Cassidy v. City Of Waterbury.

• Decision Date: 20 July 1943
• Citation: 130 Conn. 237,33 A.2d 142
• Court: Connecticut Supreme Court
• Parties: CASSIDY v. CITY OF WATERBURY.

130 Conn. 237

33 A.2d 142

CASSIDY

v.CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

June 9, 1943.

On Motion to Reargue July 20, 1943.

Appeal from Court of Common Pleas, New Haven County; Wall, Judge.

Action by John H. Cassidy against the City of Waterbury claiming damages, an injunction compelling defendant to remove parking meters from sidewalk in front of plaintiff's property, and other relief brought to the Court of Common Pleas and tried to the court. Judgment for plaintiff and appeal by defendant.

Error and case remanded with direction.

Maurice T. Healey, and Edward J. McDonald, both of Waterbury, for appellant.

Lawrence L. Lewis, of Waterbury, for appellee.

Before MALTBIE, C. J. and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The city of Waterbury has installed and is operating more than one thousand parking meters on its business streets. Thirteen of them are in front of premises owned by the plaintiff. Operators desiring to park their vehicles must deposit coins ranging in value from one cent for fifteen minutes to five cents for one hour. The plaintiff brought an action for an injunction requiring the city to remove the meters in front of his premises, and for damages. The principal conclusion of the trial court was that the General Assembly has not given the city authority to purchase meters, install them in and upon the sidewalks and charge a fee to motorists for parking adjacent to the meters. Judgment was rendered commanding the defendant to remove the meters located on the sidewalks in front of the plaintiff's premises, and for $100 damages. The defendant has appealed.

The law governing the right to install and operate parking meters is one of general concern. We therefore state the foundation principles universally applicable, and then decide whether the defendant city had power or authority to install and operate parking meters, and whether the plaintiff is entitled to the relief granted him.

The power to regulate the use of streets and highways by restrictions on the parking of vehicles is one universally recognized, and its reasonable exercise is consistently upheld. The power is in the legislature. It may be delegated by it to its municipal subdivisions. The common way of enforcing parking regulations, restrictive as to time, is by the use of a police officer. He notes the time of arrival by his watch, and later checks the length of time the vehicle has remained in that particular place. If the period is beyond the time limit set by municipal regulation, he tickets the vehicle. Such supervision is generally by the chalk method. This has obvious limitations and faults. A new method has come into general use; the installation and operation of parking meters. A parking meter is a clock set on a post. It measures the time of parking. It provides mechanical assistance in the enforcement of the parking limitation. A municipality may provide parking meters to measure the time of parking as well as it may measure time by other means. There is no reasonable difference in principle between measuring time by the watch and chalk method and the mechanical meter method. Parking meters are not self-enforcing. Policemen are required to supervise and enforce the system. The power to exact a fee to cover the reasonable cost of the meters, to install, operate, repair and supervise them, is well settled. The regulative measure is not invalidated because incidentally the city's receipts of money are increased.

These general principles of law are sustained by the weight of authority and of reason. Opinion of the Justices, 297 Mass. 559, 8 N.E.2d 179; County Court v. Roman, 121 W.Va. 381, 3 S.E.2d 631; Kimmel v. Spokane, 7 Wash.2d 372, 109 P.2d 1069; Louisville v. Louisville Automobile Club, 290 Ky. 241, 160 S.W.2d 663; Columbus v. Ward, 65 Ohio App. 522, 31 N.E.2d 142; Phoenix v. Moore, 57 Ariz. 350, 113 P.2d 935; Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339; State ex rel. Harkow v. McCarthy, 126 Fla. 433, 171 So. 314; Clark v. New Castle, 32 Pa.Dist. & Co. R. 371; Gilsey Buildings, Inc. v. Incorporated Village of Great Neck Plaza, 170 Misc. 945, 11 N.Y.S. 2d 694; Harper v. Wichita Falls, Tex.Civ.App., 105 S.W.2d 743; Ex parte Harrison, 135 Tex.Cr.R. 611, 122 S.W.2d 314. We have found only two cases which deny the power to regulate traffic by the installation and maintenance of parking meters: Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140; Rhodes, Inc. v. Raleigh, 217 N.C. 627, 9 S.E.2d 389, 130 A.L.R. 311. The cases of Shreveport v. Brister, 194 La. 615, 194 So. 566, Monsour v. Shreveport, 194 La. 625, 194 So. 569, and In re Opinion to the House of Representatives, 62 R.I. 347, 5 A.2d 455, are predicated upon lack of charter or legislative authority in the bodies attempting to install the parking meter system. The Alabama case, supra, is easily distinguishable on its facts.

A vital question is whether the revenue received by the city through the use of the meters has some reasonable relation to the expense of installation, operation, maintenance and supervision of the meter system, or whether the revenue is so clearly in excess of the cost that it must be construed as an unauthorized taxing measure. A short statement of the rule is that ‘The ordinance must stand if a regulation and fall if a tax.’ Hendricks v. Minneapolis, 207 Minn. 151, 154, 290 N.W. 428, 430. A more comprehensive rule is stated in Opinion of the Justices, supra, 297 Mass. at page 565, 8 N.E.2d at page 182: ‘Requirement of payments from those parking automobiles to meet the cost of the installation, operation and maintenance of the [meter] system and its general supervision would be permissible.’ Gilsey Buildings, Inc. v. Incorporated Village of Great Neck Plaza, supra, is to the same effect.

In the present case the court concluded that the primary reason for the installation of the meters was to regulate traffic but that the city did derive a profit from their use after all proper charges were credited against the revenue. The court did not conclude that the profit was so large as to make the meter system a revenue or taxing measure, and therefore invalid. One paragraph of the finding states that the income during the calendar year 1941 exceeded the expense, another that the city derived a ‘large profit,’ and a third that the income for a year and a half was $35,849.22, $26,514.40 was paid ‘on account of the cost of the meters,’ and $8,350 for police supervision and other expenses, but that the life of the meters was five years and that in accordance with proper accounting measures only 20 per cent of $26,514.40, or $5,302.88 should be allowed. The defendant attacked these findings, and insists that there was a considerable net loss and not a large net profit.

We have carefully analyzed the evidence, and find that the net profit, if any, was not large enough to constitute the meter charge a tax instead of a charge for the reasonable expenses connected with the regulation and restriction of traffic. The court has found that the primary reason for the installation of meters was the regulation of traffic. Furthermore, the measure, being regulatory, is not invalidated because incidentally the city's receipts of money are increased. County Court v. Roman, supra; Buffalo v. Stevenson, 207 N.Y. 258, 263, 100 N.E. 798. In the recent case of Kimmel v. Spokane, supra, it was held that since the declared purpose of the ordinance is regulatory the court will not go behind the legislative declaration in the absence of evidence tending to show that the declaration is sham and the ordinance is, in reality, a revenue measure. There is no such evidence in the instant case. In Ex parte Duncan, 179 Okl. 355, 65 P.2d 1015, it was held that the courts will not seek to avoid an ordinance by nice calculation of the expense of enforcing police regulations; and that if the city was making inordinate and unjustified profits by means of the parking meters, and was resorting to their use not for regulatory purposes but for revenue alone, the result would be different. In Hendricks v. Minneapolis, supra, it was stated (207 Minn. at page 155, 290 N.W. at page 430): ‘It would not be enough to show that the fee will exceed the cost for one period, or by a small amount. It must be made plain that the scheme of the ordinance is such that receipts will continuously and by a substantial amount exceed the cost of installation, maintenance, and regulation.’ In this connection we may justifiably take notice that the amount of parking fluctuates, as illustrated by present-day restrictions, and that there was some profit over the period before us does not mean that at other times there might not be considerable loss. In Owens v. Owens, supra, the court said (193 S.C. at page 266, 8 S.E.2d at page 341): ‘There is nothing in the record to establish clearly the fact that the purpose of the city is to raise revenue under the guise of a police regulation.’ Likewise there is nothing in the instant case. See also Hannon v. Waterbury, 106 Conn. 13, 18, 136 A. 876, 57 A.L.R. 402. In view of these authorities we find it unnecessary to state our analysis of the receipts and expenses as shown by the evidence. The regulation is in reality aregulatory and not a tax measure.

It is implied in all of the decisions we have cited in support of the first general principle, and it is expressly held in most of them, that the installation and operation of such parking meters and the exaction of a fee of the kind we have described are not an unlawful violation of the abutting owners' property rights. See also Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 151, 36 A. 1107; State v. Muolo, 119 Conn. 323, 176 A. 401. In the latter case we said (119 Conn. at page 327, 176 A. at page 403): ‘The owner of the...