357 N.E.2d 402 | Ohio Ct. App. | 1976
Lead Opinion
These cases were consolidated for trial. Each of these defendants was found guilty of violating a Euclid ordinance proscribing the parking or storage of trailers unless parked or stored in enclosed structures. The defendants appeal under a single number and each raises the identical issues on appeal. There are four assignments of error:
For reasons assessed below the judgments against the defendants in this appeal must be reversed.
We have had occasion to uphold this same ordinance against a claim of unconstitutionality on its face, City of Euclid v.Paul (1974, Ct. of App., 8th Dist., Case No. 33024, Mot Cert. Den. 1974). However, Assignments of Error Nos. 1 and 2 demonstrate that the current challenge is based on different grounds.
". . . before the ordinance can be declared unconstitutional . . . such provisions [must be] clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. . . ."2 (Brackets supplied.)
Approximately six months earlier the Ohio Supreme Court had expressed the same Due Process sentiments in upholding a zoning ordinance against federal and state constitutional attack:
". . . If the ordinance discloses no purpose to prevent some public evil or to fill some public need, and has no real or substantial relation to public health, morals, and safety, it must be held void. When, however, legislation does have a real and substantial relation to the prevention of conditions detrimental to the public health, morals, or safety, no matter how unwise the measure itself seems to individual judges, it is not for the judicial tribunals to nullify it upon constitutional grounds." (citations omitted.)3
However, despite wind signs and even some cases to *300
the contrary in other jurisdictions, Westfield Motor Sales Co. v.Town of Westfield (1974),
In determining whether a statute or ordinance satisfies constitutional requisites it is common to find Equal Protection considerations commingled with Due Process issues. Frequently, if not always, police power regulation involves classification. If the process of classifying is unreasonable, there are obvious overlapping considerations of Due Process and Equal Protection. Because the concepts tend to run into each other, they are discussed together.
As a preliminary to that discussion we note that in this case we are not considering a classification involving a right so fundamental that the category is suspect.6 Therefore, the City need not show a compelling state interest to justify the classification.7 Equal Protection considerations are satisfied "if any state of facts reasonably may be conceived to justify" them.8 Of course, Equal Protection requires that regulatory legislation regulate impartially, Yick Wo v.Hopkins (1886),
A short review of the facts will illustrate the constitutional inadequacies of the ordinance.
The operative element in the enactment is the requirment that trucks, trailers, house trailers, auto trailers, or trailer coaches not be parked in the proscribed zones unless parked or stored in a "completely enclosed structure."9 The evidence indicates that whatever factors detrimental to public health, safety, morals or welfare inhere in parking the designated vehicles in the open, these factors are not bettered, and may be worsened, by enclosing them.
There was testimony in support of the regulation that a trailer parked in a driveway would interfere with access for fire fighting equipment (Tr. 119, 148, 250, 311), that it would serve as a conduit for fire (Tr. 88, 147, cf. 324), that a trailer was more difficult to move than a car (Tr. 96, 312, 318), that trailers parked in residential areas lowered property values (Tr. 263-264, 275) and, if parked in driveways with attached garages, would extend over the property lines of the houses and create safety hazards by obstructing the view of street traffic (Tr. 306). There was also a rather consistent incidental theme of esthetic detriment running through the testimony of a number of witnesses for the City (see, p. e., Tr. 41, 87, 111, 241, 267, 282).
This evidence standing alone would seem to warrant upholding the ordinal regulation. And, in the light of credibility and fact-finding functions of the trier of the facts (in this case the court) it is no rebuttal of this conclusion *302 to point to conflicting testimony.10 The responsibility of the judge to determine credibility also disposes of conflicting testimony respecting esthetic considerations (cf. Tr. 242).
Where, then, are the Due Process and Equal Protection vices of the ordinance? They lie in the indisputable fact that enclosing vehicles classified as trailers does not change the fire hazard propensities; does not enlarge health safeguards. Indeed, it is clear beyond peradventure that enclosure may diminish health and safety factors by trapping sewage spillage from portable sanitary facilities (Tr. 335, 349, 350) and collecting highly flammable escaping propane gas which would otherwise be dissipated in the air (Tr. 333, 348). These are factors too obvious to be resolved on mere credibility determinations. They point up the arbitrariness and unreasonableness of the attempt to regulate. Uncontravertible evidence also supports the Equal Protection violation in requiring vehicles in the trailer classification to be enclosed. This evidence is to be found in omission of boats from the proscription unless parked on trailers — despite the obvious fact that non-trailer boat parking so decreases mobility that a boat so stationed is a greater safety hazard than one capable of movement on wheels.
This posture of the evidence leads us to conclude that the ordinance as applied contravenes both Due Process and Equal Protection and is void. Assignments of Error Nos. 1 and 2 have merit. Accordingly, the convictions of these defendants are invalid.
The separation of witnesses during trial is a matter within the discretion of the trial court, see Piening v. Titus, Inc.
(1960),
The third assignment of error is without merit.
No case has been cited or found applying Ohio Revised Code §
Of course, the defendants were free to examine the subpoened officials as on cross had they shown themselves entitled to the advantages of one of the exceptions to the rule that a party may not cross-examine his own witness.13 They did not.
The fourth assignment of error is without merit. *304
The judgments below are reversed and the defendants in this appeal discharged.
Judgments reversed.
KRENZLER, C. J., and JACKSON, J., concur.
"No person shall park or store any type of truck, trailer, auto trailer or trailer coach in a U1, U2, or U3 use district either on public or private property (including the public street or highway), except to make pickups or deliveries, unless such truck, trailer, house trailer, auto trailer or trailer coach is parked or stored in a completely enclosed structure." (Emphasis supplied.)
Concurrence Opinion
I concur in the judgment of reversal based on the particular ordinance involved and the evidence presented. This does not mean that a municipality does not have the right under its police powers to regulate storage of vehicles other than automobiles in residential areas. However, the legislative enactment must be based on health, safety, morals or public welfare objectives. Further, the government agency has the burden of proving a violation of the ordinance by competent evidence.