Opinion
No. 23991
Decided June 21, 1933.
Municipal corporations — Vacating streets by common pleas court — Section 3730, General Code — Applicable to city-owned streets — Statute not violative of due process or local self-government — Article XIV, Amendments to U.S. Constitution and Section 3, Article XVIII, Ohio Constitution — Charter and statute requiring approval of city planning commission or council — Section $4366-2, General Code.
ERROR to the Court of Appeals of Hamilton county.
The defendants in error Wess and Dempsey, plaintiffs below, filed their petition in the court of common pleas of Hamilton county, asking for the vacation of a street or avenue in the city of Cincinnati. The city was made a party to the suit. The other defendants in error, claiming to be owners of abutting property, were made parties to the suit by order of court. The Street Railway Company answered, admitting the allegations contained in the petition, joined in the prayer for vacation, and requested, if vacation were ordered, that the easements in its water mains and sewers be reserved to it. The city filed an answer containing three defenses; the first being a general denial. Its second defense was in substance that it had established a city planning commission and had adopted a city plan, and that, therefore, under the provisions of law, no street in the city could be vacated except by acquiring the approval of the city planning commission, or approval by an overriding two-thirds majority of council. The third defense alleged that the vacation of the avenue is a matter of purely local concern, and that, therefore, under the provisions of Section 3 of Article XVIII of the Ohio Constitution, the subject-matter is exclusively within the control of the city and subject to the city laws and charter. The petitioners demurred to the second and third defenses, and the court of common pleas sustained the demurrer to both, and, upon the general issue presented by the first defense, found for the petitioners and ordered the vacation pursuant to the provisions of Section 3730, General Code, reserving to the city, however, certain easements for sewer and water main purposes. The Court of Appeals affirmed the judgment, 45 Ohio App. 185, and the cause was filed in this court as a matter of right.
Mr. John D. Ellis, city solicitor, and Mr. Ed. F. Alexander, for plaintiff in error.
Messrs. Phillip S.C. Roettinger and Mr. Sol Goodman, for defendants in error Wess and Dempsey.
Messrs. Waite, Schindel Bayless, for defendants in error the Baltimore Ohio Southwestern Railroad Company and the Real Estate Improvement Company of Baltimore City.
Section 3730, General Code, provides that, on petition filed in the court of common pleas for the vacation of a street, the court upon hearing, and being satisfied that it will conduce to the general interest of the municipality, may declare the street vacated; and that the remedy shall be in addition to those prescribed in the same title.
The chief contention of the city is that this section is not intended to apply to city owned streets, and that if it does apply, it amounts to a taking of the city's property without due process and in violation of the Fourteenth Amendment to the Federal Constitution; and furthermore that the section infringes upon Section 3, Article XVIII, of the Ohio Constitution, which confers powers of local self-government upon municipalities. It is also contended that, if applicable to city streets, the provisions of the section conflict with the city charter provisions prohibiting the vacation without approval of the planning commission, or by an overriding two-thirds majority of the city council.
There is no violation of the due process clause in suits for vacation instituted under Section 3730, General Code, for ample remedy for damages sustained has been provided in the succeeding sections; and since that section is in general terms and unrepealed, it applies to city streets, title to which rests in the city. The provisions of Section 4366-2, General Code, and those of the city charter, pertaining to the planning commission and the location and construction or vacation of streets, are substantially similar in respect to the requirement of the planning commission's approval; or, in case of its disapproval, an overruling by two-thirds majority of the city council; and in that respect there is no conflict between the state law and the city charter. Since neither the charter nor state statutes pertaining to planning commissions furnish any judicial steps or proceedings whereby lot owners affected may obtain redress, or damages in case of vacation, that field of legislation has not been occupied by the city charter and there is no conflict between the charter provisions and Sections 3730 et seq., General Code, which do provide judicial process. Had the city charter and ordinances provided such process, the question of their constitutional validity would be directly presented.
Section 3730, General Code, was not expressly repealed, and we are of opinion that there was no implied repeal in the adoption of Section 4366-2, General Code, and that the city charter provisions were not intended to supersede Section 3730, General Code.
The common pleas court had jurisdiction to hear and determine the vacation proceedings therein instituted. The judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, STEPHENSON, JONES and MATTHIAS, JJ., concur.
BEVIS, J., not participating.
I dissent from the judgment upon the ground that Section 3730, General Code, infringes upon the right of local self-government conferred upon charter cities under Section 3, Article XVIII, of the Ohio Constitution. Certainly the streets within a city are peculiarly a subject of local self-government.