In re Opinion of the Justices

Decision Date15 April 1937
Citation297 Mass. 559,8 N.E.2d 179
PartiesIn re OPINION OF THE JUSTICES.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
OPINION TEXT STARTS HERE

Opinion of the Justices of the Supreme Judicial Court relative to constitutionality of a proposed statute relating to installation of parking meters by cities and towns, in answer to questions propounded by the Senate and the House of Representatives.

Opinion of the Justices to the Senate and the House of Representatives.On March 22, 1937, the following order was adopted by the Senate and on March 23, 1937, was adopted in concurrence by the House of Representatives:

‘Whereas, There is pending before the General Court a bill printed as House number seven hundred and forty-five, entitled ‘An Act authorizing the Purchase, Installation, Operation and Maintenance of Devices known as Parking Meters, by Cities and Towns for the purpose of enforcing Ordinances, By-Laws, Orders, Rules and Regulations relative to the Parking of Vehicles on Public Ways, and the Establishing of and Charging a Fee for the Privilege of Parking Vehicles on Certain Public Ways,’ a copy whereof is herewith submitted; and

‘Whereas, Grave doubt exists as to the constitutionality of said bill if enacted into law; therefore be it

‘Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the General Court upon the following important questions of law:--

‘1. Would the establishment of parking meters for the purpose of collecting fees for the privilege of parking vehicles upon the public highways, substantially as provided in the accompanying bill, infringe any rights of the servient land owners abutting on the public highways or any rights of the individual members of the public in the use of the public highways, under the State or Federal Constitution, or both?

‘2. Would the accompanying bill, if enacted into law, be unconstitutional in any respect?’

The proposed statute to which the order and the opinion relate is as follows:

Section 1. Section four of chapter forty of the General Laws, as appearing in the Tercentenary Edition thereof, is hereby amended by striking out the fourth paragraph thereof and inserting in place thereof the following:--

‘For the installation, operation and maintenance, subject to such laws as may be applicable, of mechanical traffic signal light systems, signs, signals, markings, parking meters or other devices and systems for the control and regulation of traffic on ways within its control, including poles, wires, and other necessary apparatus, upon, over or under such ways. Such a contract may provide for payments by such cities and towns over a period not exceeding five years, and any obligations of such cities and towns created by such a contract shall not be deemed a liability within the meaning of section thirty-one of chapter forty-four.

Section 2. Said chapter forty is hereby further amended by inserting after section twenty-two the following new section:--

Section 22A. Any city or town may, for the purpose of enforcing its ordinances, by-laws, orders, rules and regulations relating to the parking of vehicles subject so far as applicable, to section two of chapter eighty-five of the General Laws, install, operate and maintain mechanical devices known as parking meters; may make ordinances, by-laws, rules and orders respecting the same and may establish and charge a fee by the deposit of coins in such meters for the privilege of parking vehicles under such ordinances, by-laws, orders and rules on ways subject to such rules and regulations within its control, the fees so paid to be independent of the license fee specified in the preceding paragraph.

Section 3. Section seven of chapter forty-four is hereby amended by striking out the last paragraph thereof and inserting in place thereof the following:--

‘Except as to debts incurred under clause nine, debts may be authorized under this section only by a two thirds vote.’

The order was transmitted to the Justices on March 27, 1937, and on April 15, 1937, they returned the following answers:

To The Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order received on March 27, 1937, a copy whereof is hereto annexed.

The purpose of the proposed statute described in the order is to facilitate by means of parking meters the enforcement of municipal ordinances, by-laws, orders, rules and regulations concerning the parking of vehicles on public ways, and the charging of a fee for such parking. The validity of the proposed statute depends in large part upon the rights of the public in public ways. Therefore it is necessary to determine what those rights are. Highways and other public ways commonly have been laid out and established by the Commonwealth, counties, towns, cities or districts. The public acquire by the location of such ways a right of passage for the purpose of travel over the land taken with all the powers and privileges necessarily implied as incidental to the exercise of that right. The easement of travel is coextensive with the limits of the highway, and includes every reasonable means of passage and transportation for persons and commodities and of transmission of intelligence. Commonwealth v. Morrison, 197 Mass. 199, 203, 83 N.E. 415,14 L.R.A.(N.S.) 194, 125 Am.St.Rep. 338. It has always been held with respect to land included within the limits of the public way ‘to be clear that the public have no other right, but that of passing and repassing; and that the title to the land, and all the profits to be derived from it, consistently with, and subject to, the right of way, remain in the owner of the soil.’ Stackpole v. Healy, 16 Mass. 33, 34,8 Am.Dec. 121;New England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 65 N.E. 835;Sears v. Crocker, 184 Mass. 586, 69 N.E. 327,100 Am.St.Rep. 577;Opinion of the Justices, 208 Mass. 603, 94 N.E. 849;General Outdoor Advertising Co., Inc. v. Department of Public Works, 289 Mass. 149, 190, 193 N.E. 799. The fee of the land may be taken by public authority or it may be in someone other than the abutter. Boston v. Richardson, 13 Allen, 146, 159. That however is unusual. Abutting owners ordinarily hold the title to the fee to the center of the public way, subject only to the easement of travellers to pass and repass. This easement of travel has been interpreted in a broad sence. It comprises the installation of water and gas pipes, sewers, telephone, telegraph, electric light and power poles, wires and conduits, fire alarm and police boxes, hitching posts, traffic lights, signs and similar devices, as well as the obvious methods of transportation and passage included in the general term. All these are permitted because they facilitate the use of public ways for purposes of transportation of passage and promote the safety or comfort of those who travel. Whatever is done within the limits of the highway by the public or by members of it not justifiable as incidental to travel is a violation of the rights of the abutting owner. Commonwealth v. Morrison, 197 Mass. 199, 83 N.E. 415,14 L.R.A.(N.S.) 194, 125 Am.St.Rep. 338;Moran v. Gallagher, 199 Mass. 486, 85 N.E. 579,20 L.R.A.(N.S.) 116;Commonwealth v. Surridge, 265 Mass. 425, 164 N.E. 480, 62 A.L.R. 402.

The parking meter has not yet become familiar. We are informed that it consists of a post designed to be set near or inside the curb surmounted by an enclosed mechanism for receiving coin, measuring time and displaying a conspicuous signal at the expiration of some definite period of minutes, the whole being between four and five feet in height. Its main purpose is to aid the police in enforcing regulations governing the parking of automobiles. That end is accomplished by rendering it easy to observe the adjacent automobile which has exceeded the permissible period of parking. The proposed statute contains no definition or description of parking meters. Anything which the development of manufacture may produce under that name would be permissible under the terms of proposed statute if enacted into law. In point of size and position the parking meter as we understand it would not be in excess of the limits of structures permissible under the easement of public travel acquired by the laying out of a public way and already described. Centebar v. Selectmen of Watertown, 268 Mass. 121, 167 N.E. 303.

The parking of automobiles has become a considerable problem in the regulation of traffic on highways. Ordinances and by-laws undertaking to govern parking have been widely adopted. Even before the common use of automobiles, ordinances limiting the time during which a vehicle could stop on the public way were adopted and enforced. Commonwealth v. Fenton, 139 Mass. 195, 29 N.E. 653;Commonwealth v. Rowe, 141 Mass. 79, 6 N.E. 545. See Commonwealth v. Fox, 218 Mass. 498, 106 N.E. 137, Ann.Cas.1916A, 1236. In general travel by the public upon highways may be regulated by the General Court. It represents the public and the rights of individuals as travellers are subject to its reasonable control. With respect to the parking of automobiles it has been held that ‘No right of any citizen is impaired by an ordinance which prohibits the parking of vehicles at a place in a public street or...

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