Opinion
No. 26913
Decided May 25, 1938.
Municipal corporations — Ordinance not invalid as containing more than one subject — Section 4226, General Code — Regulating traffic upon and use of streets, boulevards and property — Parking vehicles for sale or barter — Driving or parking without number and registration mark — Storing vehicles not in transit or actual use and service — Municipality not enjoined from interfering with use of strip of land, when.
1. An ordinance, which expresses in its title the purpose of regulating traffic upon and the use of streets, boulevards and property of a village and which makes it unlawful (1) to park or place a vehicle upon the streets, boulevards or other public places, parks or property of the village for the purpose of sale or barter, (2) to drive, operate, park or place any vehicle in such streets or public places without having the distinctive number and registration mark furnished by the director of highways displayed on the rear of trailers and semi-trailers and on the front and rear of other vehicles, and (3) to use such streets and public places for storing such vehicles, not then in transit or actual use and service, is not violative of Section 4226, General Code, which provides that no ordinance shall contain more than one subject which shall be clearly expressed in its title.
2. When a dealer in used motor vehicles brings an action in injunction to prevent a municipality from interfering with the use of a strip of land for the purpose of parking or storing vehicles in carrying on his business (which strip of land the village claims is a street and its use by the dealer in his business in such manner forbidden by ordinance), the plaintiff is not entitled to injunctive relief without showing some right, title or interest in and to such strip of land.
APPEAL from the Court of Appeals of Fulton county.
The plaintiff, Harry E. Plummer, as a taxpayer, by virtue of Section 4311 et seq., General Code, brought an action in the Court of Common Pleas of Fulton county, Ohio, against the village of Swanton, Ohio, its mayor, clerk and marshal, to restrain them from interfering with plaintiff's business in the operation of an automobile sales agency in the village and from arresting the plaintiff under a certain ordinance which reads as follows:
"An Ordinance No. 410.
"Regulating the traffic upon and use of the streets, boulevards and property of the village of Swanton, Ohio.
"Be it ordained by the council of the village of Swanton, Fulton county, Ohio, that:
"Section 1. It shall be unlawful for any person or persons to park or place, or cause to be parked or placed upon any of the streets, boulevards, or other public places, parks or property of the village of Swanton, Ohio, or the space between the property line and the curb of the street in said village, any motor vehicle, truck, trailer or semi-trailer, or other vehicle, for the purpose of selling or bartering the same, or advertising the same for barter or sale.
"Section 2. It shall be unlawful for any person or persons to drive, operate, park or place any motor vehicle, trailer, or semi-trailer, or other vehicle, upon any of the streets, boulevards, parks or property of the said village, or the space between the property line and the curb of the street in said village, without such vehicle has the distinctive number and registration mark, furnished by the director of highways for such motor vehicle, trailer or semi-trailer, displayed on the front and rear thereof, except in the case of trailers and semi-trailers, which class of vehicles shall display such distinctive number and registration mark on the rear only.
"Section 3. It shall be unlawful for any person or persons to use the streets, boulevards, or other public places, parks, or property of the said village, or the space between the property line and the curb of the street in said village, for the purpose of storing any motor vehicle, trailer, semi-trailer, or other vehicle, not then in transit, or actual use and service.
"Section 4. Whoever shall violate any of the provisions of this act shall be fined, for a first offense, not less than five dollars ($5.00), or more than twenty-five dollars ($25.00), and for a second, and each subsequent offense, not less than twenty-five dollars ($25.00), nor more than fifty dollars ($50.00).
"Section 5. This ordinance and the various parts, sections and clauses are hereby declared to be severable. If any part, section or clause is adjudged unconstitutional or invalid, the balance of the ordinance shall not be affected thereby.
"This ordinance shall take effect at the earliest time permitted by law."
The Court of Common Pleas denied the injunction and entered judgment for defendants and the Court of Appeals affirmed the judgment.
An appeal was taken to this court as a matter of right.
Mr. R.P. Cunningham, for appellant.
Messrs. F.S. J.M. Ham, for appellees.
If the plaintiff can maintain his action at all, it is as an individual and not as a taxpayer; therefore, the court considers the cause as if it were an action by an individual.
Plaintiff contends that this ordinance is violative of Section 4226, General Code, which provides: "No ordinance * * * shall contain more than one subject, which shall be clearly expressed in its title. * * *"
In the case of Withey v. Fowler Co., 164 Iowa 377, 145 N.W. 923, the court held valid an ordinance passed under an identical statute. That ordinance attempted the regulation of vehicles in use or left standing upon the streets and also provided how drivers of teams or other vehicles should be required to drive; how they should turn into an intersecting street; how they should cross from one side of the street to the other and how and where vehicles left standing on the streets should be placed; then there was also a section in the ordinance which dealt with obstructions in the street. The court said: "Little if any more than the reading of this enumeration of the several regulations said to be embodied in the ordinance is necessary to demonstrate their unity of purpose, and the propriety of gathering them into a single ordinance. * * * They all have direct reference to the use of the public streets of a city where, by reason of the amount of traffic and the great number of vehicles moving in all directions, regulation and order are demanded to avoid congestion and confusion and facilitate the transaction of business. It would be a very unfortunate situation for the government of cities if we were obliged to hold with counsel that the several matters of street regulation to which reference is made in argument are so unrelated and foreign to each other that they can be treated and regulated only by the enactment of separate ordinances."
An ordinance which relates to one general unified subject which is expressed in the title is not invalid for duality of purpose because there are several matters incorporated in its different provisions so long as they are not unconnected with or foreign to the subjective purpose. Heffner v. City of Toledo, 75 Ohio St. 413, 80 N.E. 8.
In the case at bar the ordinance was passed to regulate the traffic upon and the use of the streets, boulevards and property of the village of Swanton. The various provisions make it unlawful to park or place any vehicle upon the streets, boulevards or other public places, parks or property of the village for purpose of sale or barter, to drive, operate, park or place any vehicle in such street or public place without having the distinctive number and registration mark furnished by the director of highways displayed on the rear of trailers and semi-trailers and on the front and rear of other vehicles; and to use such streets and public places for storing such vehicles, not then in transit or actual use and service. Obviously different matters are provided for but they are closely interrelated and the ordinance is not invalid by reason of plurality of provisions. The title and body comply with the requirements of Section 4226, as quoted above.
Plaintiff also claims that the ordinance is in contravention of Section 3, Article XVIII, of the Ohio Constitution which provides: "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." He further maintains that the ordinance is in conflict with the equal protection clauses of the federal and state Constitutions and is class legislation.
It hardly seems necessary to discuss separately these various contentions of the plaintiff. The plaintiff, as an abutting property owner, had the right to use the adjacent street, within proper and reasonable limits, to meet the exigencies of the business conducted by him on his own premises. On the other hand the village has power to prevent entirely the use of its streets and public places for carrying on a private business in which such thoroughfares and places under public control are obstructed by storing goods, wares and merchandise there for the purpose of sale or barter. Express or implied permission to use the streets for private business of that kind is at best a revocable license. Rowe, Jr. v. City of Cincinnati, 117 Ohio St. 382, 159 N.E. 365. By parity of reasoning the same rule applies to parks and other public places under control of the municipality.
As a general rule the storage of property in public ways or places for other purposes may likewise be prevented entirely; but, of course, the rule does not apply strictly to the storing or parking of vehicles as an incident to the legitimate use of the streets for travel. Such storing and parking, however, is subject to reasonable regulation. Therefore the village has power to pass an ordinance which prohibits the plaintiff and others from using its streets and public grounds, in the manner plaintiff has used them for the purpose of carrying on the business of selling or bartering vehicles, and which prohibits their storage when not in transit or in actual use and service.
There is nothing in the ordinance to indicate that it is inconsistent with state law, that it is violative of the equal protection clauses, or that it constitutes class legislation.
In our judgment the ordinance is valid and constitutional.
Plaintiff seeks an injunction to prevent interference with his business in dealing in used cars in the course of which he has been parking them for purposes of sale or barter on the space six feet wide or more between the sidewalk and south curb of Chestnut street in front of his store room and on a strip of land fifteen to thirty feet wide (claimed by the village to be part of Chestnut street) on the north side of the improved portion of the street, which strip is bounded on the south by the north curb of the improved portion of the street and on the north by the right of way of The New York Central Railroad Company. As to the space of six feet or more located south of the south curb the plaintiff has no right to an injunction because the ordinance is valid and makes his use thereof illegal.
Plaintiff contends, however, that the strip north of the north curb does not belong to the village and is not a part of Chestnut street, but he neither claims nor shows that he has any right, title or interest in and to the strip himself. He seeks to prevail by virtue of the weakness of the title of the village; and so he must fail for he is not entitled to an injunction to protect a business use of real property in and to which he has no lawful claim. Gray v. Malone, 142 Ark. 609, 219 S.W. 742; Campbell v. Schorr, 224 Ky. 1, 5 S.W.2d 278; Gilchrist-Fordney Co. v. Thigpen, 114 Miss. 182, 74 So. 823; Crawford v. Crawford, 143 Ga. 310, 85 S.E. 192; Treadwell v. Payne Dewey, 15 Cal. 496. Since the plaintiff failed to show ownership or right of possession to the strip, it is immaterial in this action whether it was part of the street. When an attempt is made to enforce the ordinance as to this strip, the right of the village in and to it will become a pertinent inquiry.
Since there is no error apparent on the face of the record the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, MYERS and GORMAN, JJ., concur.