Youngstown v. Evans

• Decision Date: 20 November 1929
• Docket Number: 21722,21775
• Parties: City Of Youngstown v. Evans.
• Court: Ohio Supreme Court

168 N.E. 844

121 Ohio St. 342

City Of Youngstown v. Evans.

Nos. 21722 , 21775

Supreme Court of Ohio

November 20, 1929

Municipal corporations - Local police, sanitary and similar regulations - Power only limited by general laws conflicting upon same subject matter - Statute fixing maximum fine for violating ordinance - Section 3628 General Code - Ordinance prescribing greater penalty for liquor violation, not invalidated thereby.

1.

The power conferred upon municipalities to enforce within their limits local police, sanitary and other similar regulations is only limited by general laws in conflict therewith upon the same subject matter.

2.

Section 3625, General Code, is not a law defining offenses and prescribing the punishment therefor, and is not therefore effective to bring an ordinance purporting to define and punish offenses in conflict with Section 3, Article XVIII, of the Constitution.

In cause No. 21722, John Evans was convicted in the municipal court of Youngstown, Ohio, upon a charge of transporting intoxicating liquors in violation of Section 197 of the Ordinances of the city of Youngstown, which provides that "Whoever * * * transports * * * any intoxicating liquors except as authorized by law shall be guilty of a misdemeanor and upon conviction thereof shall be punished as hereinafter provided." A fine of $250.00 and costs was imposed. Section 207 of the Youngs- town Ordinances provides the penalty for first and second offenses, and its provisions are identical as to the first and second offenses with the provisions of Section 6212-17, General Code, a section of what is known as the Crabbe Act. The ordinances make no provision for a third offense. The judgment was affirmed by the court of common pleas, but reversed by the Court of Appeals of Mahoning county, it being stated in the journal entry that the reversal was because the ordinance under which he was convicted was unconstitutional.

In cause No. 21775, Brown was convicted in the municipal court of Cleveland for a violation of Sections 2987, 2988, 2989 and 2990, of the Municipal Code of the City of Cleveland, relating to the traffic in intoxicating liquors. Section 2990 of the Cleveland Municipal Code, which provides the penalty for such violation, is identical with Section 6212-17, General Code, as to first, second and third offenses, except that the state law fixes a maximum penalty for a third offense of $2,000 and imprisonment not less than one year nor more than five years, whereas the ordinance provides that for a third offense he shall be imprisoned in the workhouse not less than ten days nor more than one year. Brown was convicted of a first offense and fined in the sum of $100. Thereafter a petition for writ of habeas corpus was filed in the Court of Appeals of Cuyahoga county alleging that he was unlawfully deprived of his liberty. The writ was granted, and he was discharged. Error was thereupon prosecuted to this court.

While the ground upon which the judgment of the Court of Appeals was based is not stated in the journal entries, it is conceded that it was upon the ground that the ordinance was iii conflict with Section 3628, General Code, that being the ground stated in the petition for the writ.

Mr. Carl Armstrong, director of law, Mr. J.P. Barrett, Mr. R.R. Thombs, and Mr. W.B. Spagnola, for plaintiff in error.

Messrs. Kaufman, Nieman & Kaufman, for defendant in error, in Case No. 21772.

Mr. Carl F. Shuler, director of law, Mr. Henry S. Brainard, and Mr. F.B. Douglass, for plaintiff in error.

Messrs. Gentsch & Lang, for defendant in error, in Case No. 21775.

MARSHALL C.J.

A single legal question is presented for determination, viz., whether the limitations of Section 3628, General Code, apply and control municipal legislation relating to "local police, sanitary and other similar regulations." Section 3628, General Code, provides that all municipal corporations shall have general power "to make the violation of ordinances a misdemeanor, and to provide for the punishment thereof by fine or imprisonment, or both, but such fine shall not exceed five hundred dollars and such imprisonment shall not exceed six months."

The ordinances of the cities of Youngstown and Cleveland, respectively, provide penalties in excess of this limitation. If the Code section is effective as a limitation, the ordinances are clearly invalid. Section 3, Article XVIII, of the 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."

It has been decided numerous times by this court that municipalities derive their authority to enact municipal legislation relating to minor offenses directly from the Constitution, limited only by the proviso that such municipal legislation shall not conflict with general laws. Section 3628 is a general law in the limited sense that it operates uniformly throughout the state. It is not a general law in the sense of prescribing a rule of conduct upon citizens generally. It is a limitation upon law making by municipal legislative bodies. Prior to the enactment of Sections 3 and 7 of Article XVIII of the Ohio Constitution in 1912, above code section was all powerful and supreme in its regulation of municipal law making. The amendments of 1912 necessarily operated as a repeal of any statutes then existing, 111 conflict therewith. This would have been true without any constitutional mandate to that effect. The Constitutional Convention of 1912 did not, however, leave that to inference, but submitted to the people for adoption, and the people in fact adopted, a schedule which provided that all statutes then in force consistent with the new Constitution should remain in force, and all repugnant statutes be by implication repealed. State v. Cameron, 89 Ohio St. 214, 106 N.E. , 28; Cass v. Dillon, 2 Ohio St. 607. It is apparent that the Constitution and Section 3628, General Code, pertain to the same subject matter, and that the statute restricts the power which tile Constitution confers.

The validity and scope of Section 3628 may prop- erly be tested by supposing an extreme case. Let it be supposed that it provided for a complete prohibition upon municipal legislation. Manifestly such a law would not be effective to take away the power conferred upon municipalities by the plain provisions of the Constitution. Or let it be supposed that Section 3628 provided that municipalities should not impose any fine in excess of one dollar for violation of any police or sanitary ordinance, and that it prohibited punishment by imprisonment altogether. No one would contend that such an in direct effort would be in any wise different in effect from a plain prohibition. This principle was discussed and decided in Fremont v. Keating,...