
    Christian Burckholter v. The Incorporated Village of McConnellsville.
    The incorporated, village of McConnellsville, in September, 1869, passed an ordinance-declaring it to be unlawful for any person to keep, within said village, a house, shop, room, booth, arbor, cellar or place where ale, porter or beer is habitually sold, or furnished to be drunk, in, upon or about the house, shop, room, booth, arbor, cellar or place where so sold or furnished. Meld:
    
    1. That the municipal corporations of this State were, at the date of this ordinance and prior thereto, expressly empowered to pass such a prohibitory ordinance; and such ordinance is not therefore invalid, as being in conflict with the statutes of the State, or unauthorized.
    2. It is no ground of objection to the validity of such municipal ordinances, when clearly authorized, that State legislation has not extended a similar prohibition over all parts of the State. It is for the law-making power of the State to determine, within the limitations of the constitution, to what extent city or village councils shall be invested with the power of local legislation.
    3. These principles do not conflict with the decisions in the City of Canton v. Nist, 9 Ohio St. 439, and Thompson v. The City of Mr. Vernon, 11 Id 688.
    
      Error to the court of common pleas of Morgan county.
    The case is sufficiently stated in the opinion of the court
    
      Jjuoíus P. Marsh for plaintiff in error:
    The legislature may not by positive enactment authorize the corporate authorities of a village to repeal a statute of the State. This will not be controverted.
    The legislature may not authorize such corporation to enact laws inconsistent or in conflict with the general statutes of the State. This would seem to be a legitimate sequence of the last proposition.
    The authority of the village to enact the ordinance in question is derived from the 199th section of the municipal code.
    In The City of Canton v. Nist, 9 Ohio St. 440, the court say: “ It must be presumed that the legislature would not intend to give to a corporation the power of contravening and defeating State policy by ordinances inconsistent with the laws of the State,” and that, too, whether in the grant of power the limitation is expressed or not.
    Is the ordinance in question in contravention of the policy and laws of the State ?
    The State, by its legislative enactments, has provided against the evils resulting from the sale of intoxicating liquors, making it penal to sell under certain circumstances, and, in the fourth section of the act, making it a penal offence to keep a place or room for the sale of intoxicating liquors in violation of law. The eighth section provides that “the provisions of the first and fourth sections shall not extend to the sale of the wine manufactured of the pure juice of the grape cultivated in the State, or beer, ale or cider.”
    This enactment as effectually and certainly makes it lawful to sell beer and ale as if it had been stated by the legislature in any other form; the act recognizes and authorizes such sale or sales of beer and ale as legal. In the case above cited upon this question it is said: “ But the exceptions which it [the act of legislation] contains are equally expressive of State policy.”
    Whether the ordinance in question as certainly and effectually conflicts with State legislation has been already decided by this court, in the case of Thompson v. The City of Mount Vernon, 11 Ohio St. 688. The ordinances in that case and in this are almost identical.
    The ordinance in that case was passed March 23,1858. The authority to the corporation to pass an ordinance is found in the act of May 1,1857, S. & O. 1500, sec. 25, as follows: “ and to regulate or prohibit ale and porter shops and houses and places for significant or habitual resort for tippling and intemperance.”
    The authority under which the ordinance in the case at bar was passed is identical with this : “ To regulate, restrain and prohibit ale, beer and porter-houses and shops.”
    The two eases are identical.
    The act last referred to, in terms authorizes the village to prohibit, etc., ale, beer, and porter-houses and shops. The ordinance in question does more than this. An ale or beer house or shop is a house or shop where ale or beer is sold to be drunk there. The ordinance makes it unlawful to keep a house where ale or beer is sold or furnished to be drunk “ m, upon, or about the house?
    
    The act in terms gives authority to prohibit houses and shops. The ordinance prohibits “ a house, shop, room, booth, a/rbor, cellar or place? It is therefore in excess of authority.
    The “ liquor law,” so called, makes it penal to keep a porter house, i. e., this is not excepted with ale and beer; and this act fixes one penalty, while the ordinance fixes another and a different penalty; and for this reason the ordinance conflicts with the laws of the State.
    
      F. B. Pond, attorney-general, for defendant in error:
    The ordinance in question is not in conflict with the laws or settled policy of the State, notwithstanding the decision in Thompson v. Mount Vernon, 11 Ohio St. 688.
    
      To ascertain what the settled policy of the State has been and is upon this subject I refer to its legislation :
    1. Under the old constitution: The act of March 3, 1831, Swan’s Stat. of 1841, p. 900, sec. 15; the act of March 20, 1840, Id. p. 260; the act of March 26, 1841, Id. p. 1018: the act of February 16, 1838, sec. 10, Id. p. 945 ; Markle v. The Town of Akron, 14 Ohio, 590.
    From this legislation it would seem that the general assembly, by passing the act of 1831, intended to pass an act of general application to the whole State, sufficiently stringent perhaps in its general application; and did intend, also, that, when circumstances made it clear that more stringent rules were needed as to sales to certain classes (e. g., Indians) or at certain times, (e. g., religious meetings), or at certain places (e. g., within towns, cities, and thickly-settled portions of the State) that such laws should be enacted either directly applying the remedy, or authorizing the council of the town to do it; and that in determining the policy of the State these general and special acts should both be looked to.
    2. Under the new constitution: The act of May 3, 1852, “ for the organization of cities and incorporated villages,” sec. 25, S. & O. 1500; the general law of May 1, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors,” etc., S. &. C. 1431; the act of May 1, 1856, sec. 5, S. & O. 68; the act of April 12, 1858, S. & C. 453; S. & O. 288; the act of March 10, 1864, S. & O. 344; the act of 1869, vol. 66, O. L. 181; and see vol. 67, O. L. 73. •
    In the act of 1869 is re-enacted, almost word for word, the provisions of the act of 1852, reaffirming that it is the settled policy of the State that while the act of 1854 is of general application, the general assembly expected when passing the act that special legislation would be necessary to protect classes of the population; that there would be times when sales of any of these drinks ought not to be allowed; and localities, such as thickly-settled towns where authority had been given, did then exist and should continue to exist, to prohibit the sales of any of these drinks, if the authorities of these localities thought it injurious to the morals of the community.
    I concede that the principle laid down in the case of Nist v. Canton, is in the main sound; but is it perfectly clear that the per curiam in Thompson v. Mount Vernon is a neces sary sequitur from that case %
    
    The case of Thompson v. Mount Vernon was decided under the act of 1852, and if it should be held to have been sound as to what the policy of the State was then, has not subsequent legislation indicated a different policy ?
   Scott, C.J.

The plaintiff in error was prosecuted before the mayor of the village of McConnellsville, for the violation of the 2d section of an ordinance of said village “ to restrain and prohibit ale, beer, and porter-houses and shops, and houses and places of habitual resort for tippling and intemperance,” passed by the village council in September, 1869.

That section of the ordinance reads as follows :

“ Be it further ordained, that it shall be unlawful for any person or persons to keep, within the said incorporated village of McConnellsville, a house, shop, room, booth, arbor, cellar, or place, where ale, porter or beer is habitually sold or furnished to be drank, in, upon, or about the house, shop, room, booth, arbor, cellar, or place where so sold or furnished.”

The charge in this case was for keeping “ a room within said village, where ale, porter, and beer were and have been furnished and sold,” etc.

The plaintiff in error entered a plea of guilty ” to the charge; and was thereupon sentenced by the mayor to pay a fine, and to be imprisoned for three days.

A writ of error was thereupon allowed, returnable to the court of common pleas of Morgan county.

The only error assigned in that court was that the ordinance under which the prosecution was had is in conflict with the statutes of the State, and not authorized thereby, and is therefore void.”

The court held the ordinance valid, and affirmed the judgment of the mayor; and the question hero is whether, in so doing, the court of common pleas erred.

By the towns and cities ” act of May 8, 1852, authority was conferred on municipal corporations “ to regulate or pi'Ohibit ale and porter shops and houses, and places for significant or habitual resort for tippling and intemperance.” (S. & O. 1500, sec. 25.) And by the municipal code of May 7, 1869, now in force, it is declared that all cities and incorporated villages shall have the power, and may, by ordinance, provide for its exercise (among other things), “ To regulate, restrain, and prohibit, ale, beer and porter-houses or shops; and houses and places of notorious or habitual resort for tippling or intemperance.” 66 O. L. 181, sec. 199.

1'Iere, then, is an express authority, given by statute, to the defendant in error, “ to pr-ohibit ale, beer and porter-houses or shops,” which necessarily includes the power to declare the keeping of such houses or shops to be unlawful; and this is neither moro nor less than what the ordinance in question assumes to do.

There can be no force in. the objection that the authority is to prohibit ale, beer and porter-houses or shops, while the ordinance extends to and prohibits also the keeping of a room where these articles are habitually sold. Such a room is clearly within the mischief intended to be prevented, and is a house or shop, within the meaning of the statute authorizing the prohibition. An ale, beer, or porter-house may be kept, although a part of the building in which it is kept may be used for other purposes.

Notwithstanding this apparent authority, expressly given by statute, to pass the ordinance in question, it is argued by counsel for plaintiff in error that this ordinance contravenes the general State policy clearly indicated by the “ act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” passed May 1, 1854. S. & O. Stat. 1431. That act makes it unlawful for any person to sell, in any quantity, intoxicating liquors to be drunk upon or about the premises where sold, and declares all places where intoxicating liquors are sold in violation, of the act, to be common nuisances, which shall be abated as such; but it is declared in the same act, that these provisions “ shall not extend to the sale of the wine manufactured of the pure juice of the grape cultivated in this State, or beer, ale, or cider.” It is argued that this general statute impliedly legalizes the sale of pure Ohio wine, of beer, ale, and cider; and that a municipal ordinance prohibiting their sale is against the policy of this statute, and therefore void. And we are referred, in support of this proposition, to the case of Thompson v. The City of Mount Vernon (11 Ohio St. 688), in which this court held an ordinance of that city to be void, because against the policy of this same general statute. It is said that the ordinance in that case was similar to the one now -before us; and that the authority given by the “ towns and cities ” act to which we have referred, was substantially the same as that found in the 199th section of the present municipal code. It is true that the power conferred by each of these statutes is substantially the same. Mount Vernon was authorized by the former statute “ to regulate or prohibit ale and porter shops and houses, and places for significant or habitual resort for tippling and intemperance.” McConnellsville was authorized by the municipal code to regulate, restrain, and prohibit ale, beer, and porter-houses or shops; and houses and places of notorious or habitual resort for tippling or intemperance.” But a reference to the case of Thompson v. The City of Mount Vernon, supra, will show that the ordinance there held to be invalid was quite unlike the one now under consideration. The Mount Vernon ordinance declared it to be unlawful for any person, within the limits of the city, to sell, give away, or suffer to be taken, any spirituous or intoxicating liquors, wine, cider over thirty days from the press, ale, porter, beer, or other fermented beverages of any kind or description whatsoever, in less quantity than one gallon at one time. ’ The authority in each case was to prohibit a certain class of houses, shops, or places, described by reference to their business character. The ordinance in the present case pursues the authority, by declaring the keeping of that class of houses unlawful. But the Mount Yernon ordinance assumed to prohibit any single act of selling or giving intoxicating liquors, ale, porter, beer, etc., in less quantities than a gallon, without reference to the business character of the house or place where the sale or gift was made. No such power had been granted, and the court, adopting the principle stated in the case of the City of Canton v. Wist (9 Ohio St. 439), held that the city could not, without special authority, prohibit what the policy of a general statute of the State permitted.

But ever since the act of May 3,1852, municipal corporations have been expressly authorized to prohibit, within their limits, ale and porter shops and houses, and places of habitual resort for tippling and intemperance. 3 Curwen, 1842, see. 25. No declaration of legislative policy could be more clear and explicit, than that which authorizes such prohibition.

And it is no ground of objection to the validity of prohibitory ordinances, thus authorized, that the general laws of the State do not extend the prohibition to all parts of the State. Morality, and good order, the public convenience and welfare, may require many regulations in crowded cities and towns, which the more sparsely-settled portions of the country would find unnecessary. And it is for legislative discretion to determine, within the limitations of the constitution, to what extent city or town councils shall be invested with the power of local legislation

Judgment affirmed.

Welch, White, Day, and McIlvaine, JJ., concurred.  