Village of West Jefferson v. Robinson

205 N.E.2d 382, 1 Ohio St. 2d 113, 30 Ohio Op. 2d 474, 1965 Ohio LEXIS 577
CourtOhio Supreme Court
DecidedMarch 10, 1965
DocketNo. 38784
StatusPublished
Cited by53 cases

This text of 205 N.E.2d 382 (Village of West Jefferson v. Robinson) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Village of West Jefferson v. Robinson, 205 N.E.2d 382, 1 Ohio St. 2d 113, 30 Ohio Op. 2d 474, 1965 Ohio LEXIS 577 (Ohio 1965).

Opinion

Taft, C. J.

Section 3 of Article XVIII of the Ohio Constitution reads:

“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.”

The power of any Ohio municipality to enact local police regulations is no longer dependent upon any legislative grant thereof, as it was prior to the adoption in 1912 of the foregoing constitutional provisions. That power is now derived directly from those constitutional provisions.

The ordinance in question is a local police regulation within the meaning of those words as used in Section 3 of Article XVTII of the Ohio Constitution.

West Jefferson can therefore adopt and enforce such ordinance within West Jefferson unless it is in conflict with general laws or with some provision of the Ohio or federal Constitution.

It is conceded that the ordinance is not in conflict with any provision of the federal Constitution.

Defendant contends and the Court of Appeals held that the ordinance in question is invalid because in conflict with Sections 715.63 and 715.64, Bevised Code, which read:

“715.63. Any municipal corporation may license exhibitors of shows or performances of any kind, hawkers, peddlers, auc[116]*116tioneers of horses and other animals on the highways or public grounds of the municipal corporation, vendors of gunpowder and other explosives, taverns, house 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.

“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 he 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.”

The argument as to conflict between the ordinance and these statutes seems to be twofold, i. e.:

1. By granting power to license the activity of defendant which the ordinance prohibits, the statute impliedly expresses an intention to take away any municipal power to prohibit that activity.

2. By the next to the last sentence of Section 715.63 and the last sentence of the first paragraph of Section 715.64 the General Assembly expressed an intention that a municipal corporation should have no power to license, and therefore by necessary implication expressed an intention that a municipal corporation should have no power to prohibit what the ordinance has been held to prohibit the defendant from doing.

Even if the ordinance does conflict with these statutes, the question remains whether these statutes represent the “general laws” specified in Section 3 of Article XVIII.

Thus, in the opinion in City of Youngstown v. Evans (1929), 121 Ohio St. 342, it is stated:

[117]*117“Section 3628, General Code [Section 715.67, Revised 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 * * * provide penalties in excess of this limitation. If the Code section is effective as a limitation, the ordinances are clearly invalid. * * *

“* * * 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 lawmaking by municipal legislative bodies. * * #

“The validity and scope of Section 3628 may properly 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 indirect effort would be in any wise different in effect from a plain prohibition. This principle was discussed and decided in Fremont v. Keating, 96 Ohio St. 468, 470, 118 N. E. 114.

4 4 # *

“* * * it was intended to clothe municipalities with power to prescribe rules of conduct in all matters relating to local police, sanitary, and other similar regulations, where no rules had been prescribed by the General Assembly; and, as to the matter where the General Assembly had theretofore or might thereafter prescribe rules, the municipal ordinances and regulations would be effective only so far as consistent with general [118]*118law.” See, also, Froelich v. City of Cleveland (1919), 99 Ohio St. 376, 386, 124 N. E. 212. But, cf. Schneiderman, an Infant, v. Sesanstein (1929), 121 Ohio St. 80, 167 N. E. 158, 64 A. L. R. 981.

Sections 715.63 and 715.64, Revised Code, do not purport to license (cf. Auxter v. City of Toledo [1962], 173 Ohio St. 444, holding ordinance licensing activity invalid because activity being conducted under license granted pursuant to statute), prohibit, or otherwise regulate any activity. They do not purport to provide for the government of municipalities (see Section 2 of Article XVIII of Ohio Constitution) other than with respect to adoption and enforcement of “local police, sanitary or other similar regulations.” See Leavers v. City of Canton (1964), 1 Ohio St. 2d 33. They purport only to grant legislative power to and to limit legislative power of municipal corporations to adopt and enforce certain police regulations. The words “general laws” as set forth in Section 3 of Article XVIII of the Ohio Constitution mean statutes setting forth police, sanitary or other similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations.

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Bluebook (online)
205 N.E.2d 382, 1 Ohio St. 2d 113, 30 Ohio Op. 2d 474, 1965 Ohio LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-west-jefferson-v-robinson-ohio-1965.