Opinion
Nos. 20173 and 20174
Decided March 29, 1927.
Constitutional law — Municipal ordinance providing for examining and licensing electricians — Concurrences of judges of Supreme Court — Two judges hold ordinance constitutional and five unconstitutional — Municipal ordinance as "law" requiring concurrence of all but one judge — Insufficient concurrences by judges to reverse judgment.
ERROR to the Court of Appeals of Stark county.
Messrs. Cope, Hart Drukenbrod and Messrs. Hart Koehler, for plaintiffs in error.
Mr. James E. Kinnison, city solicitor, and Messrs. Lynch, Day, Fimple, Pontius Lynch, for defendants in error.
These causes come to this court on error from the Court of Appeals of Stark county and involve the validity of a city ordinance of the city of Canton, Ohio. The causes were heard on appeal in the Court of Appeals and that court adjudged the ordinance to be constitutional. Two of the members of this court, Jones and Matthias, JJ., hold that the ordinance does not violate any of the limitations of the Constitution of Ohio. Five members of this court, Marshall, C.J., Day, Allen, Kinkade and Robinson, JJ., hold that the ordinance does not operate equally upon all the members of a given class, and further that the ordinance improperly limits the freedom of contract. Three members of this court, Day, Allen and Robinson, JJ., are of the opinion that the provisions of Section 2 of Article IV, requiring the concurrence of at least all but one of the judges to declare a law to be unconstitutional and void, applies to ordinances of municipalities.
Four members of this court, Marshall, C.J., Kinkade, Jones and Matthias, JJ., hold that an ordinance of a municipality is not a law within the meaning of Section 2 of Article IV, but Jones and Matthias, JJ., holding this particular ordinance to be constitutional, cannot consistently join in a judgment of reversal.
There being more than one member of this court holding the ordinance to be constitutional and there not being as many as four members of this court who hold that an ordinance is not a law who are at the same time concurring in a judgment of reversal, it follows that there is an insufficient number of judges concurring upon the points of law necessary to a reversal, and the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
JONES and MATTHIAS, JJ., concur.