City of Marietta v. Barth, Unpublished Decision (12-22-1999)
City of Marietta v. Barth, Unpublished Decision (12-22-1999)
Opinion of the Court
FIRST ASSIGNMENT OF ERROR:
"THE COURT ERRED IN INTERPRETATION OF CITY ORDINANCE NO. 339.02(C)(1) WHICH THE COURT RULED PROHIBITED APPELLANT FROM DRIVING ON GLENDALE TO COLEGATE TO STATE ROUTE 26 TO HIS DESTINATION IN THE CITY."
SECOND ASSIGNMENT OF ERROR:
"THE COURT ERRED IN RULING THAT CITY ORDINANCE NO. 339.02(C)(1) PROHIBITED ALL TRUCKS FROM ENTERING THE CITY UNLESS IT ENTERED ON AN ESTABLISHED TRUCK ROUTE."
A brief summary of the facts pertinent to this appeal is as follows. On the morning of October 9, 1998, appellant was hauling milk from "Hartline Dairy" (outside the City limits of Marietta) to the "Broughton Milk Company" plant (inside City limits). He was travelling along Colgate Drive in Marietta, at approximately 6 AM, when Patrolman Hickey of the Marietta Police Department pulled him over and issued a Uniform Traffic Citation charging him with violation of Marietta City Ordinance No. 339.02 (hereinafter referred to as "the ordinance") which generally prohibits trucks from driving in the City except upon established truck routes.1
The matter came on for a bench trial on November 16, 1998, at which time Patrolmen Hickey confirmed that Colgate Drive was not an established truck route through the City and that appellant had therefore violated the ordinance. Patrolman Hickey recounted that he had stopped appellant in the past to warn him that it was not permissible to travel over Colgate Drive and that he had explained to appellant that alternate routes were available to reach the same destination. Appellant, who represented himselfpro se below, stated that he had previously been told trucks were permitted on Colgate Drive. In any event, appellant continued, there was no other way to reach his destination but to go over Colgate Drive. Both the trial court and the prosecutor tried to explain alternate routes to appellant but he objected on grounds that he did not "agree with that" or that such routes would force him to "drive out of [his] way." The trial court was undeterred and found appellant guilty. Judgment to that effect was entered the same day and appellant was given a $25 fine plus court costs. This appeal followed.
We shall jointly consider both assignments of error.2 Although not exactly a model of clarity, the gist of appellant's argument(s) seem to be that (1) there is no access to either Hartline Dairy or Broughton Milk Company over established truck routes and (2) as a result thereof, the ordinance deprives him of "a property right without recompense" as well as "equal protection of the law." We reject these arguments for several reasons.
First, the record contains no evidence whatsoever to substantiate appellant's claim that there is no access to these places by established truck routes. Indeed, if anything, the record shows several routes being explained to appellant at trial and him rejecting them because they made him drive "out of [his] way." The burden was on appellant to prove that there was no other access to these locations but he failed to carry that burden below.3 Second, even if there is no access, appellant waived any claim that the ordinance violated his constitutional rights. It is well settled law that the failure to raise the issue of a statute's constitutionality at the trial level results in a waiver of that issue on appeal. See State v. Zuern (1987),
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
KLINE, P.J.: Concurs in Judgment Opinion
EVANS, J.: Not Participating
For the Court
By: _________________________ PETER B. ABELE, Judge
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