Harper v. City of Wichita Falls

• Decision Date: 23 April 1937
• Docket Number: No. 13673.,13673.
• Citation: 105 S.W.2d 743
• Parties: HARPER v. CITY OF WICHITA FALLS et al.
• Court: Texas Court of Appeals

105 S.W.2d 743

HARPER v. CITY OF WICHITA FALLS et al.

No. 13673.

Court of Civil Appeals of Texas. Fort Worth.

April 23, 1937.

Rehearing Denied May 14, 1937.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Suit by W. R. Harper against the City of Wichita Falls and another. From an adverse order, plaintiff appeals.

Affirmed.

B. D. Sartin and H. L. Ratliff, both of Wichita Falls, for appellant.

T. A. Hicks and Thelbert Martin, both of Wichita Falls, for appellee City of Wichita Falls.

J. T. Montgomery, of Wichita Falls, and Sewall Myer, of Houston, for appellee Parkrite Corporation.

R. R. Lewis and George D. Neal, both of Houston, and H. P. Kucera, A. J. Thuss, and J. Manuel Hoppenstein, all of Dallas, amici curiæ.

DUNKLIN, Chief Justice.

The above entitled cause was instituted by W. R. Harper against the City of Wichita Falls to enjoin the enforcement of certain parking meter ordinances passed by the city, attached as exhibits to the petition and hereinafter copied. The Parkrite Corporation also was made a defendant, and plaintiff prayed for a mandatory writ requiring it to remove the parking meters it had installed pursuant to authority from the city under its contract to purchase them from the Parkrite Corporation. Plaintiff's application for the issuance of a temporary writ of injunction, restraining enforcement of the ordinance during pendency of the suit for trial on its merits, was refused by the trial court, and this appeal is from that order.

Following are the ordinances in question:

"Ordinance No. 1243.

"An ordinance, creating and defining meter zones in the City of Wichita Falls, Texas; providing for the installation, operation and maintenance of mechanical devices to regulate parking in said parking meter zones; providing for the collection of regulatory and inspection fees for the use of such devices; providing for the deposit of such fees by the city treasurer in a special fund; providing for the method and purposes of disbursement of said fund; making it unlawful to use the streets or portions of the streets so designated for parking except through use of parking meters; defining what act shall be unlawful, and fixing penalties for the violation of the provisions of this ordinance, and repealing all ordinances and parts of ordinances in conflict herewith and declaring an emergency.

"Whereas, because of the width of certain streets in certain sections of the City of Wichita Falls the free moving of traffic in the down-town 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 motor vehicles so parked on the most congested parts of the City's business 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 Wichita Falls, and 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 limitations, and in the opinion of the City Council, 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 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."

Following those recitals are provisions setting apart as a parking meter zone both sides of several streets in the city, including Scott avenue, and providing for a designation of spaces for parking of vehicles and for the installation and operation of parking meters, such spaces to be indicated by painted lines upon the surface of the street within the parking meter zone; the parking meters to be placed upon the curb adjacent to and alongside of the individual marked spaces to be identified, and with signal devices indicating whether or not the parking space is then in use. There were further provisions that a charge of 5 cents would be made for the use of a parking space, to be paid by a deposit of a 5-cent coin in the meter which would cover the right to use the parking space for a period of one hour. The hours within which the fee would be required would be between 8:30 a. m. and 6:30 p. m. on any day except Sundays and holidays, when officially designated by the board of aldermen as such. It was made an offense punishable by fine not less than $5 nor more than $100 for the occupancy of any parking space so designated beyond the limit of time so fixed, but that the same would not apply to a temporary stopping of such vehicle for the purpose of and while actually engaged in loading or unloading passengers or merchandise, or involuntary stopping of a vehicle out of control of the occupant; nor to vehicles of police or fire department of the city.

By Ordinance 1244 the fine for violating the provisions of Ordinance 1243 was changed to not less than $1 nor more than $100; and by ordinance 1249 the time limit for occupancy of parking meter space was changed from one hour to two hours.

It was further provided in the ordinance that the parking meters should be paid for exclusively from the receipts of the meters and the City of Wichita Falls would in no way be obligated to pay the same out of any other funds, moneys, or revenues, of the city, and that said funds should never be considered in determining the constitutional statutory and other legal limitations imposed by the city with respect to its power to create debts.

By section 24 of the ordinance the city clerk should collect from the parking meters the funds therein contained and deposit the same to the credit of the city in the city depository in a special fund called "Parking Meter Fund," and that same "shall be expended by the Board of Aldermen of the City of Wichita Falls, Texas, for traffic regulations and control and in promoting the safety and well being of the public in the handling of traffic upon the streets of the City of Wichita Falls, Texas. The five cent coin required to be deposited in said parking meter provided for herein is a police regulation and inspection fee to cover the cost of inspecting and regulating traffic involved in the proper handling of the traffic upon the streets of the City of Wichita Falls, Texas, and in the inspection, installation, operation, control, and use of parking meters and parking spaces described herein and involved in the checking up and regulating of the handling of traffic and of the parking of vehicles in the parking meter zones hereby created."

The city's contract with the Parkrite Corporation stipulated for purchase by the city from that corporation of 500 complete parking meters for the price of "$58.00 net per meter, completely installed and placed in operation on the streets or sidewalks of the City of Wichita Falls, Texas."

The city agreed to pass ordinances establishing zones for installation of the meters in its business district and for regulation and control of their use, requiring deposit of a 5-cent fee, and fixing and defining parking spaces, and limiting time of parking. The meters were to be operated by the city. Seventy-five per cent. of the fees collected would be turned over to the Parkrite Corporation to be applied on the purchase price of the meters; the remaining 25 per cent. to be kept by the city to pay for expenses of collection and regulation and control of traffic. After payment of the full purchase price, the meters belong to the city. The Parkrite Corporation expressly agreed to look solely to the fees so collected through the meters for their purchase price and would make no claim for such payment out of any other resources of the city. It agreed further to execute a bond to protect the city from any damages growing out of the installation of the meters.

It was alleged in plaintiff's petition that he was engaged in the jewelry business, occupying a leased store fronting on Scott avenue, one of the public streets of the city and included in the district set apart by the city for the maintenance of the parking meters. He has followed the same business in that location for several years. Along Scott avenue parking meters have been erected, one of which is immediately in front of plaintiff's store.

Plaintiff further alleged that the ordinance was a zoning ordinance within the meaning of article 1011d, Vernon's Annotated Civil Statutes, and was void for failure of the city to publish prior notice of its passage, as required by the provisions of that statute.

It was further averred that for years prior to the passage of the ordinance parking on the public streets had been regulated by the usual designation of marks and signs, indicating parking spaces and limitations of two hours for which they could be occupied, all without the use of parking meters and without charge for such occupancy; that there is no proper relation between the erection and operation of the parking meters and the authority vested in the city by its charter and statutes for the control of its public...