City of Toledo v. Kohlhofer

• Decision Date: 15 March 1954
• Citation: 122 N.E.2d 20,96 Ohio App. 355
• Parties: , 54 O.O. 360 CITY OF TOLEDO, Appellant, v. KOHLHOFER, Appellee.
• Court: Ohio Court of Appeals

Page 355

96 Ohio App. 355

122 N.E.2d 20, 54 O.O. 360

CITY OF TOLEDO, Appellant, v. KOHLHOFER, Appellee.

Court of Appeals of Ohio, Lucas County.

March 15, 1954.

Syllabus by the Court.

1. The Court of Appeals has jurisdiction to review a judgment of a Municipal Court in a criminal case adverse to a municipality upon an appeal taken therefrom by such municipality.

2. In reviewing an appeal from a judgment of a Municipal Court in a criminal case, the Court of Appeals takes judicial notice of the ordinance pursuant to which the action is brought.

3. The unconstitutionality of an ordinance upon which a criminal charge is brought may be raised by demurrer to the affidavit charging the offense, but every reasonable presumption must be indulged in favor of its constitutionality and a clear incompatibility between the ordinance and the Constitution must exist to justify a court in holding the ordinance unconstitutional.

4. The presumption of constitutionality of an ordinance (claimed to prescribe an unreasonable and arbitrary classification) continues until the invalidity of the ordinance appears beyond every substantial doubt and must be determined from its operation and effect rather than its form or phraseology and ordinarily may not be determined upon demurrer but must be determined from the evidence adduced at the trial.

5. Variance in the penalty or the requirement of proof of knowledge between a statute and an ordinance relating to the same offense does not constitute a conflict in violation of Section 3, Article XVIII of the Constitution.

6. The provision of the Charter of the city of Toledo that an ordinance shall not contain more than one subject which shall be clearly stated in the title thereof is directory in character.

7. The doctrine of crime without intent is applicable to but a limited class of malum prohibitum offenses and under an ordinance in aid of the police power, the phraseology of which is such that an element of specific intent inheres in the offense defined, an affidavit which in terms fails to include the element of intent is invalid and a demurrer thereto should be sustained.

8. The primary function of an affidavit charging the violation of an ordinance is to apprise the accused of the offense of which he is charged, but notwithstanding the liberal provisions of the Code of Criminal Procedure, if a vital and material element identifying or characterizing the offense is omitted, the affidavit is insufficient to charge the offense.

9. Under an ordinance providing in substance that whoever sells an article intended for the prevention of conception, an affidavit charging a violation thereof omitting therefrom the element of knowledge and intent is insufficient to charge the offense.

Robert Dorrell, Toledo, for appellant.

Hartman, Wynn & Carter, Indianapolis, Ind., and Dan H. McCullough, Toledo, for appellee.

FESS, Judge.

This is an appeal by the city of Toledo on questions of law from a judgment of the Municipal Court of Toledo sustaining a demurrer and dismissing an affidavit charging that the defendant 'did, at 2 N. Erie Street in the city of Toledo, Ohio, sell, offer for sale and did exhibit a device or article, to wit: a rubber device commonly known as a condom, intended for the prevention of conception, the same being contrary to Section 17-10-8 of the Municiple [sic] Code for the city of Toledo, Ohio.'

Although no provision is made for an appeal from a judgment adverse to a municipality in Chapter 2953 of the Revised Code, Section 13459-1 et seq., General Code, such an appeal is authorized to be taken either to the Common Pleas Court or the Court of Appeals by Section 1901.30, Revised Code, Section 1609, General Code, in accordance with the provisions of Chapter 2505 of the Revised Code, Section 12223-1 et seq., General Code, as well as Chapter 2953 of the Revised Code, Section 13459-1 et seq., General Code. Cf. State v. Brunswick, 69 Ohio App. 407, 44 N.E.2d 116. Procedure on criminal appeals specifically provided in Chapter 2953, Revised Code, must govern, but in the absence of such specific provision, the provisions of Chapter 2505, Revised Code, are to be applied.

In determining this appeal, this court takes judicial notice of the ordinance of the city under which the charge is brought. Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R. 954; Page v. Wieland, 137 Ohio St. 198, 204, 28 N.E.2d 583, and Village of Strongsville v. McPhee, 142 Ohio St. 534, 539, 53 N.E.2d 522.

Ordinance 17-10-8 reads as follows:

1. 'Whoever sells, lends, gives away, exhibits, or offers to sell, lend, give away or exhibit, or publishes or offers to publish or has in his possession for such purpose, an obscene, lewd, or lascivious book, pamphlet, writing, advertisement, circular, print, picture, photograph, drawing, representation, figure, image, cast, instrument or article of an indecent or immoral nature, or a drug, medicine, article or thing intended for the prevention of conception or for causing an abortion, or advertises any of them for sale or writes, prints or causes to be written, or printed a card, book, pamphlet, advertisement, or notice giving information when, where, how, of whom or by what means any of such articles or things can be purchased or obtained, or manufactures, draws, prints or makes such articles or things, or sells, gives away or shows to a minor, a book, pamphlet, magazine, newspaper story, paper or other paper devoted to the publication or principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures and stories of immoral deeds, lust or crime, or exhibits upon a street or highway or in a place which may be within the view of a minor, any of such books, papers or pictures, shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) or imprisoned not more than six months, or both.' (Italics supplied.)

2. 'This section shall not affect the publication of standard medical books, or regular practitioners of medicine, or druggists in their legitimate business.'

The grounds of the demurrer are:

1. That the facts stated in the affidavit do not constitute an offense against the ordinances of the city of Toledo or the laws of Ohio.

2. That the ordinance is unconstitutional, arbitrary and capricious, and seeks to establish an unreasonable classification of persons who may sell condoms solely for the purpose of creating a monopoly.

The unconstitutionality of a statute or ordinance upon which the charge is brought may be raised by demurrer on the ground that the statute is unconstitutional on its face. But the well-established canon of construction that every reasonable presumption be indulged in favor of the constitutionality of a statute applies to the power of municipalities to adopt and enforce such local regulations under the police power as are not in conflict with general laws. Leis v. Cleveland Ry. Co., 101 Ohio St. 162, 128 N.E. 73; City of Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24. It is also held in many Ohio decisions that a clear incompatibility between a law and the Constitution must exist before the judiciary is justified in holding the law unconstitutional. 8 Ohio Jurisprudence, 162, section 63; City of Xenia v. Schmidt, supra; L. & M. Investment Co. v. Cutler, 125 Ohio St. 12, 19, 180 N.E. 379, 86 A.L.R. 707.

The demurrer admits the truth of well-pleaded allegations of the affidavit, State v. Peters, 112 Ohio St 249, 252, 147 N.E. 81, and in ruling upon a demurrer, the court should treat as admitted all facts well pleaded in the affidavit or complaint attacked, and may not consider any fact dehors the pleading or the record. 42 C.J.S., Indictments and Informations, § 223, p. 1233. Although section 2 of the ordinance provides that it shall not affect regular practitioners of medicine or druggists in their legitimate business, in the absence of evidence clearly disclosing that the classification is unreasonable in violation of the Constitution, the contention of the defendant that the ordinance on its face is unconstitutional is not sustained. The presumption of constitutionality continues until its invalidity is 'proved' beyond every substantial doubt, and must be determined from its operation and effect rather than from the form it may be made to assume. Butzman v. Whitbeck, 42 Ohio St. 223.

Defendant is charged with selling, offering for sale and exhibiting an article known as a condom intended for the prevention of conception. The ordinance prohibits the selling, offering for sale or exhibiting an article or thing intended for the prevention of conception. The complaint, therefore, upon its face, states a valid cause of action under the ordinance.

Except for the penalty, the ordinance at the time of its adoption was copied almost verbatim from Section 13035, General Code, which at the time of the adoption of the ordinance did not include knowledge as an element of the offense. (In the interest of raising revenue municipalities are too often prone to re-enact statutory penalties.) In 1943, 120 Ohio Laws, 230, Section 13035, General Code, was amended in several respects and provided that whoever knowingly sells, etc., but the ordinance has not been subsequently amended to conform to the 1943 amendment.

Municipalities are invested with authority to adopt and enforce within their limits such local police, sanitary and other similar regulations 'as are not in conflict with general laws.' Section 3, Article XVIII, Ohio Constitution. The variance between the general law of the state and the ordinance is that the state law requires knowledge and imposes a penalty of a fine not less than $200 nor more than $2,000, or imprisonment of not more than seven years and the ordinance lacks the element of scienter and imposes merely a fine of not less than $50 nor more than $500, or imprisonment of not more than six months. Violation of the...