Opinion · Ohlaw Ohio
BOILER CO. v. DAVID, 157 Ohio St. 564 (1950)
106 N.E.2d 620
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1952-05-28
- Topic
- general
BOILER CO. v. DAVID, 157 Ohio St. 564 (1950) 106 N.E.2d 620 NORTHERN BOILER CO., APPELLEE v. DAVID ET AL., APPELLANTS. No. 32863Supreme Court of Ohio. Decided May 28, 1952.
Citator
UpLaw has not yet analyzed BOILER CO. v. DAVID, 157 Ohio St. 564 (1950). The absence of a flag is not a finding that it is good law.
BOILER CO. v. DAVID,157 Ohio St. 564(1950)
106 N.E.2d 620
NORTHERN BOILER CO., APPELLEE v. DAVID ET AL., APPELLANTS.
No. 32863
Supreme Court of Ohio.
Decided May 28, 1952.
1. The right of access to a street is a proprietary right attached to the estate in or ownership of abutting property, and the owner thereof may construct a driveway from his property for a necessary outlet into the street provided he does not unreasonably interfere with the public use thereof.
2. An ordinance, which provides that "except as to residential property no permit shall be granted by the director of public service to cut the curb * * * unless and until written notice * * * has been given to the member of council from such ward" and "if * * * such member of council shall notify said director in writing of his objection to the issuance of such permit, such permit shall not be issued except pursuant to resolution of council," constitutes a delegation of legislative power and is unconstitutional and void.
The plaintiff, Northern Boiler Company, is a corporation existing under the laws of the state of Ohio.
The defendants are the city of Cleveland, Samuel F. David, who is its duly appointed, qualified and acting director of public service, and Alban J. Pruesser, who is its duly appointed, qualified and acting commissioner of streets.
This cause originated in the Court of Common Pleas of Cuyahoga County. The plaintiff seeks a mandatory injunction directing the city of Cleveland, by its duly appointed officers, to issue a permit to cut the curb in front of property owned by the plaintiff. The pertinent parts of the amended petition are as follows:
"Plaintiff further says that it is the owner of certain property, one parcel being located on the westerly side of West 88th street and one parcel which fronts upon Silverton avenue, both parcels being in the city of Cleveland.
"Plaintiff further says that both of said parcels of property are zoned for industrial purposes and that it does operate and has operated for more than the past twenty-five (25) years a plant for the manufacture and fabricating of steel products in the building fronting on Silverton avenue. That immediately adjoining the building on Silverton avenue, the plaintiff is in the process of erecting an addition to its existing plant. That the property on West 88th street has a frontage of approximately two hundred (200) feet and is presently being used for the storage of steel for use in the construction of the new addition to its existing plant. That for the purpose of constructing said building, it is now necessary to move the structural steel from the lot on West 88th street to the lot on Silverton avenue where the addition is being constructed.
"Plaintiff further says that there is no means of ingress or egress to the said 88th street property unlessPage 566a driveway be built from the property to West 88th street, which, of necessity, requires the cutting of the curb on West 88th street at the point where plaintiff's said property is located. That on the 1st day of May, 1951, the plaintiff made application to the proper authorities in the service department for permission to cut the curb on West 88th street so as to permit vehicles to enter its said property located on West 88th street. This application was made under the provisions of Municipal Code Section 135, the pertinent part of which reads as follows:
"`He shall have charge of the planning, construction, improvement, repair and maintenance of streets, boulevards, sidewalks, alleys, lanes, bridges, viaducts, aqueducts, wharves, docks, landings, and other public highways * * *.'
"That this application was orally approved by the commissioner of streets of the city of Cleveland and by the director of public service of the city of Cleveland. That written formal approval was withheld by the above named officials pending the lapse of ten (10) days in which the councilman of the ward in which the property is located could object to the cutting of said curb under provisions of ordinance No. 1941-50, which reads as follows:
"`Except as to residential property no permit shall be granted by the director of public service to cut the curb within any ward of the city unless and until written notice of the application for such permit has been given to the member of council from such ward. If within ten days after receipt of such notice such member of council shall notify said director in writing of his objection to the issuance of such permit, such permit shall not be issued except pursuant to resolution of council; otherwise such permit may be issued any time after the expiration of ten days following the said required notice to the member of council.'Page 567
"That the said councilman did so object, and that by reason of the objection of the councilman under the provisions of said ordinance, the permit to cut said curb is being held up to the irreparable damage of this plaintiff in that he has no means of ingress or egress to his property and no means of transporting the steel from where it is stored to the building which is now under construction.
"Plaintiff further says that the aforesaid ordinance No. 1941-50 is unconstitutional and void in that it illegally delegates the power and authority to an individual to deprive a property owner of the proper and legal use of his property and to prevent the property owner from obtaining the means of ingress and egress to his property and said ordinance violates the equal protection of the law guaranteed by the state and federal Constitutions."
The defendants' general demurrer to the petition was sustained by the Court of Common Pleas on the ground that the petition, failing to state that the city council had refused to grant the permit by resolution, discloses that the plaintiff had not exhausted its remedies and, therefore, was not entitled to an injunction.
the plaintiff not desiring to plead further, judgment was entered against it and the petition was dismissed at its cost.
An appeal on questions of law was prosecuted to the Court of Appeals which court reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings.
The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals and because it presents a question arising under the Constitution of this state.
The plaintiff as the owner of property abutting on a street has certain rights therein different from those of the general public. Such rights are discussed in the case ofCrawfordv.Village of Delaware,7 Ohio St. 459. The nature and extent of those rights are clearly stated in the opinion of Swan, J., as follows:
"Distinct from the right of the public to use a street, is the right and interest of the owners of lots adjacent. The latter have a peculiar interest in the street, which neither the local nor the general public can pretend to claim; a private right of the nature of an incorporeal hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidential title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be comparatively of little value. This easement, appendant to the lots, unlike any right of one lot-owner in the lot of another, is as much property as the lot itself."
This principle has been followed and applied in the following cases:Cincinnati Spring Grove Avenue Street Ry. Co.v.Villageof Cumminsville,14 Ohio St. 523;Callenv.Columbus EdisonElectric Light Co.,66 Ohio St. 166,64 N.E. 141, 58 L.R.A., 782; andCity of Toledov.Brown,130 Ohio St. 513,200 N.E. 750.
Of primary importance, therefore, to the owner ofPage 569abutting property is the right of access to the street. In most jurisdictions this right of access is held to be a proprietary right, an easement in the street attached to the estate in or ownership of property abutting on the street or alley, which cannot be appropriated to the use of the public without compensation. Such owner has rights or easements in the street adjacent to his property peculiar to himself and not enjoyed by others, particularly the right of ingress and egress.
An abutting owner, subject to municipal regulation, has the right to construct a driveway from his property for a necessary outlet into the traveled portion of the highway provided he does not unreasonably interfere with the public use of the street and provided further the construction is not forbidden by statute or ordinance. And even though a permit is required by statute to construct a driveway into a boulevard this does not mean that there can be an absolute denial to an abutting owner of a right to construct such driveway. 10 McQuillin on Municipal Corporations (3 Ed.), 651 and 675, Sections 30.54 and 30.64; 28 Ohio Jurisprudence, 616 and 619, Sections 391 and 392.
The plaintiff, therefore, being the owner of property abutting on the street in question, has a right of access thereto including a right, if necessary, to cut the curb and construct a driveway to provide ingress and egress, subject to the reasonable and lawful regulations which may be presented by ordinance of the council.
It is to be noted that this ordinance is negative in character in that it denies to the administrative officer the unqualified power to grant an application of one having other than residential property to construct a driveway into the street. The granting of the permit by the director of public service is conditioned on the approval by the member of the city council electedPage 570from the ward wherein the property is situated. Clearly the action of such councilman in no manner represents a legislative act by council. In such matter he is acting as an individual and as an individual he is not vested with any governmental authority of either a legislative or an administrative character.
It is well established by prior decisions of this court that such a delegation of power to any subordinate is unlawful unless as a part of such power standards are established by which such power is to be exercised. An uncontrolled discretion has invariably been held to be a delegation of legislative power. The following cases are illustrative:
In the case ofHarmonv.State,66 Ohio St. 249,64 N.E. 117, this court had under consideration a statute involving the licensing of steam engineers and which contained the following provision:
"Any person who desires to act as steam engineer, shall make application to any district examiner of steam engineers for a license so to act, upon a blank furnished by the engineer, and if, upon examination, the applicant is found trustworthy and competent, a license shall be granted him, to have charge of, or to operate any steam plant."
In discussing this provision the court made the following statement:
"By this section the examiner is made the exclusive judge as to whether an applicant is trustworthy and competent. No standard is furnished by the General Assembly as to qualification, and no specifications as to wherein the applicant shall be trustworthy and competent, but all is left to the opinion, finding and caprice of the examiner. He is the autocrat with unlimited discretion, without rules prescribing the qualifications of applicants for license, only so that he finds them trustworthy and competent. There being six districts and six examiners, each may have his ownPage 571notions as to what shall constitute an applicant trustworthy and competent, and so there may be in the first instance as many different standards in the state as there are examiners, whereas the standard should be uniform throughout the state."
The case ofCity of Cincinnativ.Cook,107 Ohio St. 223,140 N.E. 655, involved the same principle. In that case a city ordinance made it "unlawful for any driver or operator of any vehicle to permit his or her vehicle to stand on the south side of Pearl street in front of the passenger station of The Pittsburg, Cincinnati, Chicago St. Louis Railroad Company * * * unless the permission to stand has been granted by the person having the supervision over said passenger station."
This court held that such ordinance was invalid because of its attempted delegation of legislative power and for the reason that it was violative of the equal-protection-of-the-law guaranties of the state and federal Constitutions.
To the same effect seeCity of Clevelandv.Piskura,145 Ohio St. 144,60 N.E.2d 919; andWeberv.Board of Health,148 Ohio St. 389,74 N.E.2d 331, paragraph four of the syllabus of which is as follows:
"A resolution of the Board of Health of the Butler County Health District, which makes it unlawful to transport, deliver or deposit collected garbage for the purpose of feeding the same in whole or in part to swine or other animals into or within the territory under the jurisdiction of such board, but authorizes the health commissioner, without any standards for his guidance, to approve a system of collection and disposal of garbage and provides that after such approval the continuance of such system of collection and disposal shall not constitute a violation of the provisions of the prohibitory regulations, is an attemptedPage 572delegation of legislative power and is violative of the equal-protection guaranties of the state and federal Constitutions."
It is argued, however, that, even if the delegation of this authority to a single member of council is unlawful, under ordinance application may be made to the council which may take action under Section 3714, General Code, which vests in it the control of the streets.
It is to be noted, however, that in the ordinance in question no standard is established upon which the council, itself, may base its determination as to whether a particular permit shall be granted.
The following statement is pertinent:
"Administrative power and discretion may be and usually are vested in designated departments, boards or officials or in the municipal legislative body itself to grant, deny or revoke building permits. However, the authority vested in them cannot be a power of arbitrary decision in each case, uncontrolled by any general rule. In other words, the discretion must be made subject to a standard or rule to operate uniformly in all cases. An ordinance conferring upon officials unrestricted discretion in the granting or refusal of building permits is a denial both of equal protection and due process of law. Certainly, an ordinance conferring arbitrary and despotic power in this respect is void. Indeed, an ordinance cannot commit to the municipal legislative body itself, any more than to administrative officials, uncontrolled discretion as to permits for the erection of buildings and structures. Nor does charter power to regulate the granting of permits authorize the delegation to an officer or committee of power to make restrictions and regulations." 9 McQuillin on Municipal Corporations (3 Ed.), 484, Section 26.203.Page 573
In support of the principle thus stated the following cases from other jurisdictions are in point:Continental Oil Co.v.City of Twin Falls,49 Idaho 89,286 P. 353;Bowmanv.Board ofCouncilmen of City of Elizabethtown,303 Ky. 1,196 S.W.2d 730;City of Monticellov.Bates,169 Ky. 258,183 S.W. 555;Statev.Tenant,110 N.C. 609, 15 L.R.A., 423, 28 Am. St. Rep., 715,14 S.E. 387; andState, ex rel. Casto, v.Town of Ripley,95 W. Va. 521,121 S.E. 725.
It is urged that if the council refused to grant the permit the plaintiff could then seek relief by mandamus, but the court could not control the exercise of discretion. The plaintiff has an incorporeal hereditament consisting of a right of access which can be regulated only by the lawful exercise of the police power of the city. Such regulation must be provided by ordinance in which reasonable standards consistent with the needs of the public are established. The ordinance under consideration contains no standard of any kind, but attempts a delegation of legislative power, and in this respect is violative of the equal protection of the law guaranteed by the state and federal Constitutions.
The judgment of the Court of Appeals is affirmed.Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT and HART, JJ., concur.Page 574