Opinion
No. 29639
Decided February 16, 1944.
Criminal law — Violation of municipal zoning ordinance — Affidavit not invalid for failure to negative exception, excuse or proviso — Burden upon municipality to show defendant not within exception in ordinance — Constitutionality of ordinance determined only when essential to protect parties' rights.
1. No affidavit charging the violation of a municipal ordinance shall be held invalid for the reason that it fails to negative any exception, excuse or proviso contained in the ordinance creating or defining the offense.
2. In the prosecution for the violation of an ordinance of a municipality the burden rests upon the municipality to show that the defendant does not come within any exception contained in the ordinance describing the offense.
3. The constitutionality of an ordinance will be passed upon only if and to the extent that it is essential to the protection of the rights of the parties concerned.
APPEAL from the Court of Appeals of Cuyahoga county.
On July 23, 1942, the building inspector of the village of Strongsville filed the following affidavit with the mayor of that village:
"Before me, J.A. Frank, mayor of the village of Strongsville, personally appeared Ernest C. Bedford, inspector of buildings, who being duly sworn according to law, deposes and says, that on or about the 22nd day of July, 1942, at the village of Strongsville, in said county and state, one George McPhee did wilfully occupy a building within the village, at the northwest corner of Boston road and Prospect road, as a residence, which building does not contain a first floor area of 600 square feet or over, as required by the zoning ordinance of the village, in violation of law, and further says not.
"(Affiant) Ernest C. Bedford
"Sworn to and subscribed before me, this 23rd day of July, 1942
"J.A. Frank, Mayor."
Thereupon the mayor issued a warrant for the arrest of George McPhee which warrant recited the foregoing affidavit. Trial was had before the village mayor and appellant was found guilty and fined $10 and costs.
The following narrative bill of exceptions was signed by the mayor:
"Narrative transcript of testimony offered at the trial of George McPhee before the mayor, J.A. Frank, mayor of the village of Strongsville, on the 13th day of August, 1942.
"Ernest Bedford being first duly sworn upon oath testified that he was a resident of the village of Strongsville, holding the position of building inspector; that on the 22nd day of July, 1942, he visted the premises upon which the defendant, George McPhee, resided on Boston road and found that said McPhee had moved into the premises and that he was occupying, as his residence, a building having less than six hundred (600) square feet of floor space on the first floor. He informed the defendant McPhee that by reason of this situation he was violating the zoning ordinance of the village of Strongsville which required that a person should not occupy as a residence a building having less than 600 square feet on its first floor; that Mr. McPhee informed him that he intended to continue occupying the building.
"Mr. Bedford, on cross-examination, stated that McPhee had later produced plans for the remodeling of this building in question and that the work of remodeling and enlarging it was then going on; that Mr. McPhee was arrested on the 23rd day of July, 1942.
"George McPhee, being first duly sworn, upon oath testified in substance as follows:
"That prior to his arrest, he had moved into the premises in question on Boston road; that these premises, consisting of fifteen (15) acres of land, together with the buildings, belonged to his wife; that he did not own the same. He stated that the building in question which he occupied as a residence contained over four hundred (400) square feet of floor space on the first floor; that it was a one story building and that he occupied it as a residence; that he was enlarging it and the improvements, when completed, would give him over the required six hundred (600) square feet of floor space on the first floor; that the work was in progress and that he had, subsequent to his arrest, obtained a building permit to make the alterations on this structure.
"The foregoing is a narrative statement of all the testimony offered at the trial in the case entitled the Village of Strongsville v. George McPhee.
"J.A. Frank,
"Mayor.
"J.B. Oviatt,
"Attorney for George McPhee."
After leave granted, petition on appeal was filed in the Court of Common Pleas of Cuyahoga county, which court reversed the judgment of the mayor's court. Upon appeal by the village to the Court of Appeals, the judgment of the Common Pleas Court was reversed and the cause remanded.
The case is here following the allowance of a motion to certify the record.
Mr. Edward Blythin and Mr. Alexander Mintz, for appellee.
Mr. John B. Oviatt, for appellant.
Appellant assigns as grounds of claimed error:
1. That the affidavit upon which the warrant for the arrest of appellant was issued is defective and void for the reason that it does not state an offense.
2. That the Court of Appeals erred in reversing the judgment of the Court of Common Pleas.
3. That the provision of the ordinance under which appellant was prosecuted and convicted is unconstitutional.
Taking up the claimed error in respect of the affidavit:
It is the claim of appellant that inasmuch as the ordinance in question applied only to buildings erected or altered after the enactment of the ordinance the affidavit should have shown that appellant's building was erected or altered subsequent to the enactment of the ordinance.
If instead of an affidavit an indictment or information were involved here, appellant's claim would be fully answered by the provisions of Section 13437-9, General Code, which provides:
"No indictment or information for any offense created or defined by statute shall be deemed objectionable for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense. The fact that the charge is made shall be considered as an allegation that no legal excuse for the doing of the act exists in the particular case." See, also, Section 13437-7, General Code.
An affidavit, which is less formal, should not be held to require a greater definiteness than an indictment.
The record fails to show any attack upon the affidavit prior to trial.
As stated by Judge Wanamaker in State v. Marcinski, 103 Ohio St. 613, 618, 134 N.E. 438:
"The rule is well settled that affidavits charging minor offenses are not construed with the same degree of strictness as indictments charging major offenses. It is sufficient that the defendant be advised in all cases of 'the nature and cause of the accusation against him.' "
Under Section 10, Article I of the Constitution of Ohio, it is provided: "In any trial, in any court, the party accused shall be allowed * * * to demand the nature and cause of the accusation against him, and to have a copy thereof * * *."
We are of the opinion that the affidavit in question apprised the defendant below of the nature and cause of the accusation against him and this is especially true in the absence of any complaint before trial of any defect in form or definiteness in the affidavit. Of course, the affidavit must charge substantially the commission of an offense. Montgomery v. State, 7 Ohio St. 107; 21 Ohio Jurisprudence, 691, Section 13.
Under Section 13422-1, General Code, a mayor of a municipal corporation is included within the term "magistrate." Practice before such court is similar to that before a justice of the peace.
Section 13432-18, General Code, provides:
An affidavit in the form following shall be sufficient:
The State of Ohio,
"................ County, ss:
"Before me, A. B., personally came C. D., whe being duly sworn according to law, deposes and says that on or about the........day of........at the county of...................., one E. F. (here describe the offense committed as nearly according to the nature thereof as the case will admit, in ordinary and concise language.) "
"Sworn to and subscribed before me, this........day of........., 19....
"A. B., Justice of the Peace.
"(or Judge)"
Section 4535, General Code, provides:
"In villages, the mayor shall have final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation unless imprisonment is prescribed as part of the punishment, and in keeping his dockets and files, he shall be governed by the laws pertaining to justices of the peace."
We are, therefore, of the opinion that the objection to the contents Of the affidavit is not well taken.
In appellant's petition on appeal to the Court of Common Pleas it was alleged that the mayor's judgment was not sustained by sufficient evidence and that judgment should have been for appellant.
The zoning ordinance under which the prosecution was had is not contained in the record. However, it was the duty of the mayor to take judicial notice of the ordinance and where such duty rests upon the trial court the appellate courts will likewise take such judicial notice. Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St. 607, 9 N.E.2d 671.
The record is silent as to whether the building in question was elected before or after the enactment of the zoning ordinance. The bill of exceptions does disclose that at the time of the hearing on August 13, 1942, appellant was enlarging the building under a building permit. We cannot glean from the record that the alterations were begun prior to the filing of the affidavit.
As admitted by the village solicitor:
"The ordinance does not attempt to restrict occupancy of buildings in existence on the date of its passage."
It is the contention of the village solicitor that it was appellant's duty to have claimed and proved that his occupancy was within the protection of the preordinance status. With this latter claim we cannot agree.
Notwithstanding what has been said above in respect of the contents or form of the affidavit, the burden of proving appellant's violation of the ordinance rested upon the village and it was the duty of the prosecution to show that the building was erected after the enactment of the ordinance. The bill of exceptions contains the mayor's certificate that it is a narrative statement of all the testimony offered at the trial.
We are of the opinion that the Court of Appeals erred in reversing the judgment of the Court of Common Pleas and in remanding the cause to such court.
As summarized in 16 Corpus Juris Secundum, 207, Section 94:
"As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned."
Several important facts have been discussed in the briefs for which there is no basis in the record. In view of the state of the record and the fact that a decision upon the constitutionality of the ordinance is not essential to the protection of the rights of the parties concerned, we pass the question of constitutionality.
Therefore, the judgment of the Court of Appeals should be and hereby is reversed and final judgment rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and WILLIAMS, JJ., concur.