City of Lakewood v. Thormyer
City of Lakewood v. Thormyer
Opinion of the Court
Lakewood first contends that Section 5521.01, Revised Code, does not authorize the director to journalize the appealed resolution of November 1, 1957, because the proposed relocation is not now on the f. a. p. highway system.
There is no doubt that, under the evidence, that portion of the f. a. p. highway system in the area involved here is now coincident with U. S. Routes Nos. 6 and 20 coming from the east through Cleveland, Lakewood and Rocky River and extending beyond through western Ohio, and has been for many years. It is also apparent from the evidence that, under the Federal Aid Highway Act (Section 101 et seq., Title 23, U. S. Code), a state may apply for federal aid at any period in the development of a project, viz., (a) preliminary surveys of proposed construction or reconstruction, (b) acquisition of rights of way and (c) aid in actual construction. The state, however, if it wishes federal aid, must before starting work submit to the Secretary of Commerce detailed construction plans and have his approval. Also a state may, as far as the federal act is concerned, construct a proposed improvement without federal funds. It is also apparent from the evidence that until now the director has not asked for any federal funds or submitted to the Secretary of Commerce actual construction plans. In fact no detailed construction plans have been made. It is also apparent from the record that when and if actual construction plans are made for this project they will be submitted to the Secretary of Commerce, and aid will be asked in pursuance to federal laws.
The improvement of highways is a complicated process. Old highways are not usually entirely rebuilt at one time. They are attacked at their weakest points. The elimination of a bad curve at one place, the relief of a bottleneck at another place or a bypass or the elimination of a railroad crossing or an intersecting highway underpass or overpass is common. Anyone driving on the highways of this state can see this process constantly going on. Can it be seriously argued that such changes in an existing highway, whether it be U. S. Highway 20, 40 or 62, destroy that highway as such? We do not think so. These relocations are constantly taking place. It is not necessary here to define how much of a change amounts to a relocation. But certainly when a new project takes off from the old route, traverses a néw route for several miles and later comes back into the old route, it is either a “reconstruction” or “relocation” of the old route, as those terms are used in Section 5521.01, Revised Code, and not the construction of a new highway.
With these observations in mind, a reading of this proviso clearly indicates that the same was intended to apply to existing f. a. p. highways and to include a relocation thereof and, if necessary in the opinion of the director, to establish such a highway as a limited-access highway. Both the federal law and the state law must be read together and harmonized in order to accomplish the end in view. If we were to hold with Lakewood that the director could not journalize his final entry under this section until he had applied to and secured the approval of the Secretary of Commerce of final construction plans and the designa
Prior to the invocation of Section 5521.01, Revised Code, the director, believing himself bound by Section 5511.01, Revised Code, advertised for a hearing on the proposed project. The holding of the hearing was contested by Lakewood in an injunction suit in the Common Pleas Court of Franklin County, which finally reached this court (motion to certify record overruled, January 15, 1958), and the relief sought was denied. The claim of Lakewood now is that by this action the director admitted that he was establishing a new highway. However, Section 5511.01, Revised Code, provides for such notice and hearing before, among other things, “making any changes in existing highways comprising the system.” .This section must be read in pari materia with Section 5521.01, Revised Code, and we hold that proceedings under the former section are a necessary prerequisite to instituting procedure under the latter section. It is more in the nature of a designation statute and leaves the director with full power to proceed or not as future developments may dictate. His acts could always be rescinded by like procedure.
Lakewood contends next that it was denied fair administrative consideration in that a former Director of Highways had on October 27, 1955, entered into an agreement with Cuyahoga County relative to the construction of a facility to relieve congestion at points under consideration, which in fact relates to the proposed project, and by which the state was bound and which precluded the present director from giving fair consideration to Lakewood’s objections thereto and from coming to an independent conclusion thereafter on the issues involved. The director argues that he was not bound by the contract but, if he was and is, he was only bound thereby to institute proceedings under Section 5521.01, Revised Code, if Lakewood would not consent, and to make certain reimbursements to Cuyahoga County on further engineering studies to be provided by Cuyahoga County as set forth therein.
In evaluating these contentions, a short sketch of'the history of this project is in order. As early as 1928 the need of relieving
In considering the proposition, we must also consider the proposition advanced by Lakewood that the Legislature, in delegating powers to the Director of Hivhwavs. has provided the director with no standards to guide him with respect to recommending a state highway to the Secretary of Commerce for approval as an f. a. p. highway. Lakewood contends also that there are no standards to guide the director as to urgent need or to what segments of highways are in need of repair, relocation, etc., as provided in Section 5521.01, Revised Code.
The standard stated in the latter section is: “When a federal aid * * * highway * *•* in the opinion of the director, is in urgent need of repair, reconstruction * * * or relocation.” This is practically the same standard as provided in Section 5501.11, Revised Code, and other statutes relating to his discretionary powers. If this standard should be declared insufficient the whole Highway Code would be of doubtful constitutionality. When we are considering the broad and detailed duties of a state director of highways under modern conditions and legislation, it is not only impractical but impossible to write into legislation specific standards of conduct which would embrace all possible contingencies which would confront a director in his manifold duties. Where such a situation exists and where such decisions must be made, a delegation of powers in general terms, depending upon the judgment of the one to whom the powers are delegated, is justified.
With this conclusion in mind and the history of this case before us, can we say as a matter of fact that the director in his entry of November l, 1957, did not consider all the previous history of the case and made an independent conclusion thereon? The contract of October 1955 contains 11 whereas clauses, two of which are cited by Lakewood in its brief upholding its contention, and two of which are cited by the director. The agreement is too lengthy to be copied herein, but after a study of the same it is our opinion that this agreement did not prevent the director from giving full consideration to all the factors involved in his final determination as evidenced by the resolu
Lakewood contends further that the proviso in Section 5521.01, Revised Code, which does not provide for a hearing on the director’s resolution and which contemplates a decision on undisclosed evidence and requires no findings of fact, denies Lakewood due process of law. With this we cannot agree. In the appeal provided for by this section, all questions of law and fact can be, and have been, raised as this court has heretofore determined in the case of State, ex rel. City of Lakewood. v. Linzell, 166 Ohio St., 98, 139 N. E. (2d), 45. Unless a statute specifically provides for an administrative appeal at certain stages of a case, this general appeal which contemplates a trial de novo on the facts and procedure involved does grant to Lakewood due process of law. The trial court placed the burden of proof on the director, considered this case as a trial de novo which it is and admitted all competent evidence concerning the history of the case. The entry of November 1, 1957, contains sufficient findings of fact as contemplated by the statute. Lakewood has not suggested what findings were necessary or withheld.
It is contended next by Lakewood that the evidence is legally insufficient to support the finding that the proposed highway is
The constitutionalitv of this proviso is further nupstioned by Lakewood in that the same delegates power to legislate contrary to Sections 1 and 2fi, Article II of the Ohio Constitution. The first section vests power to legislate solely in the Legislature and Section 26 prohibits the enactment of any law to take effect upon the act of any person or body other than the Legislature, except schools. The argument is that under this proviso and the Federal Highway Act legislative power is abdicated in favor of the United States in (hat the Secretary of Commerce and his subordinates have sole power to designate f. a. p. highways. This argument overlooks the fact that under state laws it is the duty of the director initially to propose to the secretary what highways are to be in the federal aid highway system. The secretary has no power to designate originally what highways are to be in the system. He has onlv the power of approval or veto. This does not constitute a delegation of legislative authority. It still remains with the director to say in the end what highways, if any, can belong to the federal system. The director’s discretion in this matter is no more or less than is granted to him in many other sections.of the Code in the maintenance and control of the highways of this state. The fact that a state highway is also an f. a. p. highway does not relieve the director of his primary obligation with reference thereto as a state highway, although if he wants federal funds in its main
Lakewood contends further that this proviso is unconstitutional as being in conflict with Section 3, Article XVIII of the Constitution of Ohio. This section provides:
“Municipalities shall have authority to exorcise 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.”
This court had that section under scrutiny in the case of State, ex rel. Ohio Turnpike Commission v. Allen, Secy -Treas. 158 Ohio St., 168, 107 N. E. (2d), 345. In that case it was alleged that the building of the Ohio turnpike through a municipality without its consent was a violation of this section and article. It was therein held that the building of a turnpike was not a matter of local self-government. Here we are dealing with an f. a. p. highway. Both are through routes of state-wide and national importance. While the ratio of through traffic and local traffic may be different and variable, an f. a. p. highway is
Lakewood contends further that the proviso is in violation of Section 26, Article II of the Constitution of Ohio, which provides that all laws of a general nature shall have uniform operation throughout the state. The basis of this contention is that the proviso does not apply to all streets and highways' within a municipality, and consequently, since the classification has no justifiable basis, the proviso must fall. That the subject of roads and highways-is one of general nature cannot be questioned. That the proviso applies to all municipalities and counties in the state is apparent. The question remains: Is the classification, “federal aid primary highway or federal aid interstate highway,” reasonable so as to justify taking away from municipalities the power under local self-government to decide where such highways within their boundaries will be located and the nature of the improvement? We think that it is. The lessons of World War II, the changing international picture since then, and the unexpected population increase in this state and nation, together with the attendant increase in motor-vehicle registration, have presented transportation problems undreamed of 25 years ago. The national concern is evidenced by the multibillion-doilar aid program authorized by the Federal Aid Highway Act. Most certainly, national defense was a prime consideration in this program. The situation is in continuous flux. With all the foresight of the past ten years, new problems continually arise with advanced technology. We can take judicial notice that even now many bridges and underpasses thought sufficient a few years ago must now be replaced to accommodate new missile and other defense weapon transportation. Naturally the route and design of a relocated facility on an f. a. p. highway or the designation of an f. a. p. highway is of concern and subject to the approval of both the Director of Highways and the federal authority. Local self-interest must give way to the general welfare.
The fear of Lakewood, that if the judgment below is affirmed
We hold that the proviso here is a constitutional enactment; that the procedure therein prescribed has been followed; and that on the facts the director was justified in making the determination which he made. The judgment is affirmed.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.