Parkway Cabs, Inc. v. Cincinnati City

3 N.E.2d 630, 52 Ohio App. 195, 21 Ohio Law. Abs. 27, 6 Ohio Op. 296, 1935 Ohio App. LEXIS 302

• Court: Ohio Court of Appeals
• Decided: November 25, 1935
• Docket: No 4879
• Status: Published

Opinions

OPINION

By HAMILTON, J.

Plaintiff in error, Parkway Cabs, Inc., was convicted in the Municipal Court of Cincinnati on the charge of unlawfully parking its automobile within twenty feet, of a water plug, which is used by the Fire Department of the City of Cincinnati, in violation of §74-102 of the Code of Ordinances of the City of Cincinnati. From that conviction, Parkway Cabs prosecuted error to the Court of Common Pleas, which court affirmed the conviction. Error to the judgment of the Court of Common Pleas is prosecuted to this court.

The question of error stressed is that the conviction and judgment are contrary to law.

The bill of exceptions discloses that an officer of the police department found the motor vehicle, having printed thereon the name “Parkway Cabs, Inc.” parked within two feet of the fire plug, that there was no person in the vehicle, but that there were several drivers and employes of the defendant company nearby; that the officer made no effort to find out from the officials of the Parkway Cabs, Inc., the cilice of which was located across the street, the name of the person having control of, or having parked said vehicle. Upon this evidence, conviction was had.

It will be noted that the affidavit charges a violation of ordinance 74-102.

It is argued in the oriel lor the City that there was a violation by the defendant company of §74-102 of the Code of Ordinances of the City of Cincinnati.

We have examined the ordinances of the city and find in the annual supplement of 1932 that 574-102 or the ordinances refers to right of way at intersections only and makes no mention of fire plugs. If the .prosecution was under this section there is no violation shown.

We do find on further examination of the Act of 1928 in §74-148 of the Code of Ordinances the provision that “it shall be unlawful to park any vehicle within twenty feet of any fire hydrant, 4 * 4” No express penalty is attached to this §74-148. There is a general penally which provides “Whoever shall violate any of the provisions of any of the sections of this chapter * 4 4 shall be fined, etc.” It will be noted that this general penalty section uses the word “whoever.” In the case of Ebert Brewing Co. et v State of Ohio, 2 O.C.C. 537, it is held that the words “whoever” and “person” are synonymous. In the case of State of Ohio v Cincinnati Fertilizer Co., 24 Oh St, 611, it is stated in the syllabus that: “A corporation is not a ‘person’ within the meaning of the Act of April 15, 1857, 4 4 4” The opinion in the case is as follows:

“We think the court below was right. Criminal laws are to be construed strictly in favor of the accused. In its primary sense, the word ‘person’ means a natural person only. I know of no criminal statute in Ohio where the word has been held to apply to a corporation; nor do I know of any case where an attempt has before been made in this state to indict a corporation. We have no common-law crimes in Ohio, and the whole theory and machinery of our administration of criminal law seem adapted only to the prosecution and punishment of natural persons. There is no provision of law for bringing an indicted party into court by summons, or otherwise than by actual arrest of his person. Under such a state of legislation and practice, the legislature could not have intended, in the use of the word ‘person’, which is found in almost every criminal law of the state, to authorize an indictment against a corporation for this particular offense, without any special or further provision as to the liability of corporations, or the mode of proceeding' against them.”

Waiving the proposition that the case is not brought under the proper section, the established law is that the.word “whoever” is synonymous with the word, “person”, and that the word “person” means a natural person only, and in the absence of further provision in the ordinance as to the amenability of corporations to the ordinance, the judgment of the Municipal Court was contrary to law. It follows that the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is likewise contrary to law.

This opinion is based on the proposition that this court on review of a decision of the Municipal Court of Cincinnati will take judicial notice of the ordinances of the city, since the Municipal Court takes judicial notice of them. And the further proposition that the Code of Ordinances of the City of Cincinnati issued in 1928 and the supplement of 1932 contain the ordinances in force at the time of the offense charged in the affidavit. If there are later ordinances in point, we do not have access to them and the briefs do not discuss the ordinances in any form.

The judgments of the Municipal Court and of the Court of Common Pleas, affirming the Municipal Court, are reversed and held for naught, and judgment will be entered here dismissing Parkway Cabs, Inc., from prosecution under the charge, and it is hereby released from answering thereto.

Costs will be taxed against the City of Cincinnati, defendant in error.

ROSS, PJ, concurs. MATTHEWS, J, dissents.