
    No. 269
    ROWE, Jr., v. CINCINNATI (City)
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3071.
    Decided March 28, 1927
    801. MUNICIPAL LAW — A permit given by a city to erect gasoline pumps upon a sidewalk does not vest in licensee any property right, and an ordinance virtually revoking the license violates no property rights of licensee either under the Federal or State constitutions.
    First Publication of this Opinion
   CUSHING, J.

Harry Rowe, Jr. filed his petition in the Hamilton Appeals asking for an injunction to restrain the City of Cincinnati from enforcing Ordinance No. 289-1925 which make the maintenance of gasoline pumps on the sidewalk a misdemeanor punishable by a $100 fine, and authorizes the city to remove the gasoline pumps that are so placed. The grounds upon which he bases his plea for injunction are that the pumps have been in constant use since 1910 with the express consent of the City and to take them away is in violation of Art. XIV, Sec.

I.US. constitution and Art. I., Sec. 19 Ohio Constitution.

The Court of Appeals held:

1. These pumps were used in a private business; the permits were revoked and they were given almost two years within which to remove them.

2. Rowe had no property right in the street, and therefore, it was not taking property without due process of law. This being a penal ordinance the city had the right to arrest and fine him for a violation thereof.

3. All questions as to the validity of the ordinance and the rights the plaintiff had in the use of the street, could be raised'by him, in an action at law.

Attorneys — Bettman, Riesenberg, Cohen & Steltenpohl for Rowe; John D. Ellis, City Sol., Bert H. Long; Ralph A. Kreimer, Asst, for City; all of Cincinnati.

4. Gasoline tanks, while no doubt useful to many persons using the public streets, constitute a non-essential and private use, a use for the gain of the owner of the stand, and not a use in a public or even quasi public capacity.

5. It follows that the permit to erect these gasoline pumps in the sidewalk did not vest any property right in plaintiff. Railroad v. Definance, 52 OS. 262; Heddleston v. Hendricks, 52 OS. 460.

Injunction denied.

(Hamilton, PJ., and Buchwalter, J., concur.)  