Opinion
Decided July 16, 1928.
Intoxicating liquors — Municipal ordinance providing penalty in excess of statute, void — Section 3628, General Code — Section 3, Article XVIII, Constitution — Invalidity of penal section invalidates entire ordinance.
1. City ordinance prohibiting possession of intoxicating liquor, which provided for penalty by fine of not less than $100 nor more than $1,000, held void, under Section 3628, General Code, providing that municipal corporations cannot provide for fine exceeding $500, and Section 3, Article XVIII, Constitution.
2. Where ordinance prohibits doing of an act and attaches thereto single provision as to penalty, invalidity of penal section invalidates entire ordinance.
ERROR: Court of Appeals for Clinton county.
Mr. Jos. M. Brant, for plaintiff in error.
Mr. R.H. Hildebrant, city solicitor, for defendant in error.
Brannon was tried and convicted by the mayor of the city of Wilmington for possessing intoxicating liquor, in violation of Ordinance No. 126 of the city of Wilmington, and was adjudged to pay a fine of $100.
It was claimed below, and is claimed here, that the ordinance is in conflict with the statutes of Ohio, and therefore void.
The court of common pleas reversed the judgment of the mayor's court and granted a new trial for want of evidence to show that the alleged offense was committed within the corporate limits of the city of Wilmington. From that judgment, Brannon prosecutes error to this court on the ground above set forth.
The penal provision of the ordinance reads as follows: "Any person who violates a provision of this ordinance shall be fined not less than $100 nor more than $1,000."
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."
Among the powers given to municipal corporations in Ohio are those specified in Section 3628, General Code. That section, which is a general law, provides: "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."
By general law, therefore, a municipality is forbidden to prescribe a penalty in excess of $500 for violation of a municipal ordinance. The $1,000 penalty provided by the ordinance in question is in excess of that $500 limitation.
We are aware of the line of cases holding that, "when the penalty prescribed in the ordinance is in excess of that authorized by the charter, the ordinance is not void, and the penalty may be enforced to the extent that it does not exceed the lawful limit." 19 Ruling Case Law, page 812, title "Municipal Corporations," Section 17. But we are of the opinion that the ordinance in question, which provides for a penalty as high as $1,000, is so in conflict with the express provisions of Section 3628, General Code, as to be void. Town of Petersburg v. Metzker, 21 Ill. 205; City of New Orleans v. Costello, 14 La. Ann., 37; City of Shreveport v. P. Draiss Co., 111 La. 511, 35 So. 727; State v. Babcock, 112 Iowa 250, 83 N.W. 908; Merkee v. City of Rochester, 13 Hun (N.Y.), 157; City of Assaria v. Wells, 68 Kan. 787, 75 P. 1026; In re Van Tuyl, 71 Kan. 659, 81 P. 181; People v. Quayle, 122 Misc. Rep., 607, 204 N.Y.S., 641; Commonwealth v. Maletsky, 203 Mass. 241, 89 N.E. 245, 24 L.R.A. (N.S.), 1168; Greene v. Mayor of Fitchburg, 219 Mass. 121, 106 N.E. 573; Leland v. Long Branch Commrs., 42 N.J. Law, 375.
In Leland v. Commrs., supra, the statute authorized a municipality to assess a penalty not exceeding $100, or imprisonment in jail not exceeding 10 days. The ordinance stipulated a fine "not exceeding $50, or imprisonment not exceeding 10 days, or both." The ordinance was held void.
In Commonwealth v. Maletsky, supra, the statute authorized a fine of $20, and the ordinance provided for a fine of not less than $20 nor more than $100. The ordinance was held void.
In City of Assaria v. Wells, supra, the statute authorized a municipality to prescribe a penalty of not exceeding $100. The ordinance prescribed a penalty of $100, or 30 days imprisonment, or both. The court in holding the ordinance void said: "An ordinance * * * failing to prescribe the penalties within the limits fixed by the legislature, is void and cannot be enforced."
Where, as in the instant case, the ordinance prohibits the doing of an act and attaches thereto a single provision as to penalty, the invalidity of the penal section invalidates the entire ordinance, inasmuch as the severing of the sanction renders the ordinance futile and ineffective.
To hold this ordinance valid would be to hold that when an ordinance is, on its face, contrary to a statute, prosecution can be had under the ordinance and judgment pronounced under the statute. The ordinance would thus not be the basis of the proceedings, since the sentence would be imposed under the statute.
It is within the power of the city to enact a valid ordinance in conformity with the statute.
Inasmuch as we find the ordinance invalid, it is not necessary to pass on the other alleged errors.
The judgment of the court of common pleas and the judgment of the municipal court will be reversed and set aside, and the cause will be remanded to the court of common pleas, with instructions to issue a mandate to the trial court ordering the discharge of Brannon.
Judgment reversed and cause remanded.
HAMILTON, P.J., MILLS and CUSHING, JJ., concur.