297 Mass. 559 | Mass. | 1937
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order received on March 27, 1937, a copy whereof is hereto annexed.
The purpose of the proposed statute described in the order is to facilitate by means of parking meters the enforcement of municipal ordinances, by-laws, orders, rules and regulations concerning the parking of vehicles on public ways, and the charging of a fee for such parking. The validity of the proposed statute depends in large part upon the rights of the public in public ways. Therefore it is necessary to determine what those rights are. Highways and other public ways commonly have been laid out and established by the Commonwealth, counties, towns, cities or districts. The
The parking meter has not yet become familiar. We are
The parking of automobiles has become a considerable problem in the regulation of traffic on highways. Ordinances and by-laws undertaking to govern parking have been widely adopted. Even before the common use of automobiles, ordinances limiting the time during which a vehicle could stop on the public way were adopted and enforced. Commonwealth v. Fenton, 139 Mass. 195. Commonwealth v. Rowe, 141 Mass. 79. See Commonwealth v. Fox, 218 Mass. 498. In general travel by the public upon highways may be regulated by the General Court. It represents the public and the rights of individuals as travellers are subject to its reasonable control. With respect to the parking of automobiles it has been held that “No right of any citizen is impaired by an ordinance which prohibits the parking of vehicles at a place in a public street or highway where such person has no legal title to the land occupied by the street or highway and has no interest in such greater than an easement of travel which is held in common with all citizens.” Commonwealth v. Rice, 261 Mass. 340, 345. Commonwealth v. Newhall, 205 Mass. 344. Commonwealth v. Ober, 286 Mass. 25. Doubtless temporary and
A municipality cannot be authorized to turn this plan of using parking meters into a business for profit over and above the expenses involved in proper regulation of the public use. It cannot establish a commercial enterprise on the public easement. To do that would be to divert to alien purposes property taken for public uses and paid for by funds raised by taxation. This principle has been discussed in Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 377, D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, and Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65.
Requirement of payments from those parking automobiles to meet the cost of the installation, operation and maintenance of the system and its general supervision would be permissible. It is not necessarily an infringement of the rights of individuals in public ways to charge a small fee for some legitimate special use to defray the cost of the special service afforded. That would be nothing more than the exaction of a toll which was familiar in the early days of highways. Toll bridges and tunnels are not uncommon. See Boston v. Treasurer & Receiver General, 237 Mass. 403, 414. This point is covered in principle by Postal Telegraph Cable Co. v. Chicopee, 207 Mass. 341, 347. Analogies may be found in the tolls often demanded for the use of public ways and bridges, wharfage fees charged at public wharfs and landing places, fares collected upon municipally owned railways and ferries, and charges for other publicly owned and operated utilities. It was said in Brush v. Commissioner of Internal Revenue, 300 U. S. 352, “A state, for example, constructs and operates a highway. It may, if it choose, exact compensation for its use from those who travel over it (see Bingaman v. Golden Eagle Lines, 297 U. S. 626, 628) ; but this does not destroy the claim that the maintenance of the highway is a public and governmental function.” The proposed statute makes fundamental changes in the laws dealing with municipal finance and modifies G. L.
There are numerous decisions in other jurisdictions touching the subject of parking regulations. It seems unnecessary to review them. A few of them may be cited. They manifest a considerable diversity of view. Chicago v. McKinley, 344 Ill. 297. Birmingham v. Hood-McPherson Realty Co. 172 So. Rep. (Ala.) 114 [233 Ala. 352]. State v. McCarthy, 126 Fla. 433. Ex parte Duncan, 179 Okla. 355. Decker v. Goddard, 233 App. Div. (N. Y.) 139. Waldorf-Astoria Hotel Co. v. New York, 212 N. Y. 97. McFall v. St. Louis, 232 Mo. 716, 730. See cases collected in 72 A. L. R. 229, 87 A. L. R. 546.
The conclusion is that within the limits of public travel, the General Court may regulate parking and may do so by a fee system intended to hasten the departure of parked vehicles and to help defray the cost of installation and of supervision. It is conceivable that under the proposed statute ordinances and by-laws may be drawn which would not by their enforcement violate constitutional rights. It is also conceivable that ordinances and by-laws may be drawn which would violate constitutional rights and underlying conceptions of public travel on public ways: Whether the use of parking meters under the act would be confined within the lawful limits of travel cannot be known until ordinances and by-laws are drawn and applied to particular situations on the highways. No categorical answer can be given to question 1. All will depend upon what ordinances, by-laws and regulations are made and the circumstances under which they are put into operation and enforced. We cannot go further than state the general principles already outlined.
The second question is general and presents no specific point. It has always been the practice for the Justices to
Arthur P. Rugg.
John C. Crosby.
Edward P. Pierce.
Fred T. Field.
Charles H. Donahue.
Henry T. Lummus.
Stanley E. Qua.