City of Niles v. Howard

Per Curiam. The city of Niles raises two issues in its appeal. First, the city argues that the drug laws of the state of Ohio are not general laws and, therefore, are outside the purview of Section 3, Article XVIII of the Ohio Constitution. Section 3, Article XVIII sets forth that: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, [164] sanitary and other similar regulations, as are not in conflict with general laws. ” (Emphasis added.) If the city were correct in asserting that the drug laws are not general laws, then Section 513.033 would not be unconstitutional. We are not, however, persuaded by this particular argument of the city. This court in Village of West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, 118 [30 O.O.2d 474], found that: “The words ‘general laws’ as set forth in Section 3 of Article XVIII of the Ohio Constitution mean statutes setting forth police, sanitary or other similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations.” See, also, Eastlake v. Bd. of Bldg. Stds. (1981), 66 Ohio St. 2d 363, 368 [20 O.O.3d 327]. The drug laws of the state of Ohio are clearly statutes setting forth police regulations and are, therefore, “general laws.” Those laws which are not general laws are statutes which merely grant or limit the legislative powers of a municipal corporation to adopt or enforce police regulations. Finding that the drug statutes involved are “general laws” within the meaning of Section 3, Article XVIII, this court must determine whether the city, by amending Section 513.03, has brought that section into conflict with the “general laws.” One of the earliest cases written by this court which discussed whether municipal ordinances which differ from state statutes were in conflict with such statutes was Struthers v. Sokol (1923), 108 Ohio St. 263. [165] In its analysis of what constitutes such a conflict this court in Sokol, supra, at paragraph two of the syllabus, held: “In determining whether an ordinance is in ‘conflict’ with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.” The court further held in part: “A police ordinance is not in conflict with a general law upon the same subject merely * * * because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance.” Id. at paragraph three of the syllabus. This court has decided the issue involved herein on several occasions. In Toledo v. Best (1961), 172 Ohio St. 371 [16 O.O.2d 220], this court held: “Where the only distinction between a state statute and a municipal ordinance, proscribing certain conduct and providing punishment therefor, is as to the penalty only but not to the degree (misdemeanor or felony) of the offense, the ordinance is not in conflict with the general laws of the state. * * *” See, also, Dayton v. Miller (1951), 154 Ohio St. 500 [43 O.O. 433] and Greenburg v. Cleveland (1918), 98 Ohio St. 282. The case upon which appellee places heavy reliance is Cleveland v. Betts (1958), 168 Ohio St. 386 [7 O.O.2d 151]. In Betts the court was asked to determine whether a city of Cleveland ordinance, which imposed a misdemeanor penalty for possession of a concealed weapon, was in conflict with the general laws of the state of Ohio, which defined the same offense as a felony. The Cleveland ordinance was found unconstitutional because it altered the degree of the offense from felony to misdemeanor. When a municipal ordinance varies in punishment with the state statute such ordinance is not in conflict with the statute when it only imposes a greater penalty. If the Niles ordinance had altered the degree of punishment to a felony rather than a misdemeanor it would have been unconstitutional. However, since the ordinance only increased the penalty from a lesser misdemeanor to a first degree misdemeanor, it is not in conflict with the general laws of Ohio. It is therefore the decision of this court that the judgment of the court of appeals be reversed. Judgment reversed. Celebrezze, C.J., O’Neill, Locher, Holmes, C. Brown and J. P. Celebrezze, JJ., concur. Sweeney, J., dissents. O’Neill, J., of the Seventh Appellate District, sitting for W. Brown, J. Footnotes [3] “513.03 DRUG ABUSE: CONTROLLED SUBSTANCE POSSESSION OR USE. “(a) No person shall knowingly obtain, possess or use a controlled substance. “(b) This section does not apply to manufacturers, practitioners, pharmacists, owners of pharmacies and other persons whose conduct was in accordance with Ohio R.C. Chapters 3719, 4715, 4729, 4731 and 4741. This section does not apply to any person who obtained the controlled substance pursuant to a prescription issued by a practitioner, where the drug is in the original container in which it was dispensed to such person. “(c) Whoever violates this section is guilty of drug abuse: “(1) If the drug involved is a compound, mixture, preparation or substance included in Schedule III, IV or V, drug abuse is a misdemeanor of the third degree, and if the offender has previously been convicted of a drug abuse offense, drug abuse is a misdemeanor of the second degree. “(2) If the drug is marihuana and the amount is less than a bulk amount as defined in Section 513.01(s)(3), drug abuse is a misdemeanor of the first degree.” “501.99 PENALTIES FOR MISDEMEANORS. “(a) Whoever is convicted of or pleads guilty to a misdemeanor shall be imprisoned for a definite term or fined, or both, which term of imprisonment and fine shall be fixed by the court as provided in this section: “Classification of Maximum term Maximum Misdemeanor of Imprisonment Fine “First degree 6 months $1,000.00 <<* * * “Minor No imprisonment 100.00. <<* *