Blumenthal v. City of Cheyenne
| Decision Date | 18 November 1947 |
| Docket Number | 2368 |
| Citation | 186 P.2d 556,64 Wyo. 75 |
| Parties | ARTHUR BLUMENTHAL, JOSEPH C. BUNTEN, BENJAMIN G. NELSON and WILLIAM E. OTTENSTEIN, Plaintiffs and Appellants, v. CITY OF CHEYENNE, WYOMING, a Municipal Corporation, JOHN J. McINERNEY, Mayor of the City of Cheyenne, OSCAR E. ERICKSON and ARTHUR W. TROUT, Commissioners of the City of Cheyenne and constituting the City Council of the City of Cheyenne, Wyoming, Defendants and Respondents |
| Court | Wyoming Supreme Court |
APPEAL from District Court, Laramie County; H. R. CHRISTMAS, Judge.
Action by Arthur Blumenthal and others against City of Cheyenne, a municipal corporation, and others, to enjoin enforcement of an ordinance. From a judgment in favor of the defendants, the plaintiffs appeal.
Judgment affirmed.
For the Plaintiffs and Appellants, the cause was submitted upon the brief and also oral argument of Mr. J. A. Greenwood of Cheyenne, Wyoming.
POINTS OF COUNSEL FOR APPELLANTS
Theer is no general power to regulate the use of the streets, let alone the power to prohibit the use thereof. Western Auto Transports v. City of Cheyenne, 1942, 57 Wyo. 351, 120 P.2d 590.
Cheyenne is a legislative creature of delegated powers and has only those powers which have been granted to it by the State. Western Auto Transports v. City of Cheyenne, 1942, 57 Wyo. 351, 377, 120 P.2d 590; May v. City of Laramie, 1942, 58 Wyo. 240, 271, 131 P.2d 300; Whipps, et al. v Town of Greybull, 56 Wyo. 355, 109 P.2d 355; Lakota Oil & Gas Co. v. City of Casper, 57 Wyo. 329, 341, 116 P.2d 261.
In the exercise of power over streets, the delegated authority of the city of Cheyenne, if any, is very inferior and subordinate, and specific and express authority must be found before it can enact any legislation, since the control of the streets is primarily a state duty and the powers of the state of Wyoming are paramount. Western Auto Transports v. City of Cheyenne, Supra. 25 A. J. Highways, Sec. 255, Page 548.
It is elementary that control over the streets and highways within the corporate limits of a municipality is reserved in the state, and that the municipality can exercise only such control as his been delegated to it by the state. Martin Mayor v. Rowlett, 1932, 185 Okl. 431, 93 P.2d 1090.
Any statute granting powers to a municipality must be strictly construed and any reasonable doubt as to the existence of the powers must be resolved against the municipality. Whipps, et al. vs. Town of Greybull, supra; City of Tulsa v Southwestern Bell Telephone Co., 75 F.2d 343.
It is a well-settled general rule that municipalities, having the power to regulate the use of their streets, may enact valid rules and regulations for the government of motor vehicles within their boundaries, so long as they are not in conflict with or repugnant to legislative enactments governing the use of such vehicles, but that such ordinances are invalid if they are in conflict with statutes relating to the subject. 5 A. J. 536-557.
The ordinance is invalid since the city is endeavoring to legislate on a matter of statewide concern. Clayton v. State, 1931, 38 Ariz. 135, 297 P. 1037; Ex Parte Daniels, 1920, 183 Cal. 636, 192 P. 442; City of Tulsa v. Southwestern Belle Telephone Co., 75 F.2d 343, 353.
The streets of a city belong to the people of the state, and every citizen of the state has a right to the use thereof, subject to legislative control. Ex Parte Daniels, supra.
The ordinance is invalid since the city has denied the use of its streets to public carriers who have been licensed by the State of Wyoming. Western Auto Transports v. Cheyenne, supra.
The city can compel railroads to construct at their own cost and subject to the direction of the city such additional viaducts or subways as the city might deem necessary. Missouri Pacific R. Co. v. Omaha, 235 U.S. 121, 59 L.Ed. 157; Erie Rd. Co. v. Bd. of Public Utility Comm., 254 U.S. 394, 65 L.Ed. 322; Chicago Minn. & St. P. R. R. Co. v. Minneapolis, 232 U.S. 430, 58 L.Ed. 671, 674.
Courts are ever vigilant to prevent an abuse of discretion. Weber v. City of Cheyenne, 1940, 55 Wyo. 202, 97 P.2d 667; McQuillan, Municipal Corporations, 2nd Ed. Vol. 1, Sec. 391.
Courts have been vigilant and ever ready to invalidate an arbitrary or unreasonable ordinance. Weaver v. Public Service Commission, 1929, 40 Wyo. 462, 278 P. 542; Western Auto Transport v. Cheyenne, supra; Arlington v. Lillard, 1927, 116 Tex. 446, 294 S.W. 829 cited in 121 A. L. R. 573 and 586; Walker v. Comm., 1909, 40 P. S.Ct. 638, 121 A. L. R. 576.
For the Defendants and Respondents, the cause was submitted upon the brief and also oral argument of Mr. John U. Loomis and Mr. Arthur Kline, both of Cheyenne, Wyoming.
POINTS OF COUNSEL FOR RESPONDENTS
A municipal corporation may, under its police power, regulate in a reasonable manner vehicular traffic on its streets. City v. Breazeale, (La.) 187 So. 33, 34.
The regulation of motor vehicles on particular streets, even to their complete exclusion therefrom, when deemed necessary in the public interest, is within the police power delegated to municipalities. Garneau v. Eggers, (N. J.) 174 A. 250.
The police power is not limited to regulation designed to promote public health, public morals or public safety, or to the suppression of what is offensive, disorderly or unsanitary, but extends to so dealing with conditions that exist to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity. People v. Patrick, 14 N.Y.S. (2d) 249.
Regulation of street congestion or obstruction is not only proper, but becomes increasingly necessary. City v. Marriotto, (Ill.) 163 N.E. 369, 370; Staley v. Vaughn, (Colo.) 17 P.2d 299, 301; Simpson v. City, (Cal.) 47 P.2d 474, 476.
The regulation of motor vehicles on particular streets, even to their complete exclusion therefrom when deemed necessary in the public interest, is within the police power delegated to municipalities. Garneau v. Eggers, (N. J.) 174 A. 250.
It is the province of the council to decide in what streets or parts of streets, during what hours, and for what length of time, limitation of the right to park or allow a vehicle to remain standing on the street is necessary to a proper regulation of traffic. City v. McKinley, (Ill.) 176 N.E. 261, 265.
The court is not at liberty to substitute its judgment for that of the municipality as to the best methods of relieving traffic congestion in any specified area, in the interest of the welfare of the inhabitants and frequenters of the city. People, etc. Co. v. City, (N. J.) 144 A. 630, 633.
Cities have wide discretion in the regulation of streets under the police power. New Orleans, etc., Inc. v. City, 281 U.S. 682, 686.
An ordinance which regulates the manner in which streets shall be used is valid, unless it is unreasonable and oppressive or is in conflict with state legislation upon the subject. City v. Ashland, etc. Co. (Ky.) 7 So.2d 833, 835; Weaver v. Public Service Comm., 40 Wyo. 462.
The power to regulate the use of streets by vehicles includes the power to promote the general welfare and prevent accidents, and the reasonableness of police regulation is not necessarily what is best, but what is fairly appropriate under all circumstances. People v. Thompson, (Ill.) 173 N.E. 137.
In legislating for the public welfare, legislative bodies may, usually do, and should base their action upon actual conditions as they exist. It is to such conditions that the legislation will apply and it is such that will be affected thereby. Peoples, etc., Co. v. Henshaw, (C. C. A. 8) 20 F.2d 87.
It has been judicially declared that no ordinance which tends to facilitate the movement of traffic can be said to be an unreasonable exercise of the police power. City v. Roe (Wash.) 68 P.2d 1028, 1029.
Under the general welfare clause it is doubtless within the power of the city to make reasonable regulation as to the use of the streets and thus provide for the safety and convenience of travel and against unnecessary injury to the streets used. It is competent for the city to regulate the weight of loads that shall pass over the paved streets, and to prescribe the width of tires of vehicles carrying heavy loads. It has even been determined that municipalities may confine the passage of heavily loaded traffic to certain streets and exclude it from others, but the regulation must not be such as will deprive a citizen of access to his home or business house, nor from the use of the streets for any of the recognized means of travel. Brown v. Nichols, (Kan.) 145 P. 561.
The regulation of motor vehicles on particular streets, even to their complete exclusion therefrom when deemed necessary in the public interest, is within the police jurisdicton delegated to municipalities. Garneau v. Eggers, 113 N. J. Law 245, 174 A. 250.
Compensable damages do not result to adjacent property owners from public uses of streets. Foster's, Inc. v. City, (Ida.) 118 P.2d 721.
Streets may be devoted to any proper use incident to the construction and maintenance of the public thoroughfare. Such use is not a new or additional taking for public use, and the adjacent owner must suffer the injury or inconvenience resulting from such use. City v. Hearn, (Miss.) 108 So. 491.
This is an action brought by the plaintiffs on behalf of themselves and all others similarly situated, against the City of Cheyenne and its mayor and commissioners, to enjoin the enforcement of Ordinance No. 750 hereafter mentioned. The trial court refused to issue an injunction, entered judgment in favor of the defendants, and from that judgment the plaintiffs herein have appealed to this court.
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