Opinion
No. 18300.
Decided June 11, 1941.
Municipal corporations — Ordinance regulating traffic in intoxicating liquor — Prescribing conditions upon which permits issued — Conflict with general law — Section 6064-1 et seq., General Code.
A municipal ordinance, requiring all those engaging in the retail liquor business within the corporate limits to obtain a permit from the municipality and prescribing the terms and conditions upon which such permits will be issued, is in conflict with the general laws contained in Section 6064-1 et seq., General Code, and is void.
APPEAL: Court of Appeals for Cuyahoga county.
Mr. Fred W. Garmone and Mr. H.P. Fetterman, for appellant.
Mr. Stanley L. Orr, for appellees.
This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Cuyahoga county, Ohio, in a case pending therein wherein the appellant, Mary Bosco Spisak, was plaintiff, and the appellees, village of Solon, Ohio, Edwin Carter, mayor, and John Vondrasik, chief of police, were defendants.
Plaintiff was engaged in the restaurant and liquor business in the village of Solon, the retail liquor business being conducted under so-called D-1, D-2 and D-3 liquor permits issued by the Department of Liquor Control of the state of Ohio, for which permits the plaintiff paid the state of Ohio fees in the sum of $600.
Subsequent to the issuance to her of these permits, the plaintiff caused to be constructed, especially for her business, a building in another location in the village, obtained permission from the Department of Liquor Control for the transfer of her retail liquor business under such permits to the new location, and secured permits for the new location from the department.
Between the time the original permits were issued to plaintiff and the time of transfer of location, the council of the village of Solon enacted an ordinance entitled "An Ordinance Regulating the Manufacture, Sale and Possession of Beer and Intoxicating Liquors * * *."
This ordinance is divided into two parts, Sections 2 to 10 being the portions of the ordinance prescribing the terms and conditions upon which licenses for the sale of intoxicating liquors might be issued, and Sections 11 to 25, entitled "Restrictions on Sales of Beer and Intoxicating Liquors," being the regulatory portions of the ordinance.
Under the licensing portion of the ordinance the mayor is given power, similar to that granted by statute to the Department of Liquor Control, to issue permits for the sale of intoxicating liquors within the village.
Under the requirements of the ordinance, the plaintiff made application to the mayor of the village for permission to engage in the retail liquor business, and permission was denied. Subsequently the plaintiff commenced the operation of her retail liquor business but the village of Solon, through its mayor and chief of police, compelled her to discontinue the same. Plaintiff sought an injunction in the court below restraining the defendants, the village of Solon, and Edwin Carter and John Vondrasik, mayor and chief of police respectively of the village, from interfering with her in the operation of such retail liquor business.
The sole question involved in this case is whether the licensing provision appearing in Sections 2 to 10 of the ordinance constitutes a valid exercise of the police power of the municipality.
Whatever power the municipality had to enact the provisions of the ordinance is conferred by Section 3, Article XVIII of the Constitution of Ohio, which reads as follows:
"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."
The general laws relating to the subject-matter of the ordinance are incorporated in the Liquor Control Act, now designated as Section 6064-1 et seq., General Code.
The provisions of the sections mentioned prescribe a comprehensive plan and system whereby a Department of Liquor Control is created, consisting of a board of liquor control of four members, not more than two of whom shall be of the same political party, and a director of liquor control. The board is given power to establish and conduct liquor stores and to issue permits for the manufacture, distribution, transportation and sale of beer and intoxicating liquor, and the sale of alcohol, subject to the provisions of the Liquor Control Act; and to adopt and promulgate, repeal, rescind and amend rules and regulations and orders, providing in detail for the conduct of any retail business authorized under a permit issued pursuant to the Liquor Control Act, with a view to insuring compliance with the provisions of the act, and other laws relative thereto and the maintenance of public decency, sobriety and good order in any place licensed under such permit.
Section 6064-20, one of the sections included in the act, provides:
"Each class and kind of permit issued under authority of the Liquor Control Act shall authorize the person therein named to carry on the business therein specified at the place or in the boat, vessel or classes of dining car equipment therein described, for a period of one year commencing on the day after the date of its issuance, and no longer, subject to suspension, revocation or cancellation as authorized or required by this act; * * *"
Section 6064-31, also one of the sections of this act, provides:
"The privilege of local option as to the sale of intoxicating liquors is hereby conferred upon the electors of the following districts, to wit:
"1. A municipal corporation.
"2. A residence district in a municipal corporation consisting of two or more contiguous election precincts therein, as defined by the petition hereinafter authorized.
"3. A township, exclusive of any municipal corporation or part thereof therein located."
Under the comprehensive plan and system prescribed by the Liquor Control Act, including the specific statutory provisions hereinbefore mentioned, it clearly appears that it was the intention of the Legislature that a permit issued by the Department of Liquor Control pursuant to the provisions of the act should authorize the person therein named to carry on the business therein specified, at the place therein specified, for the period of one year commencing on the day after the date of its issuance, subject to the provisions of the act and the exclusive control of the Department of Liquor Control exercised pursuant thereto, except insofar as such permit and the authority of the Department of Liquor Control over the same and the issuance of further permits within the district may be nullified through the exercise, by the electorate of such district, of the local option privilege conferred upon them by the act.
While municipalities, under the constitutional provisions mentioned, have power to enact regulations not in conflict with the provisions of the act, as to the manner in which retail liquor businesses may be conducted within such municipalities, they do not have power to enact regulations operating as a veto on the actions taken by the Department of Liquor Control in the issuance of permits pursuant to the act, or the power to superimpose additional requirements upon the statutory requirements as to the issuance of permits to engage in the retail liquor business in such municipality, or the power to require a permit from the municipality in addition to the permits required by the act for such purpose.
The licensing provisions contained in Sections 2 to 10, inclusive, of the ordinance are, therefore, in conflict with the general laws, and, being in conflict, do not constitute an exercise of power by a municipality conferred by Section 3 of Article XVIII of the Constitution, and are void.
For the reasons mentioned, an order of injunction will issue herein as prayed for in the petition.
Injunction granted.
DOYLE and STEVENS, JJ., concur.
DOYLE and STEVENS, JJ., of the Ninth Appellate District, and GUERNSEY, P.J., of the Third Appellate District, sitting by designation in the Eighth Appellate District.