City of Shreveport v. Brister

• Decision Date: 27 November 1939
• Docket Number: 35563.
• Citation: 194 So. 566,194 La. 615
• Court: Louisiana Supreme Court
• Parties: CITY OF SHREVEPORT v. BRISTER.

194 So. 566

194 La. 615

CITY OF SHREVEPORT v. BRISTER.

No. 35563.

Supreme Court of Louisiana.

November 27, 1939

Rehearing Denied March 4, 1940.

Appeal from City Court of Shreveport; Ruvian D. Hendrick, Judge.

E. D Brister was charged with a violation of the parking meter ordinance of the City of Shreveport, and from a judgment sustaining E. D. Brister's demurrer and overruling its alternative plea, the City of Shreveport appeals.

Affirmed.

Pyburn & Pyburn and Jos. H. Jackson, all of Shreveport, for City of Shreveport, appellant.

A Harvey Broyles, of Shreveport, for defendant, appellee.

Chandler & Chandler and H. M. Holder, all of Shreveport, for amici curiae.

HIGGINS, Justice.

The defendant was charged in an affidavit filed against him in the City Court of Shreveport with a violation of Ordinance No. 40 of 1939, known as the Shreveport Parking Meter Ordinance, in that he parked a motor vehicle in a meter zone within the municipal limits without depositing a coin in the meter, as he was required to do under the provisions of the Ordinance for the privilege of parking. T he defendant filed a demurrer on the ground that the Ordinance is ultra vires, as it is contrary to the provisions of Act 10 of the First Extraordinary Session of 1934.

The City filed, in the alternative, a plea of unconstitutionality of the Statute on the ground that the title of the Act was fatally defective, because the body of the Act is broader than its title and the Act embraces more than one object.

The City judge entered judgment sustaining the demurrer and overruling the alternative plea of unconstitutionality of the Act. The City appealed.

The Ordinance in question creates parking meter zones in the City of Shreveport, comprising certain named streets, on which automobile traffic is heavy and congested. It prohibits continuous parking in excess of one hour within the zones and prescribes penalties for the violation of its regulations. Provision is made for individual parking spaces to be made by lines painted on the surface of the street immediately adjacent to the curb and for the installation at the curb of parking meters opposite each of the parking spaces. An automobile operator is required to deposit a nickel in the meter, immediately upon parking his car in the space, for the privilege of remaining there one hour. He may also deposit a penny in the meter for the privilege of parking twelve minutes. At the end of these respective periods of time by mechanical operation, automatically controlled, a red flag is raised on the meter, showing that the period of time for the parking of the vehicle in that particular space has expired.

It is recited that these regulations were made because conditions in certain sections of the City impeded the free movement of vehicles and that other attempts to regulate traffic and parking in these areas had not been as successful as was desired. It is stated that it was the custom of numerous operators of automobiles to park for a long period of time in close proximity to other cars, causing a congestion of traffic in the streets and resulting in danger to life, limb and property. It is also stated that the parking fee is imposed for the purpose of defraying a portion of the cost of installing and maintaining the parking meters. The Ordinance makes it an offense for anyone to park a motor vehicle within a meter zone without immediately depositing the necessary coin for the privilege of parking. Certain places as loading zones for trucks for the use of property owners within these parking meter zones are provided.

The defendant parked his automobile in a zone without depositing a coin in the meter in violation of the Ordinance.

Act 10 of the First Extraordinary Session of 1934 reads as follows:

‘ An Act To limit and regulate the imposition, levy and collection of taxes, licenses and excises by municipalities and parishes; and to repeal all laws or parts of laws in conflict.

‘ Section 1. Be it enacted by the Legislature of Louisiana, That no municipality or parish of this State shall impose, levy or collect any tax, license, or excise, of any character whatsoever, upon any property, business, occupation, voction, profession, or upon the exercise of any right or privilege, or upon the performance of any act whatsoever, not taxes by the State.

‘ Section 2. That no tax, license or excise, of any character whatsoever, shall be imposed, levied or collected by any municipality or parish of this State without express and special legislative authority describing the tax, license or excise to be imposed, levied and collected, and no tax, license or excise shall be imposed, levied or collected under any police, implied or inherent powers of any municipality or parish.

‘ Section 3. That this Act shall not apply to any tax, license or excise expressly authorized by the Constitution.

‘ Section 4. That all laws, or parts of laws, in conflict herewith be and the same are hereby repealed.’

It is conceded that the Ordinance in question levying the alleged license is not expressly authorized by any provision of the Constitution or Statute of the State and that the City was acting under its implied or inherent powers.

Webster's Dictionary defines a license to be ‘ a formal permission from the proper authorities to perform certain acts which without such permission would be illegal.’

In 3 Words & Phrases, Fifth Series, 987, a license is defined in legal terms as the ‘ permission to do something which, without the license, would not be allowable.’ Board of Commissioners of Jefferson County v. Mayr, 31 Colo. 173, 74 P. 458, and Zevely v. Weimer, 5 Ind.T. 646,82 S.W. 941; See also, 17 Ruling Case Law, 474.

In the case of State v. Schofield, 136 La. 702, 67 So. 557, the Court held that licenses may be levied for revenue purposes under the taxing power or for regulation under the police power, and the fact that they are levied for the latter purpose does not change their character as licenses. See, also, In re Central Bank & Trust Company, 143 La. 1053, 79 So. 857; Lacoste v. Department of Conservation, 151 La. 909, 92 So. 381; Cooley on Taxation, Vol. 4, page 3524, section 1794.

It will be noted that the limitation placed upon the municipality's power by the Act covers a license imposed upon the exercise of any right, or privilege, or upon the performance of any act whatsoever, not taxed by the State. This broad language, as well as the spirit of the Statute in question, embraces and covers the parking fee or charge or license imposed by the Ordinance.

In the cases of Birmingham v. Hood-McPherson Realty Company, 1937, 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140, and State ex rel. Harkow v. McCarthy, 1936, 126 Fla. 433, 171 So. 314, the Court stated that although the fee levied by an Ordinance for parking a vehicle on the streets of the municipality may be said not to be a tax, it is a license fee exacted for a privilege not otherwise possessed by the citizens. Blashfield's Cyclopedia of Automobile Law & Practice, section 78, Supplement of 1939.

The Statute here prohibits the levying of a license of any character whatsoever, either under the municipality's taxing power or police power, unless...