Feldman v. City of Cincinnati, No. 1005-1008.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtAlphonse G. Riesenberg, of Cincinnati, Ohio, for plaintiff Heimerdinger
Citation20 F. Supp. 531
PartiesFELDMAN v. CITY OF CINCINNATI et al., and three other cases.
Docket NumberNo. 1005-1008.
Decision Date12 July 1937

20 F. Supp. 531

FELDMAN
v.
CITY OF CINCINNATI et al., and three other cases.

Nos. 1005-1008.

District Court, S. D. of Ohio, W. D.

July 12, 1937.


20 F. Supp. 532
COPYRIGHT MATERIAL OMITTED
20 F. Supp. 533
Morris Feldman, of Cincinnati, Ohio, for plaintiff Feldman

Alphonse G. Riesenberg, of Cincinnati, Ohio, for plaintiff Heimerdinger.

Stricker & Johnson, of Cincinnati, Ohio, for plaintiff Terminal Barber Shops, Inc.

Myron H. Beitman, of Cincinnati, Ohio, for plaintiff Faulkner, Glacken & Corres, Inc.

John D. Ellis, City Sol., and Francis T. Bartlett and Ed F. Alexander, Asst. Sol., all of Cincinnati, Ohio, for defendants.

NEVIN, District Judge.

These cases are in this court upon pleadings filed as follows: In cause No. 1005 plaintiff filed his petition on January 2, 1937, to which defendant filed its answer on January 18, 1937. On March 4, 1937, by leave of court, plaintiff filed an amended petition. The answer remained as the answer to the amended petition. In cause No. 1006 the petition was filed on January 4, 1937, and the answer thereto on January 18, 1937. In cause No. 1007 the bill of complaint was filed on January 18, 1937, and the answer thereto on February 20, 1937. In cause No. 1008 the bill of complaint was filed on January 23, 1937, and the answer thereto on March 1, 1937.

Each case is separate and distinct from the other. The plaintiff is different in the respective cases. The defendants in all of the cases, however, are substantially the same, being in each instance the City of Cincinnati and some of its officials. In each case the court is asked to enjoin the enforcement of Ordinance No. 306-1936 of the Code of Ordinances of the City of Cincinnati, Ohio, upon the ground that the ordinance is unconstitutional and therefore null, void, and of no effect.

Plaintiffs collectively assert that the ordinance in question is in violation of certain sections of the Constitution of the State of Ohio, as follows: Cause No. 1005 charges violation of "Article 1, Section 1 of the Bill of Rights of the Constitution of the State of Ohio"; No. 1006 charges violation of "Section 19, Article 1, of the Constitution of the State of Ohio"; No. 1007 charges violation of "Section 34, Article 2, of the Constitution of Ohio," and of "Sections 3 and 7 of Article 18 of the Constitution of Ohio"; and No. 1008 charges violation of "the Constitution of the State of Ohio."

It is charged in each case that the ordinance is in violation of the Fourteenth Amendment to the Constitution of the United States, in that it deprives plaintiff in each instance of his or its liberty and property without due process of law, and by some that it violates the Fifth Amendment to the Constitution of the United States, in that it interferes with the liberty and freedom of contract. Plaintiffs claim that the ordinance is arbitrary, discriminatory and unreasonable and beyond the power of the City of Cincinnati to enact, and that the ordinance is not, as recited in its caption, in the interest of the public health, safety, and welfare.

The answer in each instance admits the formal allegations of the bill or petition, but denies in each instance that plaintiff will suffer irreparable loss and that the ordinance is in any respect unconstitutional, or that it is discriminatory, unreasonable, or arbitrary, or an abuse of the police power. In case No. 1007 there is a further denial to the effect that the matter in controversy exceeds, exclusive of interest and costs, the sum and value of $3,000. Defendants pray in each instance to have the bill or petition dismissed.

The cases were not consolidated for trial, so that each case is before the court upon its own record. However, by consent of all parties thereto, a hearing was held and evidence introduced at the same time with respect to cases Nos. 1005, 1006, and 1008. This hearing started on March 15, 1937. Subsequently, a separate hearing was held and evidence introduced in case No. 1007, on June 10, 1937. Much of the testimony offered and some of the documentary evidence admitted by way of exhibits the court felt and stated at the time appeared to be irrelevant and immaterial. It was concerning matters which properly might have been, and perhaps were, presented to the city council when that legislative body had the ordinance before it for consideration. This is true also of some of the arguments now advanced. Some testimony consisting wholly of the opinions of witnesses was entirely incompetent. As the record discloses, this evidence was permitted solely in order that all parties might thus present fully in the record their respective claims and theories, it being agreed that this procedure was in the interest of expedition and economy.

In its determination, however, of the issues involved, the court has considered only such evidence as it deems competent. From the competent evidence, the court

20 F. Supp. 534
finds that it has jurisdiction and that the matter in controversy, exclusive of interest and costs, exceeds in each case the sum and value of $3,000

Before entering upon a discussion of the questions presented, it seems pertinent to point out clearly just what is now before the court for its consideration and what is not, and to call attention to some fundamental principles which are so well settled as scarcely to need supporting citation.

In the instant cases the court has no right to consider or pass upon the wisdom of the legislation. This has been uniformly and repeatedly so decided, but nowhere better stated than by the Supreme Court in Nebbia v. New York (decided March 5, 1934) 291 U.S. 502, at pages 537, 538, 54 S.Ct. 505, 516, 78 L.Ed. 940, 89 A.L.R. 1469, where the court say: "With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. The course of decision in this court exhibits a firm adherence to these principles. Times without number we have said that the Legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power."

And again, in Arizona Employers' Liability Cases, 250 U.S. 400, at page 419, 39 S.Ct. 553, 555, 63 L.Ed. 1058, 6 A.L.R. 1537, where the court say: "Novelty is not a constitutional objection * * * States are left with a wide range of legislative discretion * * * and their conclusions respecting the wisdom of their legislative acts are not reviewable by the courts."

Nor can the court inquire into or concern itself with the motives, either of those who prompted the legislation or the members of council, who supported it and by whose vote it was enacted.

In Soon Hing v. Crowley, 113 U.S. 703, at page 710, 5 S.Ct. 730, 734, 28 L.Ed. 1145 (involving the constitutionality of an ordinance of the City of San Francisco), the court say: "And the rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them".

To the same effect, U. S. v. Des Moines Nav. & Railway Co., 142 U.S. 510, 12 S. Ct. 308, 35 L.Ed. 1099; Doyle v. Insurance Co., 94 U.S. 535, 24 L.Ed. 148; Yee Gee v. San Francisco (D.C.) 235 F. 757, 760.

The ordinance in question was passed by the council of the City of Cincinnati, Ohio, on December 2, 1936. It is entitled and reads as follows:

"An Ordinance No. 306 — 1936

"Prescribing the hours during which barber shops may be open for business by ordaining supplementary Sections 523 — 1, 523 — 2 and 523 — 3 of the Code of Ordinances.

"Whereas, in the opinion of Council it is in the interest of the public health, safety and welfare, to regulate the hours of business of barber shops; now, therefore,

"Be It Ordained by the Council of the City of Cincinnati, State of Ohio:

"Section 1. That the Code of Ordinances is hereby supplemented by ordaining Sections 523 — 1, 523 — 2 and 523 — 3 to read as follows:

"Sec. 523 — 1. It shall be unlawful for the owner of any barber shop or for any agent or employe of such owner to permit such barber shop to be open for the business of barbering for revenue, pay, free or otherwise, on Sundays, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day or at any times other than the following:

"(a) From 8:00 o'clock a. m. to 7:00 o'clock p. m. on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays, when they do not precede any of the aforementioned holidays;

"(b) From 8:00 o'clock a. m. to 8:00 o'clock p. m. on Saturdays and on any other week day when such week day immediately precedes any of the aforementioned holidays.

"Sec. 523 — 2. Except during the business hours permitted by Sec. 523 — 1, every barber shop shall be entirely closed and it shall be unlawful, by the use of blinds, shades, screens, painted or frosted glass or any other device, to prevent a free and unobstructed view of any such barber shop.

"Sec. 523 — 3. Any person violating Section 523 — 1, or Section 523 — 2 shall be

20 F. Supp. 535
fined not more than $200.00. Each day's violation shall constitute a separate offense

"Section 2. This ordinance shall take effect and be in force from and after the earliest period allowed by law."

An ordinance identical with the foregoing (except as to the prescribed hours) was passed by the city council of the City of Zanesville, Ohio, on August 13, 1934. Its validity was challenged upon exactly the same grounds as those relied upon by the various plaintiffs here. Wesley Wilson, owner of his own barbershop, was charged in the municipal court of the City of Zanesville, Ohio, with keeping his barbershop open after 6 o'clock p. m., on a certain date in violation of the ordinance. A demurrer was filed to the affidavit upon the ground "that the...

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12 practice notes
  • Pearce v. Moffatt, 6664
    • United States
    • United States State Supreme Court of Idaho
    • June 17, 1939
    ...v. Atlantic City, 99 N.J.L. 19, 122 A. 610; Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187, 189; Feldman v. Cincinnati, 20 F.Supp. 531. [60 Idaho 376] The suggestion urged that this statute is discriminatory because it has not been extended to beauty parlors is successfully an......
  • City of Cincinnati v. Correll, No. 29230.
    • United States
    • United States State Supreme Court of Ohio
    • June 2, 1943
    ...similar [49 N.E.2d 417]ordinances, and there have been decisions upholding their validity. See Feldman v. City of Cincinnati, D.C., 20 F.Supp. 531;Pearce v. Moffatt, 60 Idaho 370, 92 P.2d 146. In several of the cases to the contrary, spirited dissenting opinions occur. See, Eanes v. City of......
  • State Bd. of Barber Examiners v. Cloud, No. 27708.
    • United States
    • Indiana Supreme Court of Indiana
    • November 30, 1942
    ...of Hours Ordinances upheld: Falco v. Atlantic City, 1923, 99 N.J.L. 19, 122 A. 610;Feldman v. City of Cincinnati, D.C.1937, 20 F.Supp. 531;Pearce et al. v. Moffatt, 1939, 60 Idaho 370, 92 P.2d 146. Ordinances held unconstitutional: City of Atlanta v. Chaires, 1927, 164 Ga. 755, 139 S.E. 559......
  • City of Cleveland v. Brooks, No. 2011 CRB 37727.
    • United States
    • Court of Common Pleas of Ohio
    • May 9, 2012
    ...41 Ohio L. Abs. 129, 57 N.E.2d 425,judg. affd.(1944), 144 Ohio St. 49, 56 N.E.2d 185. See also Feldman v. Cincinnati (S.D.Ohio 1937), 20 F.Supp. 531. The exercise of the police power “is valid if it bears a real and substantial relationship to the public health, safety, morals or general we......
  • Request a trial to view additional results
12 cases
  • Pearce v. Moffatt, 6664
    • United States
    • United States State Supreme Court of Idaho
    • June 17, 1939
    ...v. Atlantic City, 99 N.J.L. 19, 122 A. 610; Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187, 189; Feldman v. Cincinnati, 20 F.Supp. 531. [60 Idaho 376] The suggestion urged that this statute is discriminatory because it has not been extended to beauty parlors is successfully an......
  • City of Cincinnati v. Correll, No. 29230.
    • United States
    • United States State Supreme Court of Ohio
    • June 2, 1943
    ...similar [49 N.E.2d 417]ordinances, and there have been decisions upholding their validity. See Feldman v. City of Cincinnati, D.C., 20 F.Supp. 531;Pearce v. Moffatt, 60 Idaho 370, 92 P.2d 146. In several of the cases to the contrary, spirited dissenting opinions occur. See, Eanes v. City of......
  • State Bd. of Barber Examiners v. Cloud, No. 27708.
    • United States
    • Indiana Supreme Court of Indiana
    • November 30, 1942
    ...of Hours Ordinances upheld: Falco v. Atlantic City, 1923, 99 N.J.L. 19, 122 A. 610;Feldman v. City of Cincinnati, D.C.1937, 20 F.Supp. 531;Pearce et al. v. Moffatt, 1939, 60 Idaho 370, 92 P.2d 146. Ordinances held unconstitutional: City of Atlanta v. Chaires, 1927, 164 Ga. 755, 139 S.E. 559......
  • City of Cleveland v. Brooks, No. 2011 CRB 37727.
    • United States
    • Court of Common Pleas of Ohio
    • May 9, 2012
    ...41 Ohio L. Abs. 129, 57 N.E.2d 425,judg. affd.(1944), 144 Ohio St. 49, 56 N.E.2d 185. See also Feldman v. Cincinnati (S.D.Ohio 1937), 20 F.Supp. 531. The exercise of the police power “is valid if it bears a real and substantial relationship to the public health, safety, morals or general we......
  • Request a trial to view additional results

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