State ex rel. Gordon v. Rhodes

• Decision Date: 11 July 1951
• Docket Number: No. 32609,32609
• Parties: , 45 O.O. 93 STATE ex rel. GORDON, City Atty., v. RHODES, Mayor, et al.
• Court: Ohio Supreme Court

Page 81

156 Ohio St. 81

100 N.E.2d 225, 45 O.O. 93

STATE ex rel. GORDON, City Atty., v. RHODES, Mayor, et al.

No. 32609.

Supreme Court of Ohio.

July 11, 1951.

Syllabus by the Court.

1. Under the home-rule amendments to the Constitution of Ohio (Section 3 et seq. of Article XVIII), an Ohio municipality, which has not adopted a charter provision to the contrary, has the power to acquire, maintain, and operate off-street facilities for the sole purpose of parking motor vehicles if the traffic conditions in such municipality are such as to warrant a determination by the legislative body of the municipality that the operation of such off-street parking facilities is necessary and that they will serve a public municipal purpose.

2. The determination of what constitutes a public municipal purpose is primarily a function of the legislative body of the municipality, subject to review by the courts, and such determination by the legislative body will not be overruled by the courts except in instances where that determination is manifestly arbitrary or unreasonable.

3. Where the acquisition, maintenance, and operation of off-street parking facilities by a municipality constitute the serving of a public municipal purpose, the municipality has the power under the Constitution of Ohio, without the aid of statutory enactment, to authorize and issue revenue bonds secured only by a mortgage upon those facilities and the revenues derived therefrom, and which bonds are not payable, either as to interest or principal, out of money derived from taxation.

4. Bonds issued by a municipality payable solely from facilities purchased by the proceeds thereof and the revenues derived from the operations of those facilities and which in no way pledge the credit or taxes of the municipality do not constitute a debt of such municipality.

5. The one per cent limitation contained in Section 2 of Article XII of the Constitution of Ohio has no application to bonds issued by a municipality which do not constitute a debt of the municipality and are not payable out of money raised by taxation.

On April 4, 1951, Richard W. Gordon, city attorney of the city of Columbus, Ohio, exercising the authority and performing a duty prescribed by section 73 of the charter of Columbus, filed a petition for writ of mandamus in this court naming James A. Rhodes, mayor, and R. P. Barthalow, auditor, of Columbus, as respondents. The petition alleges that on January 29, 1951, the council of the city of Columbus passed ordinance No. 88-51 providing for the issuance and sale of first mortgage revenue bonds of the city of Columbus, in the amount of $4,000,000, for the purpose of acquiring sites within said city for laying out, establishing, and constructing thereon off-street parking facilities for motor vehicles; to authorize the execution of a mortgage upon the properties, and improvements and facilities, and the revenues thereof, to secure the payment of the principal and interest upon said bonds; and to provide in the event of default for the appointment of a receiver and for foreclosure. It is alleged that said ordinance was approved by the mayor of the city and became effective 30 days after its passage and is now in full force and effect. A true and correct copy of the ordinance is attached to the petition and made part thereof.

The petition alleges and the ordinance recites that the ordinance was passed by the city council under and pursuant to the authority granted by Sections 3939-2 and 3939-3, General Code, which became effective August 12, 1949. The petition alleges also that the ordinance was passed pursuant to the powers vested in municipal corporations by Section 3 of Article XVIII of the Constitution of Ohio and the powers vested in the city of Columbus by its charter, particularly sections 1, 2, and 3 thereof.

Section 1 of said city charter is a declaration of broad powers of the city as a body politic. Section 2 declares that the enumeration of particular powers by the charter shall not be held or deemed to be exclusive but that, in addition to the powers enumerated therein, implied thereby or appropriate to the exercise thereof, the city shall have, and may exercise, all other powers which, under the Constitution and laws of Ohio, it would be competent for the charter specifically to enumerate. Section 3 provides that 'The legislative power of the city, except as reserved to the people by this charter, shall be vested in a council, consisting of seven members, elected at large.'

With respect to the conditions which occasioned the passage of the ordinance in question, the petition alleges:

'This relator says further that the greatly increased use of motor vehicles of all kinds has caused serious traffic congestion on the streets of Columbus, that the parking of motor vehicles on the streets has contributed to this congestion and interferes seriously with the primary use of the streets for the movement of traffic, that the effective fighting of fires, the rapid movement of the police force, and the cleaning of streets are thereby impeded so as to endanger the public health, safety and welfare and that such parking of motor vehicles in the closely built up areas of Columbus is seriously interfering with the conduct of business and threatens irreparable loss to the city in property valuations, all to the end that this council has determined the imperative need to construct, maintain and operate the off-street parking facilities to alleviate these deplorable conditions for the good of the citizens of Columbus.'

The ordinance which is attached to and is made a part of the petition recites:

'Whereas, the congestion of traffic in the city of Columbus, Ohio, and the inadequacy of space for off-street parking facilities to relieve congested traffic conditions, have reached a point where it is necessary for said city in order to protect and preserve the public health and safety to lay out, establish, construct, maintain and operate within said city off-street parking facilities for motor vehicles; and

'Whereas, the Columbus motor vehicle parking commission heretofore created by ordinance of council to advise and make recommendations with respect to such problems has reported that it is necessary for the city to provide parking space for at least 4,500 vehicles in order to relieve traffic conditions and in order presently to provide for the flow of traffic and for the parking of vehicles off of the public streets of the city and has recommended that the city provide facilities for such additional parking space and that the cost and expense thereof as presently estimated is $4,000,000; and

'Whereas, council deems it necessary to undertake immediately the acquisition of sites and to lay out thereon and establish, construct and maintain and operate within the limits of the city off-street parking facilities for motor vehicles sufficient in capacity to provide for 4,500 vehicles, including buildings, ramps, and underground structures, and facilities incident to the operation of such properties for the parking of motor vehicles, in accordance with such recommendations, and

'Whereas, it is desired to finance such acquisition and improvements and incidental expenses without imposing any liability upon the city and by the issuance of mortgage revenue bonds pursuant to General Code Section 3939-2 which bonds (hereinafter called 'improvement bonds') together with any additional bonds subsequently issued on a parity therewith (hereinafter called 'additional bonds,' the improvement bonds and additional bonds being hereinafter collectively referred to as the 'bonds') are to be secured by the mortgage hereinafter provided for (hereinafter referred to as the 'mortgage') upon the properties and revenues of the project; now, therefore,

'Be it ordained by the council of the city of Columbus, Franklin county, Ohio.'

Then follow the detailed provisions for the issuance of mortgage revenue bonds in the total amount of $4,000,000.

The petition alleges further that by the issuance of said bonds no liability has been or shall be imposed upon the city of Columbus nor shall the general credit of the city be pledged to the payment of said bonds or any part thereof or the interest thereon but, on the contrary, said mortgage revenue bonds shall be issued pursuant to Section 3939-2, General Code; that the principal and interest of said bonds shall be payable solely from the revenues and properties of the parking facilities so acquired; and that said bonds shall be secured only by a mortgage and lien upon the proceeds received from the sale of those bonds and from the revenues and properties of said parking facilities after provision for the reasonable operating and maintenance expense thereof.

As further alleged in the petition, section 5 of ordinance No. 88-51 provides that the bonds shall be signed by the mayor and auditor and sealed with the corporate seal of the city and that temporary bonds if necessary shall be so executed and delivered, the same to be exchanged later for definitive bonds. By section 9 of the ordinance the moyor, auditor, and director of public service are authorized and directed in the name of and on behalf of the city to make, execute, acknowledge and deliver to a corporate trustee to be designated by the city a good and sufficient first mortgage deed upon all the properties and assets so pledged in accordance with the terms and provisions of the ordinance.

It is alleged and the ordinance recites that the bonds have been awarded and sold to the Ohio Company, Columbus, Ohio. It is alleged that temporary bond No. 1 in the form prescribed in the ordinance has been tendered to respondents for execution and delivery to the purchaser but that respondents have failed and refused to execute said bond and coupons, and still fail and refuse to execute any of the bonds authorized by said ordinance and the coupons attached thereto, because of an...