McDonald v. City of Columbus

• Decision Date: 21 November 1967
• Citation: McDonald v. City of Columbus, 231 N.E.2d 319, 12 Ohio App.2d 150 (Ohio App. 1967)
• Parties: , 41 O.O.2d 228 McDONALD, Appellant, v. CITY OF COLUMBUS et al., Appellees.
• Court: Ohio Court of Appeals

Page 150

12 Ohio App.2d 150

231 N.E.2d 319, 41 O.O.2d 228

McDONALD, Appellant, v.CITY OF COLUMBUS et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Nov. 21, 1967.

Thomas W. Applegate, Columbus, for appellant.

John C. Young, City Atty., and Alba L. Whiteside, Columbus, for appellees.

TROOP, Judge.

The city of Columbus owns land located in Perry Township, Franklin County, known as Hoover Park and used for park purposes for approximately 50 years.The city contemplated the creation of a campsite for trailers and tents within the Hoover Park area.It appears that the camping facilities were to be made available for recreational purposes as opposed to sites for living quarters.Plaintiff in the trial court, Pauline A. McDonald, a neighboring property owner to Hoover Park, sought to restrain the city from completing the campsite, already begun, claiming a violation of the Franklin County Zoning Resolution(November 16, 1948), and urging that the park area was restricted because it was situated within the unincorporated territory of the county and outside the corporate limits of the municipality.The trial court refused to permanently enjoin the city from using Hoover Park as contemplated.This appeal is from that final order.

In a decision on a demurrer in the instant case Judge Gessaman aptly observes that the problem presented concerns 'the comparative rights of two political subdivisions of the state.'The city urges superiority by virtue of the right of eminent domain, and the plaintiff urges the controlling force of a county zoning resolution.Whatever the ramifications, or however circuitous the route traveled, the single issue arises because the asserted right of the city runs head on into an exercise of power by the county.This discussion is addressed to that problem.

Conflicts such as this have not been litigated very many times in Ohio, or elsewhere.The superior position of the sovereign state of Ohio as relates to subdivisions seems clear from the decision in State ex rel. Ohio Turnpike Commission v. Allen, Secy.-Treas.(1952), 158 Ohio St. 168, 107 N.E.2d 345.That one municipal corporation has just as much right and authority as another when they collide is apparent from the decision in Vil. of Blue Ash v. City of Cincinnati(1962), 173 Ohio St. 345, 182 N.E.2d 557.No Ohio decision has been cited or found that squarely decides the comparative rights of county and city when the exercise of authority by a county infringes upon, or limits or violates, the exercise of authority by a city.

First, it should be noted that an Ohio county is a wholly subordinate political subdivision deriving whatever authority it exercises from legislative enactment.No county of the 88 has taken advantage of Sections 1and3, Article X, of the Ohio Constitution, and, therefore, they must have statutory authority to do what they do.(14 Ohio Jurisprudence 2d 201, Section 4 et seq.)Any exercise of police power by a county must be predicated upon a delegation of that power to the county by the Legislature.

At this point it is well to emphasize that zoning by a county is an exercise of police power, as authorized by statute, for the safety, health, morals, convenience, comfort or general welfare of the people(101 C.J.S.Zoning§ 7, p. 683), and in Ohio that specific exercise of police power is 'in the unincorporated territory of such county'(Section 303.02, Revised Code), and, except for a limited time, specifically excluded from 'within municipal corporations'(Section 303.18, Revised Code).

Municipal corporations derive basic power from Section 3, Article XVIII of the Ohio Constitution, approved September 3, 1912.The courts have consistently held that the authority 'to exercise all powers of local self-government' comes directly from the Constitution.(SeeVil. of Perrysburg v. Ridgway, A Taxpayer(1923), 108 Ohio St. 245, 140 N.E. 595, and other decisions.)In addition, the constitutional provision empowers the municipality 'to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'

There is no doubt that the providing of parks, playgrounds, and recreation centers is a power of local self-government.Such power is recognized and supported by a variety of legislative enactments that detail the procedures or the land acquisition and supervisory control of such projects.A number of sections of the Revised Code are noted.A variety of methods of securing land for 'public grounds, parks, park entrances, free recreation centers' is provided in Section 715.21, Revised Code, as well as the power to 'hold, improve, protect, and preserve' such areas.

Free recreation centers are covered in Section 717.01(K), Revised Code.A municipality may appropriate and hold real estate for parks, etc., purposes 'within its corporate limits' under Section 719.01(B), Revised Code, and for the same purposes, 'outside the limits of the municipal corporation' under Section 719.02, and broad possibilities of operation are provided in Section 755.12, Revised Code.

Section 3, Article XVIII of the Ohio Constitution, having authorized the exercise of the police power only 'within their limits,' by regulations not in conflict with general laws, the Legislature by statutory enactment extended the police power exercisable by the municipality...