
    The Neil House Hotel Co., Appellee, v. City of Columbus et al., Appellants.
    (No. 29967
    Decided December 13, 1944.)
    
      
      Mr. Joseph F. Hogan and Mr. D. Curtis Reed, for appellee.
    
      Mr. John L. Davies, city attorney, Mr. E. W. McCormick and Mr. Richard W. Gordon, for appellants.
   Zimmerman, J.

Where the General Assembly has spoken through legislation, on a matter of state-wide concern, a municipal ordinance in conflict with such legislation must give way to the superior authority. City of Cincinnati v. Gamble et al., Board of Trustees, 138 Ohio St., 220, 34 N. E. (2d), 226; State, ex rel. Arey, v. Sherrill, City Manager, 142 Ohio St., 574, 53 N. E. (2d), 501, and cases cited therein.

The theory of the cases is that due consideration is to be given to all parts of a constitutional provision. Therefore, since Section 3, Article XYIII of the Constitution grants municipalities authority to exercise local self-government, with power to adopt and to enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws, it follows that when such regulations do conflict with general laws relating to affairs of statewide interest, the general laws are paramount.

It may not be gainsaid that the control and regulation of the liquor traffic is within the province of the state government in the exercise of its police power. State, ex rel. Zugravu, v. O’Brien, 130 Ohio St., 23, 196 N. E., 664; Frankenstein v. Leonard et al., Bd. of Liquor Control, 134 Ohio St., 251, 16 N. E. (2d), 424.

The General Assembly of Ohio has undertaken to control and regulate the production, sale and dispensing of beer, wine and spirituous liquors throughout the state and has created an agency called the Board of Liquor Control to execute and administer the laws and to regulate the conduct of those who engage in the manufacture and sale of alcoholic beverages.

Section 6064-3, General Code, accords the Board of Liquor Control authority to promulgate rules and orders to carry out the provisions of the Liquor Control Act, including the designation of hours during which, and the persons to whom, beer and intoxicating liquors may be sold. As has- been noted, the instigator of this action is the' holder of permits D-l, D-2, D-3 and D-3a, for which it paid the stipulated fees to the state. Section 6064-15, General Code, describes the various classes of permits which may be issued. Among other things, that section provides that one who holds permits such as are possessed by plaintiff may sell beer and intoxicating liquors after the' hour of 1:00 a. m. It is stated in Section 6064-22, General Code, that sales of beer and intoxicating liquors under all classes of permits may not be made after 2:30 a. m. on Sunday. Pursuant to specific grant, the Board of Liquor Control promulgated its regulation No. 30, prohibiting the sale and consumption of beer and intoxicating liquors on the premises of a D-3a permit holder between the hours of 2:30 a. m. and 5 :30 a. m.

There can be no question as to the validity and efficacy of regulation No. 30, adopted and promulgated by express authorization of 'Section 6064-3, General Code. It constitutes the due exercise of administrative power adequately conferred and represents, in effect, the voice of the General Assembly heard through an agency of its creation. See Coady v. Leonard et al., Bd. of Liquor Control, 132 Ohio St., 329, 7 N. E. (2d), 649, and compare State, ex rel. Kildow, v. Industrial Commission, 128 Ohio St., 573, 580, 192 N. E., 873, 876; Zangerle, Aud., v. Evatt, Tax Commr., 139 Ohio St., 563, 572, 41 N. E. (2d), 369, 373.

From a perusal of the pertinent statutes and regulation No. 30, it is difficult to escape the conclusion that plaintiff, under state authorization, may lawfully sell beer and intoxicants to its customers after the hour of midnight and that a municipal ordinance fixing midniglit as the time when the sale of such beverages must cease, is invalid. See Village of Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519. See, also, Noey v. City of Saginaw, 271 Mich., 595, 261 N. W., 88.

When the statutes and a valid regulation of the Board of Liquor Control say that the sale of intoxicants may not be made after a designated hour, it is equivalent to saying that sales up to that time are lawful, and an ordinance which attempts to restrict sales beyond an earlier hour is in conflict therewith and must yield. Scheiderman, an Infant, v. Sesanstein, 121 Ohio St., 80, 86, 167 N. E., 158, 160, 64 A. L. R., 981.

In principle at least this case is controlled by the decision in City of Akron v. Scalera, 135 Ohio St., 65, 19 N. E. (2d), 279, the implications of which are that if a municipal ordinance of the type here involved is in collision with a general law upon the same subject, the ordinance is ineffective.

Having reached the conclusion expressed, we say nothing concerning the failure of the ordinance to provide for the return to the permit holder of a part of the fees assessed and paid, for the city’s benefit under the state law, for the privilege of selling beer and intoxicating liquors after midnight.

Finding the judgment of the Court of Appeals herein free from error, it is affirmed.

Judgment affirmed.

Matthias, Bell and Turner, JJ., concur.

Weygandt, C. J., Hart and Williams, JJ'., dissent.

Weygandt, C. J.,

dissents on the ground that the trial court was not in error in reaching the conclusion that the provisions of the municipal ordinance are not in conflict with those of the state statute.

Hart, J.,

dissenting. I agree that the regulation and control of the liquor traffic are within the province of the state government in the exercise of its police power, but the regulation of such traffic is also within the province of a municipal government under its power of' local police regulation. Both governmental entities possess constitutional power of regulation with relation to matters which conserve the public health, morals, safety or public welfare within their respective territorial limits. 23 Ohio Jurisprudence, 101, Section 5; Village of Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519; City of Youngstown v. Evans, 121 Ohio St., 342, 168 N. E., 844. See, also, 26 A. L. R., 664. Municipalities derive no authority from, and are subject to no limitation of, the General Assembly, concerning police regulations of this kind, except that ordinances shall not be inconsistent with the general laws of the state prohibiting the manufacture, possession or sale of intoxicating liquors for beverage purposes and the keeping of places where intoxicating liquors are manufactured, sold, and furnished for beverage purposes. Heppel v. City of Columbus, 106 Ohio St., 107, 140 N. E., 169.

The question remaining is whether the ordinance of the city of Columbus is in conflict with the act of the General Assembly with reference to the licensing of the liquor traffic. The state Liquor Control Act gives the Department of Liquor Control power “to control the traffic in beer and intoxicating liquor in this state, including the manufacture, importation, and sale thereof, as in this act provided,” and “to grant or refuse permits for the manufacture, distribution, transportation and sale of beer and intoxicating liquor and the sale of alcohol, as authorised or required by this act.” (Italics mine.) See Section 6064-8, General Code. The act further provides that no person shall manufacture for sale, or sell any beer or intoxicating liquor in this state unless such person shall have fully complied with the provisions of the Liquor Control Act or shall be the holder of a permit issued by the Department of Liquor Control and in force at the time. See Section 6064-14, General Code. Certain classes of permits may be issued to manufacture or to sell beer or other liquors for which certain fees shall be charged.

The act also provides that permits of certain classes shall not be issued in any municipal corporation, or any township exclusive of any municipal corporation or part thereof therein, in which at the November 1933 .election a majority of the electors voting thereon voted against the repeal of Section 9 of Article XV of the Constitution of Ohio, unless the sale of spirituous liquors by the glass shall thereafter be authorized by a majority vote on the question in such municipal corporation or township or part thereof. See Section 6064-17, General Code. And the act provides that the privilege of local' option as to the sale of intoxicating liquors is conferred upon the electors of all municipal corporations, residence districts in municipal corporations consisting of two or more contiguous election precincts therein, and townships exclusive of any municipal corporation or part thereof therein located. See Section 6064-31, General Code. If a majority of the electors voting on such questions in any such district vote “ no ” on the question, it shall be unlawful for any Class C or Class D permit holder to sell intoxicating liquors of any kind within the district, concerned during the period of the effectiveness of such election. See Section 6064-34, General Code. In case, as a result of such election, the use of a permit shall be made wholly unlawful, the department shall forthwith cancel such permit. See Section 6064-37, General Code. And whenever the Department of Liquor Control shall cancel a permit, as required by any provision of this act, the department shall refund to the holder thereof, a proportionate amount representing the unexpired portion of his permit year, excepting that such refund shall in no event be more than 90 per cent of such fee and if the unexpired term is less than 30 days no refund shall be made. See Section 6064-39, General Code.

If, aside from the provisions of the Liquor Control Act, pertinent portions of which are above noted, the legislative authority of a municipal corporation has the power under the Constitution to regulate or prohibit the sale of intoxicating liquors within the municipality during certain designated hours, do the provisions of the act take away from the municipal corporation that constitutional power? In my opinion they do not. Since, under the act, a license may not be granted or used within a territorial unit which in 1933 voted against the repeal of Section 9, Article XY of the state Constitution, unless such unit has since authorized the sale of liquors therein, and since the adoption of local option suspends the operation of the act within the local option territory and as a result the use of the permit shall be made wholly unlawful therein, it is my opinion that a like result necessarily follows when a municipality exercises its power to regulate or prohibit the traffic, which power the ac’t does not even remotely attempt to take away. It .seems to bo the spirit of the act to protect territory which by law has been or may be made immune from the liquor traffic, by making the use of a license unlawful in such territory.

The authorities of any particular municipality are in a position to know the needs and requirements of the community and what regulations will best subserve that purpose, and it is the policy adopted by the people of this state to accord its municipalties a high degree of home rule.

I am of the opinion that a license or a permit under the law to do an act permitted thereunder does not create a continuing or permanent right to exercise the privilege granted, but only for the period of the license or so long as the privilege may be lawfully exercised. Such licenses create ‘no contract or property right in the individual receiving them and may be revoked or terminated whenever it becomes-unlawful to exercise them. State, ex rel. Zugravu, v. O’Brien, 130 Ohio St., 23, 196 N. E.,664; Tanner, Sr., v. Village of Alliance, 29 F., 196.

Williams, J., concurs in the foregoing dissenting opinion.  