Opinion
No. 57760.
1946-09-16
SCHUL et al. v. KING, Chief of Police, et al.
C. W. Elliott, of Middletown, and J. Paul McNamara, of Columbus, for plaintiffs. Fred J. Schatzmann, of Middletown, for defendants.
Suit by Raymond G. Schul and Conrad A. Schul, partners, doing business as Schul Ice Cream Company, against Hugh King, Chief of Police of the City of Middletown, Butler county, Harry Kempf, Clerk of the City Commission, and others to enjoin enforcement of an ordinance making it unlawful to sell within city ice cream from any wagon, pushcart, or other vehicle.
Temporary injunction made permanent.C. W. Elliott, of Middletown, and J. Paul McNamara, of Columbus, for plaintiffs. Fred J. Schatzmann, of Middletown, for defendants.
CRAMER, Judge.
This cause, after the Court heretofore overruled the demurrer filed to plaintiffs' petition claiming same did not state a cause of action, was heard upon the merits.
The Court has now for determination the issues raised by the pleadings and the evidence. Considerable evidence was offered by the parties. Counsel orally argued this cause and have submitted very able and extensive briefs.
Plaintiffs, doing business as Schul Ice Cream Company, seek to perpetually enjoin the defendants, who are the Chief of Police, the Clerk, the City Commission, and the City of Middletown, Butler County, Ohio, from enforcing a certain ordinance adoped by the City of Middletown, being ordinance No. 2522 by arresting and threatening to arrest plaintiffs' agents and employees. Plaintiffs likewise ask us to find the ordinance invalid and unconstitutional.
The facts developed by the evidence and about which there is little or no dispute are as hereinafter set out.
Plaintiffs are now and have been for a number of years engaged as partners in the business of manufacturing ice sherbet, ice cream in bulk, imitation ice cream, and ice cream in other forms and other frozen products. They are the owners and operators of a factory in the City of Hamilton, Butler County, Ohio where they manufacture and produce products of their own manufacture. Plaintiffs are the owners of hand operated refrigerator trucks or push carts which are used in transporting the same over and upon the streets of the City of Middletown, Ohio. Plaintiffs sell both at wholesale to merchants and at retail to individuals-about forty per cent of their sales being wholesale and sixty per cent being retail sales made on the streets.
The Schuls have over the period of years established a business of considerable value in good will in and about the City of Middletown. They have a substantial amount invested in their manufacturing plant and equipment. They operate under a license issued to them by the State of Ohio and likewise hold certificates or licenses to sell and deliver their products in the City of Middletown issued by the Board of Health of that city.
It is likewise undisputed that their products are manufactured in compliance with all sanitary rules and regulations applying to and covering the business in which they are engaged. Their employees at their manufacturing plant and those engaged in the sale of their products undergo and receive periodic medical examinations.
During the years plaintiffs sold their products on the streets of Middletown, prior to the enactment of this ordinance, they operated under permits and at no time were any of such permits suspended, rescinded or revoked. It likewise appears that none of their agents or employees engaged in making sales were charged with the commission of any offense. Since the adoption of the ordinance and prior to the plaintiffs obtaining a temporary injunction, several of their employees were arrested on several occasions and charged with violating the ordinance in question.
The evidence disclosed, in detail, the method and manner in which sales of these products were made from the pushcarts and which streets in the City of Middletown were used by plaintiffs' employees. There was also disclosed the fact that children make up for the most part the purchasers of these products.
The facts which are disputed here are those concerning the manner, method, places and circumstances under which the sales from the pushcarts were made. Plaintiffs' evidence was to the effect that when sales were made the push carts were either on the sidewalks or at the curbs; and that it was not necessary for the purchasers to cross nor did they cross the street to come to the cart. Streets with heavy traffic were avoided; side and less travelled streets, as a rule were used. The defendants had evidence to the effect that plaintiffs operated their carts on streets heavily trafficked; that sales were made from the carts while they were stationed in the travelled portion of the streets and that patrons, including many children, would go out into the street to make their purchases and cross from one side of the street to the other. The defendants likewise submitted evidence to the effect that these carts were located in school districts and attracted many children thereto. The children would congregate in and about the carts and as many as twenty to thirty children would gather in the streets about the cart.
The foregoing evidence of course was offered in support of the claim that the plaintiffs' method of conducting sales created no traffic hazard and involved no danger to the customers or others using the streets and sidewalks, and likewise was offered contra to that claim. The only comment the court deems necessary to meke concerning this disputed evidence at this time is that plaintiffs' evidence was furnished in the main by their employees and agents and that of the defendants by police officers of the City of Middletown.
The ordinance which is under attack here was enacted by the City of Middletown, Ohio on the 23rd day of May, 1945 and was enacted as an emergency measure, and is as follows:
‘Ordinance No 2522
‘An Ordinance declaring it unlawful to distribute and sell within the corporate limits of the City of Middletown, Butler County, Ohio, any ice cream in bulk, ice cream cones, ice sherbert or imitation ice cream or ice cream in any other form from any wagon, pushcart or other vehicle in any park, street, alley or other thoroughfare, fixing a penalty for the violation hereof and declaring an emergency.
‘Whereas, the doing of the things contemplated by this ordinance constitutes an emergency in that it provides for the immediate preservation of public peace, health and safety in that the effect of this ordinance will afford the greatest advantage to the citizens of the City of Middletown, Butler County, Ohio.
‘Be it therefore ordained, by the City Commission of the City of Middletown, Butler County, Ohio.
‘Section I. It shall be unlawful to distribute and sell, within the corporate limits of the City of Middletown, Butler County, Ohio, any ice cream in bulk, ice cream cones, ice sherbet or imitation ice cream or ice cream in any other form, from any wagon, pushcart or any other vehicle, or in any park, street, alley or other thoroughfare.
‘Section II. No wagon, pushcart, or other vehicle shall be permitted to park in or upon any of the streets, alleys, or other thoroughfares for the purposes of distributing and selling ice cream in bulk, ice cream cones, ice sherbet or imitation ice cream or ice cream in any other form.
‘Section III. Any person, firm, corporation or partnership who violates any of the provisions of this ordinance shall be fined in any sum not exceeding Fifty ($50.00) Dollars.
‘Section IV. This ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health and safety, for the reason that the distribution and sale of the products enumerated in this ordinance in the manner and places set forth, is a menace to public health and safety, and therefore shall take effect and be in force upon its adoption and publication.’
Plaintiffs claim that the foregoing ordinance is invalid and unconstitutional because:
This ordinance conflicts with State policy.
A municipality may not prohibit a lawful business and may not prohibit what it is merely given power to regulate.
It does not fall within the scope of the police power.
Even if regulatory it has no substantial and real relationship to the public safety, health or welfare.
It is an unreasonable, arbitrary, oppressive and discriminatory exercise of police power and therefore in contravention of both the Ohio and federal constitutions.
The defendants claim that plaintiffs must be denied the relief they pray for because:
This ordinance is a valid legislative enactment by virtue of the grant of police power to a municipality under Section 3, Article 18 of the Constitution of Ohio.
Its enactment further is authorized by statute, particularly Section 3714 and Section 3634, General Code of Ohio.
This ordinance is sustained as a valid exercise of the police power.
The plaintiffs assert that this ordinance is invalid because it is inconsistent with the policies of the State of Ohio, which policies are set forth in various enactments by the legislature of the State of Ohio.
It is asserted that the State of Ohio, through legislative enactment, has approved, if not expressly authorized, that which this ordinance prohibits. This contention of course requires a determination as to what it the expressed public policy of the State of Ohio in reference to the subject matter here under consideration.
The Court believes that we may safely assume that a municipal corporation cannot adopt ordinances which violate the spirit or are inconsistent with or repugnant to the policy of the State as declared in its legislation. See 2 McQuillan on Municipal Corporations, page 708.
Section III, Article 18 of the Constitution of Ohio which grants to municipalities police power provides that ‘municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.’
It is thus apparent that the constitutional authority which the defendants claim authorizes the enactment of this ordinance, limits even the exercise of police power by municipalities to that which is not in conflict with general laws, and therefore not inconsistent with the policy of the State of Ohio as expressed in such general laws.
Section 3670 of the General Code of Ohio grants the city power to regulate and license ‘peddlers'. Section 3672 provides ‘but no municipal corporation may require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product’. Likewise in Section 6347 et seq. are found provisions for the licensing and regulation of peddlers and itinerant vendors.
These enactments of the legislature of Ohio strongly reveal that this State recognizes peddling and street vending as lawful businesses and street and itinerant vendors as engaged in the pursuit of a lawful business. These enactments certainly do not reveal a policy of the State to prohibit entirely the pursuit and exercise of such businesses. However it is urged by the defendants that the ordinance in question is valid by reason of Section 3634, General Code of Ohio. This section is found in the chapter entitled ‘Enumeration of Powers (to municipal corporations)’ and the sectionis headed ‘Auctioneering’. This section provides as follows:
‘To regulate auctioneering; to regulate license or prohibit the sale at auction of goods, wares and merchandise or of live domestic animals at public places within the corporation; and to regulate, license or prohibit the selling of goods, merchandise or medicines on the streets'.
The court is inclined to agree with the contention of the plaintiffs that Section 3634, supra, relates solely to auction sales. The section itself states rather clearly, we believe, that it refers to auction sales. We do not believe that Section 3634, General Code, warrants the construction contended for by the defendants. Such a construction would permit municipalities to prohibit that which the state legislature has denied them the power to even license. (General Code, § 3672: ‘No municipal corporation may require * * * the manufacturer of any article manufactured by him, license to vend or sell in any way.’) Such construction further does violence to the intention of the legislature as expressed in the rather numerous provisions of the General Code of Ohio empowering municipalities to license and regulate sales on the streets.
However, even if the ordinance in question be authorized by virtue of Section 3634, it still must meet the test of whether it bears a reasonable and substantial relation to the public health, safety and welfare. See Sipe v. Murphy, 49 Ohio St. 536, 31 N.E. 884,17 L.R.A. 184.
There is considerable merit to the claim of the plaintiffs that this ordinance is invalid as being inconsistent with the declared and established policy of the State of Ohio. However, the court prefers to determine whether this ordinance is or is not constitutional.
Section I of the ordinance makes it unlawful to distribute and sell in the City of Middletown any ice cream in bulk, ice cream cones or ice cream in any other form from any wagon, pushcart or any other vehicle or in any park, street, alley or other thoroughfare, and Section II makes unlawful the parking of any vehicle, wagon, or pushcart upon any of the streets, alleys or thoroughfares for the purpose of distributing and selling ice cream in bulk, etc. We are inclined to agree with the contention of plaintiffs that this ordinance by its terms forbids the bringing of ice cream into the City of Middletown for sale and distribution therein. This ordinance prohibits ice cream made outside of the City of Middletown from reaching the customers, either wholesale or retail, since it prohibits ice cream from being sold and distributed from any vehicle and prohibits the parking of a vehicle for the purpose of selling and distributing the same. Even ice cream which is being delivered to the wholesaler at his place of business is ‘sold’ from the vehicle which delivers it. The act of removal of merchandise from the vehicle and placing it in the customers' place of business would constitute a sale as that term is defined under the Sales Act. Perhaps it was not the intention of the City Commission to prohibit such transactions. However, we are of the opinion that a strict construction of this ordinance-and such a construction is required of any penal ordinance-condemns such acts.
The City of Zanesville, Ohio, some time ago adopted a similar ordinance. The Common Pleas Court overruled the demurrer filed to plaintiff's petition which sought to declare that ordinance unconstitutional. In its decision upon the demurrer the Court held the ordinance unconstitutional. It is worthy of note that the Zanesville ordinance made it unlawful to distribute and sell ice cream products at retail only. The ordinance we now have under consideration makes it unlawful to sell such products from vehicles either at retail or wholesale.
If we are correct in construing this ordinance as prohibiting the transportation of ice cream, manufactured outside the city, for sale in Middletown, the practical effect of this ordinance is that it discriminates against goods manufactured outside the city unless the manufacturer has a retail establishment in the City of Middletown. In other words, if this ordinance is strictly enforced, as we must assume it will be, it would require those who sell ice cream at retail from established places of business, to manufacture their own ice cream. It prohibits them from purchasing it from regularly established manufacturers unless they would secure this merchandise directly from the manufacturers at their plants.
However, for the purposes of this discussion we will assume that the ordinance is not subject to that construction which produces results just indicated.
It is clear, however, that the ordinance was enacted for the purpose of prohibiting and its provisions do prohibit the sale of ice cream and ice cream products from pushcarts or any other vehicles. It is likewise clear that the ordinance abolishes, by complete prohibition, plaintiffs' business of selling ice cream at retail on the streets of the City of Middletown.
The plaintiffs have been and are engaged in a lawful business. Their right to carry on such business is a property right constitutionally protected. Section I, Article I, Ohio Constitution. This right so guaranteed is not an unrestricted one but is subject to limitation or abrogation to such extent as may be necessary to promote the health, safety or general welfare of society as a whole. A municipality by virtue of Section III, Article 18, of the Constitution of Ohio has the authority to adopt and enforce sanitary and other similar regulations to promote the health and safety or general welfare of the people. The power to regulate must not be extended to include the power to destroy. ‘Home Rule’ does not mean home ruin. It is true that regulatory measures result, to some extent, in prohibition. However, there is a vast difference between regulation and complete prohibition. No business or trade can be prohibited altogether unless the civil is inherent in the character of the trade. See 8 Ohio Jurisprudence, page 410.
It is obvious that the business engaged in by the plaintiffs possesses no inherent evil. As a matter of fact the evidence here shows that the business plaintiffs conduct in the City of Middletown is beneficial to the public they serve. Even the exercise of the power to prohibit a business is invalid unless it shows a reasonable and substantial relationship to the public interest, safety and welfare.
Regulatory ordinances cannot be sustained under the police power unless they bear a real and substantial relation to the objects to be obtained, namely, the health, safety or general welfare of the public. See Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371;City of Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412.
We cannot agree with counsel for defendants in his contention that Section 3714 of the General Code of Ohio, which charges the city with the duty of keeping the streets, etc., in repair and free from nuisances is authority for the complete denial to the plaintiffs of the right to operate and pursue their business on the streets of Middletown. Perhaps this section authorizes the city to adopt reasonable regulations so that the streets are kept free from nuisances. The evidence in this case falls far short of revealing the plaintiffs' occupancy of the streets in the pursuit of their business constitutes a nuisance to the extent justifying the passage of such a drastic ordinance.
This leaves the question of whether this ordinance can be sustained as a valid exercise of the police power given the City of Middletown.
It is elementary that ordinances passed by virtue of the police power which limit or abrogate constitutionally guaranteed rights must bear a real and substantial relation to the health, safety or general welfare of the public. See Froelich v. City of Cleveland, 99 Ohio St. 376, 124 N.E. 212;Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371;City of Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412;Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336, L.R.A.1917F, 1163, Ann.Cas.1917D, 973.
If there is no reasonable and substantial connection between the provisions of this ordinance and the supposed evils to be suppressed, there exists no authority for its enactment and it must fall.
We respect the legislative authority of the City Commission and recognize its right to determine what ordinances shall be passed. We also recognize the fact that the wisdom or unwisdom of legislation is not the subject of judicial inquiry. However, when its legislative enactment is challenged on the ground that it constitutes an unwarranted exercise of power and bears no real or substantial relationship to the object sought, it is the duty of the Court to make such judicial inquiry.
Courts have been and must be extremely zealous in guarding the constitutional rights of citizens.
We are of course restricted to the record in this case in determining what evils were shown to have existed in connection with the operation of plaintiffs' business which this ordinance was designed to suppress.
The Court is satisfied after a careful consideration of the evidence submitted that nothing was shown from which it could be found that the plaintiffs in the operation of their business in the City of Middletown were endangering the health of the public.
We find from the evidence that the pushcarts of the plaintiffs were operated, if only occasionally, on and over streets in the City of Middletown which ordinarily bear considerable vehicular traffic. There is likewise little doubt that these pushcarts and the products they convey attract children and they do congregate about the carts, especially in school districts. We likewise believe it is fair to assume that the evidence shows that the operation of these carts was not always confined to sidewalks and at the curbs. The evidence perhaps also showed that on occasions customers of the plaintiffs, particularly the children, did cross the street, at places other than those designated for pedestrians, to reach the carts.
The foregoing is substantially the only evidence before the court which revealed abuses or evils-if they may be labelled as such-displayed in connection with plaintiffs' operations. Perhaps these features are more aptly described as objections to or criticisms of plaintiffs' operations rather than as abuses or evils.
However, it is clear that the above objectionable features in connection with the operation of plaintiffs' business can easily and quickly be remedied by reasonable regulatory measures. We might even venture the suggestion that this can be accomplished upon mere requests being made of the plaintiffs by the authorities.
Certainly the ordinance in question is a ruthless means of securing that end.
We find, even after giving consideration to the presumption of constitutionality which attends legislation, that this ordinance has no real or substantial relation to the safety, health or general welfare of the public. We find that this enactment is completely destructive of the plaintiffs' lawful business and is indefensible as a valid exercise of the police power.
The record in this case shows conclusively that the city, prior to the adoption of this ordinance, made not the slightest attempt to adopt measures calculated to regulate, so as to prevent, whatever abuses or objections attended plaintiffs' pursuit of their business. Prohibition of a lawful business is not justified even when all remedies for the prevention of the evil in connection with the business prove defective. See 8 Ohio Jurisprudence, page 410. Prohibition might be justified only as a last resort and only when the occupation or business is inherently evil.
We are further of the opinion that this ordinance not only prohibits the plaintiffs from pursuing their trade but likewise results in practically eliminating all sales of ice cream and ice cream products in the City of Middletown by those engaged in the manufacture thereof and who sell at wholesale. They cannot sell that which they are prohibited from delivering. Delivery is of course required to complete a sale.
In our opinion the City of Middletown has by this ordinance very effectively prohibited, one might even say liquidated, a business most reasonable people and authorities believe should be preserved and encouraged. This Court will not preside over such liquidation. We therefore condemn this ordinance.
The facts in this case bring this ordinance under the condemnation of, not only the decisions of the Supreme Court of Ohio supra, but likewise those found in: Good Humor Corporation v. City of New York et al., N.Y., 49 N.E.2d 153;N. J. Good Humor, Inc., v. Board of Commissioners, 124 N.J.L. 162, 11 A.2d 113; Adams v. Tanner, supra; New State Ice Co. v. Liebman, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747.
We have been cited to the case of X-Cel Dairy, Inc., v. City of Akron, 63 Ohio App. 147, 25 N.E.2d 700. We considered this case in disposing of the demurrer heretofore filed herein and have again given it full consideration. While the X-Cel case upholds the validity of an ordinance almost identical with the one here under consideration, we are not disposed to follow it. It is not binding on this court, and furthermore neither the trial court nor the Court of Appeals in that case had for consideration a state of facts which we are dealing with in the instant case. Furthermore, it is apparent that neither the trial court nor the appellate court in the Akron case either considered or had presented to it for consideration legal propositions supporting the invalidity of the ordinance which were submitted to and considered by this court.
We find upon the issues joined in this cause in favor of the plaintiffs, and that the temporary injunction heretofore issued in this cause should be made permanent, and we further find that the ordinance in question is invalid in that it violates the Ohio and federal constitutions, and that the plaintiffs are entitled to the relief prayed for.
An entry may be prepared in accordance with this opinion.