Morris v. City of Salem et al.

• Decision Date: 12 November 1946
• Citation: 179 Or. 666,174 P.2d 192
• Parties: MORRIS <I>v.</I> CITY OF SALEM ET AL.
• Court: Oregon Supreme Court

179 Or. 666

174 P.2d 192

MORRIS

v. CITY OF SALEM ET AL.

Supreme Court of Oregon.

Argued October 9, 1946.

Reversed November 12, 1946.

Automobiles — Parking meters

1. A city has right to install parking meters on its streets.

Municipal corporations — Use of public funds

2. The article of Constitution, prohibiting cities from lending their credit to or assisting private corporations, was intended to prevent investment of public funds in private enterprises.

Municipal corporations — Lending credit

3. A city's proposed contract with corporation for purchase and installation of parking meters does not violate article of Constitution prohibiting city from lending its credit to or assisting private corporation, in absence of contract provision contemplating investment of public moneys for benefit of corporation furnishing meters.

Municipal corporations — Parking meters

4. A city, specifically authorized by its council's ordinance and resolution to install parking meters, had power to purchase such meters and pay therefor out of revenue from their use.

Municipal corporations — Parking meters

5. A provision, of city's proposed contract for purchase and installation of parking meters, that they should be installed for experimental period of six months at agreed rental, to be credited on purchase price, if city exercised option to purchase them, was not invalid as unlawful scheme to enable corporate seller to profit from use of city streets for purpose of demonstrating and selling its meters.

Municipal corporations — Automobiles — Parking

6. The parking of vehicles on city streets is a privilege, which may be granted by city as incident to right of travel.

Municipal corporations — Streets — Abutting owners

7. A landowner has no right to continuous, uninterrupted access to his property from sidewalk and street through parking, loading, and unloading of his own vehicles or those of persons having business or social relations with him at sidewalk curbing in front of his premises, in preference to parking of vehicles of members of general public.

Municipal corporations — Streets — Parking

8. City streets are primarily ways for public travel, and public right of travel thereon includes privilege of parking vehicles at sidewalk curbing for reasonable periods as required by reasonable exigencies of business or social intercourse.

Dedication — Municipal corporations — Streets

9. Dedication of street in front of private property subjected it, not only to ordinary usages of travel then prevailing, but to such additional usages as might be demanded by changing conditions of society, increased population, or improved transportation methods from time to time.

Constitutional law — Due process of law

10. Additional travel usages, to which changing social conditions, increased population, or improved transportation methods subject street after its dedication, do not impose additional servitudes on abutting land nor constitute taking thereof without due process of law.

Constitutional law — Due process of law

11. Impairment of use of property by maintenance of parking meter on abutting street is not a taking of property without due process of law, as owner's right of reasonable access to property is not interfered with unreasonably thereby.

Municipal corporations — Police power

12. Regulation of traffic, including parking of vehicles on streets, by city, is exercise of its police powers.

Municipal corporations — Police power

13. A city council must remain free to legislate, in exercise of its police power, in such manner as appears to be best for public welfare.

Automobiles — Parking meters

14. Installation of parking meters on streets under contract with city authorized by its charter to regulate use of its streets is not a bartering away or surrender of city's police power, but an exercise thereof.

Automobiles — Parking meters

15. A city's proposed contract for installation and operation of parking meters on certain streets for experimental period of six months at agreed rental, with option to purchase meters at expiration of such period, did not deprive city council of right to remove meters in exercise of its inalienable police power, if deemed conducive to public safety or welfare.

Municipal corporations — Liability of city

16. Good-faith exercise of city's governmental powers, such as police power, does not render it liable in damages as for tort.

Municipal corporations — Parking meters

17. A corporation proposing to contract with city to install parking meters on certain streets for experimental period at agreed rental, to be credited on purchase price if city exercises option to

purchase meters at expiration of such period, is bound to take notice that city's authority to enter into such contract is restricted by limitation inherent in police power.

Municipal corporations — Creation of debt

18. Generally, city's purchase of property, to be paid for solely out of income therefrom, does not create debt or liability in violation of constitutional, statutory, or charter limitations.

Municipal corporations — Parking meters — Debt

19. A city's proposed contract for installation of parking meters for six months at agreed rental of half of amount of money derived from operation of meters, with option to purchase them on expiration of such period at price payable by continued application of such portion of income after crediting amount of rental paid, was not illegal as creating city debt or liability exceeding charter limitation, as contract impliedly limited city's obligation to payment out of revenue from operation of meters.

Municipal corporations — Contracts

20. A city, contracting to take steps necessary to create special fund for payment of obligations payable only from such fund under city charter, is obligated to take such steps in due course, and its failure or refusal to do so may impose on it a general liability, sounding in tort, rather than contract, regardless of charter limitations.

Municipal corporations — Parking meters — Payment

21. The Supreme Court must presume that city council, in performing proposed contract for installation of street parking meters for experimental period at agreed rental, payable from proceeds of operation of meters, with option to purchase them after such period on same terms of payment, will act in good faith by taking necessary steps to create such special fund and not arbitrarily refuse to continue to maintain and operate meters until sufficient revenue has been derived therefrom to pay purchase price.

Municipal corporations — Parking meters

22. A city ordinance, authorizing mayor and city recorder to provide for purchase "and/or" installation of street parking meters, was broad enough to authorize rental, as well as purchase, of such meters.

Pleading — Conclusions

23. In suit to enjoin city and its mayor and recorder from entering into and performing contract for purchase and installation of parking meters on certain streets, general allegations that plaintiff was a taxpayer of city and that he and others similarly situated would suffer great and irreparable loss, injury, and damage by installation of meters, were insufficient as mere conclusions.

Municipal corporations — Parking meters

24. A city taxpayer, seeking injunction against execution and performance of city's contract for installation and purchase of parking meters as unauthorized because of defendants' failure to include estimate of probable income and expenditures involved in purchase and operation of meters in city's annual budget, must allege and prove that commission of threatened acts will increase his burden of taxation or at least that they will probably result in general increase in taxation.

                  See 25 Am. Jur. 483; validity of parking meter ordinances, notes
                108 A.L.R. 1153; 130 A.L.R. 317; 44 C.J., Municipal corporations
                § 4095
                

IN BANC.

Appeal from Circuit Court, Marion County.

GEORGE R. DUNCAN, Judge.

Lawrence N. Brown, City Attorney, of Salem, for appellants.

Chris. J. Kowitz, of Salem, for respondent.

REVERSED.

HAY, J.

In this suit plaintiff, a resident and taxpayer of the City of Salem, sought to enjoin the city, its mayor and recorder from entering into and performing a contract for the purchase and installation of parking meters upon certain streets in the business district of said city.

On May 2, 1939, the common council adopted an ordinance for the regulation of traffic upon the city streets, establishing parking-meter zones, and providing for the installation and operation of parking meters. On October 15, 1945, the council adopted a resolution authorizing the mayor and recorder, on behalf of the city, to execute a contract between the city and Michaels Art Bronze Company, Inc., providing for the installation of parking meters upon certain streets for an experimental period of six months, at an agreed rental, with an option to the city to purchase the meters at the expiration of the six months' period. Fifty per cent of the moneys derived from the operation of the meters was to be paid to the meter company as rental and, in the event that the city should exercise its option to purchase, was to be credited upon the purchase price, the remainder to be paid by continued application thereto of fifty per cent of the income of the meters.

The fiscal year for municipal corporations begins on the first day of July and ends with the thirtieth day of June. The complaint herein was filed November 28, 1945. It alleged, and it is admitted, that the city was then about to enter into the contract above mentioned. We must assume, therefore, that it was the intention of the city that parking meters should be installed immediately and should be in operation during a considerable part of the fiscal year 1945-1946. It alleged further that the proposed contract was invalid, for reasons hereinafter discussed.

The defendants filed a general demurrer to the complaint,...