I respectfully dissent from the ruling of the majority in this cause for the following reasons:
1. It will be conceded, I think, that the powers of a municipal corporation are strictly limited to those conferred upon it by the legislature, either by special charter or general law. This limitation has never been more clearly defined than in Dillon on Municipal Corporations (5th Ed.), Vol. 1, p. 448, section 237, wherein it is stated:
"It is a general and undisputed proposition of law that a Municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."
These principles are declared to be "of transcendent importance, and lie at the foundation of the law of municipal corporations." Dillon, supra. The language above quoted has been approved by this Court in Parkersburg Gas Company v.Parkersburg, 30 W. Va. 435, 4 S.E. 650, and Hyre v. Brown,102 W. Va. 505, 135 S.E. 656, 49 A.L.R. 1230. The asserted power to install parking meters rests upon the authority given municipal corporations "to regulate or forbid the parking of vehicles upon any designated streets * * *." Code, 17-8-32. The general powers granted municipal corporations (Code, 8-4-10) do not include the right to impose a charge upon the use of a public street, and I do not think the power to regulate was ever intended to be expanded in the manner suggested by the majority opinion. Certainly there is grave doubt upon the question, and our decisions hold that that doubt must be resolved against the municipality.
2. In Carson v. Woodram, 95 W. Va. 197, 120 S.E. 512, this Court upheld the right of the legislature to provide *Page 386 for the issuance of special permits over public highways between fixed termini to a carrier of passengers for hire and, of course, this ruling applies to other types of commercial transportation and the statute on which that decision was based authorizes the certificates of convenience which have been issued to various transportation companies, giving to them special and preferential rights over highways. So far as I know, this is the only law which in any way infringes upon the right of citizens to use the highways of the state in the ordinary course of life and business without charge. It is true, of course, that streets and highways are used by street railways, electric, telegraph and telephone lines; however, street railways are but another method of transportation, and the other uses mentioned do not interfere with the right of travel. Conceding the right of a municipality to regulate traffic, I think it can only do so by ordinances which give to no one any preferential right such as is created when, by the payment of a fixed charge, a particular person acquires the right to occupy any part of a street to the exclusion of every other person. I am persuaded that the precedent established by allowing the streets of the city to be made revenue-producing, even in the guise of paying the costs of regulation, and thus departing from the purposes for which they were originally intended, is a dangerous one. I think it safer to follow the old-time rule of keeping streets and highways free for all who desire to travel thereon, subject only to such regulations of traffic as varying conditions may require.
3. An abutting property owner has, of course, no special rights in the street which passes his door; the rights of those who travel thereon are paramount; but he does have the right, in common with all others, to the free use thereof, a right which is undoubtedly infringed when anyone is permitted, for a money consideration, to monopolize the right to park a car for any particular length of time. For example, a merchant owning and occupying a building is entitled to reasonable access thereto, which access may, under a parking meter system, under *Page 387 some conditions, be practically destroyed; whereas, under the general power of regulation, provision could always be made for reasonable ingress and egress. I think that the ordinance complained of materially burdens the owner of property abutting on streets where parking meters are permitted; detracts from the use and value of the property; and deprives the owner of property of rights for which no compensation is provided, and to that extent violates the constitutional provisions against the taking of property without due process of law, and the taking of property for a public purpose without just compensation.
I have grave doubts of the power of the legislature to confer upon a municipal corporation power to impose a tax or toll upon the use of streets. It may be that under the police power of the state, such authority can be granted if the charges provided for are limited to the expense of traffic regulation; but I do not think the legislature has granted any such power, and in the absence of such grant, it seems to me clear that it does not exist. I would therefore affirm the decree of the trial court.