Wilhoit v. City of Springfield

• Decision Date: 03 May 1943
• Docket Number: No. 6370.,6370.
• Citation: 171 S.W.2d 95
• Parties: W.R. WILHOIT ET AL., PLAINTIFFS-APPELLANTS, v. CITY OF SPRINGFIELD, MISSOURI, A MUNICIPAL CORPORATION ET AL., DEFENDANTS-RESPONDENTS.
• Court: Missouri Court of Appeals

171 S.W.2d 95

W.R. WILHOIT ET AL., PLAINTIFFS-APPELLANTS, v. CITY OF SPRINGFIELD, MISSOURI, A MUNICIPAL CORPORATION ET AL., DEFENDANTS-RESPONDENTS.

No. 6370.

Springfield Court of Appeals, Missouri.

May 3, 1943.

Appeal from the Circuit Court of Greene County, Division No. 1. — Hon. Guy D. Kirby, Judge.

AFFIRMED.

W.D. Tatlow and Kirby W. Patterson for appellants.

(1) (a) The ordinance has the double purpose of regulation and taxation. Both are equally important and neither is merely incidental to the other. It requires both powers to sustain it. City of St. Louis v. Weitzel, 130 Mo. 600; City of St. Louis v. United Railways, 263 Mo. 387. (b) It is manifest that the license fee is imposed for the purpose of revenue as well as regulation. City of St. Louis v. Spiegel, 75 Mo. 145; State v. Bengsch, 170 Mo. 81. (c) The entire charter power of the city is found in Sec. 8395 (b) and (c), R.S. 1939. The power to tax an automobile owner for the use of the streets is expressly both granted and limited by the sections, supra. There can be no implied power to collect an additional tax for such purposes. City of St. Louis v. J.E. Kaime & Co., 180 Mo. 309, 79 S.W. 140; City of St. Louis v. St. Louis Transfer Co., 256 Mo. 476, 165 S.W. 1077; Hillig v. City of St. Louis, 337 Mo. 291, 85 S.W. (2d) 91; Arkansas-Missouri, etc., Co. v. Kennett, 348 Mo. 1108, 156 S.W. (2d) 913. (d) The imposition of a tax may be referable to the taxing power, the police power, or both. Luckey v. Kansas City, 169 Mo. 666, 155 S.W. 873. The fact that the ordinance regulates does not deprive it of the salient characteristics of a tax. City of St. Louis v. Spiegel, supra; State v. Bengsch, supra. (e) The city has not inherent power to tax. The power to do so belongs alone to the sovereignty. The delegation must be in clear and unambiguous terms. Any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied. The implied power to tax is limited to that which is indispensable. Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; State et al. v. Mound City, 73 S.W. (2d) 1017; State v. McWilliams, 335 Mo. 825, 74 S.W. (2d) 363; Bull v. McQuie, 342 Mo. 851, 119 S.W. (2d) 204. (2) The sole power of the city is found in the Motor Vehicle Act. See 8395 (b) (c), R.S. 1939. This section provides for regulation only and not suppression or taxation. Barker v. Hasler, 274 S.W. 1095. The city has no power to impose a license or excise tax unless it is especially named as taxable in the charter of such corporation. Sec. 7440, R.S. 1939; M.H. Rhodes, Inc., v. City of Raleigh, 9 N.E. 389. (3) If the implied power rule applies (which it does not) it would be limited to raising only a sufficient amount to enable the city to substitute the meters for the previous system of regulation. Ex Parte Smith, 231 Mo. 111, 132 S.W. 607; Pierce City v. Hentschel, 180 S.W. 1027; Pierce City v. Hentschel, 210 S.W. 31. (4) The facts relied upon by the appellant to show that the ordinance is void are undisputed. (5) The additional expenses which the city incurred in substituting the meters for the old regulation are also undisputed. (6) The city seeks to sustain the ordinance by citing meter cases from the other states with entirely different statutes. Hence they are not applicable. Arthophone Corporation v. Coale, 345 Mo. 344, 133 S.W. (2d) 343. The only case in which there is any similarity between the statutes is the Oklahoma case, in which that court holds under the statute there involved that the free use of the streets does not include the right to park. This holding as applied to our statute is in direct conflict with our decisions. Schopp v. City of St. Louis, 117 Mo. 131; Barker v. Hasler, supra. It is directly held by the Supreme Court of Minnesota that the implied power to tax is limited to the additional costs of substituting the meters for the old system of regulation. Hendricks v. City of Minneapolis, 290 N.W. 428. The right to park a car for a reasonable time is sustained by our Supreme Court and by this court. Schopp v. City of St. Louis, supra; Barker v. Hasler, supra; Birmingham v. Hood-McPherson Realty Co., 172 S.W. 114; City of Shreveport v. Brister, 194 La. 615, 194 So. 566; Monsieur v. Shreveport, 194 La. 625, 190 S.W. 569; In re: Opinion to the House of Rep. R.I., 5 A. (2d) 445; Rhodes v. City of Raleigh, 9 N.E. (2d) 389. (7) The meter ordinance is void as a regulation and as a revenue ordinance. The tax raised is in excess of the necessary costs of substituting the meters for the old system. The double feature of the ordinance fixes twelve minutes in the one hour zone, and twenty-four minutes in the two hour zone as the reasonable time that one may park his car by the payment of one cent, yet it permits him to stay an hour if he will deposit a nickel, which the ordinance itself says is unreasonable. (8) The court made no finding of facts to which this court can defer. He decided it as a matter of law and made no pretense that his decision was in accordance with the law, for the reason that he thought there was no law, because the appellate courts of this state have not decided a meter case. And in so doing disregarded both the Missouri statutes and the Missouri decisions dealing with the implied power to tax. (9) The good faith of the commissioners in enacting the ordinance does not create the power to enact it. Russell v. Frank, 154 S.W. (2d) 63.

W.H. Brown and Alfred Page for respondents.

(1) The city had broad charter powers in regulating the use of streets and the parking of vehicles thereon, and had authority to pass the parking meter ordinance exacting a fee for the privilege of parking, in amount sufficient to cover the expense the municipality incurs or is likely to incur, by reason of permitting the parking of automobiles on its streets. (a) The public streets are primarily dedicated for travel. State v. Cox, 77 S.W. (2d) 116, 39 Tex. Jur. 606; Lamar v. Weidman, 57 Mo. App. 507; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W. (2d) 628; City of Bloomington v. Wirrick, 381 Ill. 347; Wonewoc v. Taubert, 233 N.W. 755, 72 A.L.R. 224; Ex Parte Corvey, 220 Mo. App. 602, 287 S.W. 879; Townsend v. Jaloff, 264 Pac. 350. (b) The city has very broad powers in controlling and regulating the use of streets and the parking of vehicles thereon. Secs. 6609, 8395, R.S. Mo. 1939. (c) The power granted the State by the statute and charter to regulate the parking of vehicles, carries with it authority to exact a fee for the privilege of parking, in amount sufficient to cover the expense the municipality incurs or is likely to incur, by reason of permitting the parking of automobiles on its streets. Arkansas-Missouri etc. Co. v. City of Kennett, 348 Mo. App. 1108, 156 S.W. (2d) 913; Aurora Water Co. v. City of Aurora, 129 Mo. 540, 31 S.W. 946; McGill et al. v. City of St. Joseph, 225 Mo. App. 747, 38 S.W. (2d) 727; City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202; City of St. Louis v. Hammond, 199 S.W. 411; Ex Parte Louis Lerner, 281 Mo. 18, 218 S.W. 331; City of St. Louis v. Speigel, 75 Mo. 145; State v. Broeker, 11 S.W. (2d) 81; Ex Parte Smith, 231 Mo. 111, 132 S.W. 607; Pierce City v. Hentschel, 210 S.W. 31; City of Plattsburg v. Peoples Telephone Co., 88 Mo. App. 306; City of Lancaster v. Briggs & Melvin, 118 Mo. App. 570; City of St. Louis v. Western Union Tel. Co., 149 U.S. 465, 37 L. Ed. 810; State of Mo. ex rel., Laclede Gas Light Co. v. Murphy, 170 U.S. 178, 42 L. Ed. 955; State v. McCarthy, 171 So. 314; Ex Parte Duncan, 179 Okl. 355, 65 Pac. (2d) 1015; Harper v. City of Wichita Falls, 105 S.W. (2d) 743; Ex Parte Harrison, 122 S.W. (2d) 314; County Court of Webster County v. Roman, 3 S.E. (2d) 631; Owens v. Owens, Mayor, 8 S.E. (2d) 339; Kimmel v. City of Spokane, 109 Pac. (2d) 1069; Brodkey v. Sioux City, 291 N.W. 171, modified in 296 N.W. 352; Opinion of the Justices, 8 N.E. (2d) 179; City of Columbus v. Ward, 65 Ohio Appeal 522, 31 N.E. (2d) 142; City of Phoenix v. Moore, 113 Pac. (2d) 935; Hendricks v. City of Minneapolis, 290 N.W. 428; Foster's, Inc. v. Boise City, 118 Pac. (2d) 721; Gilsey Buildings, Inc. v. Incorporated Village of Great Neck Plaza, 170 Misc. 945, 11 N.Y.S. (2d) 694; Clark v. City of New Castle, 32 Pa. Dist. & Co. R. 371; City of Louisville v. Louisville Automobile Club, 290 Ky. 241, 160 S.W. (2d) 663; Ex Parte Holt, 74 Okl. 226, 178 Pac. 260; Gant v. Oklahoma City, 289 U.S. 98, 77 L. Ed. 1058. (2) Sub-sections (b) and (c) of section 8395, R.S. 1939, being a portion of the Motor Vehicle Act, do not prohibit the City of Springfield from passing the parking meter ordinance. Sec. 8395, R.S. 1939; McGill et al. v. City of St. Joseph, supra; Ex Parte Duncan, supra; Kimmel v. City of Spokane, supra; Ex Parte Holt, supra; Pugh v. City of Des Moines, 156 N.W. 892; Wonewoc v. Taubert, supra; Morristown-Madison Auto Bus Co. v. Borough of Madison, 88 Atl. 829; Vol. 1, Secs. 32 and 78, Blashfield's Cyc. of Automobile Law & Practice. (3) The parking meter ordinance is not a revenue-raising ordinance, but a police regulation. Brodkey v. Sioux City, supra; Harper v. City of Wichita Falls, supra; Western Union Tel. Co. v. New Hope, 187 U.S. 419, 47 L. Ed. 240. [a] Unless proof clearly shows that receipts which will be obtained through the operation of such an ordinance are grossly in excess of the expense that the city will be forced to incur, or is likely to incur, in rendering the service which it is required to render by reason of parking on the streets, the ordinance must be held valid. Harkow v. McCarthy, Chief of Police, 171 So. 314; Foster's, Inc. v. Boise City, supra; Clark v. City of Newcastle, supra; Opinion of the Justices, supra; American Baseball Club of Philadelphia v. Philadelphia, 167 Atl. 891, 92 A.L.R. 386; Postal Tel. Cable Co. v. Taylor, 192 U.S. 64, 48 L. Ed. 342; Rock v. City of Philadelphia, 191 Atl. 669; Atlantic & Pacific Tel. Co. v. City of...