
    Benjamin et al., Appellees, v. City of Columbus et al., Appellants. Ferguson et al., Appellees, v. City of Columbus et al., Appellants.
    
    
      (Nos. 5529 and 5530
    Decided February 7, 1957.)
    
      Messrs. McLeskey é McLeskey and Mr. Owen B. Sherwood, for appellees.
    
      Mr. Chalmers P. Wylie, city attorney, and Mr. Russell Leach, for appellants.
    
      
      Judgment affirmed, 167 Ohio St., 103.
    
   Fess, J.

These are appeals on questions of law and fact from a judgment entered in the case of Ferguson v. City of Columbus, No. 187, 169 in the Common Pleas Court, permanently enjoining the defendant from the enforcement of ordinances numbered 156-53, 157-53 and 1615-54. The case of Benjamin v. City of Columbus, No. 191, 975, was consolidated with the Ferguson case in the trial court and, upon the appeals, the two cases are consolidated herein for retrial. The Ferguson case attacks the constitutionality of ordinances Nos. 156-53 and 157-53. whereas the Benjamin case relates to ordinance No. 1615-54. By stipulation, it is agreed that each action includes the three ordinances in question.

A digest of the averments of the petition as well as the salient provisions of the 1953 ordinances are reported in Ferguson v. City of Columbus. 70 Ohio Law Abs., 277, 128 N. E. (2d), 198, and are not repeated herein. The answer in the Ferguson case admits that the city threatens to enforce the provisions of the ordinances against plaintiffs and merchants with whom plaintiffs have contracts.

On July 19, 1954, the Common Pleas Court, based upon a well considered opinion, in which it concluded that the 1953 ordinances were not violative of constitutional provisions, entered judgment for the defendant upon the pleadings. Upon an appeal on questions of law, this judgment was reversed, essentially on the ground that issues of fact that required a trial were presented upon the pleadings. Ferguson v. City of Columbus, supra (70 Ohio Law Abs., 277). In its opinion, the Court of Appeals made certain suggestions with respect to the licensing and seizure provisions of the 1953 ordinances, which are carried in the headnotes of its opinion.

In its opinion, the Court of Appeals concludes “that the ordinances given full force and effect, if the averments of the petition are proven, do not authorize, nor purport to empower, the defendant officers with the right to confiscate the machines, or to arrest and imprison the merchants with whom plaintiffs have contracts.” The court also says that “it is not necessary to decide the issues of the constitutionality of the ordinances except insofar as is required to determine if upon any theory the sustaining of the motion for judgment on the pleadings was proper,” and that “we do not hold the ordinance is invalid because it characterizes as a nuisance the operation of a machine, therein described, ‘which tends to encourage gambling.’ It is the method of making determination of this essential of a nuisance as a basis of a seizure of the machine which we cannot support.”

After the Court of Appeals decision in the Ferguson case was announced, the defendant, no doubt as a result of such decision, enacted ordinance No. 1615-54 on December 7,1954. This ordinance provides that whoever shall have in his possession, custody or control any table game or device commonly known as “pin game,” “pin-ball game” or “marble game,” the operation, use or play of which is controlled by placing therein any coin, plate, disk, plug, key or other token, or by the payment of a fee, shall be guilty of a misdemeanor, etc. The purpose of this supplementary ordinance is rather ineptly stated in the preamble.

These ordinances, tacked onto the chapter of the Columbus Code relating to gambling, are complex, contradictory, and bear the mark of having been hastily drawn and considered without that degree of care and clarity of expression which should attend legislative enactments. We concur in the suggestions made in the Ferguson case, supra (70 Ohio Law Abs.), at page 288, that the ordinances should be shortened and codified into simple, concise and clear phraseology.

In March, 1955, the Benjamin case was filed, attacking the 1954 ordinance. On May 9, 1956, the Common Pleas Court found that a municipality has no authority to prohibit the use and operation of pinball machines which are merely designed and utilized for amusement purposes only. Benjamin v. City of Columbus, 73 Ohio Law Abs., 143, 136 N. E. (2d), 641. A decree was entered permanently enjoining the defendant from interfering with the ownership, etc., of pin games by the plaintiffs and any merchant with whom plaintiffs have contracts for the operation of such games so long as they are not used for gambling.

A century ago an eminent jurist declared that an application for injunction is addressed to the sound discretion of the court. Spencer, J., in Commercial Bank of Cincinnati v. Bowman, Treas. (1855), 1 Handy, 246, 12 O. D. Rep., 125. This discretion reposed in a court of equity is to be exercised in the light of all circumstances surrounding the application for relief by way of the injunctive process.

The council of Columbus, in the exercise of its legislative function pursuant to its inherent police power and as conferred upon it by the Ohio Constitution, has declared that pin games (not gaming devices per se) are detrimental to public morals in that they tend to encourage gambling, register odds or a score, or are adapted, or may be readily converted into a machine, device or instrument that is adapted for use in violation of other provisions of the chapter relating to gambling. The ordinance also characterizes the operation of such a machine a nuisance. We are aware that the Supreme Court of Ohio has said that the mere declaration in an ordinance that it is enacted to protect public safety, health or morals will not render it valid under the police powers. City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St., 654, 148 N. E., 842, 43 A. L. R., 662. And if a municipal ordinance has no reasonable relation to the morals, health and safety of the people of a municipality, it is an unauthorized exercise of the police power. City of Youngstown v. Kahn Bros. Bldg. Co., supra; 37 American Jurisprudence, 927, Section 288.

But the ordinances in the instant case not only contain a general declaration that pin games are detrimental to public morals, but also the specific grounds which in the opinion of the legislative body make such games detrimental. Council may have recognized the ancient adages that “a foies bolt is soone shotte” (Taverner, 1539), and “a fool and his money is soon parted” (Howell, 1645). Council in its wisdom may have concluded that mechanical whirr accompanied by the glitter of the flickering lights engendered by the erratic peregrination of the metallic balls recording mounting scores appeals to the gambling instinct and cupidity of the moronic wastrels who may play the machines for amusement only. Council has concluded that there are devices in addition to “one-arm bandits” which entice the gullible to gleefully fiddle away their time and substance in parting with their nickels and dimes.

An ordinance of a municipality can not be overthrown by a court unless such legislation is clearly arbitrary, unreasonable or unrelated to the public health, morals, safety, or welfare of the community. It is not for the courts to determine the wisdom of the legislation, but its constitutional validity, and a court may not substitute its judgment for that of the legislative body as to the necessity for or wisdom of the legislation. Stary v. City of Brooklyn, 162 Ohio St., 120, 134, 121 N. E. (2d), 11. Furthermore, a court will not substitute its judgment for the discretion of municipal legislative authorities, who are presumed to be familiar with the local needs and conditions, so long as the provisions do not clearly transcend the limits of reasonableness. 28 Ohio Jurisprudence, 498, Section 303.

Over objection, parties plaintiff engaged in the leasing of pin games testified that their nonfree play machines were operated for amusement only and did not tend to encourage gambling or loitering. This opinion evidence, given by witnesses interested in the outcome of the litigation, does not meet, much less overcome, the legislative declaration, presumptively true, that such machines tend to encourage gambling and loitering. These interested witnesses also testified that it would take up to four or five days for an expert mechanic to convert a machine to free play.

There is also evidence that the conversion can be made in a much shorter period. But, accepting the exaggerated period at face value, we cannot hold that the council was wrong in declaring that such machines are readily convertible. A presumption of legality and good faith attends the adoption of an ordinance until it be clearly established that the council has exceeded its powers, or that it acted in bad faith or has abused its discretion. 28 Ohio Jurisprudence, 501, Section 305. Although we might agree with the opinion expressed by the operators and disagree with that of the council, we may not substitute our opinion for that of the legislative body.

Incident to obtaining the relief herein sought, the plaintiffs are also confronted with another insurmountable presumption. The cardinal rule in the interpretation of ordinances is to ascertain, declare and give effect to the legislative intent, which is to be gathered from the provisions of the enactment and the apparent purpose of the law as applied to the evil at which it is aimed. City of Toledo v. Wagner, 57 Ohio App., 160, 13 N. E. (2d), 136. It is repeatedly held in Ohio that a clear incompatibility between a law and the Constitution must exist before the judiciary is justified in holding the law unconstitutional, and the party asserting unconstitutionality must clearly show it. 10 Ohio Jurisprudence (2d), 248, Section 168. A legislative function will not be interfered with by the courts unless such power is exercised in an arbitrary or unreasonable manner in violation of constitutional guaranties, and the facts to justify interference with the sound discretion of the legislative body must clearly appear from the evidence, and, if debatable, the legislation will be upheld. Cleveland Trust Co. v. Village of Brooklyn, 92 Ohio App., 351, 110 N. E. (2d), 440.

Plaintiffs seek to draw a distinction between the power of a municipality to “prohibit” and its power to “regulate,” as provided in Section 3, Article XVIII of the Constitution. They apparently concede that the power to regulate includes the power to prohibit that which is inherently evil, but contend that the power to regulate does not include the power to prohibit that which is not inherently evil or is legitimate. 10 Ohio Jurisprudence (2d), 506, Section 427. If a business is not harmful, the prosecution of it can not be lawfully prohibited to one who will conduct such business in a lawful manner. Thus it has been held that the following businesses do not bear such a relation to the public health, welfare, safety, or morals as to justify their restrictive regulation: commercial photographing, selling flowers, watchmaking, and painting, paperhanging, plastering and mason work (10 Ohio Jurisprudence [2d], 504, Section 426); slaughtering of chickens (Simon v. City of Cleveland Heights, 46 Ohio App., 234, 188 N. E., 308); street sales of icecream, soft drinks, candies, etc. (Frecker v. City of Dayton, 153 Ohio St., 14, 90 N. E. [2d], 851; Frecker v. City of Zanesville, 35 Ohio Opinions, 234, 72 N. E. [2d], 477; Schul v. King, Chief of Police, 35 Ohio Opinions, 238, 70 N. E. [2d], 378); trafficking in amusement tickets (Heller v. City of Cleveland, 37 Ohio Law Abs., 545); and weighing and measuring (City of Cincinnati v. Broadwell, 3 O. D. Rep., 286). Cf. 10 Ohio Jurisprudence (2d), 507, Section 430. But these authorities do not go to the extent of holding that a municipality may not prohibit that which has evil potentialities, such as is declared under the ordinances in question. Of. Myers v. City of Cincinnati, 128 Ohio St., 235, 190 N. E., 569.

Furthermore, that which is legitimate may be prohibited incident to the regulation of an evil. For example: 99 percent of uninspected meat may be perfectly wholesome and its sale legitimate, but, in the interest of protecting the consuming public from the one percent which may be unwholesome and deleterious, the sale of wholesome uninspected meat may be prohibited. City of Dayton v. Jacobs, 120 Ohio St., 225, 165 N. E., 844. Cf. City of Cleveland v. Terrill, 149 Ohio St., 532, 80 N. E. (2d), 115; and Grown v. City of Cleveland, 125 Ohio St., 455, 181 N. E., 897, 84 A. L. R., 708 (sale of corn sugar). As stated in the Grown case, drastic regulations of private business have been repeatedly held to be constitutional. See Marmet v. State, 45 Ohio St., 63, 12 N. E., 463; Phillips v. State, 77 Ohio St., 214, 82 N. E., 1064; Sanning v. City of Cincinnati, 81 Ohio St., 142, 90 N. E., 125, 25 L. R. A. (N. S.), 686; Renner Brewing Co. v. Rolland, 96 Ohio St., 432, 118 N. E., 118; State v. Norval Hotel Co., 103 Ohio St., 361, 133 N. E., 75, 19 A. L. R., 637; Holsman v. Thomas, City Clerk, 112 Ohio St., 397, 147 N. E., 750, 39 A. L. R., 760; and Dunn v. State, 122 Ohio St., 431, 172 N. E., 148. See, also, the dissenting opinion of Taft, J., in Frecker v. City of Dayton, supra (153 Ohio St.), at p. 23. It is readily observed that incident to the exercise of the power to regulate, otherwise legitimate activities which do not comply with the regulations may be prohibited.

There is a clear cut distinction between that class of articles which have been declared unlawful and a public nuisance by statute or by ordinance and may be seized and disposed of forthwith and the class of property which is lawful in its ordinary and proper use and becomes contraband only when used in an unlawful manner and where there is a determination to that effect in a court of competent jurisdiction. See Grieb v. Dept. of Liquor Control, 153 Ohio St., 77, 81, 90 N. E. (2d), 691, citing Wagner v. Upshur, 95 Md., 519, 52 A., 509, 93 Am. St. Rep., 412; Edson v. Crangle, 62 Ohio St., 49, 56 N. E., 647: State v. French, 71 Ohio St., 186, 202, 73 N. E., 216, 104 Am. St. Rep., 770; In re Estate of Weisenberg, 147 Ohio St., 152, 70 N. E. (2d), 269.

There is likewise a distinction between a pinball game which has been declared unlawful and a nuisance and the so-called “fish net” cases referred to in the Grieb case.

Notwithstanding the constitutional safeguard of religious freedom, conduct of business pursuits, including sports, may be validly prohibited on Sunday.

Since regulation, as the term is used in the Constitution, includes prohibition, in order to grant relief we must find that the prohibitory regulation herein involved has no reasonable relationship to the public morals or public welfare. It is to be borne in mind that the burden is not upon the city to sustain the constitutionality, but the burden is on the plaintiff to clearly show that enactments are unconstitutional. It is our conclusion that the plaintiffs have failed to show that such prohibitory regulations are unreasonable and arbitrary or that they have no real or substantial relation to the morals or general welfare of the people of Columbus.

In its opinion in Ferguson v. City of Columbus (1954), supra (70 Ohio Law Abs., 277), the court, without being required to do so, said that the power granted in the 1953 ordinance to police officers and licensing officials to determine that the operation of a pinball machine “tends to encourage” gambling is too broad and is a judicial power which cannot be delegated to enforcing or licensing officials. In our opinion this invalidity has now been removed by the enactment of ordinance No. 1615-54, prescribing a standard for licensing and seizure of pinball machines, which the council has declared tend to encourage gambling, register odds or scores, and are readily convertible to free play. Admittedly this conclusion is debatable, but the doubt must be resolved in favor of constitutional validity. As a general rule, a law which confers discretion on an executive officer or board, without establishing any standards for guidance, is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, welfare, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, the legislation conferring such jurisdiction may be valid and constitutional without such restrictions or limitations. See the seventh paragraph of the syllabus of Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220.

In the light of the foregoing observations, the ordinances are not in violation of the Fourteenth Amendment to the U. S. Constitution. Murphy v. People, 225 U. S., 621, 56 L. Ed., 1229, 32 S. Ct., 697, 41 L. R. A. (N. S.), 153.

In conclusion, plaintiffs in each case have failed to show:

1. A clear incompatibility between the ordinances and the Ohio Constitution.

2. That the ordinances bear no real and substantial relation to the public health, safety, morals or general welfare of the public, or are arbitrary or unreasonable.

3. That plaintiffs are entitled to injunctive relief.

The petition in each case is dismissed at plaintiff’s costs. Judgment is rendered for defendant in each case, and the causes are remanded to the Common Pleas Court for execution for costs.

Judgments accordingly.

Deeds and Hunsicker, JJ., concur.

Fess and Deeds, JJ., of the Sixth Appellate District, and Hunsicker, J., of the Ninth Appellate District, sitting by designation in the Second Appellate District. 
      
      Ve are advised that the headnotes of the opinion of the Second District Court of Appeals appearing- in the Ohio Law Abstract were neither prepared nor approved by the Court.
     
      
      “Whereas, the operation of pinball machines and similar machines involving chance or skill or reward encourages gaming and the general disorder incident thereto, and is a threat or menace to the peace and morals of the community, and
      “Whereas, even the so-called amusement-only pinball machines are so constructed as to be almost identical in appearance and operation to certain gambling devices per se; and
      “Whereas, even the vast majority of such so-called amusement-only devices are readily convertible to gambling devices; and
      “Whereas, the operation of even amusement-only pinball machines has become and now constitutes a nuisance in that it encourages a false sense of values, idling, and loitering; and
      “Whereas, an emergency exists in that such pinball machines are now generally absent from the city, but will return unless immediately prohibited; and for the immediate preservation of the public peace and safety; now, therefore:” etc.
     
      
      Although Westerhaus v. City of Cincinnati, 165 Ohio St., 327, 135 N. E. (2d), 318, was not announced until June 11, 1956, free-play machines are excluded from the injunction.
     
      
      See Ferguson v. City of Columbus, 70 Ohio Law Abs., 277, 284, wherein Section 29.38 is quoted in full.
     
      
      “The proposition is well established that ordinances of a municipality must not be unreasonable or arbitrary; but it is equally well settled that courts should not substitute their judgment for the legislative discretion and do not pass upon the wisdom or expediency of an ordinance.” City of Dayton v. S. S. Kresge Co., 114 Ohio St., 624, 629, 151 N. E., 775, 53 A. L. R., 916, citing Allion v. City of Toledo, 99 Ohio St., 416, 124 N. E., 237, 6 A. L. R., 426.
     
      
      “It is of some significance that these witnesses were unfamiliar with the interior mechanism of the machines and that the plaintiffs did not elect to introduce the testimony of expert mechanics who must have been available, regarding the manner of conversion and the time and skill required.
     
      
      “The constitutional provisions relied upon by plaintiff in error protect the citizen in his right to pursue any lawful business, but they do not prohibit legislation intended to control pursuits which because of their nature have injurious and harmful possibilities. Even if the slot machine involved in this case is manufactured and intended for lawful operation, its potentiality and design is such that it may be easily put to unlawful use. The regulation or prohibition of such a mechanism need not be postponed until such event occurs.”
      “The city has the right to determine whether the exhibition, maintenance and operation of slot machines as defined in the ordinance are prejudicial to the public good.” Myers V. City of Cincinnati, 128 Ohio St., 235, 238.
      As in the instant case, the defendant contended that the particular slot machine was for amusement only. The statement of facts indicates that the machine was used for gambling but the import of the decision is that even though it be used for amusement only, the city could prohibit it on account of its potentiality.
     
      
      “ ‘The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical wellbeing of society promoted. The Legislature has so considered it, and the judiciary cannot say that the Legislature was mistaken, and, therefore, the act is unconstitutional, without passing out of its legitimate sphere, and assuming a right to supervise the exercise of legislative discretion in matters of mere expediency.’ ” State v. Powell, 58 Ohio St., 324, 344, 50 N. E., 900, 41 L. R. A., 854.
     