
    Levitt v. City of Cleveland et al.
    
      (Decided May 25, 1931.)
    
      Messrs. Orgill, Maschke & Wickham, for plaintiff.
    
      Mr. Harold H. Burton and Mr. Edward J. Schweid, for defendants.
   Vickery, J.

This action was brought in the common pleas court by the plaintiff, Israel Levitt, to enjoin the city of Cleveland from compelling him to pay a license fee of $10, under what is called the “near-beer ordinance,” which, in effect, provides for payment of a license fee of $10 by all those who engage in the refreshment business, where such refreshments as near beer or other malt or distilled liquors are sold to be consumed on the premises. Plaintiff alleges in his petition that he has heretofore been engaged in the delicatessen business, which business requires a license fee of $1, which theretofore had been paid, and that now he wants to enter into the field of dispensing refreshments to be consumed upon the premises where sold; in other words, to bring himself under the near beer license provisions of the ordinance, and he seeks to have the court issue a mandatory injunction compelling the city to issue to him a license for the selling of near beer to be consumed upon the premises, without any additional expense.

In the trial below, thp common pleas court granted the injunction to restrain the city from enforcing the provisions of the near beer ordinance, in so far as it required the plaintiff to pay to the city of Cleveland a license fee of $10; whereupon the city appeals to this court.

We have heard the case upon the evidence introduced below, the arguments of counsel, and the briefs. The argument made by Levitt, the appellee, is that this ordinance is discriminatory, and is illegal and unconstitutional, in that it discriminates against one class of soft drink vendors, and, further, that the ordinance is unreasonable, and provides for too large a license fee, and therefore is void as being in violation of the Constitution of the United States (Section 1, Fourteenth Amendment, U. S. Constitution), the Constitution of the state of Ohio (Article I, Section 2), and the Bill of Rights.

Examination of the two ordinances will show that they are meant to cover widely dissimilar occupations. One, Section 813, is for the delicatessen store, and' licenses the carrying on of the business as therein described for a fee of $1. It is not claimed that this new license is not a proper exercise of the power of the council, and it is not claimed that it is discriminatory, and there is no complaint made about this; but it is alleged that the plaintiff has paid in to the license commissioner a fee of $1 for said license, and wants to get the benefits that may accrue to him by reason of the sale of near beer, and perhaps other refreshments, to be consumed upon the premises; in other words, to invoke the license granted by Section 2890, for which license all those who wish to engage in the business therein provided must pay a fee of $10.

Now the record shows that all those who wish to engage in the business described in the last-mentioned sections of the ordinance are treated alike, as are the parties who engage in the business described in the first-mentioned ordinance, and the question is whether, after a person engages in business under the first ordinance, if he wishes thereafter to widen the scope of his business and engage in the business described in the second above-mentioned ordinance, he can be made to pay an additional $10 fee; in other words, does that change the classification, and, if so, has there been a violation of his constitutional rights í

An examination of the two ordinances will clearly show that they provide for widely dissimiliar occupations, particularly in the nature, place and manner of structure.

The ordinance which we will call the “near-beer ordinance” provides how the place must be constructed: Without any screens, and so that the whole interior can be seen from the street, if upon the street level; if not upon the street level, then it must be built in such a way that the whole interior can be viewed from any entrance to the place where the near beer is dispensed.

Now the record shows in this case that where near beer is sold to be consumed on the premises a great deal more inspection is required than is needed under the other ordinance, which we will call the “delicatessen ordinance;” and according to the testimony of Mr. Cukr, the license commissioner, the cost for inspection of the places covered by the so-called near beer licenses was $5,200 for the year in which this litigation took place, and the amount collected would fall quite a sum short of that amount, so that there was no revenue actually derived from these licenses. The record further shows that there had been over fifty revocations of licenses where near beer was dispensed, whereas a great many fewer licenses had been revoked as far as the delicatessen license was concerned, and, as a matter of fact, there were many, many times the number of delicatessen licenses issued as compared with the near beer licenses.

The record also shows that near beer licenses require a closer inspection or investigation into the character of the applicant for the license than do delicatessen licenses. The theory of the city legislative department for the increased amount to be paid for the near beer license was the necessity for greater inspection and the keeping of a tab upon the places where near beer is dispensed, because of the fact that those places were much more often used as a cover for the violation of the Eighteenth Amendment and the liquor laws passed in pursuance thereof. In other words, the place where near beer was dispensed was often used as a cloak for the violation of the liquor laws, and the best safeguard that could be had against this sort of violation of the law was to have an exact record of all the places where near beer was dispensed. I do not think that it would be going out of the record to say that from our experience as a reviewing court these places where near beer is sold to be consumed upon the premises are more often used to disguise a bootlegging business than all other places combined in the city. Usually the bootlegging business is carried on, if carried on at all, in connection with a place where near beer is dispensed. We do not mean to be understood for a moment to say that all the places where near beer is dispensed are bootlegging establishments, but almost every bootlegging establishment has, in connection therewith, the dispensing of near beer; and so, for the purpose of keeping a tab upon the liquor violators, and that the license commissioner may have an exact record of all such places, the near beer license is very opportune and timely, and should not be interfered with, unless such legislation by the city council is clearly and manifestly in violation of .the Constitution of the United States, or of the Constitution of the state of Ohio, or is so unreasonable and so unjust as to be discriminatory.

If we understand the situation with respect to these two licenses, they are general and uniform and apply to all persons in a class alike. A person can have his license for a delicatessen business for $1, and that applies to all those who deal in that class, and that class only; and, if he wants to dispense near beer to be consumed upon the premises, then he must have a license for which a $10 fee is charged, and that applies to everybody alike, and so it cannot be discriminatory.

The question is, Has the city council the right to classify different businesses; has it the right to charge a license fee for one line of business and not for another? We think the authorities plainly indicate that it may do just that thing. Because council wants to license one business is not any reason why it must of necessity license another. The power of the council is supreme in this respect, and unless it has violated the Constitution of the United States or the Constitution of the state of Ohio, or unless the ordinance is discriminatory, it is a legislative function, and the court will not interfere with that discretion that is imposed upon the legislators of the city government.

There have been many decisions upon this question in Ohio, and many decisions in other states upon similar questions, and, while a license is allowable where the fees are to be used for inspection purposes, to see that the health ordinances are conformed with, even though the fee is more than is necessary for that purpose, authorities hold that it is still within the police power and within, the. right of council to pass such legislation, and, unless the ordinance is unreasonable, unjust, and discriminatory, the court will not interfere; and the courts should not interfere with legislative function except when absolutely necessary.

In the case of Yee Bow v. City of Cleveland, 99 Ohio St., 269, 124 N. E., 132, 12 A. L. R., 1424, the court held:

“1. In the regulation of laundries, a city ordinance defining a public laundry to be any premises, etc., used for the purpose of laundering certain washable articles ‘for thirty or more owners of such articles per week, and for pay,’ is not unreasonable nor discriminatory. The basis of classification therein employed is natural and reasonable, and the provisions of the ordinance operate uniformly upon the class therein named.
“2. When a city has the right, under its police power, to impose regulations upon a business, the validity of an ordinance cannot be attacked merely because its scope was not extended to cover the entire field of possible abuses which such ordinance seeks to prevent. ’ ’

Further, the court, in its opinion in the above-named case, said, at page 274 (124 N. E., 132, 133):

“But it is now generally held that discretionary powers may be lodged in administrative officers to determine whether the terms of a law or ordinance of this character have been complied with, and that such ‘terms like other general terms get precision from the sense and experience of men.’ ”

So from their experience the city authorities in Cleveland have come to the conclusion that in licensing the selling of near beer to be consumed upon the premises they are making a separate and distinct class from the ordinary delicatessen store, and that therefore they have the right and power to prescribe such a license for carrying on that business; and, as has already been pointed out, inasmuch as it costs more to inspect places where the sale of near beer for consumption upon the premises is carried on, and to investigate the character of the person who sells near beer, the fees for such work may well be much higher than in the delicatessen business.

In a nisi prius decision, Koeberle v. City of Akron, 23 N. P. (N. S.), 267, decided April 3,1921, the court held that in the passing of an ordinance by a city council and the passing upon such ordinance by a court, there might be taken into consideration the fact that the place where near beer was dispensed would tend to be a breeding place for the violation of the liquor laws, to which we have already alluded.

Prom the authorities, undoubtedly the city council has the right to classify businesses; and when it has classified a delicatessen business, and has separated it from the dealing in near beer business, to be consumed upon the premises, it is within its rights and exercise of the power that is granted a legislative body; and, when the ordinances bear equally down or upon all persons who come within each particular class, they cannot be said to be discriminatory.

In the ease of Longbrake v. State, 112 Ohio State, 13, 146 N. E., 417, 41 A. L. R., 925, the court held:

“Section 1089-9, General Code, prohibiting the use of saccharin in bottled soft drinks, is constitutionally valid and within the inherent police powers of the state. * * *
“The fact that such legislation was confined to bottled or other soft drinks, and was not extended to other foods, does not render the act invalid because of discrimination.”

The majority of this court in taking all the authorities into consideration as to the end to be gained, and the purposes of the ordinance, cannot see upon what ground this particular ordinance can be held unconstitutional or void. Surely if a person would undertake to start in the near beer business alone, without being connected with a delicatessen store, he could not but say that the ordinance would be reasonable and within the power of council to make, in view of the expense that is necessary in so many different departments of the city government. The building department, the fire department,' and the police department would have to make inspections to see that everything was constructed in accordance with the provisions of the ordinances, and complied therewith. Surely, I say, that if these things be done, the applicant can not justly refuse to pay the $10 fee required if he wants to carry on the business of dispensing near beer to be consumed upon the premises. If he wanted to start a delicatessen store, which required a $1 fee only, he could not defeat the end and aim of the other ordinance by adding near beer, to be consumed upon the premises, to his already established delicatessen, store business. If this be so, then the complaint of the plaintiff has no foundation in fact, and the majority of this court think, and so hold, that the injunction to restrain the city from collecting this tax must be refused, and, that being so, the mandatory injunction to compel the city license officer to issue a license for the conducting of a near beer establishment or an establishment where near beer is to be consumed upon the premises cannot and ought not be granted without the payment or tender of the additional $10 fee.

This being the holding of a majority of this court, the decree will be for the defendants.

Decree for defendants.

Weygandt, J., concurs in judgment.

Levine, P. J., dissents.  