Ashley v. City of Greensboro

• Decision Date: 11 April 1950
• Docket Number: No. 17028,17028
• Parties: ASHLEY et al. v. CITY OF GREENSBORO et al.
• Court: Georgia Supreme Court

Page 815

58 S.E.2d 815

206 Ga. 800

ASHLEY et al. v. CITY OF GREENSBORO et al.

No. 17028.

Supreme Court of Georgia.

April 11, 1950.

Syllabus by the Court.

1. Under powers conferred by charter on a municipality to regulate traffic, parking of vehicles on its streets, to control its streets, and to pass ordinances, the governing authorities may provide for the period or time of parking to be registered by mechanical parking meters, and charge such sum therefor as is reasonably necessary to defray the expenses incident thereto; and the lack of profit from the operation of the parking meters is not a valid reason for their removal, on a petition brought for that purpose by citizens and taxpayers.

2. The allegations of the petition as amended are not sufficient to raise any question of abuse of discretion by the governing authorities of the city as to the installation and operation of parking meters.

3. It appearing from the only ordinance attached to the petition by a copy thereof that it applies to all persons alike, and there being no allegations in connection with its administration that the exceptions alleged to favor others against the petitioners were unnecessary or arbitrary in comparable circumstances, neither the ordinance as to parking meters nor its administration as alleged is violative of article 1, section 1, paragraph 3 of the Constitution of Georgia, providing that there shall be no deprivation of property without due process of law, nor of article 1, section 1, paragraph 2 of said Constitution, providing that protection to person and property is the paramount duty of government, and shall be impartial and complete.

4. No question is properly raised as to the validity of a contract between a city and a parking-meter company merely by a prayer for the contract to be declared void, where it is not set out or attached by a copy thereof nor its terms and conditions stated in the petition.

5. It was not erroneous to sustain the general demurrers and dismiss the petition.

On September 26, 1949, Seaborn Ashley and Ashley Mercantile Company brought their equitable petition against the City of Greensboro, its named mayor and aldermen, and Dual Parking Meter Company, seeking an injunction prohibiting the further operation of parking meters on streets in said city; praying also for certain ordinances in reference thereto to be declared unconstitutional as discriminatory, and that contracts of the defendants with reference to said parking system be declared void. The petition was twice amended, subject to demurrers. The allegations of the amended petition were substantially as set out hereinafter. The petitioners are residents and taxpayers of said city. They operate a mercantile business on Main Street, and said Ashley is a large stockholder in a real estate and insurance company known as Greensboro Land and Development Company on Main Street in said city, all within said parking-meter zone. Said parking meters were installed under an ordinance of said city passed July 5, 1949, to be effective August 1, 1949, an attached copy of which stated that it was adopted, 'because of the width of the streets in certain sections of the City of Greensboro, Ga., the free moving traffic in the down-town business district is impeded; and whereas, previous attempts to regulate the parking in the aforesaid areas have not been as successful as is desirable because of the small number of traffic policemen available therefor, and the size of the area; and whereas, because of the habit of numerous operators of motor vehicles by which they take advantage of the above-mentioned situation by parking for unreasonably long periods of time in proximity to other motor vehicles so parked on the most congested parts of the city's busiest streets tend to further impede traffic, is unfair to other motorists, and constitutes a danger to the life and property of motorists and pedestrians; and whereas, it is the opinion of this Council that the best way by which the above-mentioned conditions can be remedied is by the designation of individual parking spaces in said area, by providing for the use of mechanical parking-time indicators in conjunction therewith, by restricting parking in said area to reasonable intervals of time, and by compelling the operators of vehicles who enjoy the use of parking space so designated, pay a portion of the cost of establishing and maintaining the same.' Under the ordinance certain streets, including portions of Main Street, were declared to be a 'congested area,' and the police were directed to designate individual spaces within the declared congested traffic areas for the parking of vehicles. Provision was made for coins to be deposited for a specified length of parking time, giving motorists the benefit of parking within the metered time. Penalties were provided for violation. The Dual Parking Meter Company was authorized to install meters at indicated places. The amended petition alleged that it was impossible to ascertain or allege what would be the effect of the ordinance, and how it would be enforced, until after a fair trial. Under the contract with the parking-meter company a payment in excess of $11,000 for said meters is required before title thereto will vest in said city, and at the prevailing rate of revenue it will take at least six years to 'pay the debt'. The total receipts from the parking meters aggregated $233.31 during August, 1949, and $317.68 during September, 1949. Under the contract one-half of the proceeds from the deposits in the meters would go to the parking-meter company to be applied on the purchase-price of the parking meters, and the remaining one-half would go to said city, the latter, according to the petitioners' allegation, 'as revenue and for the payment of the special policeman.' The salary of said policeman is $200 per month, and the city's half of the intake of the parking meters has been insufficient to meet and pay said salary. The meters are therefore operated at a loss and, according to the petitioners' allegation, 'can neither be justified as a revenue measure nor a police measure'. In such operation the defendants are guilty of such an abuse of discretion as deprives the petitioners of their constitutional rights. The ordinance is unreasonable, in that there is a systematic discrimination against the petitioners because certain property owners within the zone have free parking space, while the petitioners' customers are required to pay a parking fee before they can do business with the petitioners, resulting in a financial loss to them, inconvenience and annoyance to the petitioners' clerks, customers, and others in the petitioners' places of business. The parking meters within some of the area were moved by the defendant, giving special privileges and advantages to others and property of others, not accorded to the petitioners, all of which is contended as being violative of article 1, section 1, paragraph 3 of the Constitution of Georgia, providing that there shall be no deprivation of property without due process of law, and also violative of article 1, section 1, paragraph 2 of said Constitution, providing that protection to person and property is the paramount duty of government, and shall be impartial and complete. It was alleged that certain protests had been made to the city authorities against the adoption of the parking-meter ordinance, and copies of the protest were attached as exhibits.

Separate general and special demurrers to the petition were filed by the defendants, and were renewed after both amendments to the petition. The first two grounds of demurrer were as follows: (1) that no cause of action was set out; and (2) that the allegations did not entitle the plaintiffs to the relief sought. Upon hearing said demurrers, the trial judge sustained grounds 1 and 2 of said general demurrer and dismissed the petition. To that judgment the plaintiffs excepted.

Miles W. Lewis, Greensboro, Jos. G. Faust, Greensboro, for plaintiffs in error.

Noel P. Park, Greensboro, J. S. Callaway, Greensboro, for defendants in error.

CANDLER, Justice. (After stating the foregoing facts).

1. The charter of the City of Greensboro confers upon its governing authorities power to regulate traffic and the parking of vehicles on its streets, to control its streets, to appoint special policemen whenever necessary, to pass ordinances or regulations for the peace, security, health, happiness, welfare, or convenience of the inhabitants, and for the preserving of good order of said city. Ga.Laws 1939, pp. 1070-1122, §§ 103, 87, 85, 28, 3. Under those charter powers, the city may provide by ordinance for the period or time of parking to be registered by mechanical parking meters and charge such sum therefor as is reasonably necessary to defray the expenses incident thereto. Gardner v. City...