Terry v. City of Portland

• Citation: 470 P.2d 951,256 Or. 47
• Parties: Stan TERRY, for himself and for the taxpayers of the City of Portland, Appellant, v. The CITY OF PORTLAND, a municipal corporation, Terry Schrunk, William Bowes, Stanley Earl, Mark Grayson and Francis Ivancie, comprising the Council of the City of Portland, Respondents.
• Decision Date: 17 June 1970
• Court: Oregon Supreme Court

Page 951

470 P.2d 951

256 Or. 47

Stan TERRY, for himself and for the taxpayers of the City of Portland, Appellant, v. The CITY OF PORTLAND, a municipal corporation, Terry Schrunk, William Bowes, Stanley Earl, Mark Grayson and Francis Ivancie, comprising the Council of the City of Portland, Respondents.

Supreme Court of Oregon.

Argued and Submitted May 7, 1970.

Decided June 17, 1970.

Howard R. Lonergan, Portland, argued the cause and filed a brief for appellant.

Leo V. Nuttman, Portland, argued the cause for respondents. With him on the brief were Marian C. Rushing, and Ellis E. Gerdes, Portland.

Before McALLISTER, P.J., and SLOAN, O'CONNELL, DENECKE, HOLMAN, TONGUE and HOWELL, JJ.

HOLMAN, Justice.

This is an appeal from a judgment dismissing plaintiff's complaint for declaratory relief after a demurrer was sustained to it. The sole question to be decided is whether the complaint states a justiciable controversy.

The allegations of the complaint which are relevant to this appeal are as follows:

'* * *.

'III.

'On May 28, 1969, defendant members of the Council voted unanimously to increase parking meter fees for parking motor vehicles upon the streets in the City of Portland.

'IV.

'The sole purpose thereof was and is to raise revenue for the City of Portland.

'* * *.'

The demurrer was sustained June 26 and a judgment of dismissal was signed July 8 and entered July 9. The judgment of dismissal recited that the demurrer had been sustained without leave to plead over. The order sustaining the demurrer said nothing about whether plaintiff was to be allowed to plead over or not. There is no showing or contention by plaintiff that he desired or made any request to plead over during the time that elapsed between the overruling of the demurrer and the dismissal of the case.

The city of Portland by charter is authorized to regulate and control the use of the city streets and the traffic thereon. In conformance with this authority, the city may impose a parking fee for regulatory purposes but the fee should not materially exceed the cost of regulation. Hickey v. Riley, 177 Or. 321, 162 P.2d 371 (1945); 9 McQuillin, Municipal Corporations §§ 26.167 and 26.168, 441--46 (3d ed rev. 1964).

The present controversy revolves around the meaning of the word 'revenue.' If it means money for the general use of the city in excess of the which is reasonably necessary for the regulation of traffic, the complaint states a justiciable controversy. On the other hand, if it contemplates only funds which are reasonably necessary for regulation, it does not. Regardless of how the money is used, we believe that the additional funds which resulted from the increase in parking meter fees would be classed as revenue.

The rules of pleading applicable to the testing of a complaint under the present circumstances have been laid down in Windle, Adm'x et al. v. Flinn et al., 196 Or. 654, 251 P.2d 136 (1952), as follows:

'The rules which govern our inquiry have been well and long established. A complaint when challenged by demurrer is to be construed most strongly against the pleader. Musgrave (et ux.) v. Lucas (et ux.), 193 Or. 401, 408, 238 P.2d 780; Aune v. Oregon Trunk Railway, 151 Or. 622, 626, 51 P.2d 663; Brosius v. Hazelwood, 127 Or. 635, 637, 271 P. 992. The pleader is presumed to have stated his case as strongly as the facts justify. See Morton v. Wessinger, 58 Or. 80, 83, 113 P. 7, and cases there cited. Facts not alleged will be presumed not to exist. Libby v. Olcott, 66 Or. 124, 128, 134 P. 13. These rules attain an additional persuasive force when the plaintiffs, as here, did not ask for authority to further amend their complaint. Ritchie v. Thomas (et al.), 190 Or. 95, 116, 224 P.2d 543; Medford v. Pacific Nat'l Fire Ins. Co., 189 Or. 617, 628, 219 P.2d 142, 222 P.2d 407; 16 A.L.R.2d 1181; Walin (et al.) v. Young, 181 Or. 185, 192, 180 P.2d 535; Christopher v. McGuire, 179 Or. 116, 119, 169 P.2d 879.' 196 Or. 654 at 662--663, 251 P.2d at 140.

In the...