Eshner v. City Of Lakewood

• Decision Date: 05 June 1929
• Docket Number: 21545
• Citation: 166 N.E. 904,121 Ohio St. 106
• Parties: Eshner v. City Of Lakewood.
• Court: Ohio Supreme Court

166 N.E. 904

121 Ohio St. 106

Eshner v. City Of Lakewood.

No. 21545

Supreme Court of Ohio

June 5, 1929

Municipal corporations - Ordinances regulating speed, conflicting with statute, invalid - Sections 12608 and 12605, General Code - Criminal law.

Messrs Newcomb, Newcomb & Nord, for plaintiff in error.

Mr R.G. Curren, for defendant in error.

BY THE COURT.

The plaintiff in error was convicted in the municipal court of the city of Lakewood of the violation of an ordinance of that city regulating the speed of automobiles, and the judgment was affirmed by the Court of Appeals.

Section 40 of the ordinance of the city of Lakewood which it is claimed Eshner violated provided's follows: "Rate of speed, limitations, presumptions. No person shall operate drive or propel and no owner thereof riding thereon or therein shall cause or permit to be operated, driven or propelled, in any public highway, bicycle, motorcycle motor-bicycle, carriage, buggy or other vehicle, recklessly or negligently or at a rate of speed or in a manner so as to endanger or to be likely to endanger the life or limb or property of any person, provided that a rate of speed exceeding fifteen miles per hour in congested districts shall constitute prima facie evidence of a violation of the provisions of this section, provided further that a rate of speed exceeding twenty-five miles per hour in other than congested districts shall constitute a rate of speed and manner of driving prohibited in the aforesaid and in violation of the provisions of this section."

The specific provisions of the ordinance which it was charged the plaintiff in error violated is that "a rate of speed exceeding twenty-five miles per hour in other than congested districts shall constitute a rate of speed and manner of driving * * * in violation of the provisions of this section."

On the trial of the case evidence adduced tending to show a violation related only to the rate of speed at which the vehicle was operated. The specific provision of the regulatory ordinance upon which the prosecution was based is in conflict with the provisions of Section 12603, General Code. The reasons upon which the decision in the case of Schneiderman, an Infant, v. Sesanstein, ante, 80, 167 N.E 158, is based are applicable to this case and need not be repeated here. The ordinance in question makes a speed exceeding 25 miles an hour a violation, regardless of the width of...