Ex parte Duncan
| Decision Date | 09 March 1937 |
| Docket Number | 27533. |
| Citation | 65 P.2d 1015,179 Okla. 355,1937 OK 155 |
| Parties | Ex parte DUNCAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Although control over highways, streets, and alleys within the corporate limits of the municipalities is reserved in the state, cities have been delegated power to regulate the use of the streets and may exercise that power to regulate parking.
2. The provisions of section 10290, O.S. 1931 (47 Okl.St.Ann. § 12) preventing cities from passing ordinances requiring a fee for the free use of the streets, or from excluding any motor vehicle from the free use of the streets, and excepting from its application power to enact general rules to bring the orderly passage of vehicles upon certain streets where the traffic is heavy and continuous, does not invalidate Oklahoma City parking meter ordinances.
3. The right of the "free use of the highways" means only such use as is incident to travel, and does not include the right to park.
4. Where the power to regulate the use of the streets within the corporate limits has been delegated to a city, it implies the power to exact a fee of sufficient amount to cover expenses of the proper exercise of that power.
5. Oklahoma City parking meter ordinances held valid where they appear to be bona fide police regulations on their face, and there is no showing that they have been installed on streets where traffic is not sufficiently heavy to justify any parking regulation, or that the city is making unjustified profits and is resorting to their use for the purpose of raising revenue and not regulation.
Original action by H. E. Duncan for a writ of habeas corpus.
Writ denied.
T. G Chambers and James R. Eagleton, both of Oklahoma City, for petitioner.
Harlan Deupree, Municipal Counselor, A. P. Van Meter, Asst Municipal Counselor, and Jarman & Brown, all of Oklahoma City, for respondents.
The question to be determined in this case is the validity of the Oklahoma City parking meter ordinances. H. E. Duncan was convicted and fined for parking on West Main street in Oklahoma City in a meter parking space without depositing a nickel in the meter. He was committed to the city jail and applied to the district court of Oklahoma county for a writ of habeas corpus. The writ was denied and he again was committed to the city jail. Thereafter he applied to this court for a writ of habeas corpus.
The crime charged was the violation of Ordinances Nos. 4624 and 4706, which created what is known as "parking meter zones" designated by lines marked upon the streets. The ordinances provided for the purchase of parking meters by the city to be placed by each zone, and further provided that no one shall park his automobile in the designated areas without first depositing a five-cent coin in the meter, after which he shall be entitled to park for the time provided for that particular zone. The ordinances provide a penalty for their violation. The meters are constructed so as to clearly indicate compliance with the ordinance.
Petitioner, in his brief, presents five propositions in substance contending that the ordinances impose a fee for the free use of the streets, which is a right of all citizens of the state that can only be infringed upon by a proper exercise of police power specifically delegated to the municipality by the state. He contends that there has been no delegation of power and further that section 10290, O.S.1931 (47 Okl.St.Ann. § 12), specifically prohibits the charging of a fee for the exercise of this right. In the alternative he argues that if parking is not an absolute right as an incident to the free use of the highways, it is a privilege which the city cannot permit for the reason that it creates a nuisance.
It is elementary that control over the highways, streets, and alleys within the corporate limits of the municipalities is reserved in the state, and the municipality can exercise only such control as has been delegated by the state. City of Tulsa v. Southwestern Bell Telephone Co. (C.C. A.1935) 75 F. (2d) 343. But cities have been clothed with full power to control and regulate the streets and alleys therein and may exercise their police power to the attainment of that end. Sections 2, 3, 7, article 18, Okl.Const.; sections 6380, 6397, 6410, O.S.1931 (11 Okl.St.Ann. §§ 642, 660, 672). This power has been specifically given Oklahoma City by its charter. Section 1, article 1, Charter, Okla. City; section 3, article 1, Charter, Okla. City; section 7, article 1, Charter, Okla. City. A limitation of this grant, however, is expressed in section 10290, O.S.1931 (47 Okl.St.Ann. § 12), and strongly relied on by petitioner, as follows: "The local authorities of cities, towns and villages of this State, shall have no power to pass, enforce or maintain any ordinance, rules or regulation requiring from any owner to whom this article is applicable any tax, fee, license or permit for the free use of the public highways or excluding or prohibiting any motor vehicle registered in compliance with this article or the accessories used thereon from the free use of the public highways and no ordinance, rule or regulation in any way contrary to or inconsistent with the provisions of this article, now in force or hereafter enacted, shall have any force or effect; provided that the powers given to local authorities in cities of the first class to enact general rules and ordinances applicable equally to all vehicles and users of the highways, to bring the orderly passage of vehicles upon certain streets in such cities where the traffic is heavy and continuous, and the powers are given local authorities to regulate vehicles offered to the public for hire or for proceedings, assemblages, or parades in the streets or public places shall remain in full force and effect."
The first question is whether the parking meter ordinances violate the provisions of this express limitation. Upon analysis, the provisions of the statute applicable to the case at bar are that cities shall have no power to pass any ordinance, (1) requiring a fee from any owner to whom this article is applicable for the free use of the public highways, or (2) excluding any motor vehicle from the free use of the public highways; provided that the powers given to cities to enact general rules (a) to bring the orderly passage of vehicles upon certain streets in such cities where the traffic is heavy and continuous, and (b) to regulate vehicles offered to the public for hire, shall remain in full force and effect. Considering the limitations expressed in clause (1) and (2), the decisive issue is whether "the free use of the streets" includes the right to "park." The public has the absolute right to the free use of the streets, and this means any use that is incident to the primary purpose for which the streets have been dedicated. The primary purpose is travel. Thus this right has been interpreted to mean only free passage and the right to use the street to convey one's self or property from one place to another. Hover v. Oklahoma City (1928) 133 Okl. 71, 271 P. 162; City of Stillwater v. Lovell (1932) 159 Okl. 214, 15 P.2d 12; City of Waco v. Powell (1869) 32 Tex. 258; Greene v. City of San Antonio (Tex.Civ.App.1915) 178 S.W. 6; 29 Tex.Jur. 606; 13 R.C.L. 251. This, of course, includes the right to stop at the curb for the purpose of taking in or letting out occupants of the car, or for the purpose of loading or unloading merchandise. But a clear distinction is made between this use of the street and "parking," which is held not to be an incident to public travel. Village of Wonewoc v. Taubert (1930) 203 Wis. 73, 233 N.W. 755, 72 A.L.R. 224; Pugh v. City of Des Moines (1916) 176 Iowa, 593, 156 N.W. 892, L.R.A.1917F, 345; Blashfield's Cyc. of Automobile Law and Practice (Permanent Ed.), vol. 1, §§ 32, 78. Consequently, many jurisdictions adhere to the view that the city can prohibit parking absolutely, on certain congested streets, but could not prohibit the stopping of automobiles for purposes incident to travel. Pugh v. City of Des Moines, supra; Village of Wonewoc v. Taubert, supra; State v. Carter (1934) 205 N.C. 761, 172 S.E. 415; Lowell v. Pendleton Auto Co. (1927) 123 Or. 383, 261 P. 415; McCaffrey v. Smith (1886...
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