Ex Parte Harrison

• Decision Date: 07 December 1938
• Docket Number: No. 19945.,19945.
• Citation: 122 S.W.2d 314
• Parties: Ex parte HARRISON.
• Court: Texas Court of Criminal Appeals

122 S.W.2d 314

Ex parte HARRISON.

No. 19945.

Court of Criminal Appeals of Texas.

December 7, 1938.

Commissioners' Decision.

Appeal from District Court, Lubbock County; E. L. Pitts, Judge.

Habeas corpus proceeding by Homer Harrison for his release from jail to which he was committed after being convicted in the corporation court of the city of Lubbock for parking his automobile in a meter parking space without depositing 5 cents in the meter. From a judgment of the district court recommitting the relator to jail, he appeals.

Affirmed.

Bean, Evans & Bean, of Lubbock, for appellant.

Bradley & Wilson, City Attys., of Lubbock, H. P. Kucera, City Atty., of Dallas, R. R. Lewis, City Atty., and George D. Neal, Asst. City Atty., both of Houston, W. D. Girand, Jr., of Amarillo, W. D. Benson, Jr., of Lubbock, amici curiæ.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

Relator was convicted in the corporation court of the City of Lubbock for parking his automobile in a meter parking space without depositing a nickel in the meter. After being committed to jail he applied to the district judge of Lubbock County for a writ of habeas corpus. The writ was granted, a hearing was had, and he was again committed to the city jail. Hence this appeal.

Relator contends that the parking meter ordinance of the City of Lubbock is invalid in that it imposes a fee for the use of the streets and "constitutes a violation of the city's contractual authority" over its streets.

Under the terms of the ordinance, the city was given authority to purchase parking meters to be placed by each zone in the city. No person is permitted to park his automobile in the designated areas without first depositing a five cent coin in the meter. The time limit for the occupancy of the places set apart is two hours. Section 18 of the ordinance reads as follows:

"That it shall be unlawful and an offense for any person to deposit or cause to be deposited in the parking meter within any of the parking meter zones as herein established a five cent coin of the United States of America for the purpose of extending the parking time of the vehicle occupying said parking space beyond the period of time fixed by this ordinance as the parking limit for the parking meter zone within which said parking meter is located."

Section 19 provides:

"That it shall be unlawful and an offense for any person, firm or corporation to allow, permit or suffer any vehicle registered in his, her, their or its name to be parked overtime, for a longer period of time continuously in said parking space than the parking limit provided by this ordinance for the parking meter zone within which said vehicle is so parked."

Section 25 is in language as follows:

"The five cent coins required to be deposited in the parking meters as provided herein are hereby levied as a police regulation, supervision and inspection fee to cover the cost of inspection, supervision and regulation involved in the installation, operation, upkeep and maintenance and the use of the parking space and parking meters described herein, and involved in checking up and regulating the parking of vehicles in the parking meter zone created hereby."

Further, it is provided in the ordinance that the money collected from the use of the meters shall be deposited to the credit of the city in the "Parking Meter Fund."

The City of Lubbock is operating under the provisions of Art. 11, Sec. 5, of the Constitution of Texas, Vernon's Ann.St. Const. Art. 11, § 5, giving cities of more than five thousand inhabitants the right to adopt charters subject to such limitations as may be prescribed by the Legislature, and the right to levy, assess, and collect such taxes as may be authorized by law or their charters. Under the terms of Art. 1175, Revised Civil Statutes, Home Rule Cities are given "exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds" of such cities. Also the statute gives to such cities the right "to license, operate and control the operation of all character of vehicles using the public streets, including motorcycles, automobiles or like vehicles." The ordinance was within the general charter powers of the city and the provisions of Art. 1175, supra. The reason for its enactment is shown in the preamble, which reads as follows:

"Whereas, because of the crowded and congested condition of certain streets in certain sections of the city of Lubbock, the free moving of traffic in the downtown business area is congested and impeded; and,

"Whereas, previous attempts to regulate the parking of vehicles in the aforesaid area have not been as successful as is desirable for the safety and welfare of the public, and because of the small number of traffic policemen available therefor, and because of the size of the aforesaid area; and,

"Whereas, because numerous operators of motor vehicles, taking advantage of the above named situation by parking for unreasonable long periods of time in close proximity to other vehicles so parked on the most congested parts of the City's busiest streets, tends to further impede traffic and in addition thereto is unfair to business interests in such area and to motorists, and constitutes a danger to the life, limb and property of motorists and pedestrians; and,

"Whereas, such traffic conditions require limited parking in certain areas of the City of Lubbock, an enforcement of such limitation through the present means and methods, is expensive, inadequate and unsatisfactory; and,

"Whereas, it is advisable to employ some mechanical assistance in the enforcement of said parking limitation, and in the opinion of the City Commission, the most satisfactory way by which the above conditions may be remedied is by the designation of individual parking spaces in said area, and by providing for the use of the mechanical parking time indicators or meters in conjunction therewith, by restricting parking in said area to reasonable intervals of time, and by compelling the operators of vehicles who enjoy the use of the parking spaces so designated to pay a portion of the cost of the establishment and maintenance of the same, and for the purpose of regulating and controlling the same; * * *".

The primary right of the citizen to the use of the streets for the purpose of travel thereon does not carry with it the right to "store his vehicle in the street for his business convenience." Harper v. City of Wichita Falls, Tex.Civ.App., 105 S.W.2d 743, 750. While owners and non-owners of abutting property have the right to the use of the street for travel thereon and also the right of ingress and egress to and from property...