Taft, C. J.
Because of the concurring opinion by Judge Schneider, we will first consider whether plaintiff has a right to maintain this action.
It is alleged in the petition that plaintiff is a taxpayer of the city of Oberlin and brings this action on behalf of the city, that as such taxpayer plaintiff duly requested in writing the city solicitor to bring this action, and that said solicitor declined in writing to bring the action. Defendant’s answer admits that plaintiff is a taxpayer of the city, and that the solicitor ‘ ‘ did decline in writing to bring this action. ’ ’
It is further alleged in the petition and denied in the answer “that the administration of said ordinance will entail the expenditure of funds of the city” and involve abuse of its corporate powers and misapplication of corporate funds.
The prayer of the petition is “for a declaratory judgment as to the validity of” the ordinance and for an injunction against its enforcement.
[146]*146Section 733.59, Revised Code, provides in part:
“If the solicitor fails, upon the written request of any taxpayer of such municipal corporation, to make any application provided for in Sections 733.56 * * * such taxpayer may institute suit in his own name, on behalf of the municipal corporation. * * *”
Section 733.56 provides in part:
“The solicitor shall apply, in the name of the municipal corporation # * * for an order of injunction to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers * *
As stated in paragraph six of the syllabus of Elyria Gas and Water Co. v. City of Elyria (1898), 57 Ohio St. 374:
“The abuse of corporate powers, within the purview” of Section 733.56 “includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of potoer not conferred.” (Emphasis supplied.)
There is evidence in the record that the enforcement of this ordinance will involve the expenditure of public funds. Even without such evidence, a reading of the ordinance makes it apparent that such an expenditure would be involved.
In our opinion, therefore, plaintiff has a right to maintain this action.
Section 3 of Article XVIII of the Ohio Constitution confers upon “municipalities * * * authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police * * * regulations, as are not in conflict with general laws.”
Therefore, unless the Oberlin fair housing ordinance conflicts with the charter of Oberlin, with general laws of the state or with some limitation on legislative power set forth in the Constitution of Ohio or the Constitution of the United States, its validity must be sustained.
Plaintiff contends first that the Oberlin fair housing ordinance violates the provisions of the Ohio Constitution for the reason that it constitutes an unreasonable deprivation of individual property and contract rights.
Plaintiff relies on that portion of Section 1, Article I of the Ohio Constitution, which reads that “All men are by nature [147]*147free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property * * *,” and on that portion of Section 19, Article I, which provides that “Private property shall ever be held inviolate, but subservient to the public welfare. * *
The Oberlin fair housing ordinance does not interfere with any rights to acquire or possess property. On the contrary, its obvious purpose is to support such rights by preventing interference therewith on the grounds of race, creed or color.
Plaintiff’s argument is that the ordinance imposes restrictions on an owner’s freedom to dispose of his property by sale, and that “property,” as used in those constitutional provisions, includes an unrestricted right of disposal. He argues also that the ordinance imposes a limitation on a landowner’s freedom to contract on his own terms with whom he pleases.
However, unlike the ordinance involved in Buchanan v. Warley (1917), 245 U. S. 60, 62 L. Ed. 149, 38 S. Ct. 16, the Oberlin ordinance does not limit those to whom a sale or rental may be made. On the contrary, it prohibits the owner from so limiting those to whom such sale or rental may be made and thereby limiting the demand for what he may have to dispose of.
Furthermore, unlike the legislation involved in some other cases, the ordinance here involved does not require a sale, — it merely provides for a fine not exceeding $100 and costs.
Actually, the only limitation imposed by this Oberlin ordinance on a landowner’s right of disposal or on his right to contract is the requirement that he shall not discriminate against any person purely because of race, creed or color. He may, as between persons, require a difference in treatment in the sale or rental of his property as long as he has valid reasons for such a difference other than the race, creed or color of such persons.
In substance, plaintiff’s argument is that the constitutional provisions upon which he relies give an owner the right to discriminate against another person in the sale or rental of his property or in the terms, conditions or privileges of such sale or rental, and to so discriminate purely because of race, creed or color. To permit such discrimination would obviously, [148]*148to use the words of Section X, Article I of the Ohio Constitution, interfere with the “inalienable rights * * * 0f * * * acquiring * * * property” of the person discriminated against.
Agreements among property owners imposing restrictions against occupancy of their properties by persons other than those of the Caucasian race were involved in Shelley v. Kraemer (1948), 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 836; Hurd v. Hodge (1948), 334 U. S. 24, 92 L. Ed. 1187, 68 S. Ct. 847; and Barrows v. Jackson (1953), 346 U. S. 249, 97 L. Ed. 1586, 73 S. Ct. 1031.
In Shelley, it was held that a state court injunction enforcing such agreement against a Negro was forbidden by the part of the Fourteenth Amendment to the Constitution of the United States providing that “No state shall * * * deny to any person within its jurisdiction the equal protection of the laws.”
In Hurd, it was held that such an injunction should not be given by a District of Columbia federal court because it would be against the public policy of the United States to permit a federal court in the District of Columbia to give equitable relief on such an agreement where the Constitution of the United States would prevent a state court from giving such relief.
In Barrows, it was held that one party to such an agreement could not maintain an action for damages against another party thereto for breach of the agreement.
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Taft, C. J.
Because of the concurring opinion by Judge Schneider, we will first consider whether plaintiff has a right to maintain this action.
It is alleged in the petition that plaintiff is a taxpayer of the city of Oberlin and brings this action on behalf of the city, that as such taxpayer plaintiff duly requested in writing the city solicitor to bring this action, and that said solicitor declined in writing to bring the action. Defendant’s answer admits that plaintiff is a taxpayer of the city, and that the solicitor ‘ ‘ did decline in writing to bring this action. ’ ’
It is further alleged in the petition and denied in the answer “that the administration of said ordinance will entail the expenditure of funds of the city” and involve abuse of its corporate powers and misapplication of corporate funds.
The prayer of the petition is “for a declaratory judgment as to the validity of” the ordinance and for an injunction against its enforcement.
[146]*146Section 733.59, Revised Code, provides in part:
“If the solicitor fails, upon the written request of any taxpayer of such municipal corporation, to make any application provided for in Sections 733.56 * * * such taxpayer may institute suit in his own name, on behalf of the municipal corporation. * * *”
Section 733.56 provides in part:
“The solicitor shall apply, in the name of the municipal corporation # * * for an order of injunction to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers * *
As stated in paragraph six of the syllabus of Elyria Gas and Water Co. v. City of Elyria (1898), 57 Ohio St. 374:
“The abuse of corporate powers, within the purview” of Section 733.56 “includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of potoer not conferred.” (Emphasis supplied.)
There is evidence in the record that the enforcement of this ordinance will involve the expenditure of public funds. Even without such evidence, a reading of the ordinance makes it apparent that such an expenditure would be involved.
In our opinion, therefore, plaintiff has a right to maintain this action.
Section 3 of Article XVIII of the Ohio Constitution confers upon “municipalities * * * authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police * * * regulations, as are not in conflict with general laws.”
Therefore, unless the Oberlin fair housing ordinance conflicts with the charter of Oberlin, with general laws of the state or with some limitation on legislative power set forth in the Constitution of Ohio or the Constitution of the United States, its validity must be sustained.
Plaintiff contends first that the Oberlin fair housing ordinance violates the provisions of the Ohio Constitution for the reason that it constitutes an unreasonable deprivation of individual property and contract rights.
Plaintiff relies on that portion of Section 1, Article I of the Ohio Constitution, which reads that “All men are by nature [147]*147free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property * * *,” and on that portion of Section 19, Article I, which provides that “Private property shall ever be held inviolate, but subservient to the public welfare. * *
The Oberlin fair housing ordinance does not interfere with any rights to acquire or possess property. On the contrary, its obvious purpose is to support such rights by preventing interference therewith on the grounds of race, creed or color.
Plaintiff’s argument is that the ordinance imposes restrictions on an owner’s freedom to dispose of his property by sale, and that “property,” as used in those constitutional provisions, includes an unrestricted right of disposal. He argues also that the ordinance imposes a limitation on a landowner’s freedom to contract on his own terms with whom he pleases.
However, unlike the ordinance involved in Buchanan v. Warley (1917), 245 U. S. 60, 62 L. Ed. 149, 38 S. Ct. 16, the Oberlin ordinance does not limit those to whom a sale or rental may be made. On the contrary, it prohibits the owner from so limiting those to whom such sale or rental may be made and thereby limiting the demand for what he may have to dispose of.
Furthermore, unlike the legislation involved in some other cases, the ordinance here involved does not require a sale, — it merely provides for a fine not exceeding $100 and costs.
Actually, the only limitation imposed by this Oberlin ordinance on a landowner’s right of disposal or on his right to contract is the requirement that he shall not discriminate against any person purely because of race, creed or color. He may, as between persons, require a difference in treatment in the sale or rental of his property as long as he has valid reasons for such a difference other than the race, creed or color of such persons.
In substance, plaintiff’s argument is that the constitutional provisions upon which he relies give an owner the right to discriminate against another person in the sale or rental of his property or in the terms, conditions or privileges of such sale or rental, and to so discriminate purely because of race, creed or color. To permit such discrimination would obviously, [148]*148to use the words of Section X, Article I of the Ohio Constitution, interfere with the “inalienable rights * * * 0f * * * acquiring * * * property” of the person discriminated against.
Agreements among property owners imposing restrictions against occupancy of their properties by persons other than those of the Caucasian race were involved in Shelley v. Kraemer (1948), 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 836; Hurd v. Hodge (1948), 334 U. S. 24, 92 L. Ed. 1187, 68 S. Ct. 847; and Barrows v. Jackson (1953), 346 U. S. 249, 97 L. Ed. 1586, 73 S. Ct. 1031.
In Shelley, it was held that a state court injunction enforcing such agreement against a Negro was forbidden by the part of the Fourteenth Amendment to the Constitution of the United States providing that “No state shall * * * deny to any person within its jurisdiction the equal protection of the laws.”
In Hurd, it was held that such an injunction should not be given by a District of Columbia federal court because it would be against the public policy of the United States to permit a federal court in the District of Columbia to give equitable relief on such an agreement where the Constitution of the United States would prevent a state court from giving such relief.
In Barrows, it was held that one party to such an agreement could not maintain an action for damages against another party thereto for breach of the agreement.
Thus, if the claimed right of an owner to discriminate was acquired by contract, both the Constitution and the public policy of the United States would prevent its enforcement. It would be difficult to conclude with reason that legislation could not provide against the assertion of such a so-called right even where not acquired by contract.
As stated in the opinion in Railway Mail Assn. v. Corsi, Commr., 326 U. S. 88, 93, 89 L. Ed. 2072, 2076, 65 S. Ct. 1483, 1487:
“* * * We have here a prohibition of discrimination in membership or union services on account of race, creed or color. A judicial determination that such legislation violated the Fourteenth Amendment would be a distortion of the policy manifested in that amendment which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color.”
[149]*149This court has frequently held that an exercise of the police power may be valid even though it does interfere with property and with contract rights if such exercise of the police power bears a real and substantial relationship to the general welfare of the public and if it is not unreasonable or arbitrary. Furthermore, we have held that the determination by the legislative body, in its enactment of legislation, that there is such a relationship will not be disturbed unless clearly erroneous. Benjamin v. City of Columbus (1957), 167 Ohio St. 103 (paragraph five of the syllabus), 146 N. E. 2d 854; Teegardin v. Foley (1957), 166 Ohio St. 449, 143 N. E. 2d 824; Ghaster Properties, Inc., v. Preston, Dir. (1964), 176 Ohio St. 425, 200 N. E. 2d 328. See Curtiss v. City of Cleveland (1959), 170 Ohio St. 127, 163 N. E. 2d 682.
In our opinion, such determination, which the Oberlin council is presumed to have made by its exercise of the police power in the enactment of this ordinance, is not clearly erroneous, and the ordinance does not appear to be either unreasonable or arbitrary. Whether legislation of this kind should be adopted will depend largely on local conditions and community needs. The following statement in the syllabus in Allion v. City of Toledo (1919), 99 Ohio St. 416, 124 N. E. 237, is particularly applicable in the instant case:
“Unless there is a clear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community.”
We conclude, therefore, that the police power clearly includes the power to prohibit the owner of property from discriminating, in its sale or rental or in the terms, conditions and privileges of such sale or rental, against any person purely because of race, creed or color.
This conclusion is also sustained by the following authorities: Burks v. Poppy Construction Co. (1962), 57 Cal. 2d 463, 370 P. 2d 313; Lee v. O’Hara, 57 Cal. 2d 476, 370 P. 2d 321; Massachusetts Commission against Discrimination v. Colangelo (1962), 344 Mass. 387, 182 N. E. 2d 595; Colorado Anti-Discrimination Commission v. Case (1963), 151 Colo. 235, 380 P. 2d 34; Martin v. New York (1960), 22 Misc. 2d 389, 201 N. Y. [150]*150Supp. 2d 111. See, also, O’Meara v. Washington State Board against Discrimination (1961), 58 Wash. 2d 793, 365 P. 2d 1; New York State Commission against Discrimination v. Pelham Hall Apartments, Inc. (1958), 10 Misc. 2d 334, 170 N. Y. Supp. 2d 750; Levitt & Sons, Inc., v. Division against Discrimination (1960), 31 N. J. 514, 158 A. 2d 177; Marshall v. Kansas City (Mo. 1962), 355 S. W. 2d 877; District of Columbia v. John R. Thompson Co., Inc. (1953), 346 U. S. 100, 97 L. Ed. 1480, 73 S. Ct. 1007; Katzenbach v. McClung (decided December 14, 1964), 13 L. Ed. 2d 290, 85 S. Ct. 377; New Jersey Home Builders Assn. v. Division on Civil Rights (1963), 81 N. J. Super. 243, 195 A. 2d 318.
Plaintiff contends also that the necessary effect of the ordinance upon real estate brokers, financial institutions and owners of five or more dwelling units is unduly oppressive and goes beyond the necessity of the situation.
The ordinance definitions are such that any person is included as a real estate broker, salesman or agent if he has five or more Oberlin real estate listings or holds himself out as engaged in the business of selling, purchasing or renting Oberlin real estate of five or more persons. The effect of this definition and of a comparable ordinance definition of a lending institution is to subject to the prohibitions of the ordinance anyone who wants to do any business in lending money on or acting as a broker, agent or salesman of Oberlin real estate. On the other hand, an owner of less than five dwelling units is not subject to the prohibitions of the ordinance although an owner of five or more such units is.
As to brokers, it is pointed out that a broker cannot, without violating the ordinance, represent an owner of less than five dwelling units who wants to discriminate against prospective buyers or renters of his property “purely because of race, creed or color,” although there is no prohibition against such owner of less than five dwelling units doing so. Thus, compliance with the ordinance will deprive such a real estate broker of a substantial portion of his business. Plaintiff asks why this should be done. The answer is that, if an owner of real estate who is not prohibited from so discriminating cannot secure a real estate broker to represent him, such owner will be discouraged from indulging in such discrimination.
[151]*151It is contended next that there “was absolutely no evidence offered # * * and no legislative findings by city council indicating that any of the financial institutions in Oberlin had been guilty of discriminatory practices,” and that therefore “the * * # ordinance as applied to financial institutions is a pointless gesture and * # * as such * * * is arbitrary and discriminatory and should be declared invalid.”
In order to enact legislation prohibiting certain action, a legislative body is not required to make an express finding in the legislation that someone has previously been doing what the legislation will prohibit. Those who seek to sustain the validity of such legislation are not required to offer evidence tending to prove that anyone had previously been doing what the legislation will prohibit. On the contrary, those who claim that such legislation is void because there is no need for it have a heavy burden of negativing every reasonable basis which might support the presumption that the enactment of the legislation included a determination by the legislative body that there was a reasonable need therefor, i. e., that someone had previously been doing, or that someone might otherwise be likely to do, what the legislation will prohibit. See 16 American Jurisprudence 2d 390, Section 172; State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 128 N. E. 2d 59.
Plaintiff contends also that there is no reasonable basis for treating owners of five or more dwelling units as subject to the prohibitions and penalties against discrimination specified in the ordinance if owners of less than five of such units are not to be subject thereto, especially where there is no requirement that the units used to compute the number of five must be contiguous.
Both the Constitution of the United States (Fourteenth Amendment) and the Constitution of Ohio (Section 2, Article I) provide for “equal protection.”
Simply calling a group of persons selected for special legislative treatment a class does not satisfy the requirements of equal protection. However, the foregoing constitutional provisions do not prohibit all class legislation. They do require that such legislation must apply alike to all persons within a class, and reasonable grounds must exist for making a distinc[152]*152tion between those within and those without a designated class. Within the limits of these restrictive rules, a legislative body has a wide measure of discretion. City of Xenia v. Schmidt, 101 Ohio St. 437, 130 N. E. 24; Benjamin v. City of Columbus, 167 Ohio St. 103, 117, 146 N. E. 2d 854.
Equal protection provisions of the federal and Ohio Constitutions do not require resort to close distinctions or the maintenance of a precise scientific uniformity and do not prohibit distinctions not shown to be substantial or which are based on differentiations not shown to be arbitrary or capricious. National Tube Co. v. Peck (1953), 159 Ohio St. 98, 111 N. E. 2d 11.
Furthermore, it is generally recognized that a legislative body, when it chooses to act to correct a given evil, need not correct all the evil at once, but may proceed step by step. Yee Bow v. City of Cleveland, 99 Ohio St. 269, 124 N. E. 132; City of Xenia v. Schmidt, supra; Benjamin v. City of Columbus, supra.
Certainly, a legislative body is not unreasonable because it elects to proceed slowly in such an emotionally involved field as race relations.
An owner of five or more dwelling units, who believes in discrimination purely on the basis of race, creed or color and who would desire to practice such discrimination if he sold or rented such units, is potentially a more dangerous threat to those who will be hurt by such discrimination than the owner of four or less such units who has like beliefs and desires. In our opinion, therefore, there is a reasonable basis for classifying those who own five or more dwelling units separately from those who own less than five, especially since the ordinance has other provisions which have a strong tendency to discourage those who own less than five from indulging in the prohibited discrimination, i. e., the provisions which make it impossible for them to secure the help of a broker in selling or renting their real estate.
Plaintiff finally contends that Section 3(f) of the ordinance is invalid because it delegates arbitrary power to council either to dismiss the complaint or to refer it to the solicitor.
Section 1 of the ordinance contains definitions, Section 2 [153]*153specifies the “prohibited acts,” and Section 3 deals with “enforcement procedure.”
The latter section provides for (1) a written complaint to the housing renewal commission charging a violation of any of the prohibitive provisions, (2) an investigation of the complaint and (3) an attempt by the commission to eliminate any unlawful practice it finds “by conciliation and persuasion.” It then provides that, if “the commission fails in the conciliation proceedings, it shall forward all papers including the complaint, investigation, record of conciliation proceedings, factual findings and recommendation to the city council”; and further provides that until then everything is to be “confidential” and the “proceedings * * * shall not be made public.”
No complaint is made either by plaintiff or amici curiae about the foregoing provisions of Section 3. Plaintiff’s complaint relates only to the remainder of the section which reads:
‘ ‘ (f) The city council shall review the proceedings and shall either dismiss the complaint or refer same to the city solicitor for appropriate legal action under this ordinance.”
Section 4 of the ordinance specifically provides that “any person who violates any of the provisions of this ordinance shall be subject to a fine not exceeding one hundred dollars * * # and costs.”
Provisions for prosecution for violation of a municipal ordinance are contained in Sections 2935.09 and 2935.10, Revised Code. See State v. Maynard (1964), 1 Ohio St. 2d 57.
There is nothing in the ordinance to indicate that, even if council did dismiss a complaint, such dismissal would prevent a prosecution for a violation of the ordinance.
The only effect of subparagraph (f) of Section 3 would be to interpose another administrative obstacle between a claimed violation of the ordinance and the city’s efforts to prosecute such a violation. Prosecuting officers now decide whether to institute criminal proceedings with respect to misdemeanors. State, ex rel. Skilton, v. Miller (1955), 164 Ohio St. 163, 128 N. E. 2d 47.
Until a prosecuting officer determines to institute a prosecution for violation of this ordinance, no compulsion of any kind is asserted against a claimed violator of that ordinance. There[154]*154after, he will be in court with all the rights and protections afforded by our laws to anyone charged with a crime.
However, a majority of the court (Judges Matthias, Herbert, Schneider and Guernsey) are of the opinion that Section 3 is invalid and must, therefore, be declared void. Even though Section 3 is invalid, Section 5 of the ordinance specifically provides that “if any * * * section or part thereof is held * * * unconstitutional * * * such * * * unconstitutionality * # * shall not affect or impair any of the remaining # * * [part of the ordinance].” Thus, even without Section 3, the ordinance is still enforceable.
For the foregoing reasons, the judgment of the Court of Appeals, so far as it sustains the validity of Section 3 of the ordinance, is reversed, and otherwise that judgment is affirmed.
Judgment accordingly.
Zimmerman, Matthias, 0 ’Neill and Guernsey, JJ., concur.
Herbert, J., concurs in part.
Schneider, J., concurs in the judgment.
Guernsey, J., of the Third Appellate District, sitting by designation in the place and stead of Brown, J.