County Court of Webster County v. Roman

3 S.E.2d 631, 121 W. Va. 381, 1939 W. Va. LEXIS 62

• Court: West Virginia Supreme Court
• Decided: June 20, 1939
• Docket: 8917
• Status: Published

Opinions

Hatcher, Judge:

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, 8-4-10, confers upon a town council the power to regulate the use of the town streets; and, though the state road commission has certain statutory authority over town streets which are connecting parts of the designated primary road system, Code, 17-8-32, expressly reserves to an incorporated town the right “to regulate * * * the parking of vehicles upon any designated streets.” Plaintiffs take the position that parking meters may not be installed unless “indispensably necessary” to regulate traffic, citing Hyre v. Brown, 102 W. Va. 505, 135 S. E. 656, 49 A. L. R. 1230. There, the requirement that the exercise of certain municipal powers be indispensable, re lates to’ powers not granted to the municipality, but nevertheless essential to the accomplishment of municipal objects and purposes. That requirement has no application here, since the power to regulate parking is granted in express words. The law is long settled that when the right and the duty to do an act are imposed upon a governing body, it may lawfully select any means reasonably adapted to the end. McCulloch v. Maryland, 4 Wheat. 316, 409, 419, 4 L. Ed. 579. “The power to regulate the use of the streets is a delegation of the police power of the state government, and whatever reasonably tends to make regulation effective is a proper exercise of that power.” Buffalo v. Stevenson, 207 N. Y. 258, 263, 100 N. E. 798, 800. There can be no serious denial that parking meters are a means of regulating parking.

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.), 8 N. E. (2d) 179, 182-3. The town has no funds of its own for this payment. It is not illegal for a municipality to charge a fee necessary to execute an express power. The power to regulate “justifies the charge of a fee and the.imposition of a penalty; and the regulative measure is not invalidated because, incidentally, the city’s receipts of money are increased.” Buffalo v. Stevenson, supra. Accord: Ex parte Harrison, 135 Tex. Cr. R. 611, 122 S. W. (2d) 314, 317; Ex parte Duncan, 179 Okla. 355, 65 P. (2d) 1015, 1017.

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, 84 W. Va. 239, 99 S. E. 478; McQuillin, Munic. Corporations (2d Ed.), sec. 1496. A necessary incident to that easement is the right of the municipality to regulate travel in the public interest. So long as a street is devoted to a reasonable public use, and the ingress and egress of a contiguous property owner are not disturbed, he has no just complaint against the use. The police power of a municipality, under legislative delegation to regulate parking, extends to every reasonable restriction on parking. This power has all the attributes of sovereignty, and is without limit, so long as exercised to accomplish regulation. “An ordinance regulating (the use of) a street is a legislative act entirely beyond the control of the judicial power of the state.” Milhau v. Sharp, 17 Barb. (N. Y.) 435.

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 of Birmingham v. Realty Co., 233 Ala. 352, 172 So. 114, 123, 108 A. L. R. 1140. That, however, is not the law in this state. Here, an abutter has no right superior to the public in the use of the street, except his right of ingress and egress. With reference to the general use of the highways of West Virginia, this Court has declared “every individual has the same right”. Ralston v. Weston, 46 W. Va. 544, 548, 33 S. E. 326, 328, 76 Am. St. Rep. 834. This is the general law, forcefully expressed by the Supreme Court of Illinois as follows: “In the use of a public street, the law recognizes no favorites. Subject to the law of the road, no one man or body of men has a superior right upon and in the street, as against the general public.” Chicago Co. v. Stanford, 104 Ill. App. 99.

Cases elaborating the views expressed here are Harper v. City of Wichita Falls (Tex. Civ. App.), 105 S. W. (2d) 743; Ex parte Harrison, supra; Ex parte Duncan, supra; Opinion of the Justices, supra; and State v. McCarthy, 126 Fla. 433, 171 So. 314.

The judgment is reversed and the bill dismissed.

Reversed; bill dismissed.