City of Decatur v. Robinson , 251 Ala. 99 ( 1948 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This cause was originally assigned to Mr. Justice BROWN for preparation of the opinion. Upon consideration of the cause in consultation the opinion of Justice BROWN did not meet the approval of the Court. The following opinion was originally prepared as expressive of the writer's individual views. But in consultation the members of the Court, other than Justice BROWN, concurred in the views therein expressed and it is of consequence, adopted as the opinion of the Court. Reference is made to the full statement of the case as found stated by Justice BROWN, and we adopt such statement as our own. It appears above. The opinion adopted by the Court is as follows:

Though taking no part in City of Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140 yet I was impressed at the time, and am still of the opinion, the decision should have been otherwise. It should not now be followed. That case was decided something more than eleven years ago, and it was then admitted, as disclosed by the opinion, that the automobile had introduced into police law many questions affecting the lives, health, happiness, personal and property rights and general welfare of the public, all of which have to be considered, safeguarded and defined according to the facts entering into each case; citing Frost Frost Trucking Co. v. Railroad Commission of State of California,217 U.S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A.L.R. 457. In this latter case one of the dissenting justices made note of a like observation when he said in the statement of his views that the states are now struggling with new and enormously difficult problems incident to the growth of automobile traffic. That decision was rendered twenty-two years ago, and since that time, as is known by all men, the difficulties have greatly multiplied.

It is simply a question of exercise of police power possessed by municipalities in the matter of regulation of traffic on the streets of the cities. As we have often observed, the limits of the state's police power has never been fixed nor its boundaries defined. It is a governmental function and is coextensive with the necessities of the case and the safeguard of the public interest. In State ex rel. Wilkinson v. Murphy,237 Ala. 332, 186 So. 487, 121 A.L.R. 283, speaking to this question of police power, we observed that time moves on and government takes account of the measured steps of progress with the application of police power to meet new public needs. And we there observed the ruling of the Supreme Court of the United States in Euclid v. Ambler Realty Co., 272 U.S. 365,47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016, wherein the court, among its varying reasoning, referred to regulations of traffic in the present day of complex conditions which before the advent of automobiles would have been condemned as fatally arbitrary and unreasonable.

I can find nothing in either section 235, or section 89, of our Constitution which stands in the way of exercise of this police power of municipalities.

See Gilsey Buildings Inc. v. Incorporated Village, 170 Misc. 945,11 N.Y.S.2d 694; Webster County Court v. Roman, 121 W. Va. 381, 3 S.E.2d 631; Harper v. City of Wichita Falls, Tex.Civ.App., 105 S.W.2d 743; City of Columbus v. Ward, 65 Ohio App. 522, 31 N.E.2d 142; Foster's, Inc., v. Boise City,63 Idaho 201, 118 P.2d 721, 726, and City of Louisville v. Louisville Automobile Club, 290 Ky. 241, 160 S.W.2d 663.

This matter of parking automobiles on down town public streets is a privilege, not an absolute right. The city may employ the means reasonably necessary to make effective the regulatory ordinance and to safeguard the restricted parking privilege granted. These parking privileges are now regulated by ordinance in nearly every city, and necessarily so. A time limit is now prescribed and the police officer is under duty to see that it is enforced. No one can question a moment the right of the city to employ additional police officers to augment the regular force sufficiently to enforce ordinances of this character. Instead, the city in the exercise of a choice of means elects to employ these parking meters, which are nothing but mechanical policemen, to aid in large part the accomplishment of that purpose; they are efficient and economical and enable the authorities to pass the cost of providing parking privileges on to those who enjoy them.

The ordinance shows upon its face that it is to regulate traffic and keep the traffic as liquid as it is reasonably possible. True, the city may not use the exercise of the police power as a revenue measure. But the ordinance here in question discloses that whatever revenue is derived therefrom is to be devoted to the cost of necessary inspection, police surveillance and incidental expenses that are likely to be imposed upon the public in consequence of this parking privilege.

Nor should the court seek to avoid an ordinance by nice calculation of the expense of enforcing police regulation. A case here much in point was that of the Supreme Court of Florida, decided in 1936, State ex rel. Harkow v. McCarthy,126 Fla. 433, 171 So. 314. A number of decisions are cited therein which support this conclusion.

A still more recent case (Owens v. Owens, Mayor, et al.,193 S.C. 260, 8 S.E.2d 339) from the South Carolina Supreme Court, decided in 1940, fully supports the validity of this ordinance and contains much valuable discussion of the question and answers the minority opinion here. It is noted in that case that ordinances of this nature have been tested in a number of states and upheld. I am persuaded it is now the time and occasion for our state to recognize the necessity for action and to keep pace with the progressive march of events in the complexity of our modern life. A number of ordinances dealing with municipal authority in regard to traffic problems of states are found illustrated in the Notes as set out in 72 A.L.R. 229; 108 A.L.R. 1152 and 130 A.L.R. 316. According to this record parking meters had only been invented in the year 1935. Perhaps, and very naturally, neither the need nor the use for such was then apparent. As observed, City of Birmingham v. Hood-McPherson Realty Co., supra, was determined in the year 1936.

Since the usefulness of parking meters and the necessity for some regulation in this regard have become apparent, the validity of ordinances concerning them have been tested in quite a number of other states. The only states thus far disapproving, so far as we have been able to discover, are Alabama and some two or three other states. But a number of states, some twenty in number, have approved. We cite them here for further reference. They are as follows: City of Louisville v. Louisville Automobile Club, 290 Ky. 241, 160 S.W.2d 663; Ex parte Duncan, 179 Okl. 355, 65 P.2d 1015; Cassidy v. City of Waterbury, 130 Conn. 237, 33 A.2d 142; Gilsey Buildings Inc. v. Incorporated Village of Great Neck Plaza, 170 Misc. 945,11 N.Y.S.2d 694; Affirmed, 258 A.D. 901, 16 N.Y.S.2d 832; Kimmel v. City of Spokane, Wash. 109 P.2d 1069; Hendricks v. City of Minneapolis, 207 Minn. 151, 290 N.W. 428; Foster's, Inc., v. Boise City, 63 Idaho 201, 118 P.2d 721; Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339; Harper v. Wichita Falls, TexCiv.App., 105 S.W.2d 743; In re Opinion of the Justices,297 Mass. 559, 8 N.E.2d 179; Clark v. City of New Castle, 32 Pa.Dist. Co. R. 371, 30 Mun. 65; County Court, etc. v. Roman,121 W. Va. 381, 3 S.E.2d 631; City of Columbus v. Ward, 65 Ohio App. 522, 31 N.E.2d 142; State ex rel. Dreyer v. Brekke, N.D.,28 N.W.2d 598; City of Bloomington v. Wirrick, 381 Ill. 347,45 N.E.2d 852; Gardner v. City of Brunswick, 197 Ga. 167,28 S.E.2d 135; De Aryan v. City of San Diego, 75 Cal. App. 2d 292,170 P.2d 482; Morris v. City of Salem, 179 Or. 666,174 P.2d 192; and Newark v. New Jersey, 133 N.J.L. 513, 45 A.2d 139.

The dissenting opinion states that the ordinance is contrary to the state law. On the contrary, I am of the opinion that it is in full harmony therewith. The question of regulating or prohibiting parking vehicles within the limits of the respective municipalities and to provide for the regulation of traffic by means of officers or semaphores or other signaling devices on any highway where traffic is heavy or continuous are specifically provided for in Title 36, Sec. 32, Code 1940. Like authority may be found in general provisions of sections 455, 489 and 750, Title 37, Code 1940.

In Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689, the holding was that the installation of traffic lights by the city was a governmental function for the negligent exercise of which the municipality was not liable. We recognized in that case that traffic signal lights were designed to regulate the use of streets, and that although there was no statute enjoining upon the municipality the duty to install such signal, yet if it is done, it is in the exercise of discretionary power possessed by the municipality to conserve the safety of the public using such streets. It was considered in that authority that as a matter of course the city had the right in the exercise of its police power to install these signal lights. They were but stationary policemen, and no adjoining property owner could complain that his property was destroyed or injured by the installation of such a signal. Clearly no property owner could well complain of the installation of a fire plug, mail box, public utility poles and the like, if erected by consent of the city. Such a situation may well be likened unto the parking meters here considered. They are but stationary policemen, as we have said, concerning which the property owner cannot complain as an invasion of any of his rights under section 235 of our Constitution. We can find no analogy between such a situation and those in the authorities cited in the dissenting opinion.

Even if it be assumed that the installation of such a light, or, as here, a parking meter, might work some slight inconvenience to the adjoining property owner, yet if it is a reasonable and proper exercise of the police power, such owner cannot complain. Or, as observed in Pickett v. Matthews, 238 Ala. 542, 192 So. 261, where there is no violation of a right, no action can be maintained. For, as the opinion observed, the police power is on some occasions necessarily superior to personal and property rights, and not infrequently yielded to the general welfare.

But we forego further discussion. Being fully convinced that the ordinance here is within the proper exercise of the police power of a municipality and is not prohibited by any constitutional or statutory provision, we think the decree rendered was laid in error. It is accordingly reversed and decree here rendered declaring the validity of the ordinance here involved.

Reversed and rendered.

All the Justices concur, except Justice BROWN, who dissents.