Neil House Hotel Co. v. City of Columbus
| Decision Date | 13 December 1944 |
| Docket Number | 29967. |
| Citation | 58 N.E.2d 665,144 Ohio St. 248 |
| Parties | NEIL HOUSE HOTEL CO. v. CITY OF COLUMBUS et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The regulation and control of the manufacture and sale of beer and intoxicating liquors are within the province of the state in the exercise of its police power.
2. Under authority of Section 3, Article XVIII of the Constitution of Ohio, a municipality may adopt and enforce local police regulations fixing the time after which beer and intoxicating liquor may not be sold and consumed on the premises of those holding permits from the state Board of Liquor Control, so long as such regulations do not conflict with general laws on the same subject.
3. Sections 6064-15 and 6064-22, General Code, a part of the Liquor Control Act, and Regulation No. 30 of the Board of Liquor Control validly adopted and promulgated under the express provisions of Section 6064-3, General Code, permit the sale and consumption of beer and intoxicating liquors on the premises of designated permit holders after the hour of midnight, and a municipal ordinance which fixes midnight as the time when the sale and consumption of such beverages must cease, is in conflict therewith and invalid in that respect.
Certified by Court of Appeals, Franklin County.
The Neil House Hotel Company, an Ohio corporation operating an hotel in the city of Columbus, commenced its action in the Court of Common Pleas of Franklin county, against the city its mayor and other officials of such city, asking for a declaratory judgment invalidating so much of ordinance No. 395-42 of the city of Columbus as makes it an offense to sell or serve beer and intoxicating liquors on the premises of a permit holder after midnight of any day.
Plaintiff alleges in its petition that, since the passage of the Liquor Control Act in 1933, it has engaged in the business of selling beer, wines and spirituous liquors to its guests, patrons and customers and is the holder of permits D-1, D-2, D-3 and D-3a, issued by the Ohio Department of Liquor Control. It is further set forth that plaintiff paid fees of $100 each for permits D-1 and D-2, and $400 each for permits D-3 and D-3a, to the Department of Liquor Control; that such sums were accepted and collected for the benefit of the city of Columbus and have been or will be paid to it; and that ordinance No. 395-42 makes no provision for the return of any portion of such permit fees.
Continuing, it avers that those provisions of ordinance No. 395-42, prohibiting the sale or serving of beer and intoxicating liquors after midnight conflict with the Liquor Control Act and particularly with Sections 6064-3, 6064-15, 6064-20 and 6064-22, General Code, and with regulation No. 30 of the Ohio Board of Liquor Control.
Plaintiff next alleges that the enforcement of the ordinance will result in injury and damage to it and to other permit holders and will bring about a multiplicity of actions.
A copy of the ordinance complained of is attached to the petition and made a part thereof, as is regulation No. 30 of the Board of Liquor Control.
In a joint answer the defendants admit their official capacities and that plaintiff is the holder of the permits described, for which it paid the amounts as claimed. They also admit the provisions of ordinance No. 395-42, to which plaintiff objects.
After denying the other allegations of the petition, defendants, further answering, allege that the city of Columbus is a charter city enjoying 'home rule' and, under Section 3 of Article XVIII of the Constitution of Ohio, may exercise all powers of local self-government and adopt and enforce within its limits such local police, sanitary and other similar regulations as are not in conflict with general laws. Then follows a quotation of Sections 1, 2 and 3 of the charter of the city of Columbus, which set forth powers of the municipality and vest legislative power in a council of seven members.
In conclusion, the defendants pray for a judgment declaring the provisions of the challenged ordinance valid and constitutional.
A reply was filed, admitting all the allegations of the answer excepting denials of fact affirmatively alleged in the petition.
The cause was submitted to the court upon the pleadings, exhibits and a small amount of evidence, resulting in a judgment declaring that the protested parts of the ordinance are valid and constitutional; that they are not antagonistic to general laws; and that plaintiff and other holders of permits D-1, D-2, D-3 and D-3a are amenable to their terms. The temporary injunction theretofore allowed was dissolved.
Upon appeal on questions of law and fact, the Court of Appeals found that the provisions of the ordinance complained of were antagonistic to the general laws of Ohio, unconstitutional and invalid. Judgment was entered accordingly and the temporary injunction against enforcement of the ordinance therefore allowed was made permanent.
Thereafter the case was certified to this court, the judges of the Court of Appeals finding the judgment rendered to be in conflict with one pronounced by another Court of Appeals in the case of City of Coshocton v. Saba, 55 Ohio App. 40, 8 N.E.2d 572.
John L. Davies, City Atty., E. W. McCormick, and Richard W. Gordon, all of Columbus, for appellants.
Joseph F. Hogan and D. Curtis Reed, both of Columbus, for appellee.
Where the General Assembly has spoken through legislation, on a matter of state-wide concern, a municipal ordinance in conflict with such legislation must give way to the superior authority. City of Cincinnati v. Gamble et al., Board of Trustees, 138 Ohio St. 220, 34 N.E.2d 226; State ex rel. Arey v. Sherrill, City Manager, 142 Ohio St. 574, 53 N.E.2d 501, and cases cited therein.
The theory of the cases is that due consideration is to be given to all parts of a constitutional provision. Therefore, since Section 3, Article XVIII of the Constitution grants municipalities authority to exercise local self-government, with power to adopt and to enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws, it follows that when such regulations do conflict with general laws relating to affairs of state-wide interest, the general laws are paramount.
It may not be gainsaid that the control and regulation of the liquor traffic is within the province of the state government in the exercise of its police power. State ex rel. Zugravu v. O'Brien, 130 Ohio St. 23, 196 N.E. 664; Frankenstein v. Leonard et al. and Board of Liquor Control, 134 Ohio St. 251, 16 N.E.2d 424.
The General Assembly of Ohio has undertaken to control and regulate the production, sale and dispensing of beer, wine and spirituous liquors throughout the state and has created an agency called the Board of Liquor Control to execute and administer the laws and to regulate the conduct of those who engage in the manufacture and sale of alcoholic beverages.
Section 6064-3, General Code, accords the Board of Liquor Control quthority to promulgate rules and orders to carry out the provisions of the Liquor Control Act, including the designation of hours during which, and the persons to whom, beer and intoxicating liquors may be sold. As has been noted, the instigator of this action is the holder of permits D-1, D-2, D-3 and D-3a, for which it paid the stipulated fees to the state. Section 6064-15, General Code, describes the various classes of permits which may be issued. Among other things, that section provides that one who holds permits such as are possessed by plaintiff may sell beer and intoxicating liquors after the hour of 1:00 a.m. It is stated in Section 6064-22, General Code, that states of beer and intoxicating liquors under all classes of permits may not be made after 2:30 a.m. on Sunday. Pursuant to specific grant, the Board of Liquor Control promulgated its regulation No. 30, prohibiting the sale and consumption of beer and intoxicating liquors on the premises of a D-3a permit holder between the hours of 2:30 a.m. and 5:30 a.m.
There can be no question as to the validity and efficacy of regulation No. 30, adopted and promulgated by express authorization of Section 6064-3, General Code. It constitutes the due exercise of administrative power adequately conferred and represents, in effect, the voice of the General Assembly heard through an agency of its creation. See Coady v. Leonard et al., Board of Liquor Control, 132 Ohio St. 329, 7 N.E.2d 649, and compare State ex rel. Kildow v. Industrial Commission, 128 Ohio St. 573, 580, 192 N.E. 873, 876; Zangerle, Aud., v. Evatt, Tax Com'r, 139 Ohio St. 563, 572, 41 N.E.2d 369, 373.
From a perusal of the pertinent statutes and regulation No. 30, it is difficult to escape the conclusion that plaintiff, under state authorization, may lawfully sell beer and intoxicants to its customers after the hour of midnight and that a municipal ordinance fixing midnight as the time when the sale of such beverages must cease, is invalid. See Village of Struthers
v. Sokol, 108 Ohio St. 263, 140 N.E. 519. See, also, Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88.
When the statutes and a valid regulation of the Board of Liquor Control say that the sale of intoxicants may not be made after a designated hour, it is equivalent to saying that sales up to that time are lawful, and an ordinance which attempts to restrict sales...
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