Municipal Regulations Governing Use of Streets Might Be Enacted Pursuant to the Municipal Police Power

In these three cases: Schneiderman v. Sesanstein (1929), 121 Ohio St. 80, 7 Ohio Law Abs. 349, 167 N.E. 158; Lorain Street Rd. Co. v. Pub. Util. Comm. (1925), 113 Ohio St. 68, 3 Ohio Law Abs. 377, 148 N.E. 577, 23 Ohio L. Rep. 318; State ex rel. Klapp v. Dayton Power & Light Co. (1967), 10 Ohio St. 2d 14, 39 Ohio Op. 2d 9, 225 N.E.2d 230; The Court found that certain municipal attempts to control the use of municipal streets do involve an exercise of the municipal power to enact police, sanitary, and similar regulations rather than an exercise of a "power of local self-government" (narrowly construed). What is noteworthy about these cases is not that they found that municipal regulations governing use of streets might be enacted pursuant to the municipal police power, but that these cases assumed, or concluded without explanation, that the municipal police power was the only basis of the municipal regulations at issue. In Schneiderman v. Sesanstein (1929), 121 Ohio St. 80, 167 N.E. 158, the Ohio Supreme Court held that a municipal speed-limit ordinance was a police regulation and was invalid because it conflicted with the general law of the state. Unfortunately, for our purposes of trying to glean the principles for determining when, if ever, regulation of the use of public ways is an exercise of the powers of local self-government, the court simply assumed without explanation that local traffic regulation was a form of local police regulation rather than an exercise of a municipality's power of local self-government (narrowly construed). There is a reasonable basis for concluding that municipal regulation of ordinary vehicular traffic on municipal ways can be accomplished only by local police regulation. The fee to streets within municipalities in Ohio rests in trust in the municipality for street purposes. Vernon v. Warner Amex Cable Communications, Inc. (1986), 25 Ohio St.3d 117, 25 OBR 164, 495 N.E.2d 374. Since the public is the beneficiary of the trust, the municipality, as legal owner of the trust property, must allow the public to use its streets for ordinary transportation purposes. State ex rel. Crabbe v. Sandusky, Mansfield & Newark Rd. Co. (1924), 111 Ohio St. 512, 3 Ohio Law Abs. 5, 146 N.E. 58, 22 Ohio L. Rep. 666. Consequently, a municipality has no power deriving solely from its legal ownership of streets to set conditions for the transfer of the right to use the streets for ordinary transportation purposes. Members of the public already possess that right merely by virtue of being beneficiaries of the trust. Thus, the only way a municipality can regulate the public's use of its streets for ordinary transportation purposes is through exercising its municipal police power. Hence, the Schneiderman court had a reasonable basis for its assumption that the traffic ordinance it was considering was necessarily a police regulation.