The Liquor Control Act, Section 6064-1 et seq., General Code, under which the permit was issued to plaintiff by the Department of Liquor Control is a "general law" of the state. By it, power is given to the department to grant such permits, and, in the exercise of that power, the permit in question was regularly issued to plaintiff for which she paid the fee required by the law.
Looking at this act, particularly Section 6064-20, General Code, and the permit which conforms to Section 6064-15, General Code, it clearly says that the plaintiff is "authorized * * * to carry on the business herein [in the permit] specified at the place * * * therein described [72 Woodlawn avenue, Norwalk, Ohio] for a period of one year commencing on the day after the date of its issuance," (October 2, 1941).
The zoning ordinance of the city of Norwalk classified that district as "residential" and the manufacture and sale of wine is not a permitted use in such district, and such business therein at any time in any way is in violation of the penal provision of the ordinance. In other words, the state law says the plaintiff can carry on that business there, the ordinance says she can not. Hence the ordinance is, in this respect, clearly "in conflict with the general laws," and being so, it is not within the power of the municipality as defined in Section 3, Article XVIII of the Constitution of Ohio, to so completely override the general law of the state.
The supremacy of this act over municipal authority was recognized in Akron v. Scalera, 135 Ohio St. 65,19 N.E.2d 279, and in the decision of the lower court in the same case reported in 28 Ohio Law Abs., *Page 433 490. In that case the ordinance prohibited the sale on Sunday of all liquor containing more than one half of one percent of alcohol. The power of the municipality to impose such regulation was sustained as given by Section 6064-22, General Code.
In Coshocton v. Saba, 55 Ohio App. 40, 8 N.E.2d 572, a municipal ordinance fixing a greater limit to the hours in which liquor could be sold than that fixed by the Board of Liquor Control was approved as not "in conflict with general laws." To regulate the time of sale of liquor is quite a different thing from prohibiting the sale completely.
Such being the relative powers of the state Legislature and of the municipal council under the Constitution of Ohio, in my opinion, the courts have no alternative but to give effect to the general law of the state when it is in conflict with the local law, as in this case. The wisdom or the policy of such law, and the situation thus presented herein, are for the consideration of the state Legislature and the Department of Liquor Control, not of the courts.
As the ordinance in question is sought to be applied to the plaintiff by the defendants, it is invalid, and under Olds v.Klotz, 131 Ohio St. 447, 3 N.E.2d 371, the plaintiff is entitled to an injunction as prayed for in the petition. *Page 434