Garage v. City
| Decision Date | 08 May 1928 |
| Docket Number | Case Number: 17330 |
| Parties | PALACE GARAGE et al. v. OKLAHOMA CITY. |
| Court | Oklahoma Supreme Court |
¶0 1. Municipal Corporations--Discretionary Powers as to Control of Streets and Parkings Granted by Statute.
Section 4564, C. O. S. 1921, confers wide discretionary powers upon the governing body in cities and towns as to regulation and control of streets and parkings within the city or town. subject only to being exercised in such a manner as not to be arbitrary or discriminatory.
2. Same--Ordinance Prohibiting Certain Obstructions Within Police Power of city.
The passage of an ordinance prohibiting the establishing of certain obstructions in the streets and parkings of the city, and likewise prohibiting the continuation of those already established is a valid exercise of the police power of the city.
3. Same--No Vested Rights Acquired by Maintenance of Obstructions with City's Consent Prior to Passage of Ordinance.
Where certain individuals or firms have established, with the knowledge and consent of the city, certain obstructions upon the streets and parkings of the city prior to the passage of an ordinance prohibiting same, no vested rights were acquired therein by reason of the permissive use of the streets and parkings in such manner.
4. Same--Validity of Ordinance Prohibiting Operation of Curb Filling Station.
Ordinance here in question construed as being a valid exercise of the police power of the city and in no wise violative of the constitutional rights of the plaintiffs.
Error from District Court, Oklahoma County; T. G. Chambers, Judge.
Injunction by the Palace Garage, a corporation, et al., against Oklahoma City. Demurrer to petition sustained, petition dismissed, and plaintiffs bring error. Affirmed.
Warren K. Snyder, Roy St. Lewis, and Edward C. Snyder, for plaintiffs in error.
John F. Martin, for defendant in error.
¶1 This is an appeal from the district court of Oklahoma county. The parties appear here as in the court below, and will be so referred to herein. Plaintiffs brought this action against the city of Oklahoma City to enjoin the enforcement of a certain ordinance numbered 2982, and to have same declared unconstitutional and void as being oppressive and unwarranted and the enforcement thereof destructive of the property and business of plaintiffs without due process of law, and therefore violative of the 14th Amendment to the Constitution of the United States. Defendant city filed a general demurrer to plaintiffs' petition, which was by the court sustained.
¶2 Plaintiffs elected to stand on their petition and refused to plead further, whereupon the court rendered judgment dismissing the petition of plaintiffs, and it is from this judgment this appeal is prosecuted.
¶3 The petition in error contains five separate assignments of error, all of which may be grouped under the one general assignment, to wit: Error of court in not overruling the demurrer of defendant to petition of plaintiffs. The gist of the relief sought by plaintiffs is nonenforcement of the ordinance complained of as against them, for two reasons: First, that same is unconstitutional and void; and, second, that even if valid, it is not retroactive and therefore not enforceable as to plaintiffs.
¶4 We have carefully considered the voluminous brief filed herein by counsel for plaintiffs, and have examined the numerous cases therein cited, and are forced to the conclusion that same do not in any wise support plaintiffs' contention here.
¶5 The sole question for our determination is whether or not the passage and enforcement of the ordinance here in question is a valid exercise of the police power of the city. We deem it unnecessary to set out in full herein the ordinance attacked by plaintiffs, but, for the purposes of this discussion, the title thereof will suffice, the same being as follows:
"An ordinance prohibiting the construction, erection, operation or maintenance of any mercantile business or equipment pertaining thereto, upon any of the public streets, alleys, boulevards, parkways, sidewalks, curbing or parking within the city of Oklahoma City, repealing ordinances Nos. 2862 and 2888, and all other ordinances or parts of ordinances of the city of Oklahoma City in conflict herewith, fixing penalty for violation hereof, and declaring an emergency."
¶6 Section 4564, C. O. S. 1921, provides as follows:
"The council may prohibit and prevent all encroachments into and upon the sidewalks, streets, avenues, alleys and other property of the city, and may provide for the removal of all obstructions from the sidewalks, curbstones, gutters and cross-walks, at the expense of the owners or occupiers of the grounds fronting thereon, or at the expense of the person placing the same there; the council may also regulate the planting and protection of shade trees in streets, the building of bulkheads, cellar and basement ways, stairways, railways, windows and doorways, awnings, hitching posts and rails, lamp posts, awning posts, and all other structures projecting upon or over and adjoining, and all other excavations through and under the sidewalks or along any streets of the city."
¶7 Defendant contends this section of the statute is conclusive as to its right to enact and enforce the ordinance here in question, and cites in support thereof Norman Milling & Grain Co. v. Bethurem, 41 Okla. 735, 139 139 P. 830, and particularly the following quotation therefrom:
¶8 Plaintiffs likewise cite this case as sustaining their contention that they have "some rights in the parking," but, as we view this record and understand the question here presented, the rights of the property owner in the parking are not here denied, but it is admitted that certain rights are specifically conferred by section 4359, C. O. S. 1921, same being made expressly subject, however, to the lawful supervision of the city or town over its streets.
¶9 That the passage of ordinances of this kind is a valid exercise of the police power of the city has been determined by the Supreme Court of Kansas in the case of Slocum v. City of Wichita, 217 P. 297, and by the Supreme Court of Michigan, in the case of Village of North Adams v. Wertz, 188 N.W. 527; and the Supreme Court of Arkansas, in the case of Sander v. City of Blytheville, 262 S.W. 23. We have carefully reviewed each of these cases, and are of the opinion that same support defendant's contention here. The case of Sander v. City of Blytheville, supra, is so thoroughly in point here and so completely answers the contention of plaintiffs, we feel justified in quoting from same at length. The ordinance in question there was very similar to the one here under consideration and the petition attacking same contained substantially the same allegations as the petition here, and demurrer was sustained to same, as here. In affirming the lower court, Justice Wood had this to say:
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Hover v. Okla. City
...other states, when this court has recently announced the law governing the main question herein in the case of Palace Garage et al. v. Oklahoma City, 131 Okla. 122, 268 P. 240, as follows:"Where certain individuals or firms have established, with the knowledge and consent of the city, certa......
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