Summary
In Akron v. Smith (1968), 14 Ohio St.2d 247, this court held that a municipal ordinance could not extend the period of time, within which an income-tax related offense could be prosecuted, beyond the statute of limitations specified by the General Assembly for the prosecution of any offense made punishable by a municipal ordinance.
Summary of this case from Cincinnati v. Thomas Soft Ice CreamOpinion
No. 68-48
Decided May 29, 1968.
Constitutional law — State's sovereignty over municipalities — Limitation of actions — Section 1905.33, Revised Code — Controls over municipal tax ordinance limitation — Prosecution for failure to file city income tax return.
1. The General Assembly may limit the time within which an action may be brought in the courts of this state, even where such action is based upon a municipal ordinance.
2. Such an ordinance may not provide for bringing such an action during a period of time greater than the limitation so specified by the General Assembly.
CERTIFIED by the Court of Appeals for Summit County.
On March 27, 1967, the Tax Commissioner of the city of Akron filed an affidavit in the Municipal Court of Akron which alleged that Sidney G. Smith had failed to file a city income tax return for 1964 as required by city ordinance No. 1298-1962. This ordinance contains penalties for the failure to file a return, and provides that prosecution for such a violation may be commenced any time within ten years from the date the return was due.
Smith filed a demurrer on the ground that the prosecution was not brought within the limitations period provided in Section 1905.33, Revised Code, which reads as follows:
"* * * prosecutions for the commission of any offense made punishable by any ordinance of any municipal corporation, shall be commenced within one year after the violation of the ordinance, or commission of the offense."
The Municipal Court sustained the demurrer, dismissed the affidavit, and ordered Smith released. The city filed a bill of exceptions which, after minor modifications, was approved by the court. This is a prosecutor's appeal in which the dismissal of the action does not bar further prosecution since the defendant has not yet been in jeopardy.
The Court of Appeals affirmed the judgment of the Municipal Court. Finding its judgment to be in conflict with the judgment of the Court of Appeals for Hamilton County in Cincinnati v. Faig (No. 8377, rendered without opinion), affirming the judgment of the Cincinnati Municipal Court (77 Ohio Law Abs. 449) which held that a municipal tax ordinance limitation of ten years was valid, in spite of Section 1905.33, Revised Code, the Court of Appeals certified the record to this court for review and final determination.
Mr. William R. Baird, director of law, and Mr. Alvin C. Vinopal, for appellant.
Mr. Lee C. Davies and Mr. Robert K. Lewis, Jr., for appellee.
The question in this case, whether prosecution for the commission of the offense made punishable by the municipal ordinance is limited by the state statute, is answered in the affirmative by authority of the holding of this court in paragraphs one and two of the syllabus in State, ex rel. Ramey, v. Davis, 119 Ohio St. 596, which state:
"1. The sovereignty of the state in respect to its courts extends over all the state, including municipalities, whether governed by charter or general laws.
"2. None of the various provisions of Article XVIII of the Constitution of Ohio are effective to abridge the sovereignty of the state over municipalities in respect to its courts."
Thus, the General Assembly may limit the time within which an action may be brought in the courts of this state, even where such action is based upon a municipal ordinance. It follows that such an ordinance may not provide for bringing such an action during a period of time greater than the limitation so specified by the General Assembly.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.