
    No. 398
    BRANDT v CINCINNATI (City)
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2920.
    Decided Jan. 24, 1927
    531. FINES & PENALTIES — When affidavit charges the offense of violating an order, and ordinance provides fine therefor not to exceed $100, court cannot impose fine in excess of $100 under charge of affidavit.
    First Publication of this Opinion
    Attorneys — Robert Black and H. A. Bolsinger for Brandt; John D. Ellis and John J. O’Donnell for City; all of Cincinnati.
   PER CURIAM.

Jacob Brandt was charged and convicted in the Cincinnati Municipal Court of a violation of 1026-3 of the ordinances of the City of Cincinnati, and the trial judge assessed a fine of $600 against him.

The penalty for a violation of this ordinance provides “Any owner, lessee or occupant of such building, etc. who shall violate any of the provisions of Sec. 1026-3 - - shall on conviction be fined in any sum not exceding $100 - - and $5.00 for each day said violations shall continue.”

The affidavit charged that Brandt on June 24, 1924, had been notified in writing to remove all rubbish in basement and second floor, etc. - - as ordered by the Chief of the Fire Department and had failed, from said date, to comply with the order. Error was prosecuted from municipal court to the Hamilton Common Pleas, and upon the affirmance of the judgment error proceedings to this court were perfected. The Court of Appeals held:

1. The affidavit charged but one offense, the offense of violating the order, and Brandt was given 24 hours to comply therewith.

2. The affidavit does no more,than charge a violation of this order, and the section explicitly provides that for such violation a party convicted may be fined any sum not exceeding $100.00.

3. The court in .assessing the fine, must have considered daily violations and assessed a fine of $5.00 for one hundred days. If this was done, the court was in error, as the affidavit does not charge such offense.

4. Case remanded with instructions for re-sentence within the power of the court as provided in the ordinance, to wit: — any sum not exceeding $100.00.

Judgment reversed and cause remanded.

(Buchwaiter, PJ., and Hamilton & Cushing, JJ., concur.)  