City of Louisville v. Louisville Auto. Club, Inc.

• Citation: 160 S.W.2d 663,290 Ky. 241
• Parties: CITY OF LOUISVILLE et al. v. LOUISVILLE AUTOMOBILE CLUB, Inc., et al.
• Decision Date: 27 March 1942
• Court: Kentucky Court of Appeals

160 S.W.2d 663

290 Ky. 241

CITY OF LOUISVILLE et al. v. LOUISVILLE AUTOMOBILE CLUB, Inc., et al.

Court of Appeals of Kentucky

March 27, 1942

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.

Action by the Louisville Automobile Club, Incorporated, and others against the City of Louisville and others to test the validity of an ordinance providing for the establishment of parking meters and to test the validity of a contract to purchase the meters. From the judgment, defendants appeal and plaintiffs cross appeal.

Affirmed in part, and in part reversed and remanded.

Hal O Williams, Cornelius W. Grafton, Lawrence S. Poston, all of Louisville, for appellants.

Stanley B. Mayer and James P. Miller, both of Louisville, for appellees.

MORRIS Commissioner.

Suit below was instituted to test the validity of an ordinance of the city providing for establishment of parking meters, and of a purchase contract. The city and proper officers were made defendants, plaintiffs being the Louisville Automobile Club, Robert Ball, a citizen, and conducting a business on Fourth Street; N. B. Wigginton, operating a parking lot adjacent within one area, and Eugene Stewart, car owner and citizen.

The proceeding inform provided by § 639a--1 et seq., Civil Code of Practice, sought a declaration of rights. The court held the contract invalid, and from this ruling defendants appeal but held the ordinance valid; from this ruling plaintiffs cross appeal.

The ordinance recited that traffic conditions were such as require the use of parking meters in certain areas; the enforcement of parking laws through means at hand difficult, expensive and inadequate, making it advisable to adopt some plan to assist in enforcement. It was contended that the ordinance is invalid, because:

(1) The erection of meters creates a nuisance; they will permanently obstruct flow of traffic and interfere with movement to and from places of business and residences abutting on streets; interfere with pedestrian traffic over sidewalks upon which meters are installed, thus constituting a taking of plaintiffs' rights in violation of constitutional inhibitions.

(2) Their maintenance has no proper relation to the regulation of parking, but the ordinance constitutes an attempt on the part of the city to rent parking spaces to automobile owners for obtaining revenue; nor has it any relation to the safety health, regulation of traffic, prevention of crime, or any other purpose properly classified as a "police power," and that the city will derive a substantial amount in excess of sums necessary to their cost, maintenance and regulation, such excess to be "used by the city for other and general purposes," thus constituting a revenue measure.

(3) The ordinance discriminates against plaintiffs, particularly those owning property, engaged in business or residing in the affected area, and in favor of those of the same class not within the zone.

(4) There was, and is in effect a "parking ordinance" which provides for the parking of motor vehicles within the area, which is not changed by the instant ordinance, except that a fee is charged in the new zone, whereas no fee is charged for parking on streets without the zone, this working a discrimination.

(5) The use of the street for installation of meters is an "unauthorized abandonment of the deed of dedication of said land for use as a public street."

(6) Under the terms of the ordinance (§ 13) any owner parking within the zone for a longer period than provided may pay one dollar to the Traffic Bureau of the Police Department in satisfaction of the offense of overtime parking, thus relieving the person overparking from subjection to an overtime parking ordinance which provides a fine of from one to five dollars for each offense, discriminating in favor of such owners as park within the zones as against those who park elsewhere, constituting an attempt to circumvent the possible activities of the city's ordinance court, and to substitute therefor the activity of the Traffic Bureau.

It is contended that the contract is invalid since being for the purchase of material in excess of the amount fixed by ordinance requiring competitive bidding, no such bidding was had. Ky.Stats. §§ 2824-2829; City Ordinances, Ord. No. 52.

It is explained in briefs that parking meters are manufactured by several companies, and operate in various ways, but insofar as mechanics are concerned the basic principle is practically the same. On such streets as are selected for their use, spaces wide enough to accommodate a car are marked next to the curb. Opposite each space there is set in the curb a metal post, about 2 inches in diameter, 3 1/2 or 4 feet in height, having attached to it a clock-like instrument set in operation when the motorist drops in a coin, and indicating the prescribed parking time limit. An officer notes overtime and tickets the car.

Proof was heard only upon the validity of the contract (a self-liquidating set-up) and upon submission the court in a comprehensive opinion declared the rights of the parties, to be: (a) By statute the city is vested with all reasonable police power, including the regulation of parking vehicles on the streets; under that power it has the right to provide means to assist in enforcing reasonable regulations. Counsel for appellees do not seriously challenge this declaration, and it seems necessary for us to make reference only to Kentucky Statutes, §§ 2742-2825, 2783; Com. v. Nolan, 189 Ky. 34, 224 S.W. 506, 11 A.L.R. 202; Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761; City of Ashland v. Ashland Supply Co., 225 Ky. 123, 7 S.W.2d 833; Mansbach Scrap Iron Co. v. City of Ashland, 235 Ky. 265, 30 S.W.2d 968, and parking meter cases, infra.

(b) The fee charged for the privilege of parking is for the purpose of defraying the cost of acquiring, installing, maintaining and supervising the meters, is valid and a reasonable charge, and if these fees exceed the cost and incidental expenses, excess will be used and applied for valid purposes within the doctrine approved in the cases of Blue Coach Lines v. Lewis, 220 Ky. 116, 294 S.W. 1080; Smith v. Com., 175 Ky. 286, 194 S.W. 367; McGlone v. Womack, 129 Ky. 274, 111 S.W. 688, 17 L.R.A.,N.S. 855; Kroger Grocery & Baking Co. v. City of Lancaster, 276 Ky. 585, 124 S.W.2d 745.

As we read the ordinance, it provides for application of the proceeds from fees to the purposes named above, and for no other purposes, save "for the regulation and control of traffic and the streets of the city," which may be construed to include pay of traffic officers, whose duties in regard to the supervision of the meters are defined in the ordinance.

However, counsel for appellees insist that their undenied allegation that the "excess" will be so substantial "as to take said operation outside of a police regulation, and therefore it is a revenue raising measure," require us to reverse and give them opportunity to produce proof on this question. The suit was filed in April, 1939; issue was raised by demurrer in June, 1939. Proof was heard on the validity of the contract in July, 1941, and judgment rendered in September.

We note from a stipulation that "demurrers to each of the first fourteen paragraphs of the petition having been sustained, and exceptions reserved, with respect to each of said rulings, the plaintiffs now decline to plead further with respect to the matters set forth in the first fourteen paragraphs of the petition, and agree that the court may enter judgment declaring the rights of parties in connection therewith." Furthermore, if it should develop that proceeds from the fees collected for use of the meters be so excessive as to actually constitute "revenue" as the word is applied, the court would have the power to require a reduction so as to remove the objectionable feature.

In the case of Ex parte Duncan, 179 Okl. 355, 65 P.2d 1015, 1017, where the same contention was made, the court remarked: "If the city has the power to regulate parking, it has the power to exact a fee of sufficient amount to cover the expenses of maintaining the regulation. *** 'The courts will not seek to avoid an ordinance by nice calculations of the expense of enforcing police regulations, but will promptly arrest any clear abuse of the power."' Citing State ex rel. Harkow v. McCarthy, 126 Fla. 433, 171 So. 314. See Hendricks v. City of Minneapolis, 207 Minn. 151, 290 N.W. 428.

(c) The chancellor found the ordinance not to constitute a nuisance or an obstruction, interfering with the use of the sidewalks, or streets by those whose business places abutted the streets in the named zones, since in the latter case it made reasonable provision for proper loading zones for the purpose of conducting business. As to the obstruction of sidewalks, as we observe the description of the proposed contrivances, it could hardly be classed as a nuisance, or unreasonable obstruction. To do so would be to condemn fire hydrants, mail and waste boxes, telephone and light poles, all of which, as do the parking meters, when properly placed, serve some function; some governmental purpose, all necessary to promote the safety of the public, permissible even thoughsome persons may suffer inconvenience by reasons of their presence.

There is no discrimination against plaintiffs, or others, who own property, business or residential, in favor of those who own property or conduct business, or reside outside the areas, as we construe the ordinance. This is not forcefully argued, but in a general way this contention is decided adversely in cases where the same question was raised.

Without taking space to quote from the cases, we find the...