Blackman v. Cincinnati

Full title: BLACKMAN ET AL., APPELLANTS v. CITY OF CINCINNATI, APPELLEE

Court: Supreme Court of Ohio

Date published: May 27, 1942

42 N.E.2d 158 (Ohio 1942)

42 N.E.2d 158

Opinion

No. 28850

Decided May 27, 1942.

Eminent domain — Defined — Exercise of power depends upon statutory authorization — Appropriation of private property by governmental agency without authority, not compensable — Municipality not liable for damage to property of person aiding policeman — Section 12857, General Code, inapplicable — Assisting peace officer in apprehending or subduing criminal.

1. Eminent domain is the power of the state, or an agency designated by the state, to take private property for a necessary public use, and its exercise depends upon the existence of a statute which either by express words or plain implication authorizes the employment of the power.

2. Statutes delegating the power of eminent domain are to be strictly construed, and where an appropriation of private property for public use is made by a governmental agent without authority, no compensation can be recovered from the government.

3. Section 12857, General Code, imposing the duty upon an individual, when requested, to assist a peace officer in apprehending or subduing a suspected or convicted criminal, is not designed or intended as a measure covering the appropriation of private property for a public use, and one whose personal property is damaged while aiding a municipal patrolman to make an arrest at the latter's instance may not compel a municipality to pay for the loss.

APPEAL from the Court of Appeals of Hamilton county.

Early on the morning of June 16, 1937, while driving his private automobile along Central Parkway near Race street in the city of Cincinnati, appellant Blackman was stopped by a city patrolman who directed him to pursue another car, an occupant of which had fired some shots, apparently at persons sleeping in the nearby park.

The patrolman entered Blackman's car and the chase began at a speed of thirty-five to forty miles per hour. Encountering wet streets, Blackman reduced his speed. In approaching a motor truck parked at an angle he applied his brakes, skidded and collided with the truck, damaging his automobile to the extent of $225.

Blackman's insurer, The Equitable Fire Marine Insurance Company, paid him his loss above $50, took an assignment of his claim in the amount of $175 and joined with him in an action against the city of Cincinnati, brought in the Municipal Court, to recover the sum of $225.

Adverse judgments were rendered in the Municipal Court, the Court of Common Pleas and the Court of Appeals and the cause is now in this court pursuant to the allowance of the motion to require the Court of Appeals to certify its record.

Messrs. Harmon, Colston, Goldsmith Hoadly and Mr. Harold K. Goldstein, for appellants.

Mr. John D. Ellis, city solicitor, Mr. Ed F. Alexander and Mr. John J. Dreyer, for appellee.

ZIMMERMAN, J.

Appellants base their rights of recovery solely on the ground "that whenever the sovereignty, or any of its instrumentalities, in the performance of governmental functions, appropriates private property for public use, that sovereignty or instrumentality must make compensation therefor," citing Section 19, Article I of the Constitution of Ohio.

"Eminent domain" is the power of the state, or an agency designated by the state, to take private property for a necessary public use, and its exercise depends upon the existence of a statute which either by express words or plain implication authorizes the employment of the power. Giesy v. Cincinnati, W. Z. Rd. Co., 4 Ohio St. 308; 15 Ohio Jurisprudence, 701, Section 11 et seq.

Statutes delegating the power of eminent domain are to be strictly construed. 15 Ohio Jurisprudence, 704, Section 12. And when an appropriation of private property for public use is made by a governmental agent without authority, no compensation can be recovered from the government. 20 Corpus Juris, 646, Section 124.

It has been held that "the taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not the act of the government." Hooe v. United States, 218 U.S. 322, 336, 54 L.Ed., 1055, 1060, 31 S.Ct., 85.

Recognizing the necessity of a statute to support their position, appellants rely upon Section 12857, General Code, which reads:

"Whoever, when called upon by a sheriff, coroner, constable or other ministerial officer to assist in apprehending a person charged with, or convicted of, a criminal offense, or in securing such person when so apprehended, or in conveying him to prison, neglects or refuses so to do, shall be fined not more than fifty dollars."

Assuming the applicability of this statute to the facts of the present case, can it reasonably be said to do more than impose the duty upon an individual, when requested, to render personal services with the means at his command in assisting a peace officer to apprehend or subdue a suspected or convicted criminal? Under its wording, strictly construed, can the statute be regarded as delegating to a municipal police officer the power of eminent domain, so as to subject the municipality to liability on that basis for injury occurring to the property of one while helping the officer to make an arrest at the latter's insistence?

This court is of the opinion that the quoted section was not designed or intended as a measure covering the appropriation of private property for a public use, and may not be invoked by the appellants to compel the city of Cincinnati to pay for the harm done Blackman's automobile when it collided with the truck.

On moral grounds the city of Cincinnati could well experience the urge to reimburse appellants for their loss, but we find no legal basis upon which it can be forced to respond.

The judgment of the Court of Appeals is accordingly affirmed.

Judgment affirmed.

WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.

BETTMAN, J., not participating.