Andrews v. City of Marion
| Decision Date | 15 April 1943 |
| Docket Number | 27798. |
| Citation | 47 N.E.2d 968,221 Ind. 422 |
| Parties | ANDREWS et al. v. CITY OF MARION et al. |
| Court | Indiana Supreme Court |
George W. Andrews and Adeline Andrews, both of Marion, for appellants.
Browne Campbell, Gemmill & Browne and Condo & Caine, all of Marion, for appellees.
This appeal presents the question of the constitutionality of a parking meter ordinance adopted by the Common Council of the City of Marion, Indiana, for the regulation of traffic and parking in certain congested areas in said City.
The ordinance in question recited that the operators of motor vehicles were in the habit of parking the same for long periods of time in the more congested parts of the business streets of the city, which practice tended to impede traffic and constituted a danger to the travelers on said streets and that it was the opinion of the Common Council of the city that the best method by which such condition might be remedied was: by the designation of individual parking spaces in said area, by providing for the use of mechanical parking time indicators for such spaces, by restricting parking in said area to reasonable intervals of time, and by compelling the operators of the motor vehicles, parking in such spaces to pay a portion of the cost of establishing and maintaining such space and meters.
The ordinance designated certain streets in the congested area of the city as parking meter zones and authorized the Board of Public Works and Safety to mark off parking spaces along the sides of the streets in such zones, to install at each such space a parking meter and fixed a parking charge of five cents for one hour and one cent for twelve minutes. It provided that the parking meters should be placed on the curb immediately adjacent to the individual parking places.
The ordinance further provided that when a person parked a vehicle in one of such parking spaces he should deposit a coin in the parking meter which would entitle him to occupy the space during the prescribed time.
Appellants own an improved lot, twenty-two feet wide, on the public square in said city. The improvement on said lot is an office building in which the appellant, George W. Andrews, maintains his office. The entire space along the front of the appellants' lot is marked off as parking space pursuant to said ordinance, and one parking meter is located at the curb seven feet West of the East line of appellants' lot.
The appellants filed this action asking that said parking meter ordinance be adjudged invalid; that the city be enjoined from enforcing said ordinance and be ordered to remove said meter; and that appellants be awarded damages for the time said ordinance had been enforced.
Appellants make no serious contention that the single parking meter located in front of their lot impedes ingress and egress or constitutes an interference with their rights but they insist that the provisions of the ordinance, which require them, their friends or persons dealing with them, to pay for the privilege of parking automobiles along the curb in front of their property deprives the appellants of their property without due process of law and amounts to a taking of their property without the payment of just compensation, contrary to § 1 of the 14th amendment of the Federal Constitution and to § 21 of Art. 1 of the Constitution of Indiana. Appellants also insist that the ordinance is an unauthorized, unreasonable and illegal exercise of the police power in that it authorizes the city to rent parking space on the streets for a profit; that it therefore amounts to a revenue measure rather than a regulatory measure.
There can be no question that the Legislature, under the police power, may enact laws for the regulation and control of traffic on the public highways. By subsection 31 of § 48-1407, Burns' 1933, § 11432, Baldwin's, 1934, the right 'to regulate the use of streets and alleys by vehicles' is expressly given to the common councils of the various cities of the state. In 1939, our State Legislature, by § 27, ch. 48, Acts of 1939, p. 289, § 47-1827, Burns' 1933, (1940 Replacement), § 11189-37, Baldwin's 1934 (May 1939 Supplement), (Uniform Highway Traffic Regulation Act), provided that local authorities may 'adopt additional traffic regulations, with respect to streets and highways under their jurisdiction, which are not in conflict with the provisions of this act.' In the next section of said act, § 47-1828, Burns' 1933 (1940 Replacement), § 11189-38, Baldwin's 1934, (May 1939 Supplement), it was expressly provided that: , thus expressly recognizing that the parking of automobiles is an incident of motor vehicle traffic and expressly recognizing the right of the cities, within the proper exercise of the police power, to control and regulate this incident of traffic. There is nothing in the ordinance here in question which conflicts with the provisions of said Act concerning the parking of motor vehicles. § 47-2120, Burns' 1933, (1940 Replacement), § 11189-117, Baldwin's 1934, (May 1939 Supplement).
Since the city here has the delegated power to control and regulate parking on its streets by ordinance, the only questions remaining are whether the ordinance in question, (1) deprived appellants of their property without due process or took their property without just compensation, and (2) whether it was a reasonable exercise of the police power.
When the space in front of appellants' property was originally dedicated to public use for a street the dedication was not limited to uses then actually contemplated. When land is dedicated for the use of the public as a city street, it is dedicated for all of the ordinary purposes of a city street; not only to the uses which were ordinarily made of such streets at the time of the dedication, but also to the uses demanded by new improvements and new wants. Magee v. Overshiner, 1898, 150 Ind. 127, 49 N.E. 951, 40 L.R.A. 370, 65 Am.St.Rep. 358. In that case it was held that the use of a street for telephone wires and poles did not constitute a new and additional servitude for which the abutting owner was entitled to compensation.
After the street in front of appellants' lot was dedicated to the public use the owners of the lot, as members of the public, had the same rights as the other members of the public to the use of the street and in addition thereto had the right of ingress and egress. 29 C.J. § 263, p. 547. As the present owners of said lot the appellants have this same additional right. They insist that this includes the right for them, their visitors and persons dealing with them, to park automobiles in front of said lot without any charge. With this contention we can not agree.
This court has never passed on the validity of a parking meter ordinance but such ordinances have been considered by many other courts which have decided all of the questions raised...
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