
    The City of Fremont v. Keating.
    
      Municipal corporations — Motor vehicles — Speed mdy be regulated by ordinance, when — Section 6307, General Code, unconstitutional— Section 3, Article XVIII, Constitution, 1912 — Home rule — Right to jury trial—Unaffected by failure to sentence to imprisonment, when.
    
    1. Section 6307, General Code, is in direct conflict with 'the provisions of Section 3 of Article XVIII of the Constitution of Ohio, authorizing municipalities to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws, and is therefore unconstitutional and void.
    2. Where imprisonment may he imposed as a punishment for the commission of an offense, the accused is entitled to a trial by jury.
    3. In such case, the fact that • imprisonment was not actually included as a part of the punishment imposed by the sentence of the court cannot affect the right of the accused to a jury trial.
    (No. 15428
    Decided July 3, 1917.)
    Error to the Court of Appeals of Sandusky county..
    On the 21st day of July, 1916, an affidavit was filed with George Kinney mayor of the city of Fremont, Ohio, charging Charles Keating with operating an automobile at a speed greater than fifteen miles per hour upon west State street, in the city of Fremont, Ohio, contrary to the ordinance in such case made and provided.
    The cause was tried by the mayor in the city of' Fremont, without the intervention of a jury, but it does not appear that the defendant waived a jury trial.
    
      The mayor found the defendant guilty as charged in the affidavit, and sentenced him to/'pay a fine of twenty-five dollars ($25.00) and costs of prosecution, and that he be confined in the jail of Sandusky County, Ohio, until paid or otherwise released according to law.”
    The common pleas court reversed the judgment of conviction, and discharged the defendant, which judgment of the common pleas court was affirmed by the court of appeals.
    This error proceeding is now prosecuted in this . court by the city of Fremont, Ohio, to reverse the judgment of the court of appeals affirming the judgment of the common pleas court.
    
      Mr. H. S. Buckland, city solicitor; Mr. W. J. Meade, prosecuting attorney, and Mr. H. C. DeRan, for plaintiff in error.
    
      Messrs. Hunt & Gam, for defendant in error.
   Donahue, J.

Section 3 of Article XVIII of the Constitution of Ohio, as amended September 3, 1912, provides among other things that municipalities shall have authority to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.

Section 126Ó4, General Code, provides that “Whoever operates a motor cycle or motor vehicle at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality or more than fifteen miles an hour in other portions thereof or more than twenty miles an hour outside of a municipality, shall be fined,” etc.

This statute is a police regulation, and, under the section of the constitution above referred- to, the municipality has the right to adopt and enforce within its limits police regulations in regard to the same subject-matter, not in conflict with this statute.

Notwithstanding this right conferred upon municipalities by the constitution of Ohio, Section 6307, General Code, specifically provides that local authorities shall not regulate the speed of motor vehicles by ordinance, by-law, or resolution. It is sufficient to say that the general assembly of Ohio cannot deprive a municipality of its constitutional rights. This section is clearly in violation of Section 3 of Article XVIII of the Constitution of Ohio, and void.

Section 17 of the ordinance under which this prosecution was brought provides that no vehicle shall be operated at a greater speed than eight miles per hour in the business or closely built-up portions of the city, or fifteen miles an hour in any other portion of the city, excepting bicycles, which are provided for under another ordinance.

This .section of the ordinance is not in conflict with the provisions of Section 12604, General Code, and was passed by the council in the exercise of its constitutional authority, and is therefore a valid and subsisting ordinance of the city of Fremont, Ohio.

It is claimed, however, that this ordinance is in conflict 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 3 of Article XVIII of the Constitution of Ohio, as amended September 3, 1912, to prescribe a different punishment than provided in the statute covering the same subject-matter, nevertheless this ordinance in question provides that imprisonment may be a part of the penalty. In such case, the accused is entitled to a jury, and it is the right of the defendant to be so tried, regardless of whether the sentence imposes a term of imprisonment or not. Inwood v. State, 42 Ohio St., 186; Thomas v. Village of Ashland, 12 Ohio St., 124, and Simmons v. State, 75 Ohio St., 346, 350, 351.

It does not appear from the record that the defendant waived a jury, and without such a waiver the mayor had no authority to hear or determine the guilt or innocence of the defendant, and for this reason the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones,' Matthias and Johnson, JJ., concur.  