Geauga County Board of Commissioners v. Munn Road Sand & Gravel

67 Ohio St. 3d 579
CourtOhio Supreme Court
DecidedNovember 17, 1993
DocketNo. 92-1503
StatusPublished
Cited by31 cases

This text of 67 Ohio St. 3d 579 (Geauga County Board of Commissioners v. Munn Road Sand & Gravel) 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
Geauga County Board of Commissioners v. Munn Road Sand & Gravel, 67 Ohio St. 3d 579 (Ohio 1993).

Opinion

Alice Robie Resnick, J.

This case presents one issue for our consideration: Is R.C. 4511.07 an express grant of authority to a board of county commissioners to regulate traffic in the county? For the reasons which follow, after careful review, we determine that it is not. We affirm the judgment of the court of appeals.

The county commissioners relied on R.C. 4511.07(1) as their authorization to enact Resolution No. 90-9 to prohibit through truck traffic on certain county roads. R.C. 4511.07 provides:

“Sections 4511.01 to 4511.78, 4511.99, and 4513.01 to 4513.37 of the Revised Code do not prevent local authorities from carrying out the following activities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power:
it * ‡ ‡
“(I) Regulating the use of certain streets by vehicles, streetcars, or trackless trolleys.” (Emphasis added.)

The court of appeals, focusing on the words “do not prevent,” in the first paragraph of R.C. 4511.07, determined that R.C. 4511.07 is not an express authorization to regulate traffic. In so ruling, the court of appeals resolved this case on a ground fundamentally different from that urged by Kuhnle Bros. Although Kuhnle Bros, argued in the court of appeals that Resolution No. 90-9 was beyond the authority of the county commissioners to enact, Kuhnle Bros, did [582]*582not specifically argue that R.C. 4511.07 is not an express authorization to a board of county commissioners to regulate traffic.1

Prior to the issuance of the court of appeals’ opinion, all parties to this appeal apparently assumed that R.C. 4511.07 does provide an express grant of power to a county. The court of appeals, in resolving this case, appears to have taken a view of R.C. 4511.07 which departs from previous interpretations of the statute. We thus must determine the correct construction of R.C. 4511.07, as it applies to the “local authorities” in this case, Geauga County.

As a starting point for our analysis, we consider the scope of the powers which may be exercised by different types of political subdivisions in our state. While municipalities and counties (along with certain other entities) are considered “local authorities” for purposes of regulating traffic within their respective jurisdictions, see R.C. 4511.01(AA), the traffic regulation powers which a municipality and a county may exercise are by no means coextensive.

Municipalities, pursuant to the powers granted by Section 3, Article XVIII of the Ohio Constitution (the so-called Home Rule Amendment), “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.” Before 1912, the time of the adoption of the Home Rule Amendment, municipalities could exercise only those powers delegated by statute. The adoption of Section 3, Article XVIII of the Constitution worked a fundamental change upon the powers of municipalities. See Perrysburg v. Ridgway (1923), 108 Ohio St. 245, 255, 140 N.E. 595, 598. In Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph one of the syllabus, the court held: “Municipalities in Ohio are authorized to adopt local police, sanitary and other similar regulations by virtue of Section 3, Article XVIII, of the Ohio Constitution, and derive no authority from, and are subject to no limitations of, the General Assembly, except that such ordinances shall not be in conflict with general laws.”

Counties, on the other hand, may exercise only those powers affirmatively granted by the General Assembly. State ex rel. Shriver v. Belmont Cty. Bd. of Commrs. (1947), 148 Ohio St. 277, 35 O.O. 286, 74 N.E.2d 248, paragraph two of the syllabus; Portage Cty. Bd. of Commrs. v. Gates (1910), 83 Ohio St. 19, 30, 93 N.E. 255, 259; Lake Cty. Commrs. v. Ashtabula Cty. Commrs. (1873), 24 Ohio St. [583]*583393, 401. Therefore, in the absence of a specific statutory grant of authority, a board of county commissioners is powerless to enact legislation.2

The method for determining whether a particular power is within the authority of a political subdivision is completely different for a non-charter county than it is for a municipality. A county is presumed not to have authority to regulate in a particular area, unless a statute affirmatively authorizes the regulation. For a municipality, however, the presumption is in favor of the authority to regulate. No specific grant of authority from the General Assembly is necessary.

Analyzing R.C. 4511.07 in light of the above considerations, we find that the “do not prevent” provision in the first paragraph of the statute obviously is phrased with regard to the powers which may be exercised by a municipality. A municipality may regulate in an area whenever the regulation is not in conflict with general laws. See Struthers, supra, paragraph one of the syllabus. R.C. 4511.07, by providing that local authorities are not prevented from enacting certain regulations, is couched in terms of the conflict analysis of cases such as Struthers. The statute, by this language, takes a home rule approach, and is stated in home rule terms.

In our consideration of whether R.C. 4511.07 serves as a specific grant of authority to a county, we encounter the unquestioned proposition that a county does not have authority to regulate unless the General Assembly affirmatively grants it. The grant must be in clear and certain terms. Because the presumption is against authority, the grant must be strictly construed. R.C. 4511.07, by stating that certain statutes “do not prevent” local authorities from regulating, effectively provides on its face that those statutes do not stand in the way of regulation in these areas. This is not the same as providing that a county is authorized to regulate. Because the statute is phrased in the negative, it does not affirmatively grant powers to a county, which exercises only limited authori[584]*584ty.3

In Columbus v. Webster (1960), 170 Ohio St. 327, 10 O.O.2d 419, 164 N.E.2d 734, this court considered the validity of a parking regulation enacted by the city of Columbus. After quoting Section 3, Article XVIII of the Ohio Constitution, the court stated: “[0]ur Constitution gives to municipalities the broad authority to adopt police regulations (city ordinances) which are not in conflict with general laws. Not only is the ordinance in question not in conflict with such laws, it is in fact authorized by Section 4511.07, Revised Code, quoted above.” Id. at 330, 10 O.O.2d at 421, 164 N.E.2d at 736. The issue in Webster was not whether Columbus had the authority to regulate traffic. As the court recognized, a municipality has the authority, as part of its home rule powers, to enact a police regulation which does not conflict with general laws of the state.

To the extent that Webster seemed to indicate that a municipality’s authority to regulate traffic comes from R.C. 4511.07, we clarify Webster’s dictum regarding the statute. R.C. 4511.07 provides that the municipality’s exercise of power in this way is not prevented

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Bluebook (online)
67 Ohio St. 3d 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geauga-county-board-of-commissioners-v-munn-road-sand-gravel-ohio-1993.