
    X-Cel Dairy, Inc., Appellant, v. City of Akron, Appellee.
    (Decided October 9, 1939.)
    
      
      Messrs. Rockwell, Grant, Doolittle, Thomas (& Buckingham, for appellant.
    
      Mr. Wade DeWoody, director of law, and Mr. Nathan Koplin, for appellee.
   Stevens, J.

This cáse is before this court as an appeal on questions of law. It concerns an attack upon the validity of a municipal ordinance prohibiting the sale of ice cream from any wagon, pushcart, or other vehicle, upon the public streets of the city of Akron.

The petition is in the form of a petition for a declaratory judgment. The trial court, after hearing upon the merits, vacated the interlocutory order of injunction theretofore issued by it and dismissed the plaintiff’s petition.

The record in the case contains no testimony, and incorporates only the very brief, and in some instances doubtful, admissions of counsel for the respective parties.

It is claimed by the plaintiff, appellant here, that the enforcement of the ordinance in question would accomplish an arbitrary and discriminatory classification, in that it forbids the use of the streets for the purpose of selling ice cream from vehicles, while at the same time it permits a like use to vendors of other articles.

The purpose of the council in the passage of the ordinance is asserted to have been the regulation of the streets, by the elimination of traffic hazards incident to citizens, especially children, rushing into the streets to purchase the ice cream offered for sale by plaintiff and others.

It is contended by plaintiff that like hazards pertain from the sale of other articles from vehicles in the streets, and that the singling out of ice cream vendors amounts to an unjust and unreasonably discriminatory classification.

The record is entirely silent as to the existence of hazards incident to the sale, from vehicles in the public streets, of articles other than ice cream, and this court cannot take judicial notice of the existence of such other hazards.

Mr. Justice Holmes, in Central Lumber Co. v. State of South Dakota, 226 U. S., 157, 57 L. Ed., 164, 33 S. Ct., 66, stated:

“* * * the Legislature * * * may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and.it may do so none the less that the forbidden act does not differ in kind from those that are allowed.”

The rule so announced has been stated and followed by the Supreme Court of Ohio, as indicated in the opinion of the trial court.

After an examination of the claims made by counsel for the respective parties, this court, for the reasons set forth and upon the authorities cited in the finding of the trial court, and upon other authorities examined by us, vacates and sets aside the temporary restraining order heretofore issued by this court, and affirms the judgment of the trial court.

Judgment affirmed.

"Washburn, P. J., and Doyle, J., concur.  