State ex rel. Gordon v. Rhodes

• Decision Date: 25 June 1952
• Docket Number: No. 33099,33099
• Citation: 158 Ohio St. 129,107 N.E.2d 206
• Parties: , 48 O.O. 64 STATE ex rel. GORDON, CITY ATTY. v. RHODES, Mayor, et al.
• Court: Ohio Supreme Court

Page 129

158 Ohio St. 129

107 N.E.2d 206, 48 O.O. 64

STATE ex rel. GORDON, CITY ATTY. v. RHODES, Mayor, et al.

No. 33099.

Supreme Court of Ohio.

June 25, 1952.

Syllabus by the Court.

1. A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a question not passed upon or raised at the time of the adjudication.

2. Where fees charged by a municipality for the parking of motor vehicles on and off the streets are not unreasonable in amount or designed to bring to the municipality revenue other than sufficient to cover the cost and expense of providing necessary parking facilities for such motor vehicles on and off the streets of the municipality, the charging and collection of such fees will not represent the levy of a tax.

3. Where bonds issued by a municipality state upon their face that they do not constitute general obligations of the municipality and that the general credit and taxing power of the municipality are not pledged for payment of any part of the principal or interest thereof, and where such bonds are payable solely from facilities purchased by the proceeds thereof and revenues derived from the operation of those facilities and of other facilities of the municipality devoted to the same general public municipal purpose as the facilities so purchased and where such revenues are not derived from payments by the municipality, such bonds do not constitute a debt of such municipality. Paragraph two of the syllabus in State ex rel. Public Institutional Building Authority, v. Griffith, 135 Ohio St. 604, 22 N.E.2d 200, limited. Village of Brewster v. Hill, 128 Ohio St. 343, 190 N.E. 766, distinguished.

Richard W. Gordon, City Atty., Baxter Evans, Columbus, Squire, Sanders & Dempsey and Henry J. Crawford, Cleveland, for relator.

E. W. McCormick, J. Raymond Snowden and Wayne S. Gerber, Columbus, for respondents.

TAFT, Judge.

This is an action in mandamus originating in this court to compel the mayor and the auditor of the city of Columbus to sign and execute certain bonds. These two officials have demurred to the petition.

This cause is a sequel to State ex rel. Gordon v. Rhodes, 156 Ohio St. 81, 100 N.E.2d, 225. The facts involved herein are substantially the same as those in that case except for certain amendments to the ordinance authorizing the issuance of the bonds. Those amendments provide for an obligation on the part of the city to apply a specified portion of revenue received from on-street parking meters toward payment of such bonds.

At the outset, it may be observed that one of the respondents, as mayor, approved all of the ordinances whose validity he now questions. Furthermore, the city attorney represents the relator and some of his assistants represent the respondents. Under the circumstances, it is apparent that this case definitely calls for the application of the principle that a reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a question not passed upon or raised at the time of the adjudication. Milwaukee Mechanics' Ins. Co. v. Russell, 65 Ohio St. 230, 257, 62 N.E. 338, 56 L.R.A. 159; Fouts v. State, 8 Ohio St. 98, 123; State v. Pugh, 43 Ohio St. 98, 121, 123, 1 N.E. 439.

With this in mind, we will confine ourselves in the decision of this case strictly to the questions raised by the respondents and the arguments advanced by them on those questions.

It is first contended by respondents that 'the city council, having by express provision in its ordinances determined that the proposed bond issue will have inadequate security, there is no duty placed upon the respondents to sign and execute the proposed bonds.'

In support of this contention, respondents point out 'that city council has determined that the receipts from the off-street parking facility itself are inadequate to secure the bond issue,' and that, in an 'attempt to make such security adequate, council then provided for the allocation of a portion of the receipts from the on-street parking meters to the payment of said bonds, but * * * reserved to any subsequent council, during the life of the bonds, the right to remove all of such parking meters from the streets of Columbus, if any future council * * * shall conclude that the removal of such parking meters is desirable.' It is then argued that 'any pledge or covenant made by city council in such ordinance can assure no income whatsoever from street parking meters to augment the receipts of the off-street parking facility which city council has expressly determined are inadequate in themselves to meet the bond issue.'

The inadequacy, if any, of the security for these bonds by reason of these provisions of the ordinances should be just as apparent to the buyer of the bonds as they are to respondents. If the buyer of the bonds is willing to assume the described risk, no reason is apparent why this court should prevent it from assuming that risk.

Respondents next contend that 'the attempt to pledge an aliquot portion of the receipts from on-street parking meters for the payment of the off-street parking facility completely contradicts and makes futile the alleged public purpose to be served by the construction and operation of such off-street parking facility.'

In support of this contention the argument of respondents is:

'It condemns on-street parking as causing a traffic congestion and uses that as the bais for justifying an off-street parking facility and, in the next breach, approves on-street parking as a means of financing off-street parking.

'These two positions are completely contradictory. Certainly council cannot use the elimination of on-street parking as a justification for off-street parking and then provide for financing off-street parking by the income from on-street parking.'

The answer to this contention of respondents is that provision for off-street parking will obviously alleiate, even though it may not eliminate, the necessity for on-street parking. If the total elimination of on-street parking may be a public municipal purpose, as this court held in State ex rel. Gordon v. Rhodes, supra the partial elimination thereof would likewise appear to be a public municipal purpose.

The final contention of respondents is a bilateral one, that 'the provision in the ordinance for the use of on-street parking meters for revenue, in addition to their use for regulation and policing of the streets and the cost and maintenance of the meters, constitutes the imposition of a tax, which is unlawful and beyond the power of the city council, but, even if the pledging of said revenue is lawful, the pledge thereof makes the proposed bonds a debt of the city and there are no allegations of compliance with the statutory requirements for issuing obligation bonds.'

The significance of this contention arises from the provisions of Section 13 of Article XVIII of the Constitution, which provides in part:

'Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes * * *.'

It is apparent that if, by the collection of fees of...