rule provision of the Constitution, Article XVIII, Section 3, they have the power to exercise local self-government and to adopt and enforce rules providing for the collection and enforcement of the city income tax laws. The City further contends that under the rule of law laid down by the Supreme Court of Ohio in the case of Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519, the ordinance is not in conflict as it merely provides for a greater penalty than that indicated by the revised statute and is therefore constitutional. We were also referred to the case of City of Cincinnati v. Faig. Ohio Mun.App., 145 N.E.2d 563, in which a ten year statute of limitation was held constitutional by Judge Keefe of the Municipal Court of that city, who based his decision upon the case of City of Youngstown v. Evans, 121 Ohio St. 342, 168 N.E. 844, and Stary et al., v. City of Brooklyn et al., 162 Ohio St. 120, 121 N.E.2d 11. The City also refers to the case of City of Toledo v. Schudel, 90 Ohio App. 55, 103 N.E.2d 287, 289, involving the same question where the Court of Appeals for Lucas County recognized the power of the city when they held that

'* * * in the absence of exercise of any power by the city, either by charter or ordinance, under section 10, the statute controls. The charter itself so declares.

'There being no limitation by ordinance of the time for prosecuting this action, the statute controls, * * *.'

The defendant-appellant feels that Section 1905.33 of the Revised Code, which reads as follows:

'Actions for the recovery of fines, penalties, or forfeitures, or prosecutions for the commission of any offense made punishable by any ordinance of any municipal corporation, shall be commenced within one year after the violation of the ordinance, or commission of the offense.'

is a statute limiting prosecution by any ordinance of any municipal corporation and is a general law in conflict with the ordinance of the city which provides for a greater period of time in which the city may commence prosecutions for violations of their ordinances.

In the case of City of Youngstown v. Evans, supra, the syllabus reads as follows:

'1. The power conferred...