Rowe v. Cincinnati (City)

Ohio Court of Appeals

Rowe v. Cincinnati (City)

159 N.E. 492, 26 Ohio App. 87, 5 Ohio Law. Abs. 243, 1927 Ohio App. LEXIS 565

CourtOhio Court of Appeals

DecidedMarch 28, 1927

Docket3071

StatusPublished

Cited by4 cases

This text of 159 N.E. 492 (Rowe v. Cincinnati (City)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rowe v. Cincinnati (City), 159 N.E. 492, 26 Ohio App. 87, 5 Ohio Law. Abs. 243, 1927 Ohio App. LEXIS 565 (Ohio Ct. App. 1927).

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Opinion

CUSHING, J.

Harry Rowe, Jr. filed his petition in the Hamilton Appeals asking for an injunction to restrain the City of Cincinnati from enforcing Ordinance No. 289-1925 which make the maintenance of gasoline pumps on the sidewalk a misdemeanor punishable by a $100 fine, and authorizes the city to remove the gasoline pumps that are so placed. The grounds upon which he bases his plea for injunction are that the pumps have been in constant use since 1910 with the express consent of the City and to take them away is in violation of Art. XIV, Sec.

I.US. constitution and Art. I., Sec. 19 Ohio Constitution.

The Court of Appeals held:

1. These pumps were used in a private business; the permits were revoked and they were given almost two years within which to remove them.

2. Rowe had no property right in the street, and therefore, it was not taking property without due process of law. This being a penal ordinance the city had the right to arrest and fine him for a violation thereof.

3. All questions as to the validity of the ordinance and the rights the plaintiff had in the use of the street, could be raised'by him, in an action at law.

*244 Attorneys — Bettman, Riesenberg, Cohen & Steltenpohl for Rowe; John D. Ellis, City Sol., Bert H. Long; Ralph A. Kreimer, Asst, for City; all of Cincinnati.

4. Gasoline tanks, while no doubt useful to many persons using the public streets, constitute a non-essential and private use, a use for the gain of the owner of the stand, and not a use in a public or even quasi public capacity.

5. It follows that the permit to erect these gasoline pumps in the sidewalk did not vest any property right in plaintiff. Railroad v. Definance, 52 OS. 262; Heddleston v. Hendricks, 52 OS. 460.

Injunction denied.

(Hamilton, PJ., and Buchwalter, J., concur.)

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CUSHING, J.

Harry Rowe, Jr. filed his petition in the Hamilton Appeals asking for an injunction to restrain the City of Cincinnati from enforcing Ordinance No. 289-1925 which make the maintenance of gasoline pumps on the sidewalk a misdemeanor punishable by a $100 fine, and authorizes the city to remove the gasoline pumps that are so placed. The grounds upon which he bases his plea for injunction are that the pumps have been in constant use since 1910 with the express consent of the City and to take them away is in violation of Art. XIV, Sec.

I.US. constitution and Art. I., Sec. 19 Ohio Constitution.

The Court of Appeals held:

1. These pumps were used in a private business; the permits were revoked and they were given almost two years within which to remove them.

2. Rowe had no property right in the street, and therefore, it was not taking property without due process of law. This being a penal ordinance the city had the right to arrest and fine him for a violation thereof.

3. All questions as to the validity of the ordinance and the rights the plaintiff had in the use of the street, could be raised'by him, in an action at law.

*244 Attorneys — Bettman, Riesenberg, Cohen & Steltenpohl for Rowe; John D. Ellis, City Sol., Bert H. Long; Ralph A. Kreimer, Asst, for City; all of Cincinnati.

4. Gasoline tanks, while no doubt useful to many persons using the public streets, constitute a non-essential and private use, a use for the gain of the owner of the stand, and not a use in a public or even quasi public capacity.

5. It follows that the permit to erect these gasoline pumps in the sidewalk did not vest any property right in plaintiff. Railroad v. Definance, 52 OS. 262; Heddleston v. Hendricks, 52 OS. 460.

Injunction denied.

(Hamilton, PJ., and Buchwalter, J., concur.)

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Bluebook (online)

159 N.E. 492, 26 Ohio App. 87, 5 Ohio Law. Abs. 243, 1927 Ohio App. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowe-v-cincinnati-city-ohioctapp-1927.

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