Wilson v. City of Zanesville
| Decision Date | 11 December 1935 |
| Docket Number | 25401. |
| Citation | 130 Ohio St. 286,199 N.E. 187 |
| Parties | WILSON v. CITY OF ZANESVILLE. |
| Court | Ohio Supreme Court |
Error to Court of Appeals, Muskingum County.
Proceeding by the City of Zanesville against Wesley Wilson. Judgment of the common pleas court affirming a judgment of the municipal court sustaining defendant's demurrer and discharging defendant was reversed and remanded by the Court of Appeals and defendant brings error.-[Editorial Statement.]
Judgment of the Court of Appeals affirmed.
The plaintiff in error, Wesley Wilson, was charged in the municipal court of the city of Zanesville, Ohio, with keeping his barber shop, located in that city, open after 6 o'clock p. m. on October 19, 1934, in violation of a city ordinance passed August 13, 1934. The first nine sections provide for licensing barbers and the regulation of barber shops. The charge is based on section 10, which reads as follows: ‘ It shall be unlawful for any person persons, firm or corporation to operate, conduct, or maintain any barber shop or any place where barbering is done, in the City of Zanesville, Ohio, to be open for business of barbering for revenue, pay, free or otherwise, before eight o'clock a. m. and after six o'clock p. m. on the following days, towit: Monday, Tuesday, Wednesday, and Friday of each week, and to be open for business at eight o'clock a. m. and close at twelve o'clock noon on Thursday of each and every week; on Saturday of each and every week and on all days, except Sunday, previous to the following holidays, to-wit: New Year's day, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas to open at eight a. m. and close at eight o'clock p. m.’
Section 11 provides a penalty by way of a fine.
Counsel for plaintiff in error states in his brief that his client Wesley Wilson, owns his barber shop and does not employ any other person, but does the work himself.
The defendant filed a motion to quash the affidavit which was overruled; thereupon a demurrer was filed setting forth that the affidavit did not state facts sufficient to constitute an offense for the reason that the ordinance on which it was based is in contravention of the Constitution of Ohio, and particularly the Fourteenth Amendment to the Constitution of the United States, and therefore was not a proper exercise of the police power.
The municipal court sustained the demurrer and discharged the defendant. Error was prosecuted by the city to the common pleas court. On hearing before that tribunal, the judgment was affirmed. Thereupon error was prosecuted to the Court of Appeals and in that court judgment of reversal was entered and the cause remanded, with directions to overrule the demurrer. Thereupon the plaintiff in error filed a petition in error as of right in this court, and the cause has been submitted on the merits.
Syllabus by the Court .
1. By the terms of sections 3 and 7 of article XVIII of the Constitution of Ohio, municipalities have power and authority to pass local police, sanitary, and other similar regulations, provided they are not in conflict with general laws.
2. Regulations which are reasonable and have a definite relation to the public health, morals, and safety, or to the general welfare, constitute a valid exercise of the police power.
3. A municipal ordinance which requires the closing of barber shops before 8 o'clock a. m. and after 6 o'clock p. m. on Monday, Tuesday, Wednesday, and Friday, before 8 o'clock a. m. and after 12 o'clock noon on Thursday, and before 8 o'clock a. m. and after 8 o'clock p. m. on Saturday and days (other than Sunday) prior to certain named holidays, is not unreasonable, has a real and substantial relation to public health, morals, and safety, is a valid exercise of the police power, and is constitutional.
William Freilich, of Zanesville, for plaintiff in error.
Graham & Graham, of Zanesville, for defendant in error.
The inquiry presented is whether the provisions of the ordinance requiring the closing of barber shops in Zanesville before 8 o'clock a. m. and after 6 o'clock p. m. on Monday, Tuesday, Wednesday, and Friday, and before 8 o'clock a. m. and after 12 o'clock noon on Thursday, and before 8 o'clock a. m. and after 8 o'clock p. m. on Saturday or days (other than Sunday) before certain named holidays, are within a proper exercise of the police power.
The first question requiring attention is the power of the municipality as to local police regulations generally. Section 34 of Article II of the Constitution of Ohio provides: ‘ Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.’
In our judgment the word ‘ laws' does not embrace municipal ordinances, and therefore this provision defines the legislative power of the General Assembly of Ohio only. However, under the prevailing constitutional provisions, all municipalities derive their power of local self-government and their local police power from the Constitution itself. Village of Perrysburg v. Ridgway, 108 Ohio St. 245, 140 N.E. 595; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519.
Section 3, article XVIII, of the Ohio Constitution 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 7 of the same article provides: ‘ Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.’
Zanesville is a charter or home rule city, and in the exercise of its local police power has the same authority to adopt and enforce ordinances as a city which has not adopted an independent charter, namely, ‘ such local police, sanitary and other similar regulations as are not in conflict with general laws.’
Are we confronted with such a conflict in the instant case? The Legislature of this state has passed a regulatory measure relating to barbers. Sections 1081-1 to 1081-27, General Code. This act, however, does not purport to cover hours of labor by barbers or the number of hours in a day or week barber shops may be kept open. This latter field has therefore not been preempted by the state lawmaking body, and the provisions under consideration are not in conflict with general laws.
There is, therefore, no question of the authority of the municipality to pass this legislation provided it is within a proper exercise of the police power.
Under the Fourteenth Amendment of the Federal Constitution, neither the state nor the municipality, which is an arm of the state, can ‘ deprive any person of life, liberty, or property, without due process of law.’ Section 16 of article I of the Ohio Constitution contains a similar provision in which the words ‘ due course of law’ are equivalent in meaning to ‘ due process of law.’ Salt Creek Valley Turnpike Co. v. Parks, 50 Ohio St. 568, at page 579, 35 N.E. 304, 28 L.R.A. 769; State v. French, 71 Ohio St. 186, at page 201, 73 N.E. 216,104 Am.St.Rep. 770,1 Ann.Cas. 948. This section of our State Constitution must be read in the light of sections 1 and 19 of the same article, which, among other things, protect individual liberty and private property.
These constitutional provisions, however, are always subject to a valid exercise of the police power.
The specific problem involved in the instant case, as stated by counsel for plaintiff in error in his brief, is ‘ whether the ordinance is reasonable and also how far the police power of the state of Ohio and a municipal corporation can go in regulating business hours.’
What is said in the recent case of Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 510, 78 L.Ed. 940, 89 A.L.R. 1469, is pertinent:
‘ The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained . It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. * * *
‘ The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. * * *
‘ Laws passed for the suppression of immorality, in the interest of health, to secure fair trade practices, and to safeguard the interests of depositors in banks, have been found consistent with due process . These measures not only affected the use of private property, but also interfered with the right of private contract. Other instances are numerous where valid regulation has restricted the right of contract, while less directly affecting property rights.
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