#### Matthews *v.*Russell, Supt.

(No. 2072

Decided December 10, 1949.)

*444
      *Mr. Louis C. Gap elle,*for petitioner.

*Mr. Herbert S. Beane,*city attorney, and *Mr. William P. Keane,*for respondent.

Miller, P. J.

This is a habeas corpus proceeding originating in this court. The facts are that the petitioner was convicted of assault and battery in -the Municipal Court of Dayton, Ohio, and sentenced to serve one year in the workhouse and to pay a fine of $1,000 and costs. This is the maximum penalty as defined by ordinance Section 943-2 of the city of Dayton. The maximum penalty as prescribed by Section 12423. General Code, for this offense is a fine of not more than $200 or imprisonment for not more than six months or both. The petitioner is contending that the ordinance under which he was sentenced is void as being in conflict v/ith state law, to wit, Section 12423, General Code; in violation of Section 3628, General Code, which limits the penalty for violation of a city ordinance to six months imprisonment or a fine of $500 or both; also in violation of Section 9, Article I of the Ohio Constitution, which provides that cruel and unusual punishment shall not be inflicted.

The first question presented is whether the difference in the penalties as prescribed in the ordinance and the General Code constitute a conflict such as to bring the ordinance within the inhibition of the latter part of Section 3, Article XVIII of the Constitution. This question has been definitely answered in the negative in the case of *Village of Struthers*v. *Sokol,*108 Ohio St., 263, 140 N. E., 519, which should require no further comment from us. Paragraph three of the syllabus provides:

*445
      *“A*police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, ** * **or. because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance.”

A more recent case deciding the same question is found in *Village of Leipsic*v. *Folk,*38 Ohio App., 177, 176 N. E., 95, paragraph three of the syllabus of which reads:

“That ordinance against disturbing good order and quiet of village provided for fine not exceeding $100, and that statute provided that fine should in no case exceed $50, did not invalidate ordinance (Section 3665, General Code; Article XVIII, Section *3,*Constitution ). ”

The next question presented is whether Section 3628, General Code, which limits the penalty in a city ordinance to a fine of $500 and imprisonment not in excess of six months, is effective as a limitation upon the powers of a municipal corporation. This statute is not a general law within the meaning of the Home Rule Amendment and the limitations therein contained as to the amount of punishment are not binding upon municipalities since the adoption of the amendment of 1912. *City of Youngstown*v. *Evans,*121 Ohio St., 342, 168 N. E., 844, paragraphs one and two of the syllabus of which read as follows:

“1. The power conferred upon municipalities to enforce within their limits local police, sanitary and other similar regulations is only limited by general laws in conflict therewith upon the same subject matter. . .

“2. Section 3628, General Code, is not a law defining offenses and prescribing the punishment therefor, and is not therefore effective to bring an ordinance *446purporting to define and punish offenses in conflict with Section 3, Article XVIII, of the Constitution.”

See, also, *Marko*v. *City of Youngstown,*6 Ohio Law Abs., 477, and *Ermekiel*v. *State,*8 Ohio Law Abs., 121. The penalty imposed is neither cruel nor unusual and does not violate Section 9, Article I of the Constitution. To argue that it is, is indeed most primitive as these types of penalties have been regularly employed since our earliest civilization. Judge Day, in commenting on this subject in the case of *Holt v. State,*107 Ohio St., 307, 140 N. E., 349, said, at page 314:

“The term ‘unusual,’ employed in Section 9, Article I of the Ohio Constitution, means the kind of punisJament inflicted, and is not used in the sense urged by plaintiff in error. We are content to follow the language of *Wilkerson*v. *Utah,*99 U. S., 130, 25 L. Ed., 345, as interpreting the meaning of the expression:

“ ‘Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned in tbe commentator referred to [4 Blk. Com., 377, where the prisoner was drawn and dragged to the place of execution in treason; where he was emboweled alive; beheaded and quartered in high treason; cases of public, dissection in murder; and if burning alive in treason committed by a female], and all others in the same line of unnecessary cruelty, are forbidden by that amendment of the Constitution. ’ ’ ’

The ordinance being valid, the application is denied.

*Petitioner remanded to custody.*

Hornbeck and Wiseman, JJ., concur.