State Ex Rel. Harkow v. Mccarthy

• Decision Date: 10 December 1936
• Citation: 171 So. 314,126 Fla. 433
• Parties: STATE ex rel. HARKOW v. McCARTHY.
• Court: Florida Supreme Court

171 So. 314

126 Fla. 433

STATE ex rel. HARKOW v. McCARTHY.

Florida Supreme Court, Division A.

December 10, 1936

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Habeas corpus proceeding by the State, on the relation of Irwin W Harkow, against W. J. McCarthy, as Chief of Police of the city of Miami, etc. To review an order remanding relator to custody, he brings error.

Affirmed.

COUNSEL Milton Weiss, of Miami, for plaintiff in error.

J. W Watson, Jr., and Loftin, Stokes & Calkins, all of Miami, for defendant in error.

OPINION

BROWN Justice.

The decision of this case depends upon the validity vel non of the Miami 'Parking Meter Ordinance,' for the violation of which plaintiff in error was arrested. In habeas corpus proceedings brought by him upon the ground that the ordinance was invalid, the circuit judge entered an order remanding plaintiff in error to custody.

Prior to the adoption of this ordinance, the city of Miami, in an effort to solve the problems incident to an ever increasing motorized traffic, had fixed ten minutes as the maximum parking time on certain down-town streets, relying upon its police force to enforce the regulation, the general public paying all the cost of such enforcement.

Not satisfied with the results, the city commissioners on January 16, 1936, adopted Ordinance No 1387, which is in question here. The ordinance authorizes the city manager to establish, from time to time, as traffic conditions require, zones to be known as parking meter zones in such streets as might be selected, and, in such zones, install and maintain parking meters.

The city commissioners purchased parking meters and caused them to be installed and maintained in such zones. The meters are required to be placed in such manner as to display a signal that the parking place adjacent to the meter is or is not legally in use. Each meter is required to mechanically display, on the deposit of a 5-cent coin, a signal indicating legal parking for the period of time established for the zone, and, to indicate, by the mechanical dropping of a signal, when the lawful parking time has expired.

The city manager is required to have painted lines placed on the curb or on the street, adjacent to each parking meter, for the purpose of designating the parking space for which the meter is to be used.

It is made unlawful for any person to use any such parking space, without first depositing in the meter a 5-cent coin and causing the meter to begin marking the allowed time for legal parking in the space; it is also made unlawful for any person to park a motor vehicle in the parking space for a longer period of time than that indicated by the meter.

As a result of the use of parking meters, automobilists are now allowed to park their vehicles for thirty minutes, instead of for ten minutes, as formerly. And those who enjoy the privilege, rather than the general public, pay the extra cost of providing and maintaining the means to the enjoyment of the privilege, and the extra cost of the supervision and policing of it.

On April 24, 1936, Irvin W. Harkow parked his motor vehicle on Northeast First avenue, between East Flagler street and Northeast First street, in the city of Miami, Fla., in a thirty-minute parking space, and refused to deposit a 5-cent coin in the meter. An affidavit of complaint was made against him, before the city clerk, for the violation of Ordinance No. 1387. A warrant issued for his arrest, and, while in the custody of the chief of police, Harkow applied to the circuit court for a writ of habeas corpus. The writ issued and the chief of police answered the writ. A copy of the ordinance is attached to the answer.

There is no bill of exceptions in the transcript, though time was allowed in which to present and settle a bill of exceptions.

We are dealing here, not with the right to travel the public streets, which is not denied by either party, but with the power of a municipality to regulate the parking of motor vehicles within that part of the public streets primarily designed for travel, by means of which parking such vehicles are allowed to stand in the street for either unregulated and indefinite, or regulated and limited, periods of time, to the exclusion of other vehicles.

The city of Miami has ample charter authority for the enactment of an ordinance of this nature. Of course, all ordinances must be reasonable and must not conflict with constitutional guaranties and limitations.

From a constitutional standpoint, there is no doubt of the power of a municipality to regulate by ordinance traffic on its streets when reasonably necessary for public safety and good order, and to reasonably limit the parking time of motor vehicles using streets in congested areas. Ordinances have been upheld limiting such parking period to such time only as might be necessary to take on and let off passengers and baggage, and ordinances have also been upheld which entirely excluded motor vehicles from the use of certain streets, parks, and boulevards. The individual's ordinary right as a member of the public to the free use of a city's streets in the normal pursuit of his private business or personal pleasure must sometimes yield to the paramount rights and necessities of the general public. This right of the individual cannot be taken from him, but it is subject to regulation in the interest of the public good. Florida Motor Lines v. Ward, 102 Fla. 1105, 137 So. 163, 167; 1 Blashfield's Cyc. of Automobile Law (Permanent Edition) 17; McCaffrey v. Smith, 41 Hun. (N.Y.) 117; Welsh v. Morristown, 98 N.J.Law, 630, 121 A. 697, 699; Taylor v. Roberts, 84 Fla. 654, 94 So. 874; State v. York, 90 Fla. 625, 106 So. 418, 419, 420; State v. Carter, 205 N.C. 761, 172 S.E. 415. In Lutterloh v. Mayor, etc., of Cedar Keys, 15 Fla. 306, 308, it was observed that: 'That right of occupancy of the street by the public is a mere easement or right of passage.'

Petitioner in the court below attacked the ordinance on the grounds that it was unreasonable; that it amounted to the taking of property without due process of law; and that it was an abuse of the police power for the purpose of raising revenue. The order of the circuit judge remanding petitioner to custody recited that the cause had come on for hearing before him upon the petition for the writ, the writ and the return thereto, 'and the evidence adduced at the hearing' thereon. As no bill of exceptions has been brought up, we are confined to the face of the record. The return denied the above allegations of the petition and set out the applicable charter provisions showing the power to enact such an ordinance, and set out the ordinance itself.

The ordinance is certainly not invalid upon its face. In State v. York, supra, this court said:

'In the instant case, we cannot assume that the quoted provision of the ordinance was arbitrarily adopted by the governing body of the city without regard to the reasonable requirements of local conditions. Per contra, when the municipal power to regulate is shown to exist, a regulatory ordinance valid on its face, and pursuant to the power, will be presumed to be applicable to and justified by local conditions, unless the contrary is made clearly to appear. Says Judge Dillon (volume 2, §...