Bazell v. City of Cincinnati

233 N.E.2d 864, 13 Ohio St. 2d 63, 42 Ohio Op. 2d 137, 1968 Ohio LEXIS 465
CourtOhio Supreme Court
DecidedJanuary 24, 1968
DocketNos. 41118 and 41386
StatusPublished
Cited by39 cases

This text of 233 N.E.2d 864 (Bazell v. City of Cincinnati) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bazell v. City of Cincinnati, 233 N.E.2d 864, 13 Ohio St. 2d 63, 42 Ohio Op. 2d 137, 1968 Ohio LEXIS 465 (Ohio 1968).

Opinions

Taft, C. J.

In each case, the record disclosed that the proposed stadium is designed to accommodate large crowds (approximately 50,000) at athletic and other exhibitions, including major league baseball and major league football games.

In the injunction case, it is contended that the city may not erect and maintain the stadium with public funds because the stadium is “designed to peculiarly benefit a few individuals rather than the public in general.”

In support of that contention, the plaintiff states that those who will use the stadium are to pay less for that use than will be required to erect and maintain it, and that as a [67]*67result a substantial anticipated loss to the city will have to be absorbed by its taxpayers.

There is in the record a report of certain experts as to estimated annual net revenues of about $1,300,000 available for fixed charges on the county’s revenue bonds. In arguing that there will be an annual deficit of $700,000 in the amount available for debt charges on the bonds, plaintiff has apparently used a figure of $2,000,000 as representing the amount of those charges. That figure appears to be reasonable. However, there is in the record the proposal to lease the stadium, made by the owners of the major league baseball team known as the Cincinnati Reds. A consideration of this lease with the foregoing report indicates that there may be, if the estimates as to attendance and parking and advertising revenues of the report are correct and no unforeseen complications arise, substantially more net revenue than the amount which the foregoing report had estimated would be received from the major league baseball use of the stadium. - ■

Unfortunately, the evidence, as to anticipated revenues and the requirements for debt service, especially in the absence of any analysis thereof in the brief of either party, is very sparse and quite vague. Thus, we cannot determine from the record whether the proposed stadium operations will or will not provide the city with enough money for payments on its proposed lease from the county. Since the burden of proof was on plaintiff on this issue, we must com elude that the record does not reasonably support a finding that a substantial amount of the rental on the lease from the county will have to be provided for by taxation. Therefore there is no basis in the record for plaintiff’s contention that the stadium is “designed to peculiarly benefit a few individuals rather than the public in general.”

Plaintiff in the injunction case also contends that'the city is not authorized to erect and maintain a stadium, to rent it to private persons for their use and profit, or to rent advertising space on its scoreboard.

In support of these contentions, it is argued that a city is limited in its activities to those specified in the Revised [68]*68Code. However, by reason of Sections 3 and 7 of Article XVIII of the Ohio Constitution, a charter city has all powers of local self-government, except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of a municipality which the Constitution has authorized the General Assembly to impose. See paragraph three of the syllabus of State, ex rel. Gordon, v. Rhodes (1951), 156 Ohio St. 81, 100 N. E. 2d 225, and State, ex rel. Bruestle, v. Rich (1953), 159 Ohio St. 13, 110 N. E. 2d 778. For examples of such authorizations of statutory limitations, see Section 13 of Article XVIII and Section 6 of Article XIII of the Ohio Constitution.

As stated in paragraph two of the syllabus of the Gordon case:

“The determination of what constitutes a public municipal purpose is primarily a function of the legislative body of the municipality, subject to review by the courts, and such determination by the legislative body will not be overruled by the courts except in instances where that determination is manifestly arbitrary or unreasonable.”

In support of these contentions, plaintiff cites Cleveland v. Board of Tax Appeals (1951), 153 Ohio St. 97, 91 N. E. 2d 480, and Board of Park Commissioners of Troy v. Board of Tax Appeals (1954), 160 Ohio St. 451, 116 N. E. 2d 725, which followed it. These cases, especially the Cleveland case, involved the question whether operations, comparable to the proposed operations of Cincinnati with respect to its stadium, amounted to uses of property such as the stadium exclusively for public purposes.

As recognized in Columbus v. Delaware (1956), 164 Ohio St. 605, 132 N. E. 2d 747; Cleveland v. Board of Tax Appeals (1958), 167 Ohio St. 263, 147 N. E. 2d 663; and Graf v. Warren (1967), 10 Ohio St. 2d 32, 225 N. E. 2d 262, there may be public purposes of a proprietary nature.

All opinions in Cleveland v. Board of Tax Appeals, supra (153 Ohio St. 97), recognize that the use of the Cleveland stadium represented a use for public purposes. The majority opinion merely held that there was no exclusive [69]*69use for such purposes and that such an exclusive use was required for tax exemption.

As stated in my opinion in that case, at page 131:

“ In a large city the opportunities for open-air athletics are limited and yet the need therefor is greater than in less congested communities. That need is of the same nature as the need that results in a city providing public parks for its citizens. In this country, baseball and football are national pastimes and a great source of public relaxation and entertainment. No one will question the extent of the public interest in the activities of the Cleveland professional baseball and football teams.
“The construction and operation of modern open-air stadiums have not been developments of private enterprise. They originated in the athletic needs of schools and colleges and have been undertaken generally as municipal functions throughout the country. Even if the development and operation of such an enterprise were left to private initiative, it would require so much governmental policing and regulation that such policing and regulation alone might represent the largest part of its operation. To best answer public needs, such an enterprise should be as near the center of the city as possible. Crowds running up to 85,000 cannot be safely handled in the center of a large city except by public authority. Order must be maintained inside and outside the building. These traffic and police problems and the public evils that might arise from sale of intoxicating liquors and from gambling, if the enterprise were not conducted as a public enterprise, are important factors which justify the conduct of such enterprise at all times under governmental supervision.”

In Cleveland v. Carney (1961), 172 Ohio St. 189, 174 N. E. 2d 254, the syllabus reads:

“A municipal auditorium and exhibit hall owned by a city, staffed and supervised in all its uses by city employees and officials and intended and used for trade shows, conventions, meetings of various civic, religious and educational institutions, and concerts and shows which are open to the public for a fee and which are promoted, and con[70]

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Cite This Page — Counsel Stack

Bluebook (online)
233 N.E.2d 864, 13 Ohio St. 2d 63, 42 Ohio Op. 2d 137, 1968 Ohio LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bazell-v-city-of-cincinnati-ohio-1968.