
    Village of Leipsic v. Folk.
    (Decided March 28, 1931.)
    
      Mr. A. A. Slaybaugh, for plaintiff in error.
    
      Mr. H. P. Eastman, for defendant in error.
   Klinger, J.

J. M. B. filed an affidavit before C. A. Cody, mayor of the village of Leipsic, Putnam county, Ohio, charging defendant, Plummer D. Folk, with a violation of Section 1 of Ordinance No. 397 of said village of Leipsic.

On the 28th of April, 1930, the cause came on for trial. Defendant, before the taking of any testimony, objected to the introduction of any evidence, and moved the court to quash the affidavit and to discharge defendant, all of which requests were overruled by the court.

While the defendant appeared in person and by counsel, he offered no evidence in his defense in the mayor’s court.

After hearing the. evidence, the court found the defendant guilty as charged, to which findings of the court, as well as the other rulings of the court, defendant excepted. Defendant filed a motion for new trial, which was overruled, and the court fined defendant $25, taxed him for costs, and sentenced him to the Toledo Workhouse until fine and costs were paid.

At the May term, 1930, of the court of common pleas of Putnam county, this cause came on for hearing on the petition in error from the decision of the mayor of the village of Leipsic. A judgment of reversal, together with the costs, was rendered against the village of Leipsic by the court of common pleas. Plaintiff in error, the village of Leipsic, thereupon prosecuted error from the Putnam county court of common pleas to this court, claiming, (a) that the court erred in reversing the decision of the mayor of the Village of Leipsic, Ohio; (b) that said judgment of the court of common pleas is contrary to law; (c) that the judgment of the court of common pleas should have been in favor of the village of Leipsic, Ohio, instead of in favor of defendant in error Plummer D. Polk; and (d) for other errors appearing upon an inspection of the record.

We have carefully read the transcript of the evidence, and are of the opinion that there is abundant evidence to sustain the judgment of conviction in the mayor’s court.

The credibility of the witnesses, and the weight to be given to the testimony of witnesses, was for the trial court. And in this case there was no evidence offered by the defendant in error to contradict the testimony offered in the mayor’s court.

The real crux of this case depends upon the validity of the ordinance under which this prosecution and conviction was had. Counsel for defendant in error contends that this ordinance, being Ordinance No. 397 of the village of Leipsic, Ohio, is null and void. Section 1 of said ordinance reads as follows:

‘ ‘ That whoever is found in a state of intoxication within the corporate limits of said village, or whoever being intoxicated shall disturb the quiet and good order of the citizens of said village within the corporate limits thereof, shall be fined not less than $5.00 nor more than $100.00 and stand committed to the Toledo Ohio Workhouse or village jail until such fine and costs of prosecution are paid or secured to be paid.”

Counsel for defendant in error contends that municipalities are creatures of statute and derive all their powers from the laws of the state.

The power of the village to legislate against disturbing the good order and quiet of the corporation, by intoxication or other similar offenses, counsel for defendant in error contends is delegated under Sections 3664 and 3665, General Code.

Section 3665 of the General Code limits the punishment to a fine not to exceed $50, and counsel for defendant in error contends that the punishment is an inseparable part of the ordinance, and that, if the penalty is illegal and excessive, the entire ordinance is void, and cites in support of his contention the case of Morris v. City of Conneaut, 20 N. P. (N. S.), 289, 28 O. D., N. P., 83.

In the instant case, the punishment imposed was $25. However the ordinance authorizes punishment not to exceed $100. Counsel contends that the mere fact that the fine imposed did not exceed the limit prescribed by Section 3665, General Code, does not save the validity of the ordinance or the conviction.

There is considerable authority in Ohio in 'support of the contention of counsel for defendant in error. However, it is our opinion that the authorities are premised upon interpretations of the law and the Constitution prior to the adoption of the Constitution of 1912.

According to the Supreme Court of the state of Ohio, as expressed in Village of Struthers v. Sokol, and City of Youngstown v. Sandela, 108 Ohio St., 263, 140 N. E., 519:

“Municipalities in Ohio are authorized to adopt local police, sanitary and other similar regulations by virtue of Section 3, Article XVIII, of the Ohio Constitution, and derive no authority from, and are subject to no limitations of-, the General Assembly, except that such ordinances shall 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, * * *
“A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, * * * or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance.”

It is the spirit and the pronouncement of the decisions since adoption of the new Constitution that, by virtue of Section 3 of Article XVIII of the Ohio Constitution, as amended in 1912, municipalities of the state have police power directly conferred by the people in all matters of local self-government, and that, upon all the subjects covered in those cases, municipal legislation was a valid exercise of the local police power.

Again, in 121 Ohio State, at page 342, 168 N. E., 844, the Supreme Court in the case of City of Youngstown v. Evans said:

“Section 3628, General Code, is not a law defining offenses and prescribing the punishment therefor, and is not therefore effective to bring an ordinance purporting to define and punish offenses in conflict with Section 3, Article XVIII, of the Constitution. ’ ’

And, in our opinion, this is the identical question involved in the case at bar. The facts in that case and the case at bar are comparable.

In that case, the city of Youngstown provided penalties in excess of the limitation fixed in Section 3628 of the General Code. The Supreme Court said that, if the Code section is effective as a limitation, the ordinances are clearly invalid, but Section 3, Article XVTII, of the Constitution, provides that “municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict , with general laws.”

This court therefore is of the opinion that the mere fact that Section 1 of Ordinance No. 397 of the village of Leipsic provides that fine of not more than $100 may be imposed and Section 3665 of the General Code of Ohio provides that the fine shall in no case exceed $50 does not invalidate the ordinance of the village of Leipsic.

The finding and judgment of the court of common pleas reversing the mayor’s court of the village of Leipsic will be reversed and the finding and judgment of the mayor’s court of the village of Leipsic will be affirmed, and the cause remanded for execution.

Judgment reversed and cause remanded.

Justice, P. J., and Crow, J., concur.  