Opinion
No. 33841
Decided October 27, 1954.
Municipal corporations — Penal ordinances strictly construed against municipality — Ordinance regulating operation of taxicabs unlicensed by city — Not violated, when — Maintenance and use of telephone within municipality — Not determinative of place of business.
1. Where a penalty is provided for the violation of a municipal ordinance, such ordinance is to be strictly construed against the municipality and any doubt as to the interpretation of the ordinance must be resolved in favor of the one against whom it is invoked. ( City of Cleveland v. Jorski, 142 Ohio St. 529, approved and followed.)
2. An ordinance of the city of Cincinnati, which provides that "the operator of a public vehicle duly licensed by some other proper governmental authority, but having no Cincinnati license, the place of business of the owner or operator (if not the owner) of which is not in the city of Cincinnati, may transport passengers into Cincinnati by means of such public vehicles, but may not accept, or offer to accept any passengers, for compensation, or accept any business whatsoever, within the limits of the city of Cincinnati," is not violated by a taxicab company, unlicensed in Cincinnati, where it appears that the company's taxicab stand and taxicabs are located in municipality M where the company is licensed, from which location the taxicabs move and to which location they return; that such taxicabs operate outside Cincinnati and transport passengers into that municipality but do not accept passengers or business within its limits; and that such taxicab company maintains a telephone in Cincinnati where calls for taxicab service are received and then transmitted by private telephone to the taxicab stand in municipality M.
3. In such case, the maintenance of the telephone and its use in Cincinnati are merely incidental and facilitative to the conduct of the taxicab business in municipality M and do not remove the place of business of the taxicab company from such municipality.
APPEAL from the Court of Appeals for Hamilton County.
Following certain demands made on it by the city of Cincinnati relative to the conduct of its taxicab business in Cincinnati in alleged violation of existing ordinances of such city, Mariemont Taxi, Inc., an Ohio corporation, brought an action in the Court of Common Pleas of Hamilton County for a declaratory judgment that such ordinances are void and of no effect or that they are not applicable to plaintiff in the prevailing circumstances.
The following two sections of the Code of Ordinances of the City of Cincinnati are involved:
Section 407-2. "No person, firm or corporation or any owner, agent, employee or driver shall operate or permit to be operated a vehicle as a public vehicle, or to proffer the services of such a vehicle as a vehicle by solicitation by voice, sign, public announcement, or otherwise, unless the proper license has been issued to the owner thereof and is in force. * * *"
Section 407-76. "The operator of a public vehicle duly licensed by some other proper governmental authority, but having no Cincinnati license, the place of business of the owner or operator (if not the owner) of which is not in the city of Cincinnati, may transport passengers into Cincinnati by means of such public vehicles, but may not accept, or offer to accept any passengers, for compensation, or accept any business whatsoever, within the limits of the city of Cincinnati."
The cause came on for hearing upon the amended petition, the supplemental petition, the answer, and the testimony of one witness, the president of plaintiff.
A judgment adverse to plaintiff was rendered in the trial court, and the plaintiff again lost in the Court of Appeals on its appeal on questions of law and fact.
The cause is now in this court for decision pursuant to plaintiff's appeal as of right and the allowance of its motion to require the Court of Appeals to certify its record.
Mr. Benjamin S. Schwartz, for appellant.
Mr. Henry M. Bruestle, city solicitor, and Mr. James W. Farrell, Jr., for appellees.
Both lower courts in effect held that the ordinances in question are valid and authorized enactments; that plaintiff has no license from the city of Cincinnati to operate its taxicabs in such city; that plaintiff maintains its "place of business" in the city of Cincinnati; and that plaintiff by its activities is chargeable with a violation of such ordinances. The two lower courts found and the evidence establishes the following facts:
Opposite plaintiff's telephone number in the Cincinnati telephone directory is an address within the Cincinnati city limits. Plaintiff's telephone is located in a restaurant owned and operated by the president of the plaintiff and situated on Bramble Avenue within the corporate limits of the city of Cincinnati, a short distance away from the corporate limits of the village of Mariemont, Hamilton County, Ohio, in which village plaintiff is licensed. Plaintiff has its taxicab stand, and its taxicabs are stationed, at Wooster Pike and Madisonville Road adjacent to the Mariemont Inn in the village of Mariemont. Plaintiff has a private telephone from the restaurant on Bramble Avenue to a telephone box on an outside pole at the taxicab stand. Plaintiff, upon receiving in the restaurant a telephone call for taxicab service, relays the message over the private telephone to one of its taxicab drivers in Mariemont, and the driver is directed as to where to go to pick up the passenger or passengers.
Plaintiff, in its business, transports for hire passengers between various places in Hamilton County, outside the corporate limits of Cincinnati. It also transports for hire passengers from outside the corporate limits of Cincinnati to places within the corporate limits of such city. It does not transport passengers between places within the city of Cincinnati or from places within Cincinnati to places outside the corporate limits of such city. Plaintiff has no license from the city of Cincinnati to operate its taxicabs in such city.
Under the undisputed facts narrated, does it appear that plaintiff is violating the quoted ordinances and particularly section 407.76? Since a penalty is provided for the violation of such ordinances, they are to be strictly construed against the city of Cincinnati and in favor of plaintiff, and any doubts as to the interpretation of the ordinances must be resolved in plaintiff's favor. City of Cleveland v. Jorski, 142 Ohio St. 529, 53 N.E.2d 513; State v. Conley, 147 Ohio St. 351, 71 N.E.2d 275.
Approaching the problem with such rule in mind, we note that as concerns the instant case the key words in controlling section 407-76 are "the place of business of the owner." Where is plaintiff's place of business? Plaintiff is engaged solely in the pursuit of operating taxicabs for hire. Its taxicabs are located in the village of Mariemont and move initially from and then back to such location. Instructions as to the movement of the taxicabs are received by the drivers in Mariemont. Plaintiff transports passengers into Cincinnati from the outside but it does not accept passengers in such city for transportation within the city limits. The fact that plaintiff maintains a telephone in Cincinnati in connection with the operation of the taxicab business is no more than facilitative and incidental and does not remove the place of business of plaintiff from Mariemont.
Since, then, the place of business of plaintiff is outside the city of Cincinnati and since its activities in operating its taxicabs do not bring it within the prohibitions of section 407-76, we are of the opinion that such ordinance is inapplicable and may not be invoked against plaintiff.
Because of the position taken it becomes unnecessary to consider or decide on constitutional grounds the validity or invalidity of the ordinances involved.
The judgment of the Court of Appeals is reversed and final judgment is rendered for the plaintiff on the basis that it is chargeable with no violation of the ordinances invoked against it.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART and LAMNECK, JJ., concur.