City of Decatur v. Robinson, 8 Div. 431.

CourtSupreme Court of Alabama
Citation251 Ala. 99,36 So.2d 673
Docket Number8 Div. 431.
Decision Date24 June 1948

36 So.2d 673

251 Ala. 99


8 Div. 431.

Supreme Court of Alabama

June 24, 1948

Rehearing Denied July 31, 1948. [36 So.2d 674] [Copyrighted Material Omitted] [36 So.2d 675] [Copyrighted Material Omitted] [36 So.2d 676] [Copyrighted Material Omitted] [36 So.2d 677] [Copyrighted Material Omitted] [36 So.2d 678] [Copyrighted Material Omitted] [36 So.2d 679] [Copyrighted Material Omitted] [36 So.2d 680] [Copyrighted Material Omitted] [36 So.2d 681] [Copyrighted Material Omitted] [36 So.2d 682] [Copyrighted Material Omitted] [36 So.2d 683]

[251 Ala. 110] [36 So.2d 684]

Peach, Caddell & Shanks, of Decatur, for appellant.

[251 Ala. 112] Julian Harris and Norman W. Harris, both of Decatur, for appellees.

A. A. Carmichael, Atty. Gen., L. E. Barton, Asst. Atty. Gen., J. Frank Livingston, of Tuscaloosa, and Lawrence K. Andrews, of Union Springs, for Alabama League of Municipalities, amicus curiae.

[251 Ala. 100]

On May 5, 1947, the appellant, City of Decatur, entered into a contract with Duncan Meter Corporation, organized and existing under the laws of the State of Illinois, denominated in the contract 'The Meter Company,' the city agreeing to lease from the meter company and said company agreeing 'to lease to the city, subject to the terms and conditions hereinafter

set forth 200 more or less Miller Multiple-Coin Parking Meters (hereinafter called 'meters'). The agreed value of the meters shall be Seventy-five ($75.00) Dollars per meter F.O.B. Chicago, which includes standard and bell base plus actual advances made by the meter company as hereinafter provided. The city shall at any time have the option to purchase the meters by applying the rentals which have been paid in by the city to the meter company against the agreed value of the meter and paying the balance due thereon.' The contract which is denominated 'Parking Meter Trial Lease' further provides:

'2. The Meter Company shall advance all freight, supervision, and installation costs in connection with the delivery and installation of said meters. The installation supervisor will train the City-appointed maintenance man to properly maintain all meters installed under this agreement. The Company furnishes three (3) complete meter mechanisms and one (1) meter housing free for each one hundred (100) meters installed, for service purposes. * * *

'4. Payments by The City to The Meter Company shall be solely from the receipts, funds and revenues obtained from the operation thereof and there shall be no obligation on the part of The City to pay for the same from any other source. The manner of payment of rental for said meters shall be as follows: The City shall deduct from the first receipts from the operation of said meters the actual cost of freight, supervision, and installation, and reimburse the Meter Company therefor. After the aforesaid deductions, all remaining receipts, funds and revenues from the operation of said meters shall be considered not revenue. Upon the fifteenth (15th) day after the installation of said meters and each and every thirtieth (30th) day thereafter The City shall pay as rental to The Meter Company fifty (50%) percent of the net revenue from all meters so installed until The City exercises its option to purchase the meters and/or The Meter Company has received rentals and reimbursements for advances in the aggregate amount of the agreed value of the meters or until or unless this agreement is terminated or cancelled under the [251 Ala. 101] provisions of paragraph five (5) and six (6) hereof.

'5. The Meter Company extends and grants unto the City the option to terminate this agreement at the expiration of the trial period by giving The Meter Corporation written notice thirty (30) days prior to the expiration of said period; but in that event, The Meter Company shall nevertheless be entitled to receive from The City and to retain as rental for the use of the meters fifty (50%) percent of the net revenue from said meters, as aforesaid, which shall have accrued during that entire period, and until the meters are removed; and in the event of such cancellation or if The Meter Company shall exercise its right to cancel as provided in paragraph six (6) hereof, The Meter Company will, at the expiration of said period, at its own cost and expense, promptly proceed to remove said meters and repair any damage to the places in the pavements or other premises in which said meters were installed, and all obligation under the terms of this agreement shall cease and terminate, except as herein otherwise provided.

'6. If at any time prior to the payment in full to The Meter Company of the agreed value, as aforesaid, of all said meters, rentals to The Meter Company since the installation of said meters, shall have averaged less than three ($3.00) Dollars per month, per meter, or if The City shall violate this agreement or default in the full and faithful performance of this agreement, then The Meter Company may at its option cancel this agreement by giving to The City written notice of its intention to do so, and at any time after the tenth (10th) day following the giving of such notice, The Meter Company shall have the right, at its option with or without legal process or further notice of any kind, to enter upon the premises where said meters may be installed or kept and remove and retake the same for its own use, and to receive from the City as rental for the use of the meters the fifty (50%) percent of net revenue from said meters as aforesaid which shall have accrued up to the time said meters are removed. Nothing herein contained shall be construed in any way limiting or affecting The Meter Company's

right to pursue or enforce any remedy provided by law in the event of a breach of this agreement by the City.

'7. If at any time prior to the payments in full to The Meter Company of the agreed value, as aforesaid, of all said meters any taxes are levied on meters, installed, such as personal property tax, sales tax or use tax, such taxes will be advanced by The Meter Company, and The City shall reimburse The Meter Company in full from the gross receipts of the meters, before the net revenue is computed for the purposes of paragraph four (4) hereof.

'8. It is understood and agreed that the title to all said meters shall be and remain in The Meter Company until and unless the full agreed value thereof, as aforesaid, shall have been paid in cash to The Meter Company, including the rentals aforesaid.

'9. The Meter Company agrees that if The City pays it as rentals the full agreed value of said meters as aforesaid, it will deliver to The City a bill of sale therefor, free and clear of all encumbrances.

'10. The Meter Company further covenants and agrees that it is the lawful owner of said meters and that the same are free and clear of all liens, contracts or conditional sales, chattel mortgages, and other encumbrances, and that The Meter Company has a lawful right to lease, dispose of, and sell the same, and that it will warrant and defend its title thereto against all claims whatsoever.

'11. The Meter Company agrees to furnish the said meters with a mechanism regulated as to time as shall be mutually agreed to between The City and The Meter Company, and equipped with two slots, if so ordered by The City to receive coins of the denomination of 1¢ and 5¢, and will be set to allow:

12 minutes for 1 penny

24 minutes for 2 pennies

36 minutes for 3 pennies

48 minutes for 4 pennies

60 minutes for 5 pennies, or 1 nickel

72 minutes for 6 pennies, or 1 nickel and 1 penny

84 minutes for 7 pennies, or, 1 nickel and 2 pennies

[251 Ala. 102] 96 minutes for 8 pennies, or 1 nickel and 3 pennies, or,

108 minutes for 9 pennies, or 1 nickel and 4 pennies,

120 minutes for 10 pennies, or, 2 nickels.

or at any other available rate combination which may be mutually agreed upon. * * *

'14. The City warrants that all necessary and proper steps have been or will be taken by the duly constituted Governmental and Municipal authorities authorizing the execution of this agreement and that all necessary or proper ordinances and/or resolutions have been or will be adopted authorizing and providing for the installation of said meters and the operation thereof, and agrees it will police the said meters after installation, and shall properly enforce all ordinances and resolutions pertaining thereto.

'15. The City agrees to set up a special parking meter fund into which all receipts from all meters furnished hereunder shall be placed and kept. No withdrawals from said special parking meter fund shall be made until The Meter Company has been paid the cost of freight, supervision, and installation, and the fifty (50%) percent of the net revenue has been paid to The Meter Company as hereinbefore provided, after which The City shall have the right to the remaining fifty (50%) percent of the net revenue to use as they see fit.

'16. This agreement shall be for a trial period of six months, commencing from the date of complete installation. The City shall have the option at the expiration of said trial period of entering into a further trial period.

'17. * * * The Meter Company further covenants and agrees to defend the City in any law suit brought to test the legality of parking meters in the City and to pay all expense of such litigation, including attorneys fees and court costs and in the event the City is prohibited by court order from operating parking meters this contract shall be terminated as provided in

section 5 hereof. The Meter Company further covenants and agrees to pay, without reimbursement, all freight and installation costs in excess of $3.50 per meter. * * *.' [Italics supplied.]

On the date of the execution of said contract, excerpts taken from the minutes of the city council state:

'Mr. W. Howard Netterville, Southwest...

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