
    RESTRICTED AREAS CREATED BY TRAFFIC ORDINANCE.
    Common Pleas Court of Montgomery County.
    Horace Boesch v. The City of Dayton.
    Decided January 28, 1926.
    
      Police Power — Authority of a Municipality — To Treat as a Nuisance An Automobile Parked in a Restricted Area.
    
    Removal of an automobile from a restricted area is in the nature of abatement of a nuisance, and to direct that it be done is within the authority of a municipality, which in the interest and for the benefit of the public and in pursuance of its authority has by a traffic ordinance designated such area as restricted.
    
      H. E. Kreitzer and Horace Boesch, for plaintiff in error.
    
      John B. Harshman, City Attorney, Lester L. Cecil and M. G. Dice, Assistants, for defendant in error.
   Snediker, J.

This case is before the court on a petition in error to the judgment of the -Municipal Court, criminal division. The plaintiff in error was arrested, tried and convicted for the violation of the traffic code of the city of Dayton. When the case came on for hearing it was submitted to the court on an agreed statement of facts, which shows that by H. E. Myers, the director of public safety of this city, an order was issued prohibiting parking in a certain space twenty feet in length and located along the north curb of East Fourth street between South Main and South Jefferson streets, and near the east portion of the U. B. Building, occupied by the Louis Traxler Company, and opposite the place in the sidewalk where an elevator runs to and from the basement of that company. This space was reserved by the safety director for the purpose of giving the Traxler Company, which is the occupant of the adjacent property as described, a reasonable means of egress and ingress to their business house.

Notice of this restriction was afforded the public by signs and by markings. The signs read: “Merchandise— Do not park from 6 a. m. to 6 p. m. — Police Order.” This sign was placed on the sidewalk at each end of the restricted area and was in existence prior to February 6, 1925, and in full force on that date, and when this plaintiff in error parked an automobile within the restricted area at the prohibited time.

Boesch is an attorney at law and was then a tenant in the U. B. Building with an office on the eighth floor.

When the police department discovered this automobile parked as stated, one of its officers while in the performance of his duties, directed it to be taken to the Beaver Fireproof Garage. This restricted space was created in accordance with Section 50 of the traffic ordinance known as No. 11884 and the automobile was removed by the officers to the garage by virtue of Section 70 of that ordinance. These two sections read as follows:

“Section 50. When necessary to afford the occupant of adjacent property a reasonable means of ingress and agress to and from same, or to promote the safety of the public in the use of the streets, the Director of Public Safety is hereby directed to order that parking be prohibited in front of said property on such part of a street as may be necessary, and thereupon he shall give notice of the restriction of any such space from the parking area by appropriate signs or markings, and thereafter it shall be unlawful for any person to park a vehicle in any such place so restricted.”
“Section 70. It shall be the duty of any police officer who finds a vehicle improperly parked under the provisions of this ordinance to remove the said vehicle or cause the same to be removed to a stable or garage where the same shall be kept and detained until the driver, owner or person in charge of such vehicle, secures an order from' the police department authorizing that the said vehicle be turned over to him or her. The removal by a police officer of any vehicle improperly parked shall be at the risk of the owner or person in charge thereof, and the expense of storage of vehicle when removed to a stable or garage shall be borne by the said owner or person in charge and shall be paid before the vehicle is re-delivered. The removal and storage of a vehicle improperly parked shall in no way relieve from or prevent punishment for the violation of the traffic ordinance.”

Having found the plaintiff in error guilty, the court, below assessed a fine of five dollars and costs. The petition in error is based upon three contentions: First, that the section of the ordinance which provides that the Director of Public Safety shall order that parking be prohibited, where it is necessary to afford the occupant of adjacent property a reasonable means of ingress and egress, is a delegation to an administrative officer of legislative authority. Second, that the section of the ordinance which gives the police department the right to remove to a garage an improperly parked vehicle is in violation of the bill of rights. Third, because the last mentioned section is in violation of the law of Ohio.

In support of this petition, counsel in their brief, contend generally that a municipal corporation cannot delegate the power of enacting police regulations when the exercise of discretion is involved; that the city commission, which, in this city, performs the duties of a council, is chosen by the people to represent the municipality and the public, and that the citizens are entitled to their judgment and discretion in all matters which are properly the subject of legislation. Second, it is contended that no proper publication was made of this ordinance. Third, that the seizure by the police officers, in the manner in which it occurred in this case, deprives the plaintiff in error of due process of law.

We take these points up in the order suggested by counsel for plaintiff in error. Care, control and supervision of the streets, and the duty to keep them open and free from nuisance, is delegated to and imposed upon the municipalities of the state. In the exercise of the power so delegated and of the duty so imposed a municipality may enact any legislation by ordinance which does not contravene- the general law, and here we refer not only to the General Code of the state but to the' Constitution as well. This authority to so enact may not be delegated by the municipality to any subordinate department in its government. Police power is delegated by the state to a municipal corporation as a public function to be exercised by it within proper limits for all appropriate municipal purposes. “The power thus granted, being peculiarly governmental, is one which the municipality must exercise for- the public welfare and which it may not either directly or indirectly abridge or alienate.”

Does Section 50 of the traffic code delegate, as contended by counsel for the plaintiff in error, to the director of public safety a legislative function? Our opinion is that it does not. The act to be performed by the director of public safety in pursuance of the legislation enacted by the city commission is a ministerial one, and it is generally recognized that it is not only the right of a municipality to delegate such a power but that of necessity all ministerial duties must be so delegated. It becomes necessary for the city commission to call upon some officer in its organization to carry out the provisions of Section 50, and they say that “the director of public safety is hereby directed to order, etc., and they fix the time and place when such order shall be given as “when necessary.” It would be an impossibility for the members of the city commission, nor does the law require of them, the detailed performance of ascertaining the necessity of each particular case and legislating thereon. Such a requirement would be wholly impracticable.

The second point made by counsel to the effect that a proper publication was not made of this ordinance is not supported by the agreed statement of facts, in which we find nothing with reference to this contention, or as to the publication or nonpublication of the ordinance.

We come now to the third point urged by counsel for the plaintiff in error, which is that the police department was without authority to remove the automobile, and that any provision found in the ordinance giving them the power so to do is ineffective and void as being against the constitutional right of the plaintiff in error. In the consideration of this branch of the case we ought first to determine as to the right of the plaintiff in error to be where he was in the manner he was. In discussing this we should remember that the plaintiff in error had parked his automobile or stored it in a public street in the city of Dayton, with respect to which it may by ordinance provide against nuisance.

In a leading case found in the 68 Court of Appeals (113 New York Reports), page 532, entitled Cohen et al. as Administrator, etc., Appellants, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent. Judge Peckham says:

“The storing of the wagon in the highway was a nuisance. The primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose, under temporary exceptions as to deposits for building purposes, and to load and unload wagons and receive and take away property for or in the interest of the owner of the adjoining premises, which, it is not now necessary to more specifically enumerate. The extent of the right of such exceptional user was before us in the late case of Callanan v. Gilman (107 N. Y., 360), and nothing more need be said regarding it here.
“It is no answer to the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass, nor that the obstruction itself is not a fixture. If it be permanently, or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets. The old cases said the king’s highway is not to be used as a stable yard, and a party cannot eke out the inconvenience of his own premises by taking in the. public highway. These general statements are familiar and borne out by the cases cited.
“Familiar as the law is on this subject, -it is too frequently disregarded or lost sight of. Permits are granted by common councils of cities, or by other bodies, in which the power to grant them for some purposes is reposed, and they are granted for purposes in regard to which the body or board assuming to represent the city has no power whatever, and the permit confers no right upon the party who obtains it. As was said by Lord Ellenborough in the case of Rex v. Jones, supra, the law upon the subject is much neglected, and great advantages would arise from a strict, steady application of it * * *.
“The owner of this wagon was not a cartman, nor was the wagon used as a public cart, but only as a means to enable the grocer to transact his own private business. He acquired no right, by virtue of the license, to store his wagon in the street, and in doing so he was clearly guilty of maintaining a public nuisance.”

In the case referred to in this case (Callanan v. Gilman), the Court of Appeals of New York say:

“The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are exceptions to the general rule born of necessity and justified by public convenience. An abutting owner engaged in building may temporarily encroach upon the Street by the deposit of building materials. A tradesman 'may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers, and the use of a street for public travel may be temporarily interfered with in a variety of other ways without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the streets is necessary and reasonable must generally be a question of fact to be determined upon the evidence relating thereto.”

In the 106 Maine Reports at page 62 we find a very recent case with respect to regulation of traffic. This case was a criminal prosecution for breach of a town ordinance passed by authority of a special act of the Legislature of Maine and related to the use of the roads in the town of Eden by automobiles. It shows the authority of a state through a town or city over the highways. The language of the syllabus, which is in accord with the opinion is as follows:

'“The right to use the public streets for the purposes of travel as well as all personal and property rights, is not an absolute and unqualified right. It is subject to be limited and controlled by the sovereign authority, the state, wheneyer necessary to provide for and promote the safety, peace, health, morals, and general welfare of the people.
To secure these and kindred benefits is the purpose of organized government, and to that end may the power of the state, called its police power, be used.
By the exercise of the police power of the state, through legislative enactments, individuals may be subjected to restraints, and the enjoyment of personal and property rights may be limited, or even prevented, if manifestly necessary to develop the resources of the state, improve its industrial conditions, and secure and advance the safety, comfort and prosperity of its people.
Reasonable regulations for the safety of the people while using the public streets are clearly within the police power. of the state, and in the exercise of that power the state may regulate the speed, and enact other reasonable rules and restrictions as to the use of automobiles upon the public streets.
It is fundamental law that no constitutional guaranty is violated by an exercise of the police power of the state when manifestly necessary and tending to secure general and public benefits.
A law is not to be regarded as class legislation simply because it affects one class and not another, provided • it affects all members of that same class alike, and the classification involved is founded upon a reasonable basis. Such a law is general and not special.”

In Ohio, by the terms of Section 3 of Article XVIII of the Constitution:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations as are not in conflict with general laws.”

And by Section 3632 of the General Code there is enacted as one of the police powers of a city,

“To regulate the use of carts, drays, wagons, 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 to use vehicles or solicit or transact business thereon.”

Having this plenary power and not availing itself of the control which the extreme view expressed in the foregoing opinions in the Cohen and Callahan cases gives it, the city of Dayton, in order to protect the general public from a condition leading to what might be termed a nuisance, and also for the purpose of giving the travelling public such convenience as is possible, and not interfere with the general use of the streets, passed this traffic ordinance No. 11884 in its entirety. In the enactment the city also had in mind protection against claims which might be made against it of failure to perform its duty to keep the streets open and free from, nuisance. The ordinance attempts to regulate the use of our thoroughfares for parking purposes (which it permits) and for travel, and affords such privileges as in the judgment of the city commission seem right and safely proper.

Regulation as to time and place is strictly within the control of the city unless, as we have before indicated, it violates some general law.

Does the section of the traffic ordinance under which the automobile of the plaintiff in error was impounded do this ? If it be true, as decided by the authorities, that the prohibited use of a street for a permanent or habitual private purpose is a public nuisance, then the removal of an automobile in the manner and for the cause provided in this ordinance is not a violation of private right. Neither an individual nor a municipality is required by law to submit to the imposition of any nuisance, and may abate it. The removal of an automobile from within a restricted area is the abatement of a nuisance and to direct that it shall be done is within the right of the municipality. If, by his conduct, a man makes it necessary for the city to remove his automobile, and thus imposes upon the city the labor of preserving his property, his rights are done no violence when his machine is taken to a place of safety, and the expense of its care in that place is required of him. He ought not expect the city to incur a liability on account of his wrong.

In our opinion, the judgment of the court below was warranted by the law and the facts, and, as we find no prejudicial error, the judgment is affirmed.  