Foster's Inc. v. Boise City

Decision Date30 October 1941
Docket Number6903
Citation118 P.2d 721,63 Idaho 201
CourtIdaho Supreme Court
PartiesFOSTER'S INC., a corporation; O. J. FOSTER and C. B. LITTLE, Appellants, v. BOISE CITY, a municipal corporation, WESTERMAN WHILLOCK, as Mayor, SAM S. GRIFFIN, A. A. WALKER, T. J. JONES, JR., and M. S. PARKER, as members of the Common Council, and GEORGE HASKIN, as Chief of Police, of Boise City, Respondents

MUNICIPAL CORPORATIONS-DEBT LIMITATIONS-STREETS-DEDICATION-CONTROL AND REGULATION-POLICE POWER-RIGHTS OF ABUTTING PROPERTY OWNERS-RIGHT OF INGRESS AND EGRESS-CONSTITUTIONAL LAW - DUE PROCESS - REGULATORY AND REVENUE TAXES.

1. Where, in February, 1940, city granted company permit to install parking meters and company gave city an option to purchase the meters, city exercised its option and by contract of July 27, agreed that payment should be made monthly of a sum equal to 75 per cent. of the income from the meters, and in meantime city passed an appropriation ordinance for fiscal year 1940-41 sufficient to provide for purchase price of meters, no "debt" or "liability" was created against city in violation of constitution prohibiting city from incurring indebtedness or liability exceeding income provided for it during the fiscal year in which it was incurred. (Const. art. 8, sec 3.)

2. City parking meter ordinance does not deprive owners of property in front of which meters were installed of their property without "due process of law" and does not take their property without payment of "just compensation." (Const. art. 1, secs. 13, 14.)

3. Where property is once dedicated, taken, or condemned for public use, it is competent and proper for the landowner to show probable damage that he will or may sustain by reason of the most numerous and injurious use to which the condemnor may lawfully put the property under its condemnation.

4. Where a street is acquired, either by dedication or condemnation, and opened for traffic, the municipality has the power and authority to police the same and regulate the traffic thereon. (I. C. A. sec. 49-1141.)

5. The power of cities over streets is exclusive and unlimited.

6. The police power is a necessary concomitant to complete sovereignty and inheres primarily in the state.

7. The exercise of police power, within corporate limits of cities and villages, has been delegated to the respective municipalities, and the full exercise of that power is one of the governmental duties of the respective municipalities as arms of the state, in preserving the health, safety, and general welfare of the people.

8. A public street or highway is free to all persons who choose to travel over it, whether they be abutting property owners residents of the municipality, the county, the state, or of a foreign state, with the exception, only, that the abutting property owner has the additional right of ingress and egress.

9. The right of egress and ingress of owner of property abutting street is subject to regulation and police control.

10. Dedication or condemnation of a street contemplates the most onerous and injurious mode of use to which it can be lawfully devoted.

11. A license that is imposed for revenue is not a "police regulation" but a "tax" and can only be upheld under the power of taxation, since a municipality cannot, in the exercise of its police power, levy taxes.

12. A municipality cannot, in the exercise of its police power levy taxes.

13. A license fee must bear some reasonable relation to the cost of regulation.

14. The right to travel over a street or highway is a primary absolute right of everyone, but the exercise of that right may be regulated in almost every respect.

15. The power to enact police regulations may not be resorted to as a shield or subterfuge, under which to enact and enforce a revenue-raising ordinance or statute, but it is reasonable and fair to require the thing that necessitates policing, to pay the expense.

16. The fact that the fee charged by police regulation produces more than the actual cost and expense of enforcement and supervision, is not an adequate objection to the exaction of the fee, but the charge made must bear a reasonable relation to the thing to be accomplished.

17. The spread between actual cost of administration of police regulation and the amount of fees collected must not be so great as to evidence on its face a revenue measure rather than a license tax measure.

18. In suit to enjoin city from enforcing parking meter ordinances evidence sustained finding that amounts collected through operation of the penny-nickel meters were incident only to regulation and that the fee imposed was not disproportionate to the expense.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Isaac McDougall, Presiding Judge.

Suit by appellants to perpetually enjoin the City of Boise from enforcing Ordinances 1780 and 1793, relating to the installation, purchase, and use of parking meters on certain streets of the city. Judgment for defendants. Affirmed.

Affirmed with costs to respondents.

Martin & Martin, for Appellants.

No city shall incur any indebtedness, or liability exceeding in that year, the income and revenue provided for it for such year, without complying with all the provisions of the Idaho State Constitution. (Idaho State Constitution, Art. 8, Sec. 3; Dunbar vs. Board of County Comrs., 5 Idaho 407; Byrns vs. Moscow, 21 Idaho 398; Feil vs. Coeur d'Alene, 23 Idaho 32; Miller vs. Buhl, 48 Idaho 668; Straughan vs. City of Coeur d'Alene, 53 Idaho 494; 6 McQuillin Munic. Corp., 2nd Ed. 65.)

The purchase of parking meters do not constitute an ordinary and necessary expense. (Williams vs. City of Emmett, 51 Idaho 500, 507.)

The mere fact that the use of the streets in parking is a proper subject of police regulation, does not mean that any sort of restriction, whether appropriate or inappropriate, may be applied at discretion. (State vs. Harris (N. C.) 6 S.E.2d 854; Liggett vs. Baldridge, 278 U.S. 105, 73 L.Ed. 204; Myer vs. Nebraska, 67 L.Ed. 1042; H. M. Rhodes Inc. & Vehicular Parking Ltd. v. City of Raleigh (N. C.) 9 SE 2nd. 389; 6 R. C. L. 237.)

A city cannot under any circumstances impose a license or permit fee under its police power for the purpose of collecting revenue for the general funds of the city. (State vs. Nelson, 36 Idaho 713; Constitution of the State of Idaho, Art. 7, Sec. 6; Hendricks vs. City of Minneapolis (Minn.) 290 N.W. 428; Brodkey vs. Sioux City (Ia.) 291 N.W. 171.)

The owner of property has certain special rights different in kind from those enjoyed by the general public. These rights include the right to the use of the street in front of their premises and adjacent thereto, and particularly any part of the highway not used for travel, and these rights cannot be impaired by exercise of police power. (Village of Sandpoint vs. Doyle, 14 Idaho 749; Johnson vs. Johnson, 14 Idaho 561; Continental Oil Co. vs. City of Twin Falls, 49 Idaho 89; Latah County vs. Hasfurther, 12 Idaho 797; City of Twin Falls vs. Harlan, 27 Idaho 769; Constitution of Idaho, Art. 1, sec. 14.)

C. Stanley Skiles and Wm. H. Langroise, for Respondents.

The power of Boise City over the public streets within its corporate limits is plenary, exclusive and unlimited. (Art. XII, Sec. 2, Constitution of Idaho; Boise City Charter, Sec. 43; Boise City Charter, Sections 42(51), 42(1), 42(6), 42(30), 42(31), 42(37), 43(39), 42(16), (appearing in Chapter 215, 1939 Session Laws); Powell vs. McKelvey, 56 Idaho 291.)

And within its jurisdiction Boise City has power to enforce all police regulations not in conflict with its Charter. (Article XII, Section 2, Constitution of Idaho; Ex Parte Roach (Cal.) 37 P. 1044; State vs. Robbins, 59 Idaho 279.)

The installation, operation and maintenance of parking meters upon the public streets, in aid of the regulation of parking and traffic, does not constitute any unlawful interference with appellant's right of ingress and egress, nor does it constitute a taking of appellant's property for public use without compensation. (County Court vs. Roman (W. Va.) 3 S.E.2d 631; Owens vs. Owens (S. C.) 8 S.E.2d 339; Owens vs. Town of Atkins (Ark.) 259 S.W. 396; Slocum vs. City of Wichita (Kans.) 217 P. 297; Powell vs. McKelvey, 56 Idaho 291.)

AILSHIE, J. Budge, C.J., Givens, J., MORGAN AND HOLDEN, JJ., concurring.

OPINION

AILSHIE, J.

February 15, 1940, Boise City entered into an agreement with the Dual Parking Meter Company, a corporation, providing for the installation of 577 penny-nickel automatic parking meters, Type D 2-S-PN. The agreement provided for a trial period beginning with the completion of installation and concluding May 1, 1940; that, during that time, the city should retain all receipts and moneys collected through operation of the meters. The company agreed to sell, if the city elected to buy, the equipment to the city for the sum of $ 61.00 per meter, which should include all charges and costs, together with the service of a trained maintenance expert for one year. Upon exercising its option, July 27, 1940, to pay for the equipment, the city agreed on a sum equal to 75% of the income thereafter received from the operation of the meters; title to the meters to remain in the company until payment in full.

March 11, 1940, the city council passed Ordinance No. 1780 providing regulations relative to the parking of vehicles on the public streets, for the installation, regulation, control and use of parking meters; for the establishment of parking meter zones on certain city streets in the business districts; prescribing the rights of owners or operators of vehicles within the zones; and for the enforcement, and penalties for violation, of the ordinance. Since March 25, 1940, the...

To continue reading

Request your trial
35 cases
  • Splinter v. City of Nampa, s. 7538
    • United States
    • United States State Supreme Court of Idaho
    • January 28, 1950
    ...the exercise of police power in making such rules and regulations is a governmental and not a proprietary function. Fosters, Inc., v. Boise City, 63 Idaho 201, 118 P.2d 721; Strickfaden v. Greencreek Highway District, 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057; Trueman v. Village of St. Marie......
  • City of Decatur v. Robinson, 8 Div. 431.
    • United States
    • Supreme Court of Alabama
    • June 24, 1948
    ...... . . See. Gilsey Buildings Inc. v. Incorporated Village, 170. Misc. 945, 11 N.Y.S.2d 694; Webster ...Ward, 65 Ohio App. 522, 31 N.E.2d 142;. Foster's, Inc., v. Boise City, 63 Idaho 201, 118. P.2d 721, 726, and City of Louisville v. ......
  • State ex rel. Bibb v. Chambers, 10616
    • United States
    • Supreme Court of West Virginia
    • September 2, 1953
    ...352; Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95; Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339; Foster's, Inc. v. Boise City, 63 Idaho 201, 118 P.2d 721; and Blashfield's Cyc. of Automobile Law, Perm.Ed., Vol. 1, pages 144 and In Hendricks v. City of Minneapolis, supra [207......
  • Merritt v. State
    • United States
    • United States State Supreme Court of Idaho
    • October 15, 1986
    ...Avenue entrance to the alley kept open. Government power over public ways is "exclusive and unlimited." Cf. Foster's Inc. v. Boise City, 63 Idaho 201, 211, 118 P.2d 721, 725 (1941). The power to regulate the streets and sidewalks by controlling and limiting traffic was within the authority ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT