Case Information

*1 Honorable ml. P. pavie

CountyAuditor

Ellis coun*

Waxahaohie, Texas Opinion No. O-7140

Dear Sir8

Ret (1) Authority of home rule oity to install Parkingmeters onoountp roper* surrouuding oourthouee: i: 2) Legali* op OOunQ Installing parking meters on aouuty property surrounding oourthouse.

We are in noeipt of Pour letter of reoent date request&g the op inionof thiadeparbwnt ontheabove etatedmatters. We quotefromyour letter as follower

"Gould parking meters bs installed on county proper* surrounding the OOUl-thOU6S?

"If tieabove ie answered in tbeaffirmative,-could they be instilled w the City of Nbxahaohie with revenue derived theref%!a going to the oitJrT "If perking meters aould be installed by the ooun~ with all revenue go- ing to l&e county, oould the oommiasionors~ oourt enter into a oontract with a parking meter oonoern whereby the private ocsapany would install them and get 7tiJc of the rehnue fYcm the parking meters until such time aa they are vald for ln fulJ,t thereafter the county reoeiving all the revenue from the meteraT,

"The Ci* of lbxahaohie Is oontemplating the lnbtallation of parking met- ers on oi* streeta and has appeared l&ore the Ellis County Cozwaib.sioners* Court for permission to install them at the ourb surrounding the oourt- house. The oounty proper@ line extends 16 feet into i&the street and thus the installation would be on oounty-owned proy;ertg.e

Aoooxding to information furnished Iy the Office of the Secretary of State, the City of Waxahachie is a home rule oity. With referenoe to the dominion, oontrol and jurisdiction of the streets in a home rule city, we call your attention to the following language contained in Article 1173, Revised Civil Statutes,

&,Il. Xc. P. &ViS, &Use 2 (O-7140) or cummdment hereunder shaI.1 hsve full paarer

“Cities adopting the ch+er of loos1 s&t? p3vennmnt, and among the other panrrs that iroy bd exercised ly any such city the folloning are hereby emceerated for grrster oertaintyr '16. To havs exclusive dominion, control and jurisfiieti.:n in, over and under the public streets, avenues, alloys, hi@q:yz 2nd bol:l:fla?‘ds, ad p:blio grc'mds oi such city . . .

“2G. To license, operate and control ths oysr&tion ci' nii c!irrcctsr of vehicles using the publio &rests, inOhding noixuoytilds, autcavobiles or 1i.k~ vohioles.'

Zx 39 Texas Jurisprudence, "Streets," S%tion 88, ~2. 3&i'+%, WJ find tie following language8

s. . . Amunicipal oorporation has parasmunt jurisdiction eni aintro over its etreetet andthe oountp has no oontrol over them. This is true of a roadwey whioh the county has relinquished to puhlio uss; nor does any dis- tinotdon exist by reason the faotthat the county owns the fee in ths street. . . ."

With referenae .to the oity~s authori* and control of a city aixeet,the fee and title to which was in the countya we call your atten- tion to the following language contained the opinion of the Court of Cr%inal Appeels in the oase of Sv ?'arbs Bradshaw, 159 SO??. 259, whioh involved thevalidity of aoi% ordinanos regulating peddling upon the streets8

l lippella&.'s oo&ention.ihat he wae on that part of the public square, the ?ee and title towhiohwas in the oounty, and t&t the oomty gave him authoritg to establish and mainteia his peddling lusiness there, oannot be ~intsined. Where he located and kept his wagon and horses in his ped- dling business, as shown,was in the.publio street or squss‘e. Sill county ooulrl no more give him p0w.w or euthoritJr to obstruot tha streets or pub- lic squars than aqy other corporation or person could do. Clearly thin location 11~s within the oitv limits.and on the lmblic streets or square. prved and used for plblio uses, end-the oi@f, and not the oou& had - &-isdiation, poeor, and authority over it,. at least, for street purp*;as for the publao." ( Undersocring o;lrs througho'zt and for e public square In tie ease of City of Lookhart‘v . Consnissionem' Court of Cald- wwll CC'WQ, 278 S&T. 319 (error refused), whioh involved the right of the co:mt~- t;> maintain s hitahing rack upon en area which the counw had vol- u&srily sot aside from the public square as a public street,%3 Court hold that +Ae ~intenanae of a hitohing raok in such area was rektad auloly to fAe handling of traffic of a public struat and &hat suoh vbatter nas therefore suhjeot to ithe jurisdiotion and oontrol of ths city govolp- ~nent. KY quote the P~llowiagZhnguage frorutie Court's opinion: %rtevar m<y have been the rights of the oounty originally, its act in coustr~oting the curbing, sidewalk, and gutter, snd its tacit relinquish- msnt to the city of oontrol over the thoroughfare thus left to publio *3 _- Hon. Tbn. P. Dais, page 3 (O-7140)

use, impressed the property, at least so long as it was so used, with the oharaoter of a publio street or thoroughfare0 Ws think this appears without question. There is no doubt that the entire square was dedioat- ed to the public for certain public ussso . l l the Public thoroughfares within the territorial 1Mts of the ~10~ are by 1~ placed under the exoluoive control of the city authorities. They alone are sovereign aid represent the puhzio the maintsnanoe and regulation t!mreof.

Xlhether a hitohing raak shall be meintained in that portion of the court- house equate whioh has been set aside as a thoroughfare clearly pertains to aontrol and regulation of the publis thoroughfares, and not to the administration of tie aountp gorernum&. The oounty, it may be eonceded, had the right to control the ground adjacent to the oourthouse, and the approaches to the building: and it may also be oonoeded thateven beyond the grouude it had the right to have maintained freedom of ingrea6 and egret toandfbmthe oormtpbuildings. Butthermttar of ahitehing raok in that portion of the square which it had voluntarily set aside as a uublia thorouchfare was on which had relationsolelv to the handline

jy 5 Tex. tiiv. ASP.-132;23 S.W. 1008~ Oil b-v. San Antonlo (Ten&iv. App.) 208 S.W. 1771 Meraer County v. Farrisbug (IQ 66 S.W. 10, 56%&A. 583s Ssmels v* Igashvilla, 3 Snoed (Tenno) 298."

In the oe&e of City of Galveston v* Galveston County, 159 SJL (2d) 976, (error refused), whioh involved the authorfty of the oily to install parkingmeters onSeawal1 Bculevard, which ha< bsen built by the cows@ as a seawall, the Court pointed out specificallythat the oily government h%d jurisdiction over the Bouisvard as a street, although in dwiding the cass, the Court held that, in this par=aFinstanance, the right of the public to use the Boulevard as a %ztreot was subordinate and inferior to the right of.ita primary use as a seauall. 7% quote ti19 following frornthe Court's opinion:

"The ri&t of a city Council to establish reasonable waffio regulations includes, of course, the right to decide that the installment of parking meters in aertain localities whera the traffic is 'dense is a reasonable traffic regulation and pass an appropriate ordinm OB to effect such reg- ulation, and such deaision is treated as oontrolling on the courts, unless the unreasonableness of the ordinance is fairiy free from doubt. Harpor v. City of Wiohita Falls, Tex. Civ. A:>p., 105 S.?7. 26 743, writ refused. The determination by the City to instA1 the prsposod parking meters at proposed places on Seawall BoulsvaPd within the City of Galvestol] is a determination by the City of ,ths r~~~s~-~!~.b?l.c!“~~Ss Of 30 regulating traffic at 8.uch points,

"

lb*=* P.Bavis,page4(0-714C)

"...ilowthe priamrypurpore forwhioh the Boulwardwas construoted was that it should serve to proteot, support aad braoe the seawall. I+ deed, the Boulevard, inclusive of the sand-fill and the covering pavement and oomentwalks, form component parts of a complex wholes and suoh whole is primarily dedicated to being used as a barrier tc storm waters from the Guld, and to this use it rmst bs primarily devoted. The right there- fore of the public to the use of the Boulevard as a street or highway -thin the City of Galveston is subordinate to and inferior to the right of its use as an integral part of the barrier ereoted against storm waters from the Gulf. So, when the Commissioners8 Court decided that proposed installation of the -king meters would oonstituta a lessening of the efficiency of the Boulevard as a barrier aaainst stormwaters in the event of a majo; stem, it was unquestionably aoi;ing within the sphere of its juriadiotion. That is not to say that the Ciw Cocmcilnas not aoting tith- in the sphere of its .jurisdiotioa whea it deoided to install the parking meterss but that the jurisdiction of the City, which ia this instance serres but a subordinate riaht of the uublio. must yield to the Jurisdiction of the Coansissioners~ Court-whioh in this in&roe ;erves a supe;ior right of the D+ablio.*

It is indicated ia your bftsr that the area where it is ocmtes~lat- ed that the parking meters will be installed involves a portion of the ocnmtp property which has been set aside and used bythe pub110 for thorough- fare or street purposes. Inviewofthe above oited authorities and inv%nr of the facts given, it is our opinioa that the matter of handling traffio upoa such publio street or thorougbfue withinthe City of I%xahaohie Is with311 the sphere of the exolusive jurisdiction the oity goveznwnt and thar said oitywould be authorized to install parking meters at the proposed looation and receive the rercnue therefrom, provided said city has appropri- ate powers vasted in it under its charter and has passed an appropriate ordinance to effect such regulatiorr. It is to be understood, however, that we are not herein passing upon any matters as to whether the city has prop erly proceeded to exeroise the authority granted tc hone rule cities under the above quoted sections of Article 1175.

ginoe we have held heroin that the matter of control and regulation of traffic upon publio streets and thoroughfares within the city, +luding the installation of parking meters, is within the exclusive jurisdiction of the city government, it is our further opinion that the county is not legal- ly authorized tc install parkkng motors at the proposed location. The fore- going holding precludes the necessity for disoussingtbo other questions raised in your request for an opinion.

We trust the above will satisfactorly answer your questions. JAEILJ Yours very truly _ _ ASPBOVED EAB 18, 1948 AT!IOBEEIGEBEBALOFTEEAB /s/Grover Bclkrs By /s/ J. A. Ellis AlTOBEEYGBBEULOFTEIAE J. A. Ellis Approved Opinion Committee .Assistant ByBYiB-Chairman