3 S.E.2d 631 | W. Va. | 1939
Lead Opinion
In this suit the circuit court invalidated an ordinance of the incorporated town of Addison (more familiarly known as Webster Springs, the name of its post office) providing for the installation of parking meters upon certain streets; and perpetually enjoined defendant Roman from enforcing a contract he had with the town for the installation and sale of the meters.
The ordinance specified that during certain hours (Sundays and observed legal holidays excepted), no vehicle (except trucks and commercial vehicles loading and unloading) should be parked in a parking position indicated by a meter, unless a five-cent coin be deposited in the meter. A violator of the condition was subject to fine.
Considerable evidence was admitted on the public estimate of such meters and on their conjectured effect upon the business of some town merchants. This evidence is not entitled to weight, since the policy of installing meters was solely for the town council's determination, unless it was exercised arbitrarily or fraudulently, and such exercise does not appear. The question is one of power, not policy.
Code,
Plaintiffs also contend that the ordinance and contract would set up an unlawful system of indirect taxation for revenue. The present arrangement goes little, if any, further than to provide payment for the meters and their service. The arrangement is analogous to the exaction of tolls for the maintenance of public highways and bridges. Opinion of Justices
(Mass.),
Plaintiffs further contend that the arrangement would unlawfully encroach upon the property rights of abutters on the streets selected for meter installation. The fee of an abutter in a street is servient to the municipal easement for travel, which includes every reasonable means of transportation.Fox v. Hinton,
Plaintiffs protest that they have the right (a) to park vehicles alongside their property without paying the municipality a tax or fee, and (b) to enjoy their property without defacement by "super-imposed" parking meters. The Supreme Court of Alabama so held in the exceptional case ofBirmingham v. Realty Co.,
Cases elaborating the views expressed here areHarper v. City of Wichita Falls (Tex.Civ.App.),
The judgment is reversed and the bill dismissed.
*385Reversed; bill dismissed.
Concurrence Opinion
I concur in the result reached by the majority of the Court in this case. With deference, however, I think the majority opinion has stated the principles of law involved in too broad a manner. I have in mind that the validity of legislation which provides for the installation of parking meters within the limits of a town or city should be appraised with a consideration of the size of the municipality and the weight of the traffic on its streets. If a street is encumbered with very little traffic, it occurs to me the public interest will not be served by the installation of parking meters. In such case, an ordinance providing for such installation would be unconstitutional. *388
Dissenting Opinion
I respectfully dissent from the ruling of the majority in this cause for the following reasons:
1. It will be conceded, I think, that the powers of a municipal corporation are strictly limited to those conferred upon it by the legislature, either by special charter or general law. This limitation has never been more clearly defined than in Dillon on Municipal Corporations (5th Ed.), Vol. 1, p. 448, section 237, wherein it is stated:
"It is a general and undisputed proposition of law that a Municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."
These principles are declared to be "of transcendent importance, and lie at the foundation of the law of municipal corporations." Dillon, supra. The language above quoted has been approved by this Court in Parkersburg Gas Company v.Parkersburg,
2. In Carson v. Woodram,
3. An abutting property owner has, of course, no special rights in the street which passes his door; the rights of those who travel thereon are paramount; but he does have the right, in common with all others, to the free use thereof, a right which is undoubtedly infringed when anyone is permitted, for a money consideration, to monopolize the right to park a car for any particular length of time. For example, a merchant owning and occupying a building is entitled to reasonable access thereto, which access may, under a parking meter system, under *387 some conditions, be practically destroyed; whereas, under the general power of regulation, provision could always be made for reasonable ingress and egress. I think that the ordinance complained of materially burdens the owner of property abutting on streets where parking meters are permitted; detracts from the use and value of the property; and deprives the owner of property of rights for which no compensation is provided, and to that extent violates the constitutional provisions against the taking of property without due process of law, and the taking of property for a public purpose without just compensation.
I have grave doubts of the power of the legislature to confer upon a municipal corporation power to impose a tax or toll upon the use of streets. It may be that under the police power of the state, such authority can be granted if the charges provided for are limited to the expense of traffic regulation; but I do not think the legislature has granted any such power, and in the absence of such grant, it seems to me clear that it does not exist. I would therefore affirm the decree of the trial court.