Plummer v. Village of Swanton

• Decision Date: 25 May 1938
• Docket Number: 26913.
• Citation: 15 N.E.2d 349,133 Ohio St. 623
• Parties: PLUMMER v. VILLAGE OF SWANTON et al.
• Court: Ohio Supreme Court

15 N.E.2d 349

133 Ohio St. 623

PLUMMER v. VILLAGE OF SWANTON et al.

No. 26913.

Supreme Court of Ohio

May 25, 1938

Syllabus by the Court.

1. An ordinance, which expresses in its title the purpose of regulating traffic upon and the use of streets, boulevards and property of a village and which makes it unlawful (1) to park or place a vehicle upon the streets, boulevards or other public places, parks or property of the village for the purpose of sale or barter, (2) to drive, operate, park or place any vehicle in such street or public place without having the distinctive number and registration mark furnished by the director of highways displayed on the rear of trailers and semi-trailers and on the front and rear of other vehicles, and (3) to use such streets and public places for storing such vehicles, not then in transit or actual use and service, is not violative of Section 4226, General Code which provides that no ordinance shall contain more than one subject which shall be clearly expressed in its title.

2. When a dealer in used motor vehicles brings an action in injunction to prevent a municipality from interfering with the use of a strip of land for the purpose of parking or storing vehicles in carrying on his business (which strip of land the village claims is a street and its use by the dealer in his business in such manner forbidden by ordinance), the plaintiff is not entitled to injunctive relief without showing some right, title or interest in and to such strip of land.

The plaintiff, Harry E. Plummer, as a taxpayer, by virtue of Section 4311 et seq., General Code, brought an action in the Court of Common Pleas of Fulton county, Ohio, against the village of Swanton, Ohio, its mayor, clerk and marshal, to restrain them from interfering with plaintiff's business in the operation of an automobile sales agency in the village and from arresting the plaintiff under a certain ordinance which reads as follows:

'An Ordinance No. 410.

'Regulating the traffic upon and use of the streets, boulevards and property of the village of Swanton, Ohio.

'Be it ordained by the council of the village of Swanton, Fulton county, Ohio, that:

'Section 1. It shall be unlawful for any person or persons to park or place, or cause to be parked or placed upon any of the streets, boulevards, or other public places, parks or property of the village of Swanton, Ohio, or the space between the property line and the curb of the street in said village, any motor vehicle, truck trailer or semi-trailer, or other vehicle, for the purpose of selling or bartering the same, or advertising the same for barter or sale.

'Section 2. It shall be unlawful for any person or persons to drive, operate, park or place any motor vehicle, trailer, or semi-trailer, or other vehicle, upon any of the streets, boulevards, parks or property of the said village, or the space between the property line and the curb of the street in said village, without such vehicle has the distinctive number and registration mark, furnished by the director of highways for such motor vehicle, trailer or semi-trailer, displayed on the front and rear thereof, except in the case of trailers and semi-trailers, which class of vehicles shall display such distinctive number and registration mark on the rear only.

'Section 3. It shall be unlawful for any person or persons to use the streets, boulevards, or other public places, parks, or property of the said village, or the space between the property line and the curb of the street in said village, for the purpose of storing any motor vehicle, trailer, semi-trailer, or other vehicle, not then in transit, or actual use and service.

'Section 4. Whoever shall violate any of the provisions of this act shall be fined, for a first offense, not less than five dollars ($5.00), or more than twenty-five dollars ($25.00), and for a second, and each subsequent offense, not less than twenty-five dollars ($25.00), nor more than fifty dollars ($50.00).

'Section 5. This ordinance and the various parts, sections and clauses are hereby declared to be severable. If any part, section or clause is adjudged unconstitutional or invalid, the balance of the ordinance shall not be affected thereby.

'This ordinance shall take effect at the earliest time permitted by law.'

The Court of Common Pleas denied the injunction and entered judgment for defendants and the Court of Appeals affirmed the judgment.

An appeal was taken to this court as a matter of right.

R. P. Cunningham, of Cleveland, for appellant.

F. S. & J. M. Ham, of Wauseon, for appellees.

WILLIAMS Judge.

If the plaintiff can maintain his action at all, it is as an individual and not as a taxpayer; therefore, the court considers the cause as if it were an action by an individual.

Plaintiff contends that this ordinance is violative of Section 4226, General Code, which provides: 'No ordinance * * * shall contain more than one subject, which shall be clearly expressed in its title. * * *'

In the case of Withey v. Fowler Co., 164 Iowa 377, 145 N.W. 923, the court held valid an ordinance passed under an identical statute. That ordinance attempted the regulation of vehicles in use or left standing upon the streets and also provided how drivers of teams or other vehicles should be required to drive; how they should turn into an intersecting street; how they should cross from one side of the street to the other and how and where vehicles left standing on the streets should be placed; then there was also a section in the ordinance which dealt with obstructions in the street. The court said (page 926): 'Little if any more than the reading of this enumeration of the several regulations said to be embodied in the ordinance is necessary to demonstrate their unity of purpose, and the propriety of gathering them into a single ordinance. * * * They all have direct reference to the use of the public streets of a city where, by reason...