Hickey v. Riley

• Decision Date: 09 October 1945
• Parties: HICKEY <I>v.</I> RILEY ET AL.
• Court: Oregon Supreme Court

177 Or. 321

162 P.2d 371

HICKEYv.

RILEY ET AL.

Supreme Court of Oregon.

Argued September 6, 1945.

Affirmed October 9, 1945.

Appeal and error

1. Ordinarily constitutional questions will be considered only when insisted upon and adequately argued.

Municipal corporations

2. Facts that plaintiff was lessee of property abutting on a public street, that parking meters had been installed in front of and immediately adjacent to his leased property, that meters interfered with access to premises by plaintiff and his customers, that plaintiff had been arrested and compelled to pay fine for parking his automobile on a metered location without paying meter fee and that city threatened to continue to cause plaintiff's arrest and prosecution if he persisted in such conduct, showed a special injury to plaintiff and were sufficient to permit plaintiff to bring suit in his own name for determination of validity of parking meter ordinances.

Automobiles

3. Parking meter ordinances were not unconstitutional as class legislation on ground that ordinances discriminated against motorists and in favor of operators of other classes of vehicles.

Automobiles

4. Parking meter ordinance was not objectionable on ground that it discriminated in favor of rich and against the poor.

Automobiles

5. The fact that plaintiff's access to his abutting property was, to some extent, partly obstructed by parked automobiles, was not ground for rendering parking meter ordinances invalid.

Municipal corporations

6. The right of abutting property owners to access to their premises is subservient to primary rights of public to free use of streets for purposes of travel and incidental purposes.

Automobiles

7. Parking of automobile in street is not a right but a privilege and as such is subject to reasonable regulation under the police power.

Automobiles

8. The amount of fee exacted is a proper matter to be considered in determining whether a parking meter ordinance is a proper exercise of police power as a regulatory measure or is an exercise of the taxing power.

Municipal corporations

9. City was without authority to impose revenue tax on motor vehicles.

Automobiles

10. Generally, license fee imposed on motor vehicles for regulatory purposes should not materially exceed expense of issuing license, inspecting and regulating the vehicles so as to require their compliance with the regulations imposed by ordinance.

Automobiles

11. Traffic meter ordinance providing for 5 cent parking meter fee and limiting time of parking to one hour was a valid traffic regulation ordinance and was not objectionable as a revenue measure.

Automobiles

12. Detection of violations of one hour time limit of parking meter ordinance by motorists' depositing additional coins in meter was an administrative matter with which Supreme Court was not concerned and such violations would not render ordinance unconstitutional.

                  See 25 Am. Jur. 448
                  5 C.J.S., Appeal and Error, § 1802
                

IN BANC.

Appeal from Circuit Court, Multnomah County.

FRANKLIN C. HOWELL, Judge.

Action by James Hickey against R.E. Riley, Mayor of the City of Portland, Oregon, and others, for a judicial determination of the unconstitutionality of certain parking meter ordinances. From an adverse decree, the plaintiff appeals.

AFFIRMED.

Arthur E. Prag, of Portland (Hoy & Prag and Andrew Hansen, all of Portland, on the brief), for appellant.

L.E. Latourette, City Attorney, and James West, Deputy City Attorney, both of Portland, for respondents.

HAY, J.

In this action the plaintiff and appellant, James Hickey, sought, inter alia, a judicial declaration of the unconstitutionality of certain ordinances of the City of Portland, under which the city has caused meters to be installed for the regulation of the parking of automobiles. Plaintiff is the lessee of certain premises within the parking-meter area, wherein, for thirty years last past, he has done business as a dealer in sewing machines and other merchandise. Parking meters have been installed upon the street curb in front of his place of business, and others upon the curbs for more than a city block "in every direction" therefrom.

Nine separate grounds upon which the ordinances are alleged to be unconstitutional or otherwise invalid are set forth in the complaint, but only three of them are argued upon this appeal. The remaining grounds are: (1) that the ordinances are class legislation, granting to one class of citizens privileges and immunities which are not granted equally to all citizens, in violation of Article I, section 20, Constitution of Oregon; (2) that the use of the public streets for parking purposes for the raising of revenue is an unauthorized abandonment of the purposes for which such streets were originally dedicated; and (3) that the ordinances are actually revenue measures and not regulatory ones, and that the city has no authority to impose a revenue tax upon motor vehicles.

1. The constitutional questions which have not been argued have nevertheless had our attention, but as to them the asserted unconstitutionality does not appear so clearly upon the face of the ordinances as to require a departure from the general rule that such questions will be considered only when insisted upon and adequately argued. 16 C.J.S., Constitutional Law, section 96.

The city, while admitting installation and maintenance of the meters, joined issue with the other material allegations of the complaint. The trial court, after a hearing, filed a memorandum opinion sustaining the constitutionality of the ordinances, made formal findings of the issues in favor of the city, and gave judgment and decree accordingly. Plaintiff appeals.

On November 19, 1936, the city council enacted Ordinance No. 68868, a general traffic code which, among other matters, imposed time-limitations upon parking in certain areas. All of the parking-meter ordinances which are involved in the present case were enacted as amendments to and as parts of such general traffic code. These amendments are:

Ordinance No. 70240, enacted November 18, 1937, which authorized the installation of traffic meters for an experimental period of 120 days.

Ordinances Nos. 70455 and 70456, enacted January 13, 1938, authorized the installation of parking meters, the cost thereof to be met by application thereto of one-half of the funds to be derived from the operation of the meters.

Ordinance No. 70554, enacted February 16, 1938, established a parking-meter fund, and required moneys derived through operation of the meters to be credited to such fund and applied against obligations incurred in the installation of the meters.

Ordinance No. 70842, enacted April 27, 1938, amended the last-mentioned ordinance by limiting expenditures from the parking-meter fund to the "installation, operation and maintenance of said parking meters and the regulation, enforcement, control, engineering and construction in connection with vehicular and pedestrian traffic within the city".

Ordinance No. 71132, enacted July 7, 1938, authorized the continuance of the parking meters beyond the 120-day experimental period.

Ordinance No. 75574, enacted July 2, 1941, authorized purchase of additional meters and a loan of $15,470.00 from the general fund of the city to the parking-meter fund.

Ordinance No. 75607, enacted July 10, 1941. This ordinance comprised a recodification of the entire traffic code of the city, and was compiled under the supervision of the Bureau of Municipal Research and Service of the University of Oregon. It included provisions providing for and regulating the use of parking meters. This was the ordinance which was in force at the time of the institution of the case at bar. Its declared purpose was as follows:

"As a means of relieving motor vehicle traffic congestion within a certain business district of the city of Portland, caused by the double parking and overtime parking of motor vehicles and a general abuse of parking privileges, and to afford adequate control and regulation of traffic moving to and from the said congested district, and for the purpose of establishing an efficient system applicable for the enforcement of parking regulations, and to facilitate a greater freedom for the motor vehicle user in transacting business requiring a relatively short period of time within the district as hereinafter designated and as an exercise of the police power, the installation, use, and maintenance of parking meters in the city of Portland is hereby authorized."

2. The city suggests that plaintiff is without legal capacity to maintain the present suit, in that he neither alleged nor proved that the acts of the city of which he complains inflicted upon him any special injury different from injuries suffered by the public generally. No demurrer upon this ground was interposed in the lower court, and in any event we believe that the point is not well taken. The complaint alleges and the proof indicates that plaintiff is the lessee of property abutting upon a public street; that parking meters have been installed in front of and immediately adjacent to his leased premises; that the meters interfere to some extent with access to the premises by plaintiff and his customers; that plaintiff has heretofore been arrested and compelled to pay a fine for parking his automobile upon a metered location without paying the meter fee, and that the city threatens to continue to cause his arrest and prosecution if he persists in such conduct. These facts, in our opinion, show a special injury to plaintiff and are sufficient to permit him to bring suit in his own name. Friendly v. Olcott, 61 Or. 580, 123 P. 53; Winslow v. Fleischner, 110 Or. 554, 223 P. 922.

Article I, section 20, Constitution of Oregon, provides in part as follows:

"* * * No law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."

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