The News-Herald. [volume] (Hillsboro, Highland Co., Ohio) 1886-1973, 1893-05-04
UNCONSTITUTIONAL.
The Ordinance Closing saloons at Nine
O'Clock p. m. Is Too Com.
prehensive.


Davis, hands down the following decis-
ion as to the constitutionality of the
closing ordinance:
The complaint in this case charges
violation OF the ordinance known as the
8 o'clock ordinance, the provisions of
which are as follows:
An ordinance to regulate ale, beer and
porter houses and shops.
SECTION l. Be it ordained by the
Council of the incorporated village Of
Hillsboro, O., that ale, beer and porter
houses and shops within the corporate
limits of said village shall be closed at 8
o'clock p m. OF each day and shall be
and remain so closed until o'clock a.
m. of the following day, and shall be
closed at o'clock p. m. of each Satur-
day, and be and remain SO closed until
6 o'clock a. m. of the next following
Monday.
SEC. 2. If any person or persons,
either by agent or otherwise, shall open
or keep open, or assist to open or keep
open any ale, beer and porter house or
shop, contrary to the provision OF Sec
ton 1) of this ordinance, every such
person. whether he be principal, agent
or employe, upon conviction thereof,
shall be fined for each and every such
ofense not more than fifty dollars nor
less than ten dollars.
Sec 3. This ordinance shall take
effect and be in force from and after it's
publication for ten (10) days according
to law. H. @. DAWSON, Mayor.
N. H. AYREs, Clerk
In this case an Issue OF law is made by
the demurrer of the defendant to the
complaint. upon the ground that the
facts stated in the complaint do not con-
stitute an offense under the laws of Ohio
and the ordinances of the village of
Hillsboro. The issue, as made, necessa.
rily involves the validity of the ordi-
nance itself as the complaint is drawn in
strict conformity Herewith.
The power to enact ordinances having
for their object the regulation of the
traffic in Intoxicating liquors as carried
on by retail dealers in such liquors, is
conferred upon municipalities by Sec.
ton 1902 of the Revised Statutes of Ohio,
in the following clause:
"And any municipal corporation shall
have full power to regulate, restrain and
prohibit ale, beer and porter houses and
other places where intoxicating liquors
are sold at retail, for any puspose or in
any quantity other than is provided for in
Section s Of this act."
pouar to ror,,lota I, M, ,fa,,ad o1., H.,
the provisions of Section 1892 of Revised
Statutes, but that Section does not en-
large, modify or vary the powers con-
ferred by the 18th Section of the act
known as the Dow law, and quoted
above. II
Section of the act above referred to
defines the phrase ''trafficing in intoxi-
eating liquors" as "The buying OF pro.
curing and selling of intoxicating liquors
othertoise than upon prescription issued in
good faith by reputable physicians in active
practice, for exclusively kno,0n mechanical,
pharmaceutical or sacramental purposes,
but such phrase does not include the manu-.
Jtacture Of Intoxicating liquors from the ra,u
material and sale thereof at the aaanutactoyy
By the manufacturer Of the same in g,la,,ti-
ties Of one gallon or more at any one time y
1t will be observed that the power to
regulate, restrain and prohibit, SO con-
ferred by the Statute, is limited and
extends only to certain class of sales,
and that no authority is granted to regu.
late, restrain or prohibit sales upon pre-
scription, or for mechanical, pharmaceu.
tical or sacramental purposes such
sales constitute second class, which is
exempted from the operation of the law
authorizing the municipal enactments
for the regulation and restraint of the
"traffic in intoxicating liquors"
1t follows then necessarily that no
ordinance, having for its object the reg.
ulation of "ale, beer and porter houses
and shops, and other places where in.
toxicating liquors are sold at retail for
any purpose or in any quantity other
than is provided for in Section 8 of this
act" can be lawfully enacted or enforced,
that does not except from its operation
such sales as are within the class ex.
cluded from the operation of such ordi-
nances by the terms of the Statute.
The law, in this respect, is we'll stated
by Judge Higgins ia his decision in the
case of McCrea VS.. the Incorporated
Village of Washington, reported in the
18th Law Bulletin, page Sc, wherein the
Court says:
|. "The reference to Section in Section
4 (of the Dow law can have no effect
unless it be construed as excepting from
the prohibitory and regulative power
given to municipal corporations those
sales which by Section are not meant
by or included in the phrase, traficine
in intoxicating liquors. 1t follows then
thar a municinal cornoration hoe -, -,