Hickey v. City of Portland

• Decision Date: 28 January 1941
• Citation: 165 Or. 594,109 P.2d 594
• Parties: HICKEY <I>v.</I> CITY OF PORTLAND ET AL.
• Court: Oregon Supreme Court

165 Or. 594

109 P.2d 594

HICKEY

v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon.

Argued January 8, 1941.

Affirmed January 28, 1941.

Action — Declaratory judgments

1. To invoke the extraordinary relief provided by the declaratory judgment act, there must be an actual controversy existing between adverse parties.

Courts — Advisory opinions

2. In the absence of constitutional authorization, courts cannot render valid advisory opinions.

Action — Declaratory judgments

3. Where a motorist seeking a declaratory judgment interpreting ordinances providing for parking meters conceded that the ordinances were valid and unambiguous, his complaint, alleging that he was uncertain as to his rights and duties thereunder and as to the effect on him and his property if he relied on his own personal parking meter installed on his automobile instead of using the city's meters, was demurrable as not disclosing a "controversy" involving a justiciable question.

Action — Courts — Advisory opinions

4. The statute authorizing a declaration of the rights or status of any person affected by a statute, ordinance, etc., must be construed in the light of the absence of any constitutional provision for advisory opinions.

Action — Declaratory judgments

5. In proceedings for a declaratory judgment, it is a jurisdictional prerequisite that the petition disclose a justiciable controversy.

                  See 16 Am. Jur. 298
                  1 C.J.S., Actions, § 18
                

Before KELLY, Chief Justice, and RAND, BELT, BAILEY and LUSK, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Proceeding by James Hickey against the City of Portland and others, for a declaratory judgment interpreting certain ordinances providing for parking meters. A demurrer to the complaint was sustained and, an amended complaint having been stricken as being merely a restatement of the original, plaintiff appeals.

AFFIRMED.

Herbert A. Cooke, of Portland (Leroy Lomax, of Portland, on the brief), for appellant.

Alexander G. Brown, of Portland (L.E. Latourette, of Portland, on the brief), for respondents.

KELLY, C.J.

This is a proceeding for a declaratory judgment under Oregon Code 1930, sections 2-1401, et seq. The plaintiff seeks a decree interpreting and determining the construction and meaning of ordinance No. 70,240 of the defendant, The City of Portland, as amended by ordinance No. 71,092 of said defendant city.

The ordinances, above mentioned, among other things, create two parking meter districts, and provide for the installation and maintenance of parking meters on each side of the streets and avenues situated in the parking meter districts so created.

It is also provided in said ordinances that —

"When any motor vehicle shall be parked in any place along side of or next to which there is located a parking meter, the owner, operator, manager or driver of such motor vehicle shall, upon entering the said parking space, immediately deposit a five cent coin of the United States in the parking meter along side of or next to said parking space and perform any mechanical act required by the directions posted on said parking meter, and the said parking space shall then be used by such motor vehicle during the parking limit provided by section 55-5 of this ordinance for the part of the street or avenue in which said parking space is located. If said motor vehicle shall remain parked in any such parking space beyond the parking limit fixed by said section 55-5 for such parking space, the parking meter shall display a sign showing illegal parking, and in that event such motor vehicle shall be considered as parked overtime beyond the said period of time, and the parking of an automobile overtime or beyond the period of time fixed by section 55-5 of this ordinance in any such part of the street or avenue where any such parking meter is located shall be a violation of this ordinance and punishable as hereinafter provided. It shall be unlawful for any person to cause, allow, permit or suffer any such motor vehicle registered in his name to be parked overtime beyond the lawful period of time as in this ordinance provided."

Paragraph VI of plaintiff's complaint, as amended by stipulation, is as follows:

"That the plaintiff herein was, prior to the institution of this suit, and now is, the owner and in possession of, a mechanical device designated by him as the `Kar-Tell' parking meter and which said mechanical device was and now is installed upon an automobile belonging to plaintiff. That said mechanical device, so owned and being operated by the plaintiff, is in good condition and working order and is accurate, dependable and is installed upon plaintiff's automobile in such a manner that the same can not easily be tampered with and also in such a manner that the same may be easily inspected and regulated for efficiency and accuracy at any time and, in general is a device which plaintiff believes and therefore alleges, is as dependable, accurate and as easily inspected and maintained in good working condition as the meters now installed upon the streets and avenues of the City of Portland, Oregon, under and by virtue of the provisions of the city ordinance above mentioned and in all respects is the equal of the parking meters now in use in so far as the purpose for which the presently installed parking meters are intended, save and except that no coin, token or other object need be inserted in the said meter owned by the plaintiff herein and installed upon his said automobile but is entirely automatic in its operation."

Paragraph VII of plaintiff's complaint is as follows:

"That under the terms and conditions of the said city ordinance plaintiff can not ascertain with definite certainty after an examination thereof as to whether or not the said city ordinance will permit the use of any other parking meter or metering device designed solely to indicate the length of time during which a motor vehicle occupies the space designated therefor upon the streets of Portland, Oregon, according to the zone or district in which said motor vehicle is parked, and plaintiff is uncertain as to the effect upon him and his property in the event he should prefer to use and rely upon his own personal parking meter rather than to insert a coin into and use and rely upon the parking meter provided by the City Council of the City of Portland, and plaintiff therefore alleges that he is entitled to have the said city ordinance examined by this court and construed and interpreted so that he may determine with certainty whether or not he is entitled to use and rely upon the said parking meter belonging to him and now installed upon his said automobile and for a declaratory judgment under the Uniform Declaratory Act as provided under Chapt. 14, Ore. Laws for 1930, Vol. I, and Amendments thereto."

The trial court sustained a demurrer to plaintiff's complaint. Plaintiff thereafter filed an amended complaint, which was stricken from the file upon the ground that said amended complaint was merely a restatement of the original complaint. Plaintiff failed to plead further; and...