City of Wooster v. Gentile

188 N.E.2d 172, 116 Ohio App. 386, 22 Ohio Op. 2d 211, 1962 Ohio App. LEXIS 667

• Court: Ohio Court of Appeals
• Decided: June 6, 1962
• Docket: 1203 and 1205
• Status: Published

Opinion

SteveNS, P. J.

These two appeals on questions of law involve the same subject matter, and were heard and submitted together.

Appellants were charged under chapter 35 of the ordinances of the city of Wooster, captioned “Hawkers, Peddlers and Itinerant Vendors.” A copy of such ordinance follows:

“735.01. Peddler’s and Solicitor’s License.

“No person shall sell or offer for sale, barter or exchange, or go from door to door soliciting the purchase of, or gift of any goods, wares, merchandise or other articles of value or money, in any place in, upon, along or through the streets, alleys or other public places within the city, unless he be the holder of a license which is in full force and effect and issued pursuant to the provisions of this chapter, which license said person shall at all times have with him while exercising such calling, and shall exhibit said license to any police officer or city official upon demand.

“735.02. Application for License; Fee.

“Any person desiring to sell or offer for sale, barter or exchange or to solicit from door to door the purchase of, or gift of any goods, wares, merchandise or other articles of value or money, within the city, shall make application to the mayor who, upon being furnished with sufficient proof that said person is of good moral character, shall issue to said applicant a license and shall charge for the same the following amount:

“(a) To all peddlers who use motor or horsedrawn vehicles the license fee shall be ten dollars ($10.00) per calendar year, or

“ (b) Seven dollars and fifty cents ($7.50) for the last nine months, or

“(e) Five dollars ($5.00) for the last six months, or

“ (d) Two dollars and fifty cents ($2.50) for the last three months or fraction thereof.

“(e) All other peddlers and solicitors except as hereinafter exempted shall be charged for a license the sum of one dollar ($1.00). All licenses issued hereunder shall expire on the thirty-first day of December following the date of issuance.

“735.03. Exemptions.

‘ ‘ The following persons are declared exempt from the payment of any license fee for the licenses mentioned in this chap ter, to wit: any person selling the products of Ms own raising; a manufacturer selling any article manufactured by Mm; a person selling newspapers; a duly authorized solicitor, soliciting the purchase of goods, wares, merchandise, or gift for or on behalf of any recognized educational, civic, religious or charitable organization and all other persons otherwise exempted by law; provided however, it shall be unlawful for any such person to engage in the operation of selling or soliciting, as more fully described in C. 0. 735.02 without first obtaining a permit from the city so to do, which permit shall be issued without fee, shall be revocable for cause, and shall expire on the thirty-first day of December following the date of issuance.

“ 735.04. Hours.

“No person shall sell or offer for sale, barter or exchange or solicit from door to door the purchase of, or gift of any goods, wares, merchandise or other articles of value or money, within the city during the period from thirty minutes after sunset of any day to thirty minutes before sunrise of the next succeeding day.

“735.05. Revocation or Suspension of License.

“Any license issued hereunder may be revoked or suspended at any time, should the person to whom it is issued be guilty of any fraud, misrepresentation, deception or wrongful act in connection with his business or otherwise, or is found to be a person not fit to be engaged in such business. But in any event all licenses issued under this chapter shall terminate on the thirty-first day of December following the date of issuance.

“735.99. Penalty.

“Whoever violates this chapter, shall be deemed guilty of a misdemeanor and fined not to exceed fifty dollars ($50.00); and in addition his license may be revoked by the mayor. ’ ’

After trial, the defendants were found guilty by the judge, who sat as the trier of the facts. From the judgment of the court, defendants appeal.

We have not been favored with a brief by counsel for ap-pellee.

It is necessary to discuss only one assignment of error, and one of the defenses interposed by defendants, in order to reverse the judgments entered herein.

That defense and assignment of error assert that ordinance No. 735.01 et seq. of the city of Wooster is invalid because it violates Section 3, Article XVIII of the Constitution of Ohio, which 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.”

Sections 715.63 and 715.61, Revised Code, provide:

Section 715.63. “Any municipal corporation may license exhibitors of shows or performances of any kind, hawkers, peddlers, auctioneers of horses and other animals on the highways or public grounds of the municipal corporation, vendors of gunpowder and other explosives, taverns, houses of public entertainment, and hucksters in the public streets or markets. The municipal corporation may, in granting such license, charge such fee as is reasonable. No municipal corporation may require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, a license to vend or sell, by himself or his agent, any such article or product. The legislative authority of such municipal corporation may delegate to the mayor of the municipal corporation the authority to grant, issue, and revoke licenses.” (Emphasis ours.)

Section 715.64. “Any municipal corporation may license transient dealers, persons who temporarily open stores or places for the sale of goods, wares, or merchandise, and each person who, on the streets or traveling from place to place about such municipal corporation, sells, bargains to sell, or solicits orders for goods, wares, or merchandise by retail. Such license shall be granted as provided by Section 715.63 of the Revised Code.

“This section does not apply to persons selling by sample only, nor to any agricultural articles or products offered or exposed for sale by the producer(Emphasis ours.)

It is charged by appellants that ordinance 735.01 et seq. fails to include therein the exceptions contained in Sections 715.63 and 715.64, Revised Code, hence is in direct conflict with general laws, and therefore unconstitutional.

This court finds that claim to be substantiated by the record before us, and that by reason thereof the Municipal Court of Wooster was without jurisdiction to entertain these actions.

The judgments are, accordingly, reversed, set aside and held for naught, and the canses remanded with instructions to discharge the defendants, at the costs of appellee.

Judgments reversed.

HuNSIcker and Doyle, JJ.,'concur.