DocketNumber: 5366
Citation Numbers: 178 N.E.2d 177, 113 Ohio App. 380, 17 Ohio Op. 2d 397, 1961 Ohio App. LEXIS 702
Judges: Smith, Fess, Deeds
Filed Date: 1/3/1961
Status: Precedential
Modified Date: 11/12/2024
The defendant, Jesse Olton Best, was charged with a violation of Section 21-6-9 of the Toledo Municipal Code, which reads as follows:
"Operation of Vehicles While Intoxicated; Penalty.
"(a) No person who is under the influence of intoxicating liquor or narcotic drugs, or opiates shall operate or be in actual physical control of any vehicle, street car or trackless trolley within this city. *Page 381
"(b) Every person who is convicted of a violation of this section shall be punished by a fine of not more than Five Hundred Dollars or imprisonment in the county or municipal jail for not more than six months, or both such fine and imprisonment."
He was tried to a jury in the Municipal Court of said city, which returned a verdict of guilty. Motions for new trial and for judgment notwithstanding the verdict were filed in which, interalia, the constitutionality of the ordinance was challenged as being in conflict with Sections
Section
Section
The motions were overruled, and defendant was sentenced by the court to 3 days in the Toledo House of Correction, assessed costs and his automobile driving license suspended for 1 year.
Upon appeal to this court direct from the Municipal Court, appellant, Best, assigned as error the overruling of the motions, chiefly relying on the contention that the ordinance is unconstitutional and further that the verdict was not sustained by sufficient evidence and is contrary to law.
While we have reached the conclusion that no errors appear in the record prejudicial to appellant, the basis of our conclusion on the question of the constitutionality of the ordinance should be discussed.
Section
"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." *Page 382
It would seem unnecessary in this case to review the numerous decisions of our Supreme Court in which it has labored prodigiously with the interpretation of the scope and limitation of that constitutional provision since its adoption. A cycle of opinion ensued, ranging from restrictive construction to liberal construction as to the exercise of local self-government. SeeLorain Street Rd. Co. v. Public Utilities Commission,
Fundamentally, it is settled that a municipality is vested with constitutional authority to legislate in the field of police regulation here involved, posing the question whether the ordinance is in conflict with the statute. And that question of conflict is reduced to a minimum consideration of whether the authority for suspension of sentence by the municipal court pursuant to Section
The penalty of confinement and amount of fine for the same offense enacted by the ordinance and the statute are essentially identical; the statute (Section
This same question as to variation in penalty of a municipal ordinance and state statute has been considered and adjudicated by the Supreme Court. City of Fremont v. Keating,
"It is claimed, however, that this ordinance is in conflict *Page 383 with the general law on the same subject matter, for the reason that it prescribes a different punishment than that prescribed by the statute of the state.
"This question is not important in the disposition of this case, for even if it were conceded that a municipality has the authority under the provisions of Section
The Keating case is approved in the Sokol case wherein Marshall, C. J., in his opinion, concurred in by the entire bench, says:
"In City of Fremont v. Keating,
Paragraph 3 of the syllabus of the Sokol case reads:
"A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, or because certain specific acts are omitted in the ordinance but referred to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance."
See, also, City of Youngstown v. Evans,
Counsel for appellant relies on the case of City ofCleveland v. Betts,
"Although the ordinance in issue does not permit what the statute prohibits, and vice versa, it does contravene the expressed policy of the state with respect to crimes by deliberately changing an act which constitutes a felony under state law into a misdemeanor, and this creates the kind of conflict contemplated by the Constitution."
We see nothing in the Betts case contrary to our conclusion in the case here under consideration, which does not change the nature of the offense enacted by the statute.
There is merit to the argument of counsel for the city that a conviction on a charge of violation under the statute is subject to the prohibition of suspension for the first three days but not as to a conviction under the city ordinance. Section
The judgment of the Municipal Court of the city of Toledo is therefore affirmed.
Judgment affirmed.
FESS and DEEDS, JJ., concur. *Page 385