
    City of Columbus, Appellant, v. Ward et al., Appellees.
    
      (Decided September 21, 1940.)
    
      Mr. John L. Davies, city attorney, and Mr. Bichard W. Gordon, for appellant.
    
      Mr. E. W. McGormicJc, Mr. Charles S'. Druggan and Mr. Albert M. Callcmd, for appellees.
   Geiger, J.

This matter is before this court on appeal on questions of law from the judgment of the court below. It is submitted to us on extensive briefs to which we have given close attention.

The city of Columbus, through its city attorney, upon the written request of Robert J. Beatty, a taxpayer, brings this action against the director of public safety, the auditor, and treasurer of the municipality, in which it is recited that on January 22, 1940, an ordinance known as No. 385-39 was duly passed.

Four causes of action are set up, in which it is alleged that the ordinance is invalid, but by stipulation of counsel the first three causes are abandoned, and there are withdrawn from the fourth cause of action certain allegations in reference to appropriations. The portion of the fourth cause of action remaining for consideration is to the effect that the ordinance violates the express command of Section 1 of the 14th Amendment to the Constitution of the United States, and the express provision of Sections 18 and 19 of Article I of the Constitution of the state of Ohio to the effect that no power of suspending laws shall ever be exercised except by the General Assembly and that when private property is taken for the purpose of making or repairing roads, such roads shall be open to the public without charge.

The plaintiff prays that a temporary restraining order be issued against the defendants prohibiting them from proceeding under any sections of the ordinance described; that the defendants be enjoined from paying for any labor required for carrying out the provisions of the ordinance, and that upon final hearing this ordinance be declared null and void and a permanent injunction be granted.

The ordinance is set out at length and briefly recites that, whereas the council has provided for the leasing and installation with the privilege of purchase of 1000 parking meters in the downtown business section of Columbus, it be ordained that the proper officer be authorized to designate 1000 individual parking spaces at points he deems proper, said parking spaces to be established along the curb and to be approximately 20 feet in length; that at each place where individual parking spaces are so marked each vehicle shall be parked entirely within the individual parking space; that the director of public service is authorized to install the leased parking meters at the curb; that the person parking a vehicle in such space shall deposit a five cent coin in the meter for which the parking space may be lawfully occupied by such vehicle during the period of one hour; and that any vehicle which remains longer is determined to be illegally parked, provided there may be parking at certain hours and on certain days without the deposit of the parking fee.

The ordinance provides that all parking is prohibited unless the deposit is made and that the fact, that the vehicle is in the individual parking space when the time has expired shall be deemed prima facie evidence of unlawful parking. Provisions are made by which the parking fees are to be collected and the purposes for which they may be expended are designated. Nothing in the ordinance is to be construed as prohibiting the city from providing for space for loading and unloading, for taxi stands and matters of similar nature.

The cause came on to be heard upon the pleadings, stipulation of parties, the evidence and statement of counsel and the motion of the defendants for judgment.

The court below found that the ordinance was a valid exercise of police power for the purpose of regulating parking on the streets of the city of Columbus, and that no right of plaintiff under the Constitution of either the nation or state, or the statutes of the state or the charter of the city of Columbus was violated thereby. It was ordered that the motion of the defendants for judgment be sustained, and that the petition of the plaintiff and intervening petitioners be dismissed and the restraining order be dissolved. A motion for new trial was filed and overruled.

The plaintiff presented an assignment of seventeen alleged errors which may be epitomized to the effect that the court below erred in sustaining the motion for judgment and holding that the petition and intervening petition did not state a cause of action; in dissolving the injunction and entering final judgment against the plaintiff and intervening petitioners, and in refusing to grant any of the relief prayed for; in construing Section 1, Article XIY of the Amendments to the Constitution of the United States, Sections 18 and 19, Article I, Constitution of Ohio, Section 187 of the Charter of the city of Columbus, and Section 3714, G-eneral Code, in their application to the ordinance and its enforcement, and in finding that the ordinance would not violate any of the rights of the plaintiff or the intervening petitioners under the enumerated constitutional, statutory and ordinance provisions; and in overruling the motion for a new trial. All of these alleged errors are asserted to be substantial and prejudicial.

Without going into detail, the plaintiff bases its claim of error upon several cited provisions of the federal and state Constitutions and statutes. Plaintiff stresses Section 19, Article I of the state Constitution, providing in substance that private property shall be held inviolate, but, when taken for the purposes of making or repairing roads, the roads shall be open to the public without charge.

It is asserted that from the standpoint of the rights of the general public the word “roads” used in the Constitution includes streets of the municipality, and that they shall be open to the public without charge. It is then asserted that legislation which attempts to violate this express command is unconstitutional. In support of this, plaintiff cites Rowe, Judge, v. City of Cincinnati, 117 Ohio State, 382, 159 N. E., 365, which decision holds that a lessee from an owner of property abutting upon a public street for the use of a gas pump acquires no right by virtue of his lease which entitles him to appropriate any part of such public street to use for private business purposes. It is asserted that by virtue of a contract with the meter company the city is leasing and is about to install the parking meters, that in doing so it proposes to mark out spaces upon the public streets for parking purposes and charge five cents per hour for the parking, and that the city has no right or power to do this under the provisions of Section 19, Article I, it being maintained that the streets are built and maintained for the purpose of travel and that the fundamental rights of the general public can not be encroached upon as provided by the ordinance under review.

Prom the standpoint of the rights of the abutting property owners, it is urged that such abutting property owners have an casement of access to their property and that the ordinance is an unreasonable restriction of this right. Citing 28 Ohio Jurisprudence, 616, Section 391; Crawford v. Village of Delaware, 7 Ohio St., 459. It is urged that a municipality in' Ohio can not deprive an abutting property owner from access to his land or buildings. Citing, Eisenmann v. Tester, 47 Ohio App., 275, 191 N. E., 839.

It is claimed that, as the statute (Section 3714, General Code) imposes upon the council the duty of keeping streets open, in repair and free from nuisance, the ordinance violates this section.

Under the recently decided case of Rhodes v. City of Raleigh, 217 N. C., 627, 9 S. E. (2d), 389, in which the court of North Carolina held that under the Constitution of that state the city had no powér to enact an ordinance similar to the one here under review, it is claimed that the right of the abutting property owners to unhampered ingress and egress is superior to the provisions of “parking” upon the public streets and that all ordinances regulating parking must protect the inherent rights of the abutting property owner. It is urged that the application of governmental authority and activity under the police power has been greatly extended, but that it is important that it should not be indulged so far as to materially weaken the guaranties of the Constitution. It is asserted that the installation of the meters and the marking off of parking spaces to be occupied at a price of five cents per hour would be -in direct disregard of the constitutional rights of the general public and abutting property owners, and that the ordinance is unconstitutional.

On the other hand, it is asserted by the defendants that the parking ordinance is but a regulation of traffic and is necessary to properly handle the congested condition upon the streets of Columbus due to heavy downtown traffic. They cite in support of their contention, Froelich v. City of Cleveland, 99 Ohio St., 376, 124 N. E., 212; Village of Perrysburg v. Ridgway, 108 Ohio St., 245, 140 N. E., 595; Nicholls v. City of Cleveland, 101 Ohio St., 39, 128 N. E., 164; City of Cincinnati v. Baumgardner, 25 N. P. (N. S.), 20; and a number of cases decided by courts of other states.

It is asserted that there is no right in the general public to use the roads or streets for parking without charge or regulation, and that the ordinance simply requires the payment of a fee when the user of the street seeks to park-his car, and imposes no burden upon one who uses the street for the purpose of travel or for taking in or letting out occupants of the ear or for discharging or loading merchandise.

The court below rendered an opinion so clearly analyzing all questions raised that we deem it unnecessary to go further into detail, but content ourselves by saying that we are in entire accord with the finding of the court as hereinbefore indicated and fully concur in its judgment.

The judgment of the court below is affirmed and the cause is remanded.

Judgment affirm,ed and cause remanded.

Hornbeck, P. J., and Barnes, J., concur.  