Village Of Perrysburg v. Ridgeway

• Decision Date: 19 June 1923
• Docket Number: 17773
• Citation: 140 N.E. 595,108 Ohio St. 245
• Parties: The Village Of Perrysburg Et Al. v. Ridgeway A Taxpayer, Et Al.
• Court: Ohio Supreme Court

140 N.E. 595

108 Ohio St. 245

The Village Of Perrysburg Et Al. v. Ridgeway A Taxpayer, Et Al.

No. 17773

Supreme Court of Ohio

June 19, 1923

Constitutional law-Municipal corporations-Home rule powers -Direct constitutional grant-Section 8, Article XVIII Constitution-Control of streets-Local self-government provisions self-executing-Charter not prerequisite to exercise of powers-Section 7, Article XVIII Constitution-Purpose of charters-Regulation of motor busses-Receiving or discharging passengers in municipality prohibited.

1. Since the Constitution of 1912 became operative, all municipalities derive all their "powers of local self-government" from the Constitution direct, by virtue of Section 3, Article XVIII, thereof.

2. The power to establish, open, improve, maintain and repair public streets within the municipality, and fully control the use of them, is included within the term "powers of local self-government. "

3. The above constitutional grant of power to municipalities is "self-executing," in the sense that no legislative action is necessary In order to make it available to the municipality.

4. The exercise of "all powers of local self-government," as provided in Article XVIII, Section 3, is not in any wise de- pendent upon or conditioned by section 7, Article XVIII which provides that "a municipality may adopt &amp charter," etc.

5. The grant of power in Section 3, Article XVIII, is equally to municipalities that do adopt a charter as well as those that do not adopt a charter, the charter being only the mode provIded by the Constitution for a new delegation or distribution of the powers already granted in the Constitution. (State, ex rel. City of Toledo, v. Lynch, Auditor, 58 Ohio St. 71, 102 N. E., 670, 48 L. R A. [N. S.], 720, Ann. Gas., 1914D, 949, disapproved upon the proposition that a charter is a prerequisite to the exercise of home-rule powers under Section 3, Article XVIII.)

6. A municipal ordinance denying to a motor bus company for hire the right to use a municipal street for the purpose of a motor bus stop or station to let off or take on passengers is within the constitutional grant of municipal power, and therefore Is a valid ordinance.

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An action in injunction was brought in the con,mon pleas court of Wood county to enjoin the enforcement of a certain ordinance of the village of Perrysburg, of that county, purporting to regulate, or, as is claimed, to prohibit, motor busses from starting or stepping within the municipal limits of the village of Perrysburg, though it is conceded by both sides that the ordinance does not in any wise prohibit the use of the streets of Perrysburg for through traffic. The suit was brought by W. E. Ridgeway, a taxpayer, in behalf of himself and in behalf of the village of Perrysburg.

Upon the petition a motion was made to vacate the temporary injunction, on the ground that the petition did not state facts sufficient to constitute a cause of action. This motion was overruled by the trial court, and defendants excepted. Thereupon demurrer was filed to the petition upon substantially the same ground, which demurrer was over-ruled, and defendants again excepted.

Defendants not desiring to plead further, judgment was entered upon the demurrer. The cause was thereupon appealed to the Court of Appeals, upon the petition below, by a divided court, the Court of Appeals sustained the judgment below. Error is now prosecuted to this court to reverse the judgment.

Messrs. Smith, Baker, Effler, Allen & Eastman, for plaintiffs in error. Mr. Benjamin F. James and Mr. Eldon H. Young, for defendants in error. Mr. Charles A. Leach, city attorney; Mr. Saul Zielonka, city solicitor; Mr. Carl F. Shuler, franchise commissioner; Mr. J. B. Harshman, city attorney; Mr. B, M. Hagelbarger, director of law; Mr. F, M. Dotson, director of law, and Mr. J. H. Leighninger, city solicitor, amici curiae.

WANAMAKER J.

The case was tried and determined below upon the sole theory that the village ordained all its municipal power from the statutes, and the question therefore was: Did the village have statutory power to prohibit the owners of such motor busses from doing business upon the streets of the village, in letting off and taking on passengers?

1. The plaintiffs below denied that the statutes in question granted such power.

2. That if they did grant such power, such grant, in its exercise under this ordinance, was in violation of the Constitution, especially a portion of Section 19, Article I.

We will consider these two propositions in their inverse order. The part of Section 19, Article I of the Ohio Constitution, relied upon to protect the right of the motor busses to operate upon the streets of the village, is:

"Roads, which shall be open to the public, without charge. * * *"

Manifestly this language applies to ordinary and customary uses of public highways by the people, in their usual and ordinary methods of travel. It cannot be held to apply to extraordinary methods of travel, involving special expense or hardship to the public by reason of unusual wear and tear of the streets, or special hazards to the public in such use, else all occupation and use of tile streets for wires, conduits, pipes, rails and otherwise, upon which reasonable charges and regulations have been from time to time made by law, are likewise illegal and unconstitutional. Such a claim has never been considered in any of the reported opinions to which our attention has been called, and, in view of the many years of regulation of the use of the streets in behalf of the public, it would be rather late to invoke such a claim now. This contention is not tenable in reason or justice to the public. Such language could never have been intended to relate to a business purely commercial, conducted upon the streets of a municipality, which streets were opened, improved, and maintained at public expense, taxation, or assessment, to which such commercial user contributed not a penny.

The statutes considered by the courts below are Sections 3714 and 3632, General Code. Section 3714 provides:

"Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law,"

Section 3632, among other things, provides:

"To regulate the use of carts, drays, wagon, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon," etc.

It should be noticed that the language of Section 3714 is "to regulate the use of the streets." Now, it is claimed that this does not authorize council to exclude or prohibit the motor bus from the use of such streets. If the language of that section was to regulate motor busses, it might fairly be assumed that "to regulate" did not include to prohibit. But when the language of a statute is "special power to regulate the use of the streets, "it must be fairly assumed that that power is broad enough to contemplate that the streets may be used for some purposes, and denied for use for other purposes, so long as the classification has any reasonable basis, such as wear and tear of the streets, extra hazards, and the like.

Again, Section 3632 includes the words:

"To license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon."

The right to license persons who "solicit or transact business" on the streets clearly includes the right to refuse such license to certain classes of persons so operating upon the streets. A village might well contemplate that its merchants who own property in the municipality, and live in the municipality, contributing to its development and welfare and paying their taxes in the municipality, should not have as competitors upon its streets a line of street "stores operated by motor busses. Therefore that which they believe to be in the interest of the village s growth and development, the question of protecting their own local interests, might be regarded as primary and paramount to the village authorities.

It would be difficult indeed to contend against any such legislation upon such grounds. The motive of the council in passing such legislation cannot be inquired into in this cause. The presumption is that its members acted in good faith, and therefore the naked allegation in the petition suggesting the contrary is not sufficient to warrant any consideration of this proposition.

Prior to 1912, all municipal power had been held by our courts to be by grant of the General Assembly. It was made in sections or segments by virtue of many statutes, the meaning and scope of them ofttimes being more or less uncertain and difficult. But in 1912 a new order was established with relation to municipal powers, by which the sovereign people of Ohio, through constitutional provisions (Section 3, Article XVIII), made a broad blanket grant of "all powers of local self-government "to all municipalities.

We are entirely aware that the case of State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St. 71, 102 N. E., 670, 48 L. R. A, (N. S.), 720, Ann. Ca. 1918D, 949, squarely holds, in proposition 1 of the syllabus, that, before such powers of local self-government can be exercised by the municipality, such municipality must adopt a charter, and it would therefore be urged that the village of Perrysburg, not having adopted such charter, might in no wise contend for such constitutional grant of power as found in Article XVIII of the Constitution. The first reference to a municipal charter in the constitutional amendments adopted in 1912 is in Section 7, Article, which reads:

"Any municipality...