Opinion
No. 26558
Decided November 24, 1937.
Constitutional law — Municipal ordinance limiting liquor licenses, unconstitutional — Statute authorizes Board of Liquor Control to issue permits — Section 6064-17, General Code — Section 3, Article XVIII, Constitution.
A provision in a municipal ordinance, limiting licenses for the sale of spirituous liquor under permits D-3, D-3a and D-5 to one for every thirty-five hundred of the population, is in conflict with the provision of Section 6064-17, General Code, which gives the Board of Liquor Control authority to issue not more than one of the permits for classes D-3, D-4 or D-5 for each two thousand population or part thereof in any county, city or village, and is therefore void under Article XVIII, Section 3, of the Ohio Constitution, permitting municipalities to adopt local police regulations not in conflict with general laws.
APPEAL from the Court of Appeals of Cuyahoga county.
The appellee, who was the relator, instituted an action against the respondent as City Manager of the city of East Cleveland, Ohio, in the Court of Common Pleas of Cuyahoga county, Ohio, praying that the respondent issue a license to him to sell spirituous liquor in said city under a D-3 permit issued to him by the Board of Liquor Control of the state.
In the amended petition the relator alleged that on or about July 3, 1936, he applied to the Board of Liquor Control of the state of Ohio and, under the provisions of Section 6064-15, General Code, received a D-3 permit to sell spirituous liquor at retail on the premises situated at 14212 Euclid avenue in the city of East Cleveland, paying therefor a fee of $400.
Relator then alleged that he made application to the respondent as City Manager of the city of East Cleveland for a license so that he could exercise his privilege to sell spirituous liquor under the permit granted to him by the state for the remainder of the calendar year 1936. It is set forth that he was advised that he had qualified for the issuance of a license, but the respondent refused to issue the same. Relator alleged that he had reason to believe that the license was withheld because of a provision in Amendment No. 2967 to Ordinance No. 2901 of the city of East Cleveland, which reads as follows:
"The issuance of the number of licenses for the sale of spirituous liquor, permitted by the state department of liquor control under permits D-3, D-3A and D-5, within the corporate limits of the city of East Cleveland, shall be limited to one for every thirty-five hundred (3500) of the population of the city of East Cleveland, as shown by the last federal census." (Italics ours.)
It is alleged in the amended petition that "the portion of said amendment quoted above is in conflict with the Constitution and general laws of the state of Ohio and is arbitrary, unjust and unreasonable." The prayer was for a writ of mandamus directing the respondent to issue a license to him.
A demurrer was filed to the amended petition, and was overruled upon the ground that the provision of the ordinance was in conflict with the fifth paragraph of Section 6064-17, General Code, which provides that "not more than one Class D-3, Class D-4, or Class D-5 permit shall be issued for each two thousand population, or part thereof, in any county, city or village." (Italics ours.)
The respondent not desiring to plead further the writ was issued. Upon appeal the Court of Appeals of Cuyahoga county affirmed the judgment of the Court of Common Pleas.
Messrs. Leuck, Wenrick Helm, for appellee.
Mr. E.A. Binyon, director of law, for appellant.
Section 6064-17, General Code, authorizes the state Board of Liquor Control to issue not more than one D-3, D-4 or D-5 permit for each two thousand population or part thereof.
The ordinance of the city of East Cleveland restricts licenses for permits to one for every thirty-five hundred of population. If the ordinance prevails the relator was not entitled to a writ, while if the statute is controlling it is conceded that he was.
Under the provisions of Article XVIII, Section 3, of the Ohio Constitution, while municipalities have authority "to adopt and enforce within their limits such local police, sanitary and other similar regulations," it is specifically provided that such regulations must not be "in conflict with general laws."
"In determining whether an ordinance is in 'conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits. The ordinance of the city of East Cleveland is clearly in conflict with Section 6064-17, General Code, when its operative effect is considered.
For illustration, according to the federal census of 1930, the city of East Cleveland had a population of 39,667. Under the provision of the statute not more than twenty permits could be granted by the Board of Liquor Control. The discretion to grant permits up to that number was vested in the Board of Liquor Control. This ordinance in question seeks to restrict that discretion, and limit the permits to be issued in East Cleveland to eleven.
The Legislature vested in the Board of Liquor Control the power to determine the number of permits to be issued in any county, city or village, within the limitations prescribed by Section 6064-17, General Code, and did not grant to any municipality the power by ordinance to curb that discretion, in so far as the number of permits to be issued is concerned. The provision of the ordinance which seeks so to do is in conflict with Section 6064-17, General Code, and under Article XVIII, Section 3, of the Ohio Constitution, is invalid.
The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.