Northern Boiler Co. v. David
| Citation | 106 N.E.2d 620,157 Ohio St. 564 |
| Decision Date | 28 May 1952 |
| Docket Number | No. 32863,32863 |
| Parties | , 47 O.O. 416 NORTHERN BOILER CO. v. DAVID et al. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court.
1. The right of access to a street is a proprietary right attached to the estate in or ownership of abutting property, and the ownr thereof may construct a driveway from his property for a necessary outlet into the street provided he does not unreasonably interfere with the public use thereof.
2. An ordinance, which provides that 'except as to residential property no permit shall be granted by the director of public service to cut the curb * * * unless and until written notice * * * has been given to the member of council from such ward' and 'if * * * such member of council shall notify said director in writing of his objection to the issuance of such permit, such permit shall not be issued except pursuant to resolution of council,' constitutes a delegation of legislative power and is unconstitutional and void.
The plaintiff, Northern Boiler Company, is a corporation existing under the laws of the state of Ohio.
The defendants are the city of Cleveland, Samuel F. David, who is its duly appointed, qualified and acting director of public service, and Alban J. Pruesser, who is its duly appointed, qualified and acting commissioner of streets.
This cause originated in the Court of Common Pleas of Cuyahoga County. The plaintiff seeks a mandatory injunction direcing the city of Cleveland, by its duly appointed officers, to issue a permit to cut the curb in front of property owned by the plaintiff. The pertinent parts of the amended petition are as follows:
'Plaintiff further says that it is the owner of certain property, one parcel being located on the westerly side of West 88th street and one parcel which fronts upon Silverton avenue, both parcels being in the city of Cleveland.
'Plaintiff further says that both of said parcels of property are zoned for industrial purposes and that it does operate and has operated for more than the past twenty-five (25) years a plant for the manufacture and fabricating of steel products in the building fronting on Silverton avenue. That immediately adjoining the building on Silverton avenue, the plaintiff is in the process of erecting an addition to its existing plant. That the property on West 88th street has a frontage of approximately two hundred (200) feet and is presently being used for the storage of steel for use in the construction of the new addition to its existing plant. That for the purpose of constructing said building, it is now necessary to move the structural steel from the lot on West 88th street to the lot on Silverton avenue where the addition is being constructed.
'Plaintiff further says that there is no means of ingress or egress to the said 88th street property unless a driveway be built from the property to West 88th street, which, of necessity, requires the cutting of the curb on West 88th street at the point where plaintiff's said property is located. That on the 1st day of May, 1951, the plaintiff made application to the proper authorities in the service department for permission to cut the curb on West 88th street so as to permit vehicles to enter its said property located on West 88th street. This application was made under the provisions of Municipal Code Section 135, the pertinent part of which reads as follows:
"He shall have charge of the planning, construction, improvement, repair and maintenance of streets, boulevards, sidewalks, alleys, lanes, bridges, viaducts, aqueducts, wharves, docks, landings, and other public highways * * *.'
'That this application was orally approved by the commissioner of streets of the city of Cleveland and by the director of public service of the city of Cleveland. That written formal approval was withheld by the above named officials pending the lapse of ten (10) days in which the councilman of the ward in which the property is located could object to the cutting of said curb under provisions of ordinance No. 1941-50, which reads as follows:
'That the said councilman did so object, and that by reason of the objection of the councilman under the provisions of said ordinance, the permit to cut said curb is being held up to the irreparable damage of this plaintiff in that he has no means of ingress or egress to his property and no means of transporting the steel from where it is stored to the building which is now under construction.
'Plaintiff further says that the aforesaid ordinance No. 1941-50 is unconstitutional and void in that it illegally delegates the power and authority to an individual to deprive a property owner of the proper and legal use of his property and to prevent the property owner from obtaining the means of ingress and egress to his property and said ordinance violates the equal protection of the law guaranteed by the state and federal Constitutions.'
The defendants' general demurrer to the petition was sustained by the Court of Common Pleas on the ground that the petition, failing to state that the city council had refused to grant the permit by resolution, discloses that the plaintiff had not exhausted its remedies and, therefore, was not entitled to an injunction.
The plaintiff not desiring to plead further, judgment was entered against it and the petition was dismissed at its cost.
An appeal on questions of law was prosecuted to the Court of Appeals which court reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings.
The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals and because it presents a question arising under the Constitution of this state.
Joseph H. Crowley, Director of Law, and Robert J. Selzer, Cleveland, for appellants.
Davis & Young and J. J. P. Corrigan, Cleveland, for appellee.
The demurrer of the defendants, admitting as it does all well pleaded facts in the plaintiff's petition, presents a single question of law. That question is whether ordinance No. 1941-50 is unconstitutional and void in that it illegally delegates power and authority to an individual to deprive an owner of the proper and legal use of his property.
The plaintiff as the owner of property abutting on a street has certain rights therein different from those of the general public. Such rights are discussed in the case of Crawford v. Village of Delaware, 7 Ohio St. 459. The nature and extent of those rights are clearly stated in the opinion of Swan, J., as follows:
This principle has been followed and applied in the following cases: Cincinnati & Spring...
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Sproul v. City of Wooster
...to be exercised. An uncontrolled discretion has invariably been held to be a delegation of legislative power. Northern Boiler Co. v. David, 157 Ohio St. 564, 106 N.E.2d 620 (1952). See also City of Cleveland v. Piskura, 145 Ohio St. 144, 60 N.E.2d 919 In sum, we conclude that the Ohio Const......
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