City of Birmingham v. Hood-McPherson Realty Co.

• Decision Date: 14 January 1937
• Docket Number: 6 Div. 43
• Citation: 172 So. 114,233 Ala. 352
• Parties: CITY OF BIRMINGHAM et al. v. HOOD-McPHERSON REALTY CO. et al. (HOOD-McPHERSON FURNITURE CO., Intervener.
• Court: Alabama Supreme Court

172 So. 114

233 Ala. 352

CITY OF BIRMINGHAM et al. v. HOOD-McPHERSON REALTY CO. et al. (HOOD-McPHERSON FURNITURE CO., Intervener.

6 Div. 43

Supreme Court of Alabama

January 14, 1937

Appeal from Circuit Court, Jefferson County; J.Q. Smith, Judge.

Bill for injunction by the Hood-McPherson Realty Company against the City of Birmingham, the individuals composing the City Commission, and the Mark-Time Parking Meter Company, wherein the Hood-McPherson Furniture Company intervened. From a decree for the complainant, the respondents appeal.

Affirmed.

W.J Wynn, Clarence Mullins, Mullins, Deramus & Stuart, Thos. E Skinner, and W.B. Harrison, all of Birmingham, for appellants.

Wm. S Pritchard and David R. Solomon, both of Birmingham, for appellees.

THOMAS Justice.

The suit was for injunction to abate a nuisance resulting in personal injury to abutting property owners.

It is averred in the bill as amended that the realty company is the owner and that the furniture company is the tenant of the property located on Fourth Avenue North, in the City of Birmingham; that the block of Fourth Avenue North, on which said property is located, is included in the parking meter zone created by the ordinance exhibited and challenged as illegal; that respondent meter company has inserted a series of metal posts in the sidewalks in front of this property, which was done in anticipation of the passage of the ordinance creating "said parking meter zone." It is averred that it is necessary to have a free and unobstructed flow of traffic to and from said store and business to the street; that the permanent structures to constitute the parking meters will constitute obstructions or nuisances on the street and will interfere with pedestrian traffic and the free flow of traffic alongside, to and from said building; that the erection of the parking meters amounts to a taking or injury to complainant's respective rights to said property and violates the due process clause of the Constitution of the United States and also provisions of the Constitution of Alabama.

It is further averred that the installation of the parking meters, as photostatically exhibited in the record, is a plan or scheme on the part of the municipality to rent spaces for parking automobiles in the streets of the city to obtain revenue for the city; that the erection and operation of said meters have no proper relation to the regulation of parking in said block and upon streets located in what is called the parking meter zone; that parking on said streets has been regulated for years, by the usual designations or marks and signs indicating parking spaces and limitations being marked and erected on the sidewalks.

It is averred that in the passage of the ordinance for the parking meter zone the respondent commission used language in the ordinance to make it appear that said acts--the erection and operation of said meters--were under the police powers of the municipality, when, in fact, they were being installed for the purpose of obtaining revenue. It is thus averred:

"In short, the City seeks to convert the said avenue into a parking lot, and charge the public a fee for the use of the same; while in the adjoining blocks to that in which complainant's property is located, no fee will be charged. The effect of charging the parking fee for the privilege of parking in the block upon which complainant's property is located will be to divert traffic and travel from said block to adjoining or neighboring blocks where no fee is charged, and where the public may have the privilege of using the streets of Birmingham without payment of a fee for the use or hire thereof. ***

"Complainant specifically states and charges the facts to be that the language and wording of the said ordinance makes it apparent upon its face that it is merely a subterfuge *** in this:

"The City of Birmingham now has its streets zoned, and parking spaces marked off for automobiles. Said spaces further have periods of limitation for parking plainly stated thereon. The traffic officer in the block concerned marks the automobiles from time to time, if and when the prescribed time has been overstayed they are 'tagged,' and the owner required to report to and usually pay a fine in the 'traffic court' of Birmingham. The purported meters bear no true relation to either the marking or zoning of the streets for parking purposes, nor the time limit prescribed therein.

"Their sole and only purpose is to exact a fee on an hour or minute basis of the motorist for the use of the street, namely, to raise revenue for the use of the City of Birmingham by renting out the public streets and thoroughfares for parking purposes."

The ordinance exhibited is in several sections, among them: (a) and (b), defining the locus in quo; (c) excepting from the provisions of sections (a) and (b) "any practicing licensed physician or surgeon (not including dentists and dental surgeons), using an automobile bearing the insignia of the medical fraternity"; (1) Establishing parking meter zones, viz.: "Both sides of 18th Street, North, 19th Street, North, 20th Street, North, and 21st Street, North, between 1st Avenue and 4th Avenue; both sides of 1st Avenue, North, 2nd Avenue, North, 3rd Avenue, North, and 4th Avenue, North, between 18th and 21st Streets; and in said zones and such other parking meter zones as may be hereafter created by ordinances of the City of Birmingham, the Commissioner of Public Safety shall cause to be installed parking meters, and shall cause parking meter spaces to be designated in accordance with the provisions of this ordinance"; section (2) providing that "The Commissioner of Public Safety is hereby authorized to cause to be installed or placed, parking meters in such parking meter zones hereby created or to be created by other ordinances of the City of Birmingham. Such parking meters shall be placed adjacent to the curb, alongside of, or next to the individual parking places to be designated as hereinafter provided. Each of said parking meters shall be so set as to show on the dial of said meter that the parking space alongside of the same is, or is not in legal use. Each of said meters installed shall indicate by a proper legend the legal parking time established by the City, and when operated shall indicate on and by its dial and pointer the duration of the period of legal parking, and on the expiration of such period shall indicate illegal or overtime parking. Each of said meters shall be so set as to show legal parking upon the deposit of a five cent coin of the United States therein, and setting the meter in motion by turning the crank thereon as far to the right as the same will turn, for a period of time conforming to the parking limit now or hereafter provided by the ordinances of the City of Birmingham; and each meter, upon the deposit of said coin and setting the meter in operation shall continue in operation so as to clearly show the periods of legal as well as illegal parking"; (3) providing for setting the meters, and making it "unlawful for any person to park or leave any vehicle in any such parking space without having deposited said coin and setting said meter in motion as hereinabove provided"; (4) declaring it to "be unlawful for any person to permit a vehicle to remain or be placed in any parking space alongside of or next to which any parking meter is placed while said meter is showing that such vehicle shall have been already parked beyond the period of time fixed by the ordinances of the City of Birmingham for such parking space"; section (5) prescribing the arrangement or manner of parking; (6) requiring the Commissioner of Public Safety to place lines or marks on the curb or on the street about or alongside of each parking meter, to designate the parking space for which said meter is to be used; (7) making it "unlawful to deposit or cause to be deposited in any parking meter, any slug, device or substitute for a five cent coin of the United States"; (8) declaring it "unlawful for any person to deface, injure, tamper with, open or willfully break, destroy or impair the usefulness of any parking meter installed under the terms of this ordinance"; and section (9) providing: "The five cent coins required to be deposited as provided herein are levied under the police power of the City of Birmingham to regulate and control traffic upon the public streets, and to cover the costs of such regulation and control, and the same shall be used for no other purpose."

The several answers set out the resolution authorizing the purchase of 662 parking meters from respondent parking meter company, the agreement between the City of Birmingham and the respondent company covering the purchase, the ordinance creating said parking meter zone and authorizing the installation of parking meters, which was passed and authorized by the City Commission of the City of Birmingham acting under the police power of said city; that installation of said meters was proposed for a portion of the most congested business section of said city; describing the zone created and the character of parking meters, when, and how to be installed. The answers deny that the same will create obstructions on the streets, or interfere with complainant's rights, but, to the contrary, will materially aid in the enforcement of parking regulations and relieve traffic congestion and hazards, and keep that zone open for "free use and free passage"; deny that the installation of said parking meters will in any wise violate any right of the complainant, or intervener, under the Constitutions, Federal or State. It is further averred that the ordinance was passed in good faith to obtain a modern signaling device and modern method or system for...