State ex rel. McElroy v. City of Akron, 37159

• Citation: 173 Ohio St. 189,181 N.E.2d 26,19 O.O.2d 3
• Decision Date: 14 March 1962
• Docket Number: No. 37159,37159
• Parties: , 19 O.O.2d 3 The STATE ex rel. McELROY, Atty Genl., Appellant, v. CITY OF AKRON et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 189

173 Ohio St. 189

181 N.E.2d 26, 19 O.O.2d 3

The STATE ex rel. McELROY, Atty Genl., Appellant, v. CITY OF AKRON et al., Appellees.

No. 37159.

Supreme Court of Ohio.

March 14, 1962.

Syllabus by the Court

The enactment of Section 1547.61, Revised Code, constitutes a valid exercise of the police power by the state, and by the enactment of such section the state has pre-empted the authority to license watercraft whether operated on public or private waters.

This is an action brought on behalf of the state of Ohio to enjoin the city of Akron from issuing and requiring separate city boat licenses for the operation of watercraft on waters owned by the city, contrary to the provision of Section 1501.33 Revised Code, prohibiting licensing by political subdivisions. That provision now appears in Section 1547.61, Revised Code, without change, and reference will hereinafter be made to the latter statute. The city admits the requirement of a separate city license and contends that the statute prohibiting separate licensing by political subdivisions is unconstitutional.

The Court of Common Pleas found Section 1547.61, Revised Code, to be unconstitutional and dismissed the petition for an injunction.

That judgment was affirmed by the Court of Appeals, which court also found the statute to be unconstitutional.

The cause is before this court on an appeal as a matter of right, a constitutional question being involved.

Mark McElroy, Atty. Gen., Theodore R. Saker and Jay C. Flowers, Columbus, for appellant.

James V. Barbuto, Director of Law, and Sal Germano, Akron, for appellees.

RADCLIFF, Judge.

The basic question raised by this appeal is the validity of Section 1547.61, Revised Code, prohibiting political subdivisions of this state from imposing any license fees or other charges on the owners of watercraft for the right or privilege of operating the watercraft upon waters owned by such subdivisions.

The ultimate issue is the right of a political subdivision to require a license or to impose some other charge in the nature of a license fee for the privilege of operating watercraft on waters owned by the political subdivision.

The Ohio Watercraft Act provides in essence, so far as licensing is concerned, that watercraft operated on waters of this state must have state licenses. The pertinent parts of this act with which we are directly concerned in the present case are as follows:

Section 1547.01(I), Revised Code, defines waters of this state as follows:

"Waters of this state' means all streams, lakes, ponds, marshes, watercourses, waterways, springs, irrigation systems, drainage systems, and all other bodies of water, surface or underground, natural or artificial, which are situated wholly or partially within this state or within its jurisdiction, except those private waters which do not combine or effect a junction with natural surface water.'

The provision of Section 1547.61, Revised Code, here involved, reads as follows:

'No political subdivision of this state or conservancy district shall charge any license fee or other charge against the owner of any watercraft for the right or privilege of operating said watercraft upon the waters of any such political subdivision or conservancy district and no license or number in addition to those provided for hereunder shall be required by any state department, conservancy district, or political subdivision of this state.'

There is no question that the waters owned by the municipality in this case fall within the definition of 'waters of this state.' It is the contention of the municipality that the prohibition of licensing by the municipality violates the home-rule amendment, Section 3, Article XVIII of the Ohio Constitution, Section 4 of such article granting municipalities the right to acquire and own public utilities, and deprives the municipality of property without due process of law.

We will turn our attention first to the power of the state to require a state license on waters of this state as defined in Section 1547.01(I), Revised Code. It should be noted at the outset that, although the definition of 'waters of this state' includes private as well as public impoundments and would require a state license for the operation of watercraft thereon, whether public or private, the prohibition as to the imposition of a license or other charge extends only to political subdivisions or conservancy districts, in other words, to waters which although held in a proprietary capacity are held by arms or agencies of the state.

The right of the state to extend its control in this matter must be based on the police power for the preservation of public safety or welfare.

The power of the state to enact the present section under consideration may well be based on both of these branches of the police power.

First, due to the increasing tendency to shorten the work week, there is a consequent increase in the amount of leisure time, and public recreation and public recreational facilities have become a matter of statewide concern which definitely relates to the public welfare.

Second, it is a well known fact that there are certain inherent dangers in the operation of watercraft irrespective of whether such watercraft are operated on public or private waters, and the dangers incident to such operation have created a necessity for uniform safety regulations. The question is whether such use is so general as to require intervention by the state.

Due to our changing society, many things which were once considered a matter of purely local concern and subject strictly to local regulation, if any, have now become a matter of statewide concern, creating the necessity for statewide control.

Thus it is with the use of boats for recreational purposes. At one time, not in the too distant past, few persons owned their own boats, and those who did customarily docked them in a single impoundment. However, the nature of the use and ownership of boats has changed completely over the last several years. Where once boat ownership was limited to the very few, today it has become commonplace. Where once there were comparatively few bodies of water where one could operate a boat, today, as a result of the state conservation programs and the creation of artificial lakes by municipalities for the purpose of water supply, there are a multitude. Where once the few boats owned by individuals were operated in a single place, today, as a result of the development of the boat trailer resulting in making the boat mobile on land and thus greatly increasing the number of places where the boat may be operated, such operation has become statewide.

A summary of the boat and motor license sales for Ohio well exemplifies the increased use and ownership of boats for recreational purposes. In 1950, the total number of licenses sold for the various types of boats and motors was 37,958; in 1958 this had increased to 98,696, or about two and one-half times. Without a complete breakdown of these figures, boat ownership alone grew from 16,768, in 1950, to 40,350, in 1958, for about the same ratio. Statistics issued by the Outboard Boating Club of America show that so far as national use is concerned recreational boat ownership grew from 2,440,000, in 1947, to 8,025,000, in 1960. The same statistics show that the sales of boat trailers increased from 3,790, in 1947, to 168,000, in 1958. When these facts are considered together with the fact that the water area in Ohio increased from 56 square miles, in 1932, to 156 square miles, in 1961, as a result of the creation of new facilities, it is self-evident that boat licensing has become a matter of statewide concern.

Where the use of property becomes statewide, local regulations in the nature of licensing in respect thereto are a harassment to the general public, accompanying...