Opinion
No. 35003
Decided December 26, 1956.
Underground Parking Commission — Preliminary studies — Expenditures — Highway Improvement Fund — Section 5538.17, Revised Code — Constitutionality — Concurrence of judges — Constitutional question not raised in lower courts, not considered.
APPEAL from the Court of Appeals for Franklin County.
Plaintiff seeks to enjoin the expenditure of money from the Highway Improvement Fund for defraying the cost of certain preliminary studies relative to the construction of a parking lot under the Statehouse grounds in Columbus.
Plaintiff alleges in his petition that Section 5538.17, Revised Code, provides in part that, with the approval of the Underground Parking Commission, the Director of Highways shall expend out of any funds available for the purpose such moneys as are necessary for the study of any underground parking lot; that pursuant thereto the commission, acting through the director, has contracted for certain engineering studies and surveys in connection with the proposed underground parking lot and has authorized the director to expend from the Highway Improvement Fund $64,500 for paying the cost of studies and surveys; that the Highway Improvement Fund is made up of revenues derived from taxes collected on the sale of gasoline used for propelling motor vehicles on the highways of the state; that such use of the fund does not constitute expenditure for the costs of administration of laws concerning the registration, operation and use of vehicles on public highways, statutory refunds and adjustments provided in such laws, payment of highway obligations, costs of construction, reconstruction, maintenance and repair of public highways and other statutory highway purposes, etc.; and that unless restrained the auditor will expend portions of the Highway Improvement Fund to pay vouchers relative to engineering studies and surveys in connection with the proposed underground parking lot.
The prayer is that the auditor be enjoined from expending any sums from the Highway Improvement Fund or from spending any money, derived from fees, excises and license taxes relating to registration, operation and use of vehicles on public highways and to fuels used for propelling such vehicles, for the purpose of paying any part of the cost of engineering studies or surveys in connection with the underground parking lot.
Defendant filed a demurrer to the petition on the ground that it does not state facts sufficient to constitute a cause of action.
The trial court sustained the demurrer, and, plaintiff not desiring to plead further, rendered judgment for defendant.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. John A. Lloyd, Jr., and Mr. James G. Andrews, Jr., for appellant.
Mr. C. William O'Neill, attorney general, and Mr. Hugh A. Sherer, for appellee.
The question presented is whether the expenditure from revenues derived from the motor vehicle fuel excise tax for studies and surveys for the underground parking lot, for which provision is made in Section 5538.17, Revised Code, is forbidden by the provisions of Section 5 a of Article XII of the Constitution.
An expenditure to make a highway wide enough to enable parking on such highway would clearly be an expenditure for "highway purposes" within the meaning of Section 5 a of Article XII of the Constitution. A purpose of providing parking space on a highway would appear to be no more a highway purpose than a purpose of providing necessary parking space off the highway. State, ex rel. Gordon, City Atty., v. Rhodes, Mayor, 158 Ohio St. 129, 134, 107 N.E.2d 206.
It is contended also, for the first time in this court, that, if the act authorizing the construction of the underground parking lot (Sections 5538.01 to 5538.21 and 5538.99, Revised Code, 126 Ohio Laws, 12) is a highway measure, it is void because it violates Section 26 of Article II of the Constitution, which provides that "all laws, of a general nature, shall have a uniform operation throughout the state." Hixon v. Burson, 54 Ohio St. 470, 43 N.E. 1000. Since this constitutional question was not raised in either the trial court or the Court of Appeals, it will not be considered by this court. Village of Clarington v. Althar, 122 Ohio St. 608, 174 N.E. 251; City of Grandview Heights v. Redick, Dir., 165 Ohio St. 326, 135 N.E.2d 267.
For the reason that fewer than six members of the court are of the opinion that the statute is unconstitutional, the court cannot so declare it. Section 2, Article IV, Constitution.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and TAFT, JJ., concur.
I do not look upon this case as one testing the right of a governmental body to construct a facility for off-street parking or the right of the General Assembly to appropriate funds for that purpose. That right I concede. But this case is one questioning the use of narrowly confined funds for the purpose of facilitating the construction of such facility. Since I am of the opinion that the parking lot provided for by Chapter 5538, Revised Code, is not to be built in conjunction with the construction of any state highway or as a part of any integrated highway project, I believe that the use of the "Highway Improvement Fund" for defraying the cost of certain preliminary studies as to such lot is violative of Section 5 a, Article XII of the Constitution, and that, therefore, such "Highway Improvement Fund" is not one of "any funds available for the purpose."
HART, ZIMMERMAN and STEWART, JJ., concur in the foregoing dissenting opinion.