Monsour v. City of Shreveport

• Decision Date: 05 February 1940
• Docket Number: 35575.
• Citation: 194 So. 569,194 La. 625
• Court: Louisiana Supreme Court
• Parties: MONSOUR et al. v. CITY OF SHREVEPORT et al.

194 So. 569

194 La. 625

MONSOUR et al. v. CITY OF SHREVEPORT et al.

No. 35575.

Supreme Court of Louisiana.

February 5, 1940

Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge.

Suit by G. J. Monsour and others, as property owners and taxpayers in the City of Shreveport, against the City of Shreveport and the Dual Parking Meter Company of Oklahoma to restrain the City of Shreveport from enforcing a parking meter ordinance and to have a contract between the City of Shreveport and the Dual Parking Meter Company for the purchase and installation of parking meters decreed null and void. From an adcerse judgment, the City of Shreveport appeals.

Judgment affirmed.

Chandler & Chandler and H. M. Holder, all of Shreveport, for plaintiffs-appellees.

J. H Jackson, A. M. Pyburn, and R. H. Switzer, all of Shreveport for defendant-appellant.

ODOM Justice.

Plaintiffs own property and pay taxes in the City of Shreveport. They ruled the City and the Dual Parking Meter Company of Oklahoma to show cause why the City should not be restrained from enforcing Ordinance No. 40 of 1939, and why a certain contract entered into by the City under said ordinance with the parking meter company for the purchase and installation of parking meters in certain areas of the City should not be decreed null and void. Plaintiffs attacked Ordinance No. 40 on the grounds, among others, that its adoption was ultra vires of the powers of the City, that it levied a tax under the guise of being a police measure, and that the adoption of the ordinance was prohibited by Act No. 10 of the First Extra Session of 1934.

The Dual Parking Meter Company excepted to the jurisdiction of the court so far as it was concerned, and the exception was sustained. The City excepted to plaintiffs' suit on the ground that they had no interest or capacity to sue. This exception was overruled. The City then filed an exception of no cause or right of action. The trial judge overruled this exception and assigned written reasons for his ruling.

The City filed an amended plea, in which it attacked the validity of Act No. 10 of the First Extra Session of 1934, and then filed answer to the rule to show cause, in which it denied the various allegations of plaintiffs' petition relating to the grounds set up as to why the ordinance was ultra vires. Evidence was heard on the trial of the rule to show cause. There was judgment for plaintiffs, making the rule absolute and directing that a preliminary writ of injunction issue, enjoining and restraining the City and its agents from further installing parking meters on the streets of the City and from operating the meters already installed as provided in Ordinance No. 40, on plaintiffs' giving bond in the sum of $500. The City of Shreveport appealed.

In the case of City of Shreveport v. E. D. Brister, 194 La. 615, 194 So. 566, decided by us on Monday, November 27, 1939, we held that Ordinance No. 40 of 1939 of the City of Shreveport, referred to as the City Parking Meter Ordinance, was ultra vires of the powers of the City because the adoption of such an ordinance was prohibited by Act No. 10 of the First Extra Session of 1934. That was a criminal prosecution instituted by the City against the defendant for violating the provisions of the ordinance. In that case the defendant filed a demurrer on the ground that the ordinance was ultra vires because its adoption was prohibited by the said act of the Legislature. The city judge sustained the demurrer, and the City appealed. We affirmed his ruling.

In the present suit the same ordinance is attacked by property owners and tax payers on various grounds, one of which is the same as that urged in the Brister case. It is unnecessary to go into detail as to the various provisions of the so-called parking meter ordinance of the City of Shreveport because the purpose and the provisions of the ordinance were fully set out by us in our opinion in the Brister case.

If we adhere to our ruling in the Brister case, the judgment in this case must be affirmed. The present suit was decided by the district judge on October 11, 1939, which was more than a month before we decided the Brister case. The district judge held that Act No. 10 of the First Extra Session of 1934 was constitutional and that under its provisions municipalities were prohibited from adopting such ordinances as the one here involved. That is what we held in the Brister case.

Counsel for the City now ask that we give further consideration to the question whether or not Act No. 10 of the First Extra Session of 1934 prohibits municipalities from adopting parking meter ordinances such as the one here involved. We have further considered the issue, and our final conclusion is that, if the City of Shreveport ever had the power to adopt such an ordinance, that power no longer exists because the Legislature by the adoption of the said act prohibited the passage of such an ordinance.

Section 2 of the act reads as follows: ‘ That no tax, license or excise, of any character whatsoever, shall be imposed, levied or collected by any municipality or parish of this State without express and special legislative authority describing the tax, license or excise to be imposed, levied and collected, and no tax, license or excise shall be imposed, levied or collected under any police, implied or inherent powers of any municipality or parish.’

No more emphatic language could be used, and its scope attracts attention at once. No tax, no license, no excise ‘ of any character whatsoever’ shall be imposed, levied, or collected by any municipality ‘ without express and special legislative authority’, and the legislative authority must describe the ‘ tax, license or excise to be imposed’ .

It is conceded that the City of Shreveport has no ‘ express and special legislative authority’ to charge a traveller for the privilege of parking his motor vehicle on the public streets of the City. Yet that is precisely what the City proposes to do, and what it will do, if it is permitted to enforce this ordinance, because Section 7 of the ordinance says that, when any vehicle shall be parked in any space adjacent to which a parking meter is located, ‘ the operator of said vehicle shall, upon entering the said parking space, immediately deposit or cause to be deposited a five cent coin of the United States in such parking meter for the purchase of sixty minutes of time, or a one cent coin for the purchase of twelve minutes of time, and a failure to deposit such coins shall constitute a breach of the Ordinance and shall subject such...