Ohio v. any municipal ordinance

Discussion in 'Local Chicken Laws & Ordinances' started by mespe, Jan 27, 2013.

  1. yes

    2 vote(s)
  2. no

    0 vote(s)
  1. mespe

    mespe Out Of The Brooder

    Jan 2, 2013
    I think this should hold up in court,,, (will find out soon)

    ORC 715.23 which reads:

    “a municipal corporation may regulate, restrain, or prohibit the running at large, within the municipal corporation, of cattle, horses, swine, sheep, goats, geese, chickens, or other fowl or animals, impound and hold the fowl or animals, and, on notice to the owners, authorize the sale of the fowl or animals for the penalty imposed by any ordinance, and the cost and expenses of the proceedings.”

    The part “authorize the sale of the fowl or animals for the penalty imposed by any ordinance” prohibits the municipality from altering the degree of punishment. This conflict arises because ORC 1.47 states in part “In enacting a statute, it is presumed that compliance with the constitutions of the state and of the United States is intended, the entire statute is intended to be effective, and a just and reasonable result is intended.”

    For purposes of constitutional analysis, ORC 715.23 dictates a penalty that is neither a misdemeanor nor felony, and therefore not a criminal act. MCO505.13 “alters the degree of punishment” from a noncriminal penalty to a criminal penalty, which contravenes state law, thus making MCO505.13 an unconstitutional ordinance. Altering the degree of punishment is discussed in Niles v. Howard (1984), 12 Ohio St.3d 162, 165.

    Conviction of a non-criminal nature entails no consequences, whereas conviction of a misdemeanor entails consequences and penalties of a more severe and lasting nature. In the matters before this court, with regard to farm animal ordinances, the consequences specified by the state are that the animals are to be impounded and sold, whereas the consequences of misdemeanor convictions are regularly reported on employment applications, a severe and lasting consequence. Cleveland v. Betts (1958), 168 Ohio St. 386, 389 states

    “although the ordinance does not permit what the statute prohibits, and vice versa, it does contravene the expressed policy of the state with respect to crimes by deliberately changing an act which constitutes a felony under state law into a misdemeanor [or vice versa], and this creates the kind of conflict contemplated by the Constitution. Conviction of a misdemeanor entails relatively minor consequences, whereas the commission of a felony carries with it penalties of a severe and lasting character”
    Last edited: Jan 27, 2013
  2. Sonoran Silkies

    Sonoran Silkies Flock Mistress

    Jan 4, 2009
    Tempe, Arizona
    Breaking a civil (vs criminal) law can have consequences in the nature of fines. Drive 15 miles over the posted speed limit and you are fined. Civil, not criminal. Plenty of other examples.
    No your argument does not hold water.
  3. mespe

    mespe Out Of The Brooder

    Jan 2, 2013
    Not interested in "fines" in legal mumbo jumbo a "penalty" is imposed by the court for breaking a "law." If the state says, doing "X" is a misdemeanor, no municipality may call doing "X" a felony. That's been decided and has precedent. So, if the state defines that raising chickens your penalty is for the city to sell all the chickens that you have, how can the penalty differ in degree? Let's go further and say that if convicted by the city of raising chickens two times within a year the city decides to make the penalty JAIL TIME but the state still defines the penalty as the city can sell the chickens, Who, on this earth, can say that there is no difference in the "degree of penalty?"

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