Parr v. Ladd

• Decision Date: 28 February 1949
• Docket Number: Motion No. 306.
• Citation: 36 N.W.2d 157,323 Mich. 592
• Parties: PARR et al. v. LADD.
• Court: Michigan Supreme Court

323 Mich. 592

36 N.W.2d 157

PARR et al.

v.LADD.

Motion No. 306.

Supreme Court of Michigan.

Feb. 28, 1949.

Original mandamus proceeding by Russell D. Parr, President of the Village of Wayne, Michigan, and Alfred Harrison and others, members of the Council of the Village of Wayne, against Clarence H. Ladd, Village Clerk of the Village of Wayne, Michigan, to compel defendant to countersign bonds to be issued to finance a combined off-street and on-street village parking system, wherein briefs amicus curiae were filed on behalf of the City of Grand Rapids, the City of Detroit, and the City of Ann Arbor.

Writ granted.

Before the Entire Bench.

Charles B. Cozadd, Village Attorney, of Detroit (Miller, Canfield, Paddock & Stone, of Detroit, of counsel), for plaintiffs.

Fred B. Hill, of Detroit, for defendant.

John M. Dunham, City Atty., of Grand Rapids, amicus curiae on behalf of City of Grand Rapids.

Raymond J. Kelly, Corporation Counsel, John H. Witherspoon and Helen W. Miller, Assts. Corporation Counsel, all of Detroit, amici curiae.

William M. Laird, of Ann Arbor, amicus curiae in support of petition for mandamus.

BOYLES, Justice.

Plaintiffs are the president and members of the council of the village of Wayne, a home-rule village in Wayne county. The defendant is the village clerk. The village owns and operates on-street parking meters in the business district, and also owns a parcel of land in which it proposes to install parking meters and to operate the same as a parking lot. Under an ordinance and some amendments adopted in 1948 the village proposes to combine all automobile parking facilities, both on-street and off-street, into one single system, under the supervision and control of the village council. The ordinance provides for the issuing of revenue bonds payable solely out of revenues to be derived from the operation of said system, to defray the expense of acquiring and constructing parking facilities, installing meters on village-owned property and other expense incident to installing and operating said combined off-street and on-street parking system.

One provision in the ordinance requires that said revenue bonds and the interest coupons be signed by the president of the village and countersigned by the village clerk. The State municipal finance commission has authorized the issuance of the proposed bonds in this case, and approved the form of the notice of sale; and the village has advertised said bonds for sale in accordance therewith. The village clerk, representing that some questions had been raised as to the validity of said ordinance and the legality of said bonds, was prevailed upon to refuse to countersign the same, whereby plaintiffs filed the instant petition in this Court for a writ of mandamus to compel the clerk to countersign. We allowed the issuance of an order to show cause to bring the disputed questions of validity here for consideration.

The factual background is established by the allegations in the petition for the writ, all of which were admitted as true in the answer filed by the defendant.

The village of Wayne has a concentrated business section and a major parking problem therein by reason of the lack of adequate parking space, both on the street and off the street; said lack of adequate downtown parking space creates great congestion upon the public streets of the village, resulting in a traffic condition on said streets which is a menace to the public safety; said village heretofore provided by ordinance for the placing of parking meters on its principal downtown streets, which ordinance requires the deposit in said meters of certain fees for parking in the space adjacent to said meters. The village council in the ordinance now here for consideration has declared it necessary for the public safety and welfare of said village to supplement and facilitate the regulation and control of all parking in the downtown area, and to alleviate the traffic congestion prevalent therein by acquiring and constructing a large off-street downtown parking lot, and by combining all municipal parking facilities, both on-street and off-street, into one unified system to be operated as a separate municipal system. All revenues received from use of such combined parking facilities are to be separately accounted for and specifically earmarked for operation and maintenance thereof, for paying the cost of acquiring the parking lot herein referred to and additional parking meters, lots or facilities, and also to pay a small balance due on certain street parking meters heretofore installed.

The first four questions raised and discussed in the briefs may be combined as follows:

Under the circumstances of this case, is a municipal parking system consisting of a combination of on-street and off-street automobile parking facilities, for the use of which a charge is made, a public improvement within the meaning of the revenue bond act¹ for which revenue bonds, payable solely out of the revenue derived from the operation of said system, may legally be issued by a municipality? Inseparably connected with said question is whether the village has power to pledge itself to acquire said facilities and maintain the same, with sufficient rates to be charged for the use thereof, until said bonds shall be retired-in this instance fixed at less than 12 years.

Article 8, § 22, of the Michigan Constitution 1908, provides:

‘Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.’

Parking facilities designed to relieve congested street conditions resulting from the use of motor vehicles in streets which obviously were not originally laid out to cope with present-day motor vehicle traffic have a definite bearing on public safety in the use of public streets. A broad approach to the problem was announced by this Court in Bowers v. City of Muskegon, 305 Mich. 676, 680, 9 N.W.2d 889, 891, wherein we upheld the validity of a city parking meter ordinance imposing fees for the use of particular space on a street for a designated period of time:

‘* * * we have in mind that we are now living in a modern age; that the traffic problems are a result of our present mode of living; that cities have spent untold dollars in the construction of elevated roads, subways and parkways to take automobile traffic out of congested areas; and that any city with a population equal to that of Muskegon has its own peculiar traffic problems. We also have in mind that art. 8, § 28, Mich.Constitution [1908], provides:

“* * * The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.' * * *

‘It must be assumed that parking in a city street is a privilege and subject to regulation by the proper authorities of the city entailing upon the city additional expenses in order that there may be proper supervision and regulation. If parking is a privilege and not an absolute right, the power to regulate implies the power to exact a fee for the cost of such regulation.’

The Supreme Court of Pennsylvania has expressed a similar viewpoint in apt language. In a case upholding the constitutionality of a statute authorizing the establishing of parking facilities for cities, the Court said:

‘The attack on the constitutionality of the statute is based almost entirely on the contention that the purpose for which the Authority is created does not constitute a public use. * * * But a legislative declaration with respect to that question, while not conclusive, is entitled to a prima facie acceptance of its correctness. * * * Not only is the declaration of legislative findings in the present Act impressive in pointing out the urgent need of legislation of this type, but the conditions it portrays are well known to all inhabitants of our larger cities. It is unfortunate that many operators of automobiles habitually ignore the fact that highways are intended primarily for travel and not for the storage of vehicles other than by way of transitory stops for loading and unloading. The congestion caused by such misuse of the streets and by the ever-increasing amount of motor vehicle traffic has become a major problem of municipal administration * * *. The widespread need of legislation to furnish such aid can be gleaned from the fact that in 1946 alone 65 cities opened new parking lots, and, by 1945, 22 States and the District of Columbia had enacted laws in some form dealing with parking facilities.

‘Those attacking the constitutionality of such a law as that which is here under consideration obviously labor under the mistaken notion that its purpose is merely to cater to the convenience of the owners and operators of motor vehicles; on the contrary its effect may be to interfere with the perhaps greater convenience of parking on the public streets; its real purpose is to promote the larger and more general good of the community by freeing the streets of the impediments and perils arising from dangerous and often intolerable conditions of traffic congestion. And since the Act is concerned with the regulation of the transportation of persons and property along the highways of the municipality, and since the evils it seeks to remedy vitally affect conditions for the transaction of business, the prevention of accidents, the effective operations of fire and police forces, and, in general, the enjoyment of many phases of city life and activities, its justification stems directly from the exercise of the police power, which is the supreme power of government.’ McSorley v. Fitzgerald, 359 Pa. 264, 59 A.2d 142, 144.

This Court, in Re Widening of Fulton Street, 248 Mich. 13, 226 N.W. 690, 64 A.L.R. 1507, concluded that the city of Grand Rapids could expend public funds in widening the street...