Opinion
Decided May 27, 1935.
Constitutional law — City ordinance prohibiting use of firearms, valid, when — Section 5838, General Code, does not protect killer of dog, when.
A city ordinance prohibiting the discharge of firearms of any description within the city limits, except in military array, self-defense and enforcement of laws, is constitutional, and one who shoots a dog which is engaged in a fight with his dog is not protected by the provisions of Section 5838, General Code, providing when a dog may be killed.
ERROR: Court of Appeals for Hamilton county.
Mr. John W. Cowell, for plaintiff in error.
Mr. R.J. Paul, for defendant in error.
Plaintiff in error, McCollum, was convicted in the Municipal Court of the city of Cincinnati of the offense of discharging firearms within the city, in violation of the ordinance of the city of Cincinnati which makes it an offense to discharge firearms of any description within the city, except in military array, self-defense, and in enforcing the laws provided in the Cincinnati Code of Ordinances.
From that conviction, McCollum prosecutes error directly to this court.
The claim is that the ordinance is unconstitutional, in that it contravenes the right secured to the citizens by Sections 1 and 4 of Article I, Constitution of Ohio, and by Article 2 of the Amendments to the Federal Constitution.
The complaint that the ordinance violates Article 2 of the Amendments of the Federal Constitution may be disposed of by the statement that that provision has reference to the military arm of the Government, and is not designed as a limitation upon the state governments in reference to their own citizens, but relates exclusively to the powers under the Federal Government. Burke v. State, 104 Ohio St. 220, 135 N.E. 644, and cases therein cited.
Section 1, of Article I of the Ohio Constitution, embraces the rights therein enumerated, subject to only such restraints as are necessary to the common welfare. The city ordinance in question pertains to the common welfare and is regulatory under the police power of the state. Palmer Crawford v. Tingle, 55 Ohio St. 423, 45 N.E. 313.
Section 4, Article I of the Ohio Constitution, refers only to the military arm of the state.
The ordinance in question does not contravene either the state or the Federal Constitution.
It is suggested in the brief that McCollum had the right to kill a dog, which he claims to have been the reason for the discharging of firearms, and claims to have been given that right under Section 5838, General Code. The dog was killed while fighting the dog belonging to the accused. The statute does not mention killing of a dog while engaged in a fight with another dog.
We find no prejudicial error in the record of the Municipal Court and its judgment is affirmed.
Judgment affirmed.
ROSS, P.J., and MATTHEWS, J., concur.