This cause originated in the court of common pleas of Hamilton county, Ohio, as an injunction suit by a merchant in the city of Cincinnati to restrain the enforcement of an ordinance prohibiting an auction sale of jewelry. It is admitted that Meyers was a merchant conducting a jewelry business and that his business was conducted at retail over the counter in the ordinary course of business, but that by reason of the building where his business had theretofore been conducted being about to be torn down, it was necessary to dispose of a large stock of jewelry within a short time.
An ordinance of the city of Cincinnati prohibits and penalizes the sale of jewelry at public auction within the city of Cincinnati. It is claimed that such prohibition violates the due process clause *Page 623 and deprives jewelry merchants of equal protection of the laws as guaranteed by Article V and Article XIV, Section 1, of the Amendments to the federal Constitution. It is further claimed that the ordinance is in violation of Sections 1 and 19 of the Ohio Bill of Rights.
The court of common pleas and the Court of Appeals held the ordinance to be valid and denied the injunction. The cause has been filed in this court under claim of right on the ground that it involves an interpretation of the constitution.
Three of the members of this court, Marshall, C.J., Kinkade and Jones, JJ., hold that the ordinance does not violate any of the limitations of the constitution of Ohio; that it does not prohibit the sale of jewelry but only regulates the manner of sale by prohibiting sale in a certain way.
It is within the province of the legislative authority of a municipality in Ohio "to exercise all powers of local self-government and adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws." See Section 3, Article XVIII of the Ohio Constitution. Manifestly this ordinance is enacted under power to make local police regulations and the courts cannot interfere with such legislative authority of the city unless the court can say that the ordinance had no real or substantial relation to the objects sought to be attained, but is a clear, unmistakable infringement of rights secured by the fundamental law.
In the opinion of three members of this court this ordinance does not so offend. Four members of this court, Day, Allen, Robinson and Matthias, JJ., hold that the ordinance does violate constitutional limitations *Page 624 and interferes with the freedom of contract. Three members of this court, Day, Allen and Robinson, JJ., are of the opinion that the provisions of Section 2 of Article IV, requiring tile concurrence of at least all but one of the judges to declare a law to be unconstitutional and void except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void, applies to ordinances of municipalities.
There being more than one member of this court holding the ordinance to be constitutional, and there not being as many as four members of this court who hold that an ordinance is not a law who at the same time concur in a judgment of reversal, it follows that there is an insufficient number of judges concurring upon the points of law necessary to a reversal, and the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE and JONES, JJ., concur. *Page 625