Gardner v. City of Brunswick , 197 Ga. 167 ( 1943 )

1. The constitutional questions raised in the court below have become moot for the reasons stated in division one of the opinion.

2. A municipality having the authority and power under its charter, to establish through its mayor and council, "ordinances, rules and regulations, as shall to them appear necessary for the security, welfare, convenience and interest of said city, and the inhabitants thereof, and for preserving the health, morals, peace, order and good government of the same," and "to widen, extend, or straighten," and "to open, lay out and establish any new street, alley, lane, way or square within the limits of said city," and other enumerated powers sufficiently broad to invest it with the general supervision and control over its streets, alleys, lanes, etc., may lawfully select any means reasonably adapted to the control of such streets, including the right to regulate parking of automobiles thereon.

(a) A municipal ordinance providing for mechanical parking meters on certain designated streets in which the motorist is required to deposit a one-cent or five-cent coin for a designated number of minutes of parking. and the revenue derived from this source is by said ordinance levied to cover the cost of purchasing, leasing, regulating, and controlling such parking meters, is not subject to attack by an owner of property abutting on the street where such meters are erected, on the grounds that the same will interfere with the operation of her business, thereby causing her irreparable injury and damage; that it takes away property rights without legal process of law, and is discriminatory; that it exceeds the police powers granted to said municipality by its charter; and that the municipality has no authority to enter into a business as outlined in said ordinance.

No. 14738. DECEMBER 1, 1943. Mrs. Clara Gardner, in an equitable petition against the City of Brunswick, sought an injunction prohibiting the city from installing and operating parking meters along Newcastle Street in front of her property, which is described as having a hotel located thereon. She alleged that the erection and use of such parking meters on the street at that point would cause her customers, who usually parked their automobiles on the street in front of her hotel while patrons thereof, to go to other hotels and tourist homes where no parking meters were erected, thereby causing her irreparable injury and damage; that the ordinance under which the city proposed to erect, and was actually erecting the parking meters is illegal and void, because "it takes away property rights without legal process of law and is discriminatory; [that] it exceeds the police powers granted to said [city] by its charter; and [that said] city has no authority to enter into a business as outlined in said ordinance." A copy of the ordinance was attached to the petition. It provides in substance that parking meters shall be erected on the streets of a certain designated area of the City of Brunswick, "because of traffic conditions that have existed in certain sections of the City of Brunswick, the free movement of traffic in these sections is, and has been, impeded for a long period of time," and "because of the habit of numerous operators of motor vehicles of parking for long periods of time in close proximity to other motor vehicles so parked on most congested parts of the city's busiest streets tends to further impede traffic, and in addition thereto constitutes a danger to life, limb, and property of motorists, pedestrians, and others." Under the ordinance, the parking areas are to be marked off on the street by painted lines, and the meters, which are devices mounted on standards, are to be installed along the curbing, one to each parking area. The motorist who parks in one of these spaces is required to deposit into the nearest meter a penny or a five-cent coin for a designated number of minutes of parking. The placing of the coin in the meter starts operation of the clock mechanism. Each parking meter installed indicates by a proper legend the legal parking time established by the city, and when operated indicates on and by its dial and pointer the duration of the period of legal parking, and on the expiration of such period, indicates illegal or overparking. The ordinance further provides that, "The five-cent and one-cent coins required to be deposited in parking meters as provided herein are hereby levied and assessed as fees to provide for the proper regulation and control of traffic upon the public streets, and also the cost of supervision and regulating the parking of vehicles in the parking-meter zones created thereby, and to cover the cost of the purchasing, leasing, regulation and control of the parking meters described herein." The ordinance provides a penalty for its violation.

The defendant answered; and also filed a general demurrer to the petition upon the grounds, (1) that it sets forth no cause of action against the defendant; and (2) that the facts alleged do not entitle the petitioner to the relief sought, or to any other relief, equitable or legal. The judge sustained the demurrer and dismissed the petition. He also passed an order revoking the temporary restraining order, and denying an injunction. The exception is to these orders and judgments. 1. The plaintiff raised certain constitutional questions in the court below as to the contract entered into by the City of Brunswick under the terms of which the meters were purchased, and sought to enjoin the city from complying with the terms of the contract. It was conceded in the oral argument before this court by counsel for the plaintiff in error that the contract had been fully executed and that the purchase-price of the meters had been paid. Therefore that question is moot.

2. The question as to whether a municipality has legal authority to install and use mechanical meters for the purpose of enforcing its parking regulations is a new one before this court. The initial question for consideration is whether the City of Brunswick was possessed of authority to enact the ordinance authorizing the installation and use of mechanical parking meters. The State of Georgia, through the delegation of police powers to the City of Brunswick, had empowered and authorized, "that the said mayor and council shall have authority and power, from time to time, to make, ordain and establish such by-laws, ordinances, rules and regulations as shall to them appear necessary for the security, welfare, convenience and interest of said city, and the inhabitants thereof, and for preserving the health, morals, peace, order, and good government of the same." Ga. L. 1872, pp. 151, 154, sec. 11. By the terms of section 14 of said act the mayor and council were authorized to open, lay out, and establish new streets, alleys, lanes, ways, or squares, and were given other enumerated powers sufficiently broad to invest in them the general supervision and control over the streets, alleys, lanes, ways, and squares located within the limits of the city. This court, in construing the charter powers of a municipality, which were in effect similar to the powers possessed by the City of Brunswick, held that the provisions "were sufficient to confer police power to enact ordinances for the convenience and safety of the public, and to that end establish and maintain streets and sidewalks and exercise full and complete control over them, including regulation of traffic thereon." Howell v. Board ofCommissioners of Quitman, 169 Ga. 74 (149 S.E. 779). It must be admitted that the automobile has introduced into police law many questions affecting the lives, health, happiness, personal and property rights, and general welfare, safety, and protection of the people, all of which have to be considered, safeguarded, and defined according to the particular facts in each case. This court is committed to the proposition that the municipalities of Georgia have authority generally over their streets to regulate the parking of automobiles thereon, and, under certain conditions, even to prohibit entirely the parking of automobiles on certain streets in congested areas. An ordinance providing that "no taxicab, motorbus, hack, or other vehicle for hire shall park on any street within the fire limits of the City of Atlanta longer than to discharge or take on passengers, unless in actual service, except in front of railroad stations, and except that three taxicabs or hacks, for the exclusive use of the patrons of hotels, shall be allowed to park either in front or on the side of hotels where permission is obtained in writing from the proprietor of such hotel . . no hotel proprietor can give permission to park in front of any place of business occupying the store on the ground floor facing the street," was held to be valid against the objection that it was unreasonable and confiscatory. Sanders v. City of Atlanta, 147 Ga. 819 (95 S.E. 695). An ordinance entirely prohibiting the operation of motor-busses, jitneys, or jitney-busses on certain streets of a city has been upheld. Schlesinger v. City of Atlanta,161 Ga. 148 (129 S.E. 861). Similarly, an ordinance prohibiting parking on certain streets in the daytime, between hours specified in the ordinance, and making these streets non-parking during the night, was upheld. Borough of Atlanta v. Kirk,175 Ga. 395 (165 S.E. 69). It must therefore be concluded that the City of Brunswick, under the provisions of its charter, had the power and authority to regulate and control traffic and parking on its public streets, and consequently was authorized and empowered to enact the ordinance in question.

The plaintiff in error contends that the ordinance is discriminatory. An examination of the ordinance discloses that it applies alike to all persons and property owners located within the area described in the ordinance. "It is only in cases where laws are applied differently to different persons under the same or similar circumstances that the equal protection of the law is denied." Baugh v. City of LaGrange, 161 Ga. 80 (2a) (130 S.E. 69). See also Toney v. Macon, 119 Ga. 83, 87 (46 S.E. 80); City of Valdosta v. Harris, 156 Ga. 490 (4) (119 S.E. 625); Georgia Southern Florida Ry. Co. v. Adkins, 156 Ga. 826 (120 S.E. 610). In the case of Borough of Atlanta v.Kirk, supra, Mr. Presiding Justice Beck said: "The power of courts to declare an ordinance void because it is unreasonable is one which must be carefully exercised. When the ordinance is within the grant of power conferred upon the municipality, the presumption is that it is reasonable, unless its unreasonable character appears upon its face." He then quotes with approval from 2 Dill. Mun. Cor., 928, § 591, as follows: "If the ordinance is not inherently unfair, unreasonable, or oppressive, the person attacking it must assume the burden of affirmatively showing that as applied to him it is unreasonable, unfair, and oppressive." As pointed out above, the ordinance in question is applicable alike to all persons and property owners affected within the area described in the ordinance, and under the authorities cited, it cannot be held to be discriminatory.

The third and last consideration involves the contention of the plaintiff that "the City of Brunswick has no authority to enter into a business as outlined in said ordinance." The law seems to be clear that a regulatory measure of this kind may produce such revenue as is reasonably necessary to defray the expenses connected with its operation. The petition makes no contention that the city will derive revenue from the parking meters in excess of what is necessary to defray the expenses connected with the operation of the meters, and the burden being on the petitioner to point out wherein the ordinance is invalid, it fails in this respect. In this connection, it is well to keep in mind that while the public has an absolute right to the use of the streets for their primary purpose, which is for travel, the use of the streets for the purpose of parking automobiles is a privilege, and not a right; and the privilege must be accepted with such reasonable burdens as the city may place as conditions to the exercise of that privilege. The authority to make and enforce rules for the use of streets necessarily includes the right to restrict the parking of cars on the public streets when necessary. The city should have a wide latitude in selecting the means to be adopted. A regulatory ordinance relating to the parking of cars will be presumed to be justified by local conditions, unless the contrary clearly appears. Much should be left to the city's discretion. Except for the right of ingress and egress, an abutting-owner's rights in the street are the same as any other member of the traveling public. The ordinance under consideration does not interfere with the right of ingress and egress of the complaining property owner. The burden of the complaint is that the parking meters will incidentally interfere with the operation of her hotel business because her customers will object to paying for the privilege of parking in the public street. The city may provide meters to measure the time of parking as well as it may measure such time by other means.

While the validity of parking meters is a new question in this State, the validity of ordinances providing for such meters has been decided by the courts of a number of States, and with the lone exception of Alabama, in so far as we have been able to determine, they have been unanimous in upholding the validity of such ordinances. County Court of Webster County v. Roman,121 W. Va. 381 (3 S.E.2d 631); Owens v. Owens, 193 S.C. 260 (8 S.E.2d 339) and the collection of cases there cited on the subject. It is interesting to note that in the Alabama case, City of Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352 (172 So. 114, 108 A.L.R. 1140), that being the case holding the parking-meter ordinance invalid, the city's right to the streets was derived from a deed containing a provision that the streets should not be used for any private or individual purposes except with the consent of the grantor.

There was no error in refusing the injunction and in sustaining the general demurrer dismissing the petition.

Judgment affirmed. All the Justices concur.

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