Opinion
1946-04-1
FRECKER v. CITY OF ZANESVILLE.
Graham & Graham, of Zanesville, and J. Paul McNamara, of Columbus, for plaintiff. J. Lincoln Knapp, City Sol., of Zanesville, for defendant.
Action by Edward V. Frecker, doing business as the Scioto Valley Dairy & Ice Cream Company, Columbus, Ohio, against the City of Zanesville, Ohio, for a declaratory judgment that an ordinance of the City of Zanesville was invalid and for an injunction enjoining the enforcement of such ordinance. On defendant's demurrer to the amended petition.
Demurrer overruled.Graham & Graham, of Zanesville, and J. Paul McNamara, of Columbus, for plaintiff. J. Lincoln Knapp, City Sol., of Zanesville, for defendant.
TANNEHILL, Judge.
In this action the plaintiff asks the court for a declaratory judgment that Ordinance No. 3467 of the City of Zanesville is invalid and for a permanent injunction restraining and enjoining defendants, the City of Zanesville, its mayor, director of safety and chief of police, from arresting, or causing the arrest, of plaintiff or any of plaintiff's employees upon a charge of violating said Ordinance, and enjoining the enforcement of said Ordinance.
Ordinance No. 3467, which is set forth in the amended petition, reads as follows:
‘Declaring it unlawful to distribute and sell at retail, within the corporate limits of the City of Zanesville, Ohio, any frozen desserts as defined by the laws of the State of Ohio, in or upon any public street, alley, sidewalk or thoroughfare; fixing a penalty for the violation thereof, and declaring an emergency.
‘This ordinance is hereby declared to be an emergency measure. The emergency arises from the fact that the sale of frozen desserts at retail in the public ways provides a source of contamination and a traffic hazard and use of the public ways detrimental to the public interest, peace, property health and safety.
‘Therefore, immediate passage of this measure is essential to the preservation of the public health, property, peace and safety; now therefore
‘Be it ordained by the Council of the City of Zanesville, Ohio
‘Section 1: It shall be unlawful to distribute and sell at retail within the corporate limits of the City of Zanesville, Ohio, any frozen desserts, as defined by General Code Section 12730-1 of the laws of the state of Ohio, in or upon any public street, alley, sidewalk or thoroughfare.
‘Section 2: No wagon, pushcart, or other vehicle shall park in or upon any public street, sidewalk, alley or thoroughfare for the purpose of distributing and selling at retail any frozen desserts as hereinbefore referred to
‘Section 3: Any person, firm or corporation violating either provision of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined not less than ten dollars ($10.00) and costs of prosecution, and not more than twenty-five ($25.00) dollars and costs of prosecution, and each such sale or parking within the meaning of this ordinance, shall constitute a separate offense.
‘Section 4: This being an emergency measure, provided it receives the affirmative vote of six members elected to Council, it shall take effect immediately upon its passage and its approval by the Mayor; otherwise, it shall take effect at the earliest time allowed by law.’
Edward V. Frecker, the plaintiff, alleges in his amended petition that he does business as Scioto Valley Dairy and Ice Cream Company, with his principal place of manufacturing in Columbus, Ohio; that plaintiff is engaged in the manufacture and sale of frozen novelties and desserts (referred to in the amended petition as products) and is licensed to engage in such business under the provisions of section 12730-1 et seq. of the General Code of Ohio; that plaintiff employs agents and salesmen to sell the products which plaintiff manufactures and plaintiff's employes and agents sell said products from vehicles propelled throughout streets of the City of Zanesville; that the products sold by plaintiff's agents and employes are exclusively products of plaintiff's own manufacture; that such products are sold at retail; that plaintiff has approximately $100,000 invested in plant and equipment at Columbus for the manufacture of said products and $5,000 invested in vehicular equipment used in the sale of the products in Zanesville; that plaintiff employs approximately fifteen persons in his business at Zanesville; that plaintiff's agents and employes make sales of the products from vehicles at the curb of the public streets of Zanesville or away from the vehicles on the sidewalks and on private property; that plaintiff's agents and employes are specially trained as to safety and sanitation in the sale of plaintiff's products; that at the time of the enactment of Ordinance No. 3467 and for approximately three years before plaintiff operated his business in twelve municipalities in Ohio, and at no time during that period did any of plaintiff's employes or any person doing business with such employes sustain any injury of any kind as a result of the operation of plaintiff's business; that plaintiff's products are manufactured, transported, sold and delivered under sanitary conditions and such products are wholesome and nourishing food products; that plaintiff's products are packaged in separate, individual, sanitary containers; that the enforcement of Ordinance No. 3467 will prohibit the operation of plaintiff's business in Zanesville; that other food products and items of various kinds are expressly permitted to be peddled in Zanesville in the same or similar manner in which plaintiff's products are transported, sold and delivered; that Ordinance No. 3467 is invalid, contrary to law and the state and federal constitutions; that plaintiff's business will suffer irreparable damages if said ordinance is enforced and that plaintiff has no adequate remedy at law.
The defendants have demurred upon the ground that plaintiff's amended petition does not set forth facts that constitute a cause of action.
The demurrer admits all facts well pleaded. The issue thus made upon the demurrer to the amended petition is whether in consideration of the facts alleged the city has exceeded the proper exercise of its police powers in the enactment of the ordinance in question.
The plaintiff's counsel in their brief advance three contentions: First: Plaintiff's business is a legitimate, recognized business, carried on in the same manner as many other legitimate, recognized businesses of long and honorable standing: Second: The City of Zanesville lacks the power to prohibit plaintiff's business: Third: Ordinance No. 3467 is an unreasonable, arbitrary, oppressive and capricious exercise of police power, is discriminatory on its face and violates the federal and state constitutions.
The substance of plaintiff's argument is that, recognizing the power and authority of a municipality to enact regulatory ordinances for its good government under the police power granted it by Section 3, Article XVIII of the Ohio Constitution, the city has in this instance interfered with private rights beyond the necessities of the occasion, in contravention of Section 1, Article I, of the Ohio constitution, and the Fourteenth amendment to the Federal Constitution. Plaintiff contends that the city may amply protect the welfare of the community by valid regulation of plaintiff's business, if necessary, and that to prohibit plaintiff's business, as this ordinance does, is in excess of the necessities of the situation.
In City of Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412, 414, Judge Bell made this statement: ‘Before proceeding to an examination of the ordinance in question it should be observed that the business of barbering is a lawful business, and that the right to carry on such business is a property right constitutionally protected against unwarranted and arbitrary interference by legislative bodies.’ A similar observation may be made here. Peddling, selling or vending ice cream and frozen novelties from vehicles propelled through the streets is a lawful business and the right to carry on such business is a property right constitutionally protected against unwarranted and arbitrary interference by legislative bodies.
Provision is made in the General Code of Ohio for licensing and regulation of peddlers and itinerant vendors in sections 6347 et seq. In the enumeration of powers granted municipalities, section 3670 of the General Code grants the city power to regulate and license peddlers. Section 3672, however, further provides that no municipal corporation may require of the owner of any product of his own raising, or of the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product. These enactments of the General Assembly recognize peddling as an established, lawful occupation.
The third syllabus of Froelich v. The City of Cleveland, 99 Ohio St. 376, 124 N.E. 212, states:
‘3. The state and municipalities may make all reasonable, necessary, and appropriate provisions to promote the health, morals, peace, and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.’
In a more recent decision, Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371, 373, Judge Williams stated:
‘Every business has some relation to the general welfare, because there is none which is operated to supply consumers generally that does not have some public aspect; but the regulation thereof is not within the police power unless the relation to the public interest and common good is substantial and the terms of the law or ordinance are reasonable and not arbitrary in character. The exercise of the police power is inherent in government and essential to its existence and inevitably comes into conflict with the constitutional guaranties of the right of property and liberty of contract. In each case presented the court must draw the line of demarcation. Courts do not attempt to define police power with exactness, and inevitably the individual case must stand upon its own footing.’
Here the plaintiff has alleged, and the demurrer admits, that plaintiff has a substantial investment in his business; that the business is operated in a sanitary manner with special attention to safety and sanitation; that it is operated in the same manner as other businesses which are permitted to be operated in Zanesville and that the enforcement of the ordinance, as is plain on its face, would prohibit the operation of plaintiff's business.
The court finds that Ordinance No. 3467 is invalid because it is an unreasonable, unwarranted and arbitrary prohibition of plaintiff's business, in contravention of plaintiff's constitutional rights. A statement in Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 664, 61 L.Ed. 1336, L.R.A.1917F 1163, Ann.Cas.1917D, 973, where the Supreme Court held unconstitutional a statute prohibiting the operation of an employment agency, is applicable here:
‘Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one's right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.’
If conditions warrant the regulation of plaintiff's business, the power of the city council to enact reasonable and non-discriminatory legislation to that end is unhampered by this decision. The court here simply holds that Ordinance No. 3467, which prohibits the operation of plaintiff's business, is in contravention of plaintiff's constitutional rights, and therefore invalid.
Two recent cases in other states have considered the same question.
In N. J. Good Humor, Inc. v. Board of Com'rs of Borough of Bradley Beach, 124 N.J.L. 162, 11 A.2d 113, 116, the Court of Errors and Appeals of New Jersey had for determination the validity of a municipal ordinance prohibiting hawking, peddling and vending and prohibiting the selling of goods, wares and merchandise from house to house in the Borough of Bradley Beach. The court is informed by counsel that N. J. Good Humor, Inc., the party there challenging the validity of the ordinance, operated a business in all substantial respects like the plaintiff's business. The New Jersey court held the ordinance invalid. In the opinion it is stated:
‘The primary subject of inquiry is whether the ordinance, on its face, constitutes a valid exercise of local legislative power. * * *
‘The enactment is not defensible as a measure to insure ‘the peace and quiet of a residential community.’ It is patently not a reasonable exercise of the police power to effect that objective. There is no substantial relation between the means employed and the end so avowed. It utterly prohibits the ‘hawking, peddling and vending’ and the ‘carrying for sale and exposing for sale’ of goods, wares and merchandise ‘from house to house’ * * * within the municipal confines. Plainly, prohibition, as distinguished from regulation,is not essential to the consummation of the purported object. * * *
‘Broad as it is, the police power is not without its limitations. Its exertion must be directed to a legitimate end, i. e., the protection of a basic interest of society rather than the mere advantage of particular individuals. Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481. And it is requisite that the means employed in its exercise have a rational relation to that end, and be altogether free from arbitrariness. The restraints and regulations imposed for the general good and welfare must needs have the virtue of reasonableness. There cannot be, in the name of police regulation, an unreasonable and oppressive curtailment of personal or property rights. A measure that goes fairly beyond the public need designed to be served does not take the category of a valid police regulation.’
In Good Humor Corporation et al. v. City of New York et al., 290 N.Y. 312, 49 N.E.2d 153, 156, the Court of Appeals of New York had for determination the validity of an ordinance of the City of New York, which in substance prohibited itinerant peddling on the streets of the city. It appears from the statement of the court that Good Humor Corporation operates his business in Zanesville. The New York Court held the ordinance invalid. In the New York case the court says:
‘The fundamental question remains whether prohibition rather than regulation in this case is reasonable.’
The court, after carefully analyzing the facts and the arguments of the parties, says:
‘The important facts conclusively shown on this record are that the business of peddling is lawful when conducted in manner which does not injure or annoy the public or impede traffic upon the street; that peddling can be so conducted and is so conducted by the plaintiff; that the evils which we are told the ordinance prohibiting all peddling in the streets-however conducted-is intended to remedy-are due to indecent, unsanitary and unlawful practices of some peddlers; and finally that these practices can be stopped by statutes, ordinances or sanitary regulations aptly formulated and rigidly enforced.’
The New Jersey and New York decisions consider many points in reference to the police power. Although these are not decisions of Ohio courts, they are persuasive because of the similarity of questions presented and the reasoning of the court. Such decisions support the conclusion reached by this court that Ordinance No. 3467 is invalid. Furthermore, these decisions are in line with the principle announced in syllabus 3 of the Froelich case and the reasoning and conclusion in the Correll and Olds cases, supra. It should be remembered that in the Olds and Correll cases the Supreme Court declared invalid ordinances which were only regulatory in character, whereas Ordinance No. 3467 would prohibit an otherwise lawful and long established form of business.
Counsel for defendants cite X-Cel Dairy, Inc., v. City of Akron, 63 Ohio App. 147, 25 N.E.2d 700. The Court has examined the record and decision of the Common Pleas Court as well as the cited decision in that case. That decision by the Court of Appeals of the Ninth District is not binding on this court (Courts, 11 O.Jur., Sec. 135); however there are additional reasons why that decision should not control the determination of this case.
First: The record shows that the trial court rendered its decision upon a hearing of the case on its merits. The answer of defendants was a general denial. No testimony was offered at the trial. The only evidence consisted of an admission of the ordinance (which is substantially the same as Ordinance No. 3467), the city charter, and that plaintiff was a proper party to challenge the validity of the ordinance. This condition of the record prompted comment by both the common pleas and appellate courts. In the instant case, the situation is entirely different. The amended petition sets forth definite and specific allegations of fact, which, for the purposes of the consideration of the demurrer, are admitted to be true.
Second: The trial and appellate court did not consider the principal ground upon which this court bases the decision in this case-that is, that prohibition of plaintiff's business as distinguished from regulation is unwarranted and unreasonable. This ground of invalidity was not urged or considered in the X-Cel case, as is apparent from the statement of the trial court that ‘it would appear that the only problem the court has before it is the reasonableness of the classification attempted to be made by the ordinance,’ and the statement of the Court of Appeals that the claim of the plaintiff is ‘that the enforcement of the ordinance in question would accomplish an arbitrary and discriminatory classification.’
In Milwaukee Mechanics' Insurance Co. v. Russell, 65 Ohio St. 230, 62 N.E. 338, 339,56 L.R.A. 159, the rule is stated:
‘It has long been the established rule of this court, as well as the settled law on this subject, that: ‘A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a principle not passed upon or raised at the time of the adjudication.’ Fouts v. State, 8 Ohio St. 98, 123. Where the questions were not raised nor considered, ‘it is as if they were not in the case at all.’ State v. Pugh, 43 Ohio St. [98] 121, 123, 1 N.E. 439; Wambaugh's Study of Cases, § 17.'
Third: The only athority cited in the X-Cel decision is an excerpt from Central Lumber Co. v. State of South Dakota, 226 U.S. 157, 33 S.Ct. 66, 57 L.Ed. 164. The rule announced there, that the legislature ‘may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed,’ was applied in upholding a statute making unlawful ‘a particular instrument of trade war’ employed by certain dealers in commodities. The statute was a regulatory measure-it did not utterly prohibit a lawful business. This distinction makes the rule there announced inapplicable here.
The facts alleged in the amended petition and the contentions advanced on behalf of plaintiff bring this case within the rule of Adams v. Tanner, supra, and New State Ice Co. v. Liebman, 285 U.S. 262, 52 S.Ct. 371, 374, 76 L. Ed. 747.
In the Liebman case the Court stated:
‘Plainly, a regulation which has the effect of denying or unreasonably curtailing the common right to engage in a lawful private business, such as that under review, cannot be upheld consistent with the Fourteenth Amendment. Under that amendment, nothing is more clearly settled than that it is beyond the power of a state, ‘under the guise of protecting the public, arbitrarily [to] interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.’'
The demurrer to the amended petition is overruled. Exceptions may be noted.