City of Rapid City v. Rensch

• Decision Date: 31 May 1958
• Docket Number: No. 9659,9659
• Citation: 90 N.W.2d 380,77 S.D. 242
• Parties: CITY OF RAPID CITY, Plaintiff and Respondent, v. William RENSCH, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 380

90 N.W.2d 380

77 S.D. 242

CITY OF RAPID CITY, Plaintiff and Respondent, v. William RENSCH, Defendant and Appellant.

No. 9659.

Supreme Court of South Dakota.

May 31, 1958.

William M. Rensch, Rapid City, for defendant and appellant.

Leonard E. Morrison, Thomas R. Lehnert, Rapid City, for plaintiff and respondent.

RENTTO, Presiding Judge.

In this proceeding defendant challenges the validity of the parking meter ordinance of the city of Rapid City, South Dakota.

He was charged with violating that ordinance on seven occasions between November 30th and December 5th, 1956. On the trial of these violations in the Municipal Court of that city, two of the charges were dismissed. The jury found him guilty of the remaining five. Judgments were entered sentencing him to pay a fine of $25 on each violation. He appeals from these judgments.

Parking meters were introduced in Rapid City by the adoption of Ordinance 469 which was published as required by law on February 21, 1946. This enactment was incorporated as Ch. 12.02 of Ordinance 470, effective May 22, 1946, which was an ordinance in revision of the old ordinances of the city. Two sections of this portion of the ordinance have since been amended. The prosecutions here involved were under this chapter. Defendant's first contention is that when these provisions were promulgated the city was without power to enact an ordinance providing for parking meters.

The powers which our municipal corporations possess are only those which have been conferred upon them by the Legislature. This is the mandate of Art. X of the Constitution of this state. City of Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556. However, a grant of authority includes those incidental or implied powers that are necessary to enable the municipality to perform the function authorized. Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89. Long prior to the adoption of the ordinance in question the Legislature had delegated to municipalities the power 'To regulate the use of * * *, streets, alleys, * * *', SDC 45.0201(44) and the power 'To regulate traffic and sales upon the streets and sidewalks and in public places.' SDC 45.0201(42). Since a naked delegation of power is not self-executing, the Legislature also gave to our municipalities the power 'To enact, * * * all such ordinances, * * * as may be proper and necessary to carry into effect the powers granted thereto, * * *'. SDC 45.0201(19).

The powers granted by SDC 45.0201(44)(42) are broad ones. Clearly they include the right to regulate the parking of motor vehicles on the streets and alleys of a municipality. It is included in the broader power of traffic regulation. City of Bloomington v. Wirrick, 381 Ill. 347, 45 N.E.2d 852, certiorari denied 319 U.S. 756, 63 S.Ct. 1175, 87 L.Ed. 1709; State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598; School District of McCook v. City of McCook, 163 Neb. 817, 81 N.W.2d 224; Glodt v. City of Missoula, 121 Mont. 178, 190 P.2d 545; Morris v. City of Salem, 179 Or. 666, 174 P.2d 192. Whether this regulation is accomplished by the older method of policemen attempting to enforce the limitations on parking or the more modern means of coin-operated mechanical devices it is an exercise of the same power.

In addition to limiting parking as to time and place, the ordinance also requires those who avail themselves of this privilege to first deposit a coin in the meter. Twelve minutes of parking may be had for a cent up to one hour or one hour for a nickel. Two hours is provided by the deposit of a nickel and five cents or two nickels. It seems to us that the power to impose the fee is a power incident to, and implied in its power to regulate parking. City of Bloomington v. Wrirrick, supra; City of Roswell v. Mitchell, 56 N.M. 201, 242 P.2d 493; Opinion of the Justices, 94 N.H. 501, 502, 51 A.2d 836, 837. It may reasonably be expected to discourage some parking in the metered area thereby contributing to the effectiveness of the regulation.

Subsequent to the enactment of the ordinance here involved, Ch. 225, Laws 1947 was adopted. That section is as follows:

'Every municipality shall have the power to acquire, operate, maintain and regulate parking meters on the public streets and places and on parking lots and areas controlled by the municipality, to fix and collect regulatory parking fees for the parking of vehicles in parking meter spaces thereon, and to use the proceeds therefrom for traffic regulation.'

The purposes for which such proceeds could be used were enlarged by Ch. 196, Laws of 1949 and Ch. 244, Laws of 1951, which appear as SDC Supp. 45.0201-1(10), and by Ch. 252, Laws of 1953. Defendant seems to be of the view that the enactment of Ch. 225, Laws of 1947 is a legislative construction that the power to adopt such ordinances had not previously been delegated to the municipalities of this state. We do not so regard it. Rather, it is our view that it may have been passed simply for the purpose of removing doubt from existing statutes and to expressly recognize as important in this field a rather recent development--the off-street parking lot. See Straub v. Lyman Land & Investment Co., 30 S.D. 310, 138 N.W. 957, 46 L.R.A.,N.S., 941.

It is agreed by the parties that when Ordinance 469 was adopted it was not recorded in the Ordinance Book as required by SDC 45.1005, nor filed with the Auditor as required by SDC 45.1003. Defendant urges that because of these omissions it never became an effective ordinance and for that reason was not included in Ordinance 470. Even if these omissions made Ordinance 469 invalid, a matter which we do not decide, it is our view that on the adoption of Ordinance 470 it became an effective portion thereof. The ordinance under which defendant was charged is not a mere compilation of existing ordinances without revision, amendment or publication such as is authorized by SDC 45.0201(20). Rather, it is a new enactment authorized by SDC 45.0201(21) and made subject to referendum. This is so not because of any power of legislation in the revisors but because of the adoption of their labors by the governing body as a new ordinance. See Sirota v. Kay Homes, 208 Ga. 113, 65 S.E.2d 597.

SDC 45.1007 which authorizes such revisions provides as follows:

'The governing body of any municipality not oftener than once every five years may appoint a committee of one or more competent persons to prepare and submit for its consideration an ordinance in revision of the ordinances of the municipality.

'Upon the adoption of such ordinance by the governing body the auditor or clerk shall publish a notice of the fact of adoption of an ordinance in revision once each week for two successive weeks in the official newspaper, and twenty days after the completed publication of such notice, unless the referendum shall have been invoked, such ordinance shall become effective without publication in a newspaper.'

After the re-enactment of Ordinance 469 as Title 12 of Ordinance 470, it was no longer vulnerable to assault on the claim that its original enactment was not in accordance with statutory requirements. Miles Laboratories v. Owl Drug Co., 67 S.D. 523, 295 N.W. 292; Sutherland Statutory Construction, 3d Ed. § 3708. If its original enactment rendered it invalid it was made effective on its re-enactment as a part of the revision.

It is urged that the ordinance in revision is not in effect because it was not published in its entirety as required of original ordinances by SDC 45.1003. Prior to Ch. 247, Laws of 1925, ordinances in revision were apparently required to be published in the manner of original ordinances. § 6249, Rev.Code 1919. By the 1925 enactment the publication of the ordinance in revision in its entirety was dispensed with and the publication of a notice of the fact of its adoption substituted therefor. The reasons for this are obvious. It is a method now sanctioned in the adoption of other ordinances of a comprehensive nature. SDC Supp. 45.1003. An ordinance in revision need not be published in the manner prescribed for ordinances generally. It is sufficient if notice of its adoption be given as required by the authorizing statute. Town of Grundy Center v. Marion, 231 Iowa 425, 1 N.W.2d 677.

Ordinance 470 was entitled 'An Ordinance in Revision of the Old Ordinances of Rapid City, South Dakota'. Defendant feels that this title does not meet the requirements of SDC 45.1001 that 'An ordinance must embrace but one subject which shall be expressed in its title.' We do not agree. In Wilson v. Western Surety Co., 31 S.D. 175, 140 N.W. 263, 264, this court had presented the same contention under similar requirements of Art. III, § 21 of our Constitution concerning the 1903 Revised Political Code of this state. It was there said: 'the title of the act enacting the Revised Political Code would have been sufficient had it stopped when it said 'An Act entitled an act to provide a Revised Political Code for the state of South Dakota". The numerous cases in which this court has applied that rule are cited in State ex rel. Card v. Gray, 44 S.D. 60, 182 N.W. 320. See also Sutherland, supra, § 3902; McQuillan Municipal Corporations, 3d Ed. § 16.86.

It is stipulated that under the Ordinance in question a person using a metered parking space may use it as long as he inserts sufficient coins to prevent the meter from signaling a violation. Defendant proceeds from this basis to urge that because of this feature the ordinance involved is not a reasonable exercise of the police powers of the city. He advances the view that the meters would better accomplish their purpose if this continuous parking were not permitted. Even if he is correct in this view, that is not the test for determining whether the regulation adopted is an appropriate or reasonable means for accomplishing its objectives.

In City of Sioux Falls v. Peterson, supra, [71 S.D. 446, 25 N.W.2d 557], this court sa...