
    City of Cleveland, Appellee, v. Antonio, Appellant.
    
      (No. 23286
    Decided March 9, 1955.)
    
      Mr. Ralph 8. Locher, director of law, Mr. Bernard J. Conway and Mr. E. V. Cain, for appellee.
    
      Mr. Frank K. Levin, for appellant.
   Hurd, J.

This is an appeal on questions of law from a judgnent of the Municipal Court of the City of Cleveland, wherein Ne defendant, a truck driver in the employ of The Barracelli Trucking Company, was arrested and found guilty of violating Section 9.2529 of the Traffic Code of the City of Cleveland, vhich by its terms prohibits the use of Deise Avenue by trucks, commercial tractors, trailers and semi-trailers during the night season from 10 p. m. to 6 a. m.

The material facts are not in dispute. The principal place >f business and garage of The Barracelli Trucking Company is ocated at the end of Deise Avenue at or near its intersection vith Kuhlman Avenue and Bast 136th Street. This area s zoned by the city of Cleveland as a factory district.

At the time of his arrest, the defendant was operating an kuto-Car Deisel which was an oil-powered truck equipped with . muffler, the weight of which was from 12,040 to 13,040 pounds. Ihe truck was unloaded and was being operated by the defend,nt at about 11:10 p. m. on or about May 15, 1954, at a speed of pproximately 10 miles per hour when he was stopped by a police officer of the Cleveland police department who handed im a summons to appear in police court, charging a violation f that section of the Traffic Code which reads as follows:

“Section 9.2529 of the Codified Ordinances of the City of Jleveland:
“No person shall operate or cause to be operated, a truck with a gross weight in excess of 4-ton commercial tractor, trailer or semi-trailer, over Deise Avenue N. E., Kuhlman Avenue. East 133rd Street and East 136th Street, in the night season between the hours of 10 p. m. and 6 a. m.”

The pertinent part of the affidavit filed against the defendant reads:

“* * * that on or about the 5th day of May, 1954, at saic city and county, one John Antonio, being then and there ii charge of and operating a certain vehicle, to wit, a truck drivei by gasoline power on Deise Avenue, a street in said city, die then and there as operator of a tractor over 4 ton net, to wit 13,000 pounds, operated said tractor on said street at 11:10 p m. contrary to signs posted ‘ Thru trucks prohibited 11 p. m. t< 7 a. m. over 4 ton, ’ and further deponent says not; contrary t< the form of an ordinance of said city in such cases made ant provided * #

Upon trial, the police officer, the only witness for the city testified that there was no means of ingress or egress to o from the plant of the trucking company, other than Deise A\ enue, Kuhlman Avenue, East 136th Street or East 133r Street. This testimony was corroborated by the defendan The testimony was confirmed also by the manifest provision of the ordinance in question, which absolutely prohibit the us of the enumerated streets by commercial vehicles or tracto» weighing in excess of four tons gross, between the stated hour» and the record is clear that the named four streets are the onll approaches by which the garage of The Barracelli Trucldnl Company can be reached. It was also testified by the office that the garage of The "White Motor Company and The Thom] son Products Company are likewise subject to the same limit; tions by reason of their location in this area.

The officer testified also that there were hundreds or thoi sands of streets in Cleveland similar to Diese Avenue, and th; the truck at the time of the arrest was not being “operated : any unusual manner and that it was not making any more u usual noise than other Deisels do.”

The defendant testified that, at the time of his arrest, tl trucks of the company were operating 24 hours a day in tl delivery of stone for the construction of the Ohio turnpike, b that the trucks were driven to and from the garage empty, for purposes only of servicing with oil, gasoline and tires, or for parking purposes.

Before trial, counsel for the defendant made a motion for discharge of the defendant upon the ground that the affidavit under which the defendant was first served was made out in blank. Thereafter, the case was continued, and on May 17, 1954, a new affidavit was filed against the defendant. The defendant then filed a demurrer, which was overruled, asking to be discharged for two reasons: (1) that the affidavit was defective, and (2) that the ordinance as applied to the defendant and his employer is unconstitutional.

I While there are nine assignments of error, the principal assignments have to do with the claimed defect in the affidavit and the claim that the ordinance as it relates to the defendant and his employer is an unreasonable and arbitrary exercise of police power contrary to Section 3, Article XVIII of the Ohio Constitution.

As to the claim that the affidavit was defective, it is our view that the position of the eity of Cleveland is well taken to the effect that, while the affidavit would have been subject to a motion to quash, the demurrer did not reach the defect claimed because the gist of the offense charged was the operation of a commercial tractor weighing in excess of four tons gross weight between the restricted hours on Diese Avenue. The fact that it was powered by oil rather than by gasoline, as charged, did not detract from the gist of the offense, inasmuch as the affidavit states an offense pursuant to Section 9.2529 of the Codified Ordinances of the City of Cleveland.

Section 2941.59, Bevised Code, reads as follows:

“The accused waives all defects which may be excepted to iy a motion to quash or a plea in abatement, by demurring to an indictment, or by pleading in bar or the general issue.” (Emphasis added.)

Therefore, we hold that the court was not in error in over:uling the demurrer attacking the sufficiency of the affidavit and n proceeding to trial on the merits.

A much more important question is presented, however, by ;he claim of the defendant that the ordinance is an unreasonable and arbitrary exercise of tbe police power contrary to Sec tion 3, Article XVIII of the Ohio Constitution. It is arguec that because the garage-base located at the end of Deise Avenen is in a factory-zoned district, the ordinance as it applies to the defendant and his employer unreasonably deprives them of the use of the property without due process of law, and deprives them of the right to use the public streets and highways in i reasonable manner with vehicles licensed by the state of Ohio

Section 3, Article XVIII of the Ohio Constitution reads:

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

Cleveland is a charter city, having adopted, under the pro visions of Section 7, Article XVIII of the Ohio Constitution, ¡ charter permitting it to exercise the powers of local self government. The charter, Section 1, General Powers, provide in part:

“ * * * may define, prohibit, abate, suppress and prevent al things detrimental to the health, morals, comfort, safety, cor venience and welfare of the inhabitants of the city, and a nuisances and causes thereof; * * * may regulate and contrc the use, for whatever purposes, of the streets and other publi places * *

The city seeks to justify the complete isolation of the piar of the trucking company under the preamble of ordinance 220Í 53 which reads as follows:

“Whereas, the noise and vibration generated by the heav flow of trucks, commercial tractors, trailers and semi-trailei over Deise Avenue N. E., during the night season constitutes continuing nuisance and undermines the health and gener: welfare of the residents of Deise Avenue, and
“Whereas, this ordinance constitutes an emergency mea; ure providing for the public health and safety for the reaso that the health and welfare of the residents of Deise Avenue being undermined by this nuisance; now therefore,
“Be it ordained by the Council of the City of Clevelai * * (Then follows Section 9.2529 above quoted.)

At the outset, we must recognize that there is a gener presumption in favor of the validity of municipal legislation. This rule is so firmly established that citation of authorities is unnecessary.

We must also recognize the rule that the burden of showing the unconstitutionality of an ordinance is upon the one challenging its validity, and the proof that the ordinance is an unreasonable and arbitrary exercise of the police power and unconstitutional must be clear and that the courts will not interfere unless it is clear that the ordinance has no real or substantial relation to the public health, safety, morals or welfare, or is unreasonable or arbitrary and infringes rights secured by the fundamental law of the state. See 10 Ohio Jurisprudence (2d), 227, Constitutional Law, Section 152 et seq.

Section 19, Article I of the Ohio Constitution provides in part:

“Private property shall ever be held inviolate but subservient to the public welfare. ’ ’

The question presented is whether the ordinance in question, as it applies to this defendant and his employer, is in con-3ict with general laws or is an unreasonable, arbitrary exercise of police power.

In analyzing the evidence presented and the ordinance in question, we find that the property of defendant’s employer, which in the conduct of his business he was required to use as a oase of operations, is completely and effectually barred of all neans of ingress and egress during the night season from 10 o. m. to 6 a. m. The effect of this prohibition is to prevent the ise of the property for a necessary 24-hour operation.

There is no claim that the defendant was exceeding the speed limit or that he was driving in an unusual manner. It s also admitted that there was a muffler attached to the truck ’or the purpose of minimizing the sound of its operation so hat the gravamen of the offense merely was the operation of m empty truck weighing in excess of four tons gross.

We must also consider that the operation is not what is ;enerally termed “through traffic,” so that we are obliged to alance the claim of the city, that the prohibition of use conained in the ordinance is in the interest of the public health and relfare, against the claim of defendant that the ordinance as it applies to him and his employer is a deprivation of his constitutional right to use the property in question in an area zoned for factory use in a manner necessary to carry on the trucking business there located.

We find from the evidence, as a fact, that by blocking out Diese Avenue and the other three streets leading to the garage there is a complete isolation of the plant of the employer, for any useful purpose, from all other streets in the city during the prohibited hours.

The defendant in the course of his employment for the trucking company must be allowed some reasonably convenient outlet or means of ingress or egress, without being subject to arrest, so long as he operates his vehicle in all respects in a safe, proper and lawful manner.

We think that if the ordinance provided some other reasonable outlet for the defendant and his employer, by reason oí which ingress and egress could readily and conveniently be had to the garage-base, then there would not be an unreasonable and arbitrary exercise of police power as to this defendant or i violation of property rights in the use thereof.

However, in view of the fact that this legislation is pro hibitory in character and that all means of ingress and egress are effectually prevented between the hours stated, we conclud* that there is here an unreasonable and arbitrary exercise o: police power and a violation of constitutional rights whicl cannot be sustained by this court.

Here we must observe that a fundamental principle in de termining the validity of municipal legislation depends upoi its operation and effect and not upon the mere form it may as sume.

“The substance of an act, rather than its form, is of sig nificance. In other words, the validity of a legislative enact ment is to be resolved by its practical operation and not by it title or declared purpose.” 10 Ohio Jurisprudence (2d), 23Í Constitutional Law, Section 154 et seq.

The declared purpose is praiseworthy, but the operation i its effect is to deny to the accused well founded and fundi mental civil rights. 9

We have not been cited, by counsel for either of the parti» to this litigation, to any Ohio cases directly in point, nor have we been able to find any completely analogous. An Ohio case bearing upon the issue of municipal power under Section 3, Article XVIII of the Constitution, is City of Cincinnati v. Correll, 141 Ohio St., 535, 49 N. E. (2d), 412, which involves the question of limiting and fixing the hours of a business rather than fixing and limiting the hours and use of streets in connection with a business operation.

Paragraph one of the syllabus reads as follows:

“1. Section 3, Article XVTII of the Ohio Constitution, grants authority to municipalities to adopt and enforce within their limits such local police regulations as are not in conflict with general laws. A municipal ordinance passed under such authority, to be valid, must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.”

In this well reasoned opinion the court said, inter alia, at page 539:

I “The courts of this country have been extremely zealous in preventing the constitutional rights of citizens being frittered away by regulations passed by virtue of the police power.
“If an enactment is referable to the police power, to be valid, the court must be able to say that it tends in some substantial degree to the prevention of offenses, or the preservation of the health, morals, safety or general welfare of the public. Therefore, if it is apparent that there is no plausible, reasonable and substantial connection between the provisions of the act and the supposed evils to be suppressed, there exists no authority for its enactment. Legislative bodies may not, under the guise of protecting the public interest, interfere with private business by imposing arbitrary, discriminatory, capricious ar unreasonable restrictions upon lawful business.”

Our attention has been called to cases outside of our jurisdiction, which we consider more directly analogous and quite persuasive. In Pivnick v. City of Newark, 14 N. J. Super., 134, 81 A. (2d), 409, decided in May, 1951, the court struck down an ordinance which denied to plaintiff the only convenient means )f access to his property by excluding the commercial traffic from a street leading to plaintiff’s property located at the end of the street. The court there held that although any abuse of a street by commercial vehicles could be controlled by prosecution under the traffic act, an amendment to the ordinance by the city to prohibit the use of the Newark portion of a street by trucks and thus prevent commercial vehicles from gaining access to the property by the only convenient means would be set aside as unreasonable, arbitrary and discriminatory.

In Terminal Storage, Inc., v. Township of Raritan, 15 N. J. Super., 547, 83 A. (2d), 662, decided October, 1951, the court struck down a restrictive ordinance of the township of Raritan, which by its terms prohibited the operation of vehicles carrying or ordinarily used to carry merchandise, goods, tools or supplies upon specified streets of the township, which included part of a street upon which the plaintiff’s land faced, a portion of which land plaintiff had rented to tenants who used it as a terminal for trucks and trailers used in their trucking business. The court there held that the ordinance as applied to plaintiff’s property was unreasonable, arbitrary and discriminatory.

True the defendant’s employer is not a party to this case, but the evidence clearly shows that the defendant and any other employees, officers or agents of the employer, who attempt to reach the garage-base in the course of the business of the employer with trucks of the indicated weight, even though unloaded, during the hours of 10 p. m. to 6 a. m., are subject by its plain terms to the provisions of the ordinance. That defendant has the absolute right to raise the question of the validity of the law under which he is here prosecuted, is not subject to doubt. See 10 Ohio Jurisprudence (2d), 220, Constitutiona Law, Section 141.

One other question is presented in considering the ordinance here challenged by the appellant. Included among the streets, the use of which is prohibited to trucks of a gross weigh in excess of four tons, between certain hours, are “East 133rc Street and East 136th Street. ” It is to be noticed that the tex of the ordinance does not define the parts of these streets mean to come within its restrictions. Certainly, the council could no have intended that all streets in Cleveland designated am known as East 133rd Street and East 136th Street should be in eluded within the terms of the ordinance. Being indefinite and uncertain as to the streets to which the restrictions provided'for shall apply, the ordinance is, for such additional reason, unenforceable.

For the reasons stated, we, therefore, hold that the ordinance in question, so far as it applies to this defendant in the course of his business as an employee of the trucking company, is unreasonable, arbitrary and discriminatory, and a clear violation of constitutional rights, by reason of which the judgment of the Municipal Court of Cleveland is reversed, final judgment is rendered for the defendant and the defendant discharged.

Judgment accordingly.

Kovachy, P. J., and Skeel, J., concur.  