State ex rel. Audrain County v. City of Mexico

• Decision Date: 11 November 1946
• Docket Number: 39876
• Citation: 197 S.W.2d 301,355 Mo. 612
• Parties: State of Missouri ex rel. Audrain County, Missouri, Appellant, v. City of Mexico, Missouri
• Court: Missouri Supreme Court

197 S.W.2d 301

355 Mo. 612

State of Missouri ex rel. Audrain County, Missouri, Appellant, v. City of Mexico, Missouri

No. 39876

Supreme Court of Missouri

November 11, 1946

Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.

Affirmed.

J. W. Buffington and George P. Adams for appellant.

(1) As a right incident to the fee simple ownership of Block 25 plaintiff may oust defendant from its property, and included in the right to oust is the right to regulate and control the use to which plaintiff's property shall be subjected. Defendant cannot enlarge or extend any previous permissive use made thereof. (2) Plaintiff has the right to have wrongful and unauthorized uses of its property prohibited and this may be done under the present proceedings without being forced to resort to an action in ejectment which would involve a multiplicity of suits. (3) Block 25 was dedicated for public use in connection with a county court house and it cannot be subjected to uses contrary to and in conflict with those for which it was dedicated. This case is not one involving a conflict between the public and a private individual or individuals, but rather one between two representatives of the public. (4) Previous permitted uses and regulations on the part of defendant were, and are adequate and the public will not be better served under the proposed method of regulating parking. (5) Knowledge and acquiescence on the part of members of the county court as individuals is not knowledge or acquiescence of the county. Plaintiff can act only through its records and the county's failure to take affirmative action against the defendant with relation to regulations heretofore exercised by defendant will not estop plaintiff to assert its rights now. Certain permitted uses heretofore allowed defendant cannot be enlarged or extended by implication. The burden is on the defendant to show specific authority granted it by plaintiff to entitle defendant to regulate traffic on Block 25 under its parking meter ordinance. State ex rel. Jump v. Louisiana, Bowling Green & Ashley Gravel Road Co., 116 Mo.App. 175.

William W. Van Matre, Jr., for respondent.

(1) The right of the city to regulate traffic on the public streets of the city, by the installation of parking meters for limiting the time of parking and exacting a fee therefor, has been declared by both judicial decision and statutory enactment. Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95; Sec. 8395, R.S. 1939; Laws 1943 p. 659. (2) The City of Mexico has power to regulate traffic upon all its streets and roadways, which are rightfully made use of by the public within the municipal limits, regardless of the legal status of such streets and roadways; and although plaintiff may have the right to repossess, at any time, the portions of Block 25 occupied for street purposes by the city, yet so long as plaintiff actually permits the city to use the same for street purposes the city is vested with the right and duty to regulate traffic thereon. Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60; City of Clayton v. Nemours, 352 Mo. 61 182 S.W.2d 57. (3) It is held that the county is amenable to the reasonable police regulation imposed by a municipal corporation in the interests of the general welfare. 43 C.J., sec. 247, p. 248.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

The issue for determination is whether a municipality may in the exercise of delegated police power install parking meters on that portion of land owned by a county as its private property and knowingly permitted to be used as a public street. We answer in the affirmative. The County appeals from a decree sustaining the City's power.

The plat of the original Town of Mexico, Missouri, filed in 1836, provided for blocks of 240 feet square and streets of 60 feet in width; stating: "The 25th Block is reserved for public buildings called the public square." In addition, in 1837 Block 25 was conveyed to Audrain county, Missouri, in consideration of the location of the County Seat in said City. A courthouse was erected thereon and said Block 25 thereafter has been devoted to public purposes as a courthouse square. In 1899 the City established 50 feet as the width, from sidewalk to sidewalk, of the streets around the "square," and thereafter further widened said streets. In 1937 the existing sidewalks and pavements were laid. The County paid the portion assessed against it without objection. We understand that the improvement encroaches upon the County's land about 20 feet; and that of this 20 feet, 6 to 8 feet is the extent of the width of the street on the County's land around the "square." The portions of the streets (including the sidewalks) on the County's land for a long time have been and are now used for pedestrian and vehicular traffic. The vehicular traffic thereover is heavy and has been regulated by the City, including regulations limiting the time for parking automobiles. On October 25, 1945, the City by ordinance, established "parking meter zones" for the regulation of parking vehicles on the streets and provided for the use of parking meters in connection therewith, including the installation and maintenance of parking meters on the portions of the County's land devoted to street purposes surrounding the "square."

The County contends that as fee simple owner of the land it has the right to permit such use of its property as it desires, it having heretofore permitted the City to regulate traffic thereon in a manner acceptable to the County, to wit, regulating parking by time limits through signs; but that the City may not, without the County's consent, extend or enlarge such license or privilege.

Highways exist primarily for the purpose of travel and transportation, and parking thereon for any extended period is a privilege. 40 C.J.S. 244, Highways, Sec. 233. In 1812, it was stated in Rex v. Cross, 3 Campbell 224, a case involving the parking of stage coaches on a street, that: "No one can make a stable-yard of the King's highway." The highways are subject to reasonable regulation and supervision by the State in the exercise of its police power. State v. Dixon, 335 Mo. 478, 481[2], 73 S.W. 2d 385, 387[2]; Park Trans. Co. v. State Highway Comm., 332 Mo. 592, 599, 60 S.W. 2d 388, 390[5]. The State may delegate this power. 40 C.J.S., p. 240, Sec. 232; 25 Am. Jur., p. 544, Secs. 253-255.

Counties and cities are subdivisions of the State. They have, however, certain fundamental legal distinctions. Counties are involuntary quasi public corporations of a local nature, created by general law and come into existence without regard to the wishes or consent of their respective inhabitants. They are not chartered corporations. They are created as a governmental agency to facilitate the administration of the laws of the State. They do not have political and legislative powers for local self-government. They have been said to rank low in the grade of corporate existence. Municipal corporations are the result of a voluntary association of the inhabitants sanctioned by the State primarily for the purpose of local self-government subordinate to the State and at the same time constituting, although secondary, an effective instrumentality for the administration of governmental affairs. A charter, defining their powers and duties, is essential to their creation and existence, which is effected upon "incorporation." Cities have been a chief factor in human progress. They exercise policy making authority and have legislative powers for their local government. It is inconsistent with the purposes of their creation that counties exercise jurisdiction over their affairs. Dual authority would tend to create confusion. This is especially true of an exercise of governmental police power. The indispensability of local self-government arises from problems implicit in the safety, order, health, morals, prosperity, and general welfare of thickly populated areas. Heller v. Stremmel, 52 Mo. 309; State ex rel. v. Leffingwell, 54 Mo. 458; Barton County v. Walser, 47 Mo. 189; Cook County v. Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L.R. 442; 20 C.J.S. p. 753, Counties, Secs. 1-3; 43 C.J. p. 72, Municipal Corporation, Secs. 11-13, p. 186, Sec. 184; p....