The plaintiffs who are appellants before this Court, consisting of property owners and tenants occupying the premises of such owners located on Second Street in the City of Roswell, New Mexico, between Richardson and. Railroad avenues, complain before us of the action of the district court of Chaves County in denying them relief by injunction against enforcement of ordinance No. 706 of said City, prohibiting parking of vehicles on Second Street within the area bounded by the avenues above mentioned.
The cause was tried on issues formed by a supplemental complaint filed by plaintiffs instituted, as alleged therein, by the plaintiffs for themselves and in behalf of all persons similarly situated and an answer filed thereto by and on behalf of the City of Roswell, a municipal corporation, as defendant. The state highway commission and the several members forming the personnel thereof were joined as defendants but later dismissed from the case. The chief issue in the trial was the validity of municipal ordinance No. 706, enacted by the City following the execution of a cooperative agreement between it and the state highway department, relative to the widening and paving of a certain portion of a state highway traversing the City, to-wit, that section of Second Street lying between Richardson and Railroad avenues.
The ordinance in question, among other things, prohibited parking of vehicles on the three blocks mentioned and it is the no parking regulation in the ordinance that forms the gravamen of the complaint made by plaintiffs constituting, as it does, according to the plaintiff’s objection, a bartering away by the City of its police power. If the plaintiffs be wrong in their contention that the ordinance is utterly void for the reason mentioned, then the trial court correctly denied the injunctive relief prayed for. • The cause was tried before the court which made its findings of fact and conclusions of law, a summary of which will be stated preliminary to a discussion of the basic legal question involved. The plaintiffs are twelve owners of business properties on the three blocks mentioned and twelve who are occupants, each as a tenant, of one or more of said premises.
On February 11, 1953, the City entered into an agreement with the State of New Mexico, acting by and through its state highway commission, for the widening and paving of a portion of U. S. highway No. 380 for a distance of three blocks within the corporate limits of the City of Roswell. ^Briefly, the State acting through its highway commission agreed to participate in the cost of such improvement to the extent of .one hundred per cent for resurfacing the existing paving; also, to the extent of one-third in the cost of the widening.
Thereafter, on July 15, 1953, the same parties entered into what was called a supplemental agreement, reaffirming the original agreement except as provided in the supplemental agreement. One of the provisos was to extend the work on Second Street to include “that portion between Richardson Street through Railroad Property.” Another proviso limited maximum participation by the State to $175,892.51.
Subsequently, on August 27, 1953, the same parties entered into what was called a second supplemental agreement in regard to the same matters. Since it is the covenants undertaken by the City in this second supplemental contract upon which the plaintiffs, both below and as appellants here, level their strongest and most serious attacks, we shall incorporate herein that portion of the second and last supplemental contract, as follows:
“2. For and in consideration of the above covenant the ‘City’ agrees:
“(a) That it will not permit parking in, along, or upon said street or highway except as permitted by written authorization from the State.
“(b) That no advertising signs, or signboards or devices will be permitted within the right of way of said street or highway, and that no directional, minimum speed or traffic control signs will be placed in said right of way or adjacent thereto without the consent and approval of the State.
“(c) That no removal, excavation, undermining, or change, or damage will be permitted in said highway or street without the express permission in writing from the State, and in event the same is permitted, the City will guarantee to replace, fill or repair, said street or highway to its original condition. It is understood that the State will permit no such removal, excavation or undermining by public utilities or other persons without the consent of the City. í{í íjí í}í >)
In due course, thereafter, to be exact on the 9th day of August, 1955, the City enacted ordinance No. 706, reading as follows :
“Ordinance No. 706.
“An ordinance prohibiting the parking of vehicles at all times on certain streets, or parts thereof, declaring certain defined areas to be congested areas by reason of width of the street and heavy traffic thereon and, providing penalties for the violation of this ordinance upon conviction.
“Whereas, Second Street within the City of Roswell is a designated Arterial Highway, and
“Whereas, by reason of the fact that Second Street West of Richardson Avenue has a right of way for vehicles Fifty-Two (52) feet in width and that from the confluence of said street, commencing at Richardson Aveune Easterly to the Atchison, Topeka and Santa Fe Railway Company right of way tracks, the right of way for vehicles upon said street is Forty-six (46) feet in width and further, by reason of such decreased width and the heavy volume of two-way traffic in four lanes thereon, the area along said street from Richardson Avenue easterly to the Atchison, Topeka and Santa Fe Railway Company right of way tracks is hereby declared to be a congested area, and, Whereas, it is hereby declared to be in the best interests of the safety and general welfare of the inhabitants of the City of Roswell to prohibit the parking of vehicles within such congested area as hereinabove set forth.
■ “Whereas, the City Council of the City of Roswell has heretofore by its Motion of 8 August 1953-voted to eliminate the parking of vehicles within the said area and that it is deemed desirable and expedient to enact this Ordinance prohibiting the parking of vehicles within the area hereinabove set forth.
“Now, Therefore, Be It Ordained By The City Council Of The City Of Roswell, New Mexico:
“1. That when signs are erected giving notice thereof, no person shall at any time park a vehicle upon Second Street within the City of Roswell in the area bounded on the West by Richardson Avenue and on the east by the Atchison, Topeka and Santa Fe Railway Company right of way tracks.
“2. That every person who is convicted of a violation of this Ordinance shall be punished as provided in Section 4, Chapter 1 of the Code of the City of Roswell, New Mexico, 1952.
“3. That this Ordinance is hereby declared to be an emergency measure on the ground of urgent public need, and therefore, upon its final passage and approval, shall be recorded in the Book of Ordinances of said City kept for that purpose, authenticated by the signatures of the Mayor and the City Clerk, shall be published as provided by law, and shall be in full force and effect five (5) days after such publication.
“Passed, Adopted and Approved this 9th day of August, 1955.
“/s/ Bert Ballard
“Bert Ballard, Mayor.
“(Seal)
“Attest:
7s/ H. B. Naylor
“H. B. Naylor City Clerk.”
The remaining findings and the conclusions of law, being brief, are set out herein, as follows:
“6. That since the passage of said ordinance the City of Roswell has enforced the same and has prevented all persons from parking on Second Street between Richard? son and Railroad Avenues thereof.
“7. One of the purposes of the Defendant City in passing said ordinance was to carry out the purported supplementary contract No. 2 between defendant City and the State by its Highway Commission.
“8. That the following named plaintiffs each owned business property facing Second Street between Richardson and Railroad Avenues in the City of Roswell at the time said Ordinance No. 706 was passed by the defendant City, and owned the same at the time this case was tried, to-wit: R. R. Hinkle, E. Clyde Blackwell and Steve Metarlis.
“9. That the following named plaintiffs each had a business which he operated at the time said Ordinance No. 706 was passed, and at the time this case was tried, which businesses were located in buildings facing Second Street between Richardson and Railroad Avenues in the City of Roswell, to-wit: Ray Platt, J. C. Rogers, F. A. Graham, Jake Worsham and Frank Graham.
“10. That the vehicular right of way from Richardson Avenue to the A. T. & S. F. right of way tracks is 46 feet in width and that there are four lanes of traffic contained therein.
“11. That said three block area in question is a congested area by reason of vehicular traffic from feeder and intersecting arterials, some of which are designated as State highways.
“12. That permitted parking within the three block area in question would tend to obstruct the normal flow of existing traffic thereon by reason of traffic flow contributed from feeder arterials together with the narrow width of said right of way within the area in question.
“13. That a traffic congestion problem exists within the area in question and that there is room for a fair difference of opinion as to the best way to cope with the problem.
“Based upon the foregoing Findings of Fact the Court malees the following
“CONCLUSIONS OF LAW
“1. That the action of the City Council of the City of Roswell in prohibiting parking within the area in question is not unreasonable.
“2. That the City of Roswell has power to prohibit or place a ban upon the parking of vehicles upon public streets within its corporate limits.
“3. That Plaintiffs have no vested private property right herein which is entitled to protection by injunctive relief.
“4. That the losses of these Plaintiffs as shown by the evidence are not such irreparable injury as entitled them to injunctive relief.
“5. That the action of the City Council of the City of Roswell herein is a reasonable exercise of the police power delegated to it and with which the Court will 'not interfere.
“6. That Plaintiffs have a complete, speedy and adequate remedy at law.
“7. That judgment herein should be entered for Defendant, City of Roswell, and that all costs should be assessed against the Plaintiffs.
“All Requested Findings of Fact and Conclusions of Law inconsistent herewith are hereby refused.
“To all of which the parties are allowed an exception.
“The parties are given ten days within which to file their formal exceptions.
“/s/ Geo. T. Harris “District Judge.”
While lengthy briefs have been filed, presenting arguments on the main as well as numerous ancillary issues suggesting themselves, when everything is said and done, the record before us presents a single serious question for our determination, namely: Has the City of Roswell by the contract in question bartered away the exercise of its police power in imposing by the ordinance mentioned a no parking regulation on Second Street for the three blocks involved? If it has, of course, the plaintiffs are right and the trial court was wrong in the judgment it entered denying injunctive relief.
Counsel for the plaintiffs do not question the power of the City to regulate parking, even to the extent of prohibiting it in a proper case. In their reply brief, they say:
“If the City’s police power had not been bargained away, (and so far as we can learn, they have complete control of the matter of prohibiting parking in the city, see Sec. 64-15-8, N.M. Sts. 1953, heretofore quoted); we would not be here today.”
Again, referring to the trial court’s refusal to grant their requested conclusion of law No. 6, denouncing ordinance No. 706 as void because enacted to carry out a contract in which the City had bartered away its police power, the effect of which was to give state highway commission a veto over the police power of the City, plaintiffs’ counsel say:
“This raises a question of law and the court refused to adopt it as a conclusion of law. The Court was right if the City did not bargain away its police power. If it did, then the Court erred in not making this conclusion.”
ere it is in black and white and we have the plaintiffs’ position in a nutshell. They do not question the City’s power to enact a no parking ordinance in a reasonable exercise of the City’s police power. They do not even question the reasonableness of this ordinance. The ordinance, however reasonable, is void because not enacted in a good faith exercise of the City’s pólice power, to meet an emergent traffic problem, but rather in performance of a covenant with the State acting through its highway commission, whereby it could secure for the City the greater part of the cost of the improvement. So say counsel for the plaintiffs.
In making the argument to support their position on this question, plaintiffs’ counsel quote time and again the trial court’s finding of fact No. 7, set out hereinabove. For convenience, we set it out again, as follows:
“7. One of the purposes of the Defendant City in passing said ordinance was to carry out the purported supplementary contract No. 2 between defendant City and the State by its Highway Commission.”
This finding says no more than that one of its purposes in passing the ordinance was to carry out the City’s contract with the State respecting the improvement of Second Street over the three blocks in question. It does not establish the claim of plaintiffs that the City was bartering away its police power in enacting the ordinance. No more so than does the quotation from the minutes of the Council meeting held August 8, 1953, reciting the motion of Alderman Littell “to restrict parking on Second Street between Richardson and the Railroad track, to comply with the State highway mandate,” which was duly seconded and carried.
To be sure, it was a legitimate use of the finding and of the recitals in the minutes, as well, to endeavor through them to satisfy the court that the City, in truth, was not moving in a good faith exercise of its police power in enacting the ordinance in question. But as against these factors and others argued by counsel, the court had to weigh others of contrary import and even greater force tending to show the City was attempting to solve a pressing traffic problem that had plagued it for some time.
■ For instance, one of the purposes of the-August 8, 1953, meeting of the City Council was to consider adequate safety measures in the light of existing traffic flow and the resulting congestion therefrom within the area Richardson Avenue to the Santa Fe railroad, by reason of two-way vehicular travel in four lanes upon an existing right of way 46 feet in width, each, lane of traffic to be wide enough to meet minimum safety requirements for such travel upon the street. As indicated, the existing right of way upon Second Street, Richardson Avenue to the railroad, was 46 feet in width, whereas the existing right of way' west of Richardson Avenue and east of the railroad upon said street was 52 feet in width, or wider, thereby giving rise to particular traffic hazards, to-wit, congestion due to the bottleneck created by travel flowing from the wider stretch of the street into the narrower.
That the city postponed imposing a no parking restriction in the area is disclosed by a resolution shown in the minutes of the meeting of the Council on March 30, 1954, whereby the no parking rule between Richardson and the railroad tracks which had been enforced before was rescinded. Parking was thereafter allowed in the section of Second Street involved until July 6, 1954, at which time a regular meeting of the City Council took place.
Among other things done at this meeting, upon motion of Alderman Daniel, duly seconded and carried, parking on Second Street between Richardson Avenue and the railroad track was ordered eliminated by the 15th of July, 1954. This order of the City Council was enforced until ordinance No. 706 was passed and has continued until the trial of this cause and since. The foregoing recitals fairly indicate that the City was making a continuous, bona fide effort to solve the traffic problem besetting it. From time of the enactment of ordinance No. 706, and its effective date, the no parking restriction has been in effect.
The ordinance itself, as disclosed by a reading of it, after reciting the bottleneck created by the narrowed width of the street from Richardson Avenue easterly to the Santa Fe railway right of way and the congestion created thereby through the heavy flow of traffic in four lanes thereon, recites :
“ * * * And, Whereas, it is hereby declared to be in the best interests of the safety and general welfare of the inhabitants of the City of Roswell to prohibit the parking of vehicles within such congested area as herein set forth.”
While the courts are not bound by declarations of a legislative body that its enactment is in the interest of the public safety and welfare, they are not to be ignored; indeed, are entitled to great weight and will ordinarily be respected, unless obviously untrue or absurd. State ex rel. Hughes v. Cleveland, 47 N.M. 230, 141 P.2d 192. We may agree there are here present facts, appraised as plaintiffs appraise them, and writings interpreted as plaintiffs interpret them, which lend support to their claim that the City was willing to barter away its police power in exchange for the financial aid it was receiving in making the improvement.
But other and conflicting facts, the existence of a bona fide traffic problem on the City’s door step, — the physical fact of two-way vehicular traffic flowing into and out of a bbttleneck created by a sudden narrowing of the three-block stretch involved from a 52 to a 46-foot street, the council’s declaration that it was moving in the interest of public' safety and welfare contained in the ordinance, plus the presumption of good faith attending the council’s exercise of discretion in the matter, absent a showing of fraud or conduct the equivalent of fraud (Oliver v. Board of Trustees of Town of Alamogordo, 35 N.M. 477, 1 P.2d 116) — all leaned away from the direction pointed by the plaintiff’s characterization of the facts and toward the view of them adopted by the trial court.
In view of the foregoing, we must give it as our considered judgment there has been shown no sale or bartering away of the police power of the City in the control of its streets. So far as the briefs of the parties are concerned, the case nearest in point on its facts to the one before us is that of Bidlingmeyer v. City of Deer Lodge, 128 Mont. 292, 274 P.2d 821, 823.
In this case, a cooperative agreement between the City of Deer Lodge and Montana state highway commission had been entered into, somewhat akin to the one here involved between our state highway commission and the City of Roswell. Under the agreement the City’s Main Street was to be made part of a federal aid highway. In consideration of the agreement, the Federal Government’s bureau of public roads and Montana state highway commission would assume the greater part of expense of the improvement contemplated and three certain improvement districts along the route of the street through the city, created within the city, would share the remaining cost of the improvement on a basis expressed in the agreement.
A general demurrer to the complaint setting out the plan of the improvement was sustained and the plaintiffs, who had sued as taxpayers to enjoin the contemplated improvement, electing not to plead further, judgment was entered in favor of defendants from which the plaintiff prosecuted the appeal disposed of in the reported case. The closeness of this case to the one at bar on its facts will appear from the following quotation from the opinion. The court said:
“Does the complaint state facts sufficient to show that there has been an unauthorized abandonment by the city of its powers and duties with respect to the regulation of Main street.
“The complaint alleges that defendants, in order to have Main street paved, adopted resolution No. 483 on May 2, 1949, the important parts of which read: ‘2. That it will not pass any ordinances or laws fixing a speed limit on the above mentioned street of under 25 miles per hour. 3. That it will not allow the erection of signs, semaphores or signals that will give preference to local routes which intersect with said above mentioned street with the exception of necessary traffic lights. 4. That it will require stopping of traffic at all intersections, streets and alleys before entering the above mentioned street, with the exception of those intersecting streets where traffic is regulated by traffic lights and when traffic lights are in operation. 5. That it will modify its City Ordinance to require parallel parking on the above mentioned street. 6. That it will require that all opening of the pavement "be done under direct supervision of -the State Highway Department to their complete satisfaction and that no opening of the pavement is to be done without prior authorization from the State Highway Department and upon posting an approved bond in an amount of one thousand dollars ($1,000.00).’
“The complaint then alleges that the resolution is an unauthorized attempt to relinquish the city’s powers and duties over and upon Main street. It alleges that the resolution would prevent the city from slowing or stopping traffic along Main street for the benefit, safety and protection of school children ■or other pedestrians by creating, establishing or marking a safety zone or “through street’ intersecting and crossing Main street. Other like allegations .are made as to the effect of the res•olution in question.
“The general rjnle is that the police power of a municipal corporation cannot be divested by contract or otherwise. 37 Am.Jur., Municipal Corporations, § 276, p. 901. And generally speaking, it cannot be surrendered or ■delegated. Helena Light & Ry. Co. v. City of Helena, 47 Mont 18, 130 P. 446. The source of the police power ■of municipalities is the state. 37 Am. Jur., Municipal Corporations, § 277, p. 902; Carey v. Guest, 78 Mont. 415, 258 P. 236; Helena Light & Ry. Co. v. City of Helena, supra. The state, having delegated authority over the city streets to the cities, R.C.M.1947, §§ 11-912, 11-1002, the latter have exclusive control over them (Carey v. Guest, supra), but the state may take away or revoke a part or all of the authority which it has delegated to the cities.”
Without conceding it had dore so, the court said if some of the City’s police power had been surrendered by virtue of the enabling act, under the arrangement shown for the right of the state to participate in federal aid, it would not void the agreement under attack. In this behalf, it was said:
“If in the adoption of resolution 483 some of the police power of the city was surrendered, the foregoing authorities sustain the right to do so where the state authorizes the highway commission to enter into all contracts and agreements with the United States government relative to the construction and maintenance of highways, and where the commission assents to the conditions prescribed by the federal works agency for the right of the state to participate in federal aid. The same reasoning sustains (he right to require parallel parking.”
Finally, the court closed this phase' of' its opinion, by concluding-:
“The resolution does not surrender the police power of the city but merely places a limitation upon the method and means by which it may be exercised.”
While willing to agree that the case from which we have quoted, extensively, does not present an exact parallel on its facts, it is close enough to ours, to afford a strong precedent in support of the conclusion we reach.
There is little to add to what has been said. We could cite cases in which this Court many times has held municipality in regulating traffic on its streets is exercising its police power, but why do so? The plaintiffs do not question that a no parking regulation normally represents an exercise by a municipality of its police power and are willing even to concede it to be a reasonable regulation; or, perhaps, more accurately stating their position, they do not assail the ordinance as unreasonable. This is shown by quotations from their briefs, supra.
They simply, and frankly and boldly assert invalidity of the ordinance upon the ground the City surrendered its police power in agreeing to enforce a no parking ordinance. And, to refine their argument further, they affirm such a conclusion arises as a matter of law from the City’s covenant to enact a no parking regulation.
In other words, notwithstanding any showing the City might make as to an emergent traffic problem calling for such a regulation, even granting the safety hazard created by the physical facts shown might cry out for one which, absent the contractual covenant to provide it, would be upheld as a reasonable exercise of the police power; nevertheless, the ordinance is bad and unenforceable because of the City’s promise to do, what, otherwise, it had a right and duty to do, receiving in exchange for the promise some financial benefit.
Such reasoning does not appeal to us as sound. In the first place, it lays a charge of bad faith against the action of the City in the premises. In the second place, in demanding the declaration, as a matter of law (which is what the plaintiffs’ position amounts to), that the City abdicated and waived its police power, it would deny defendant the right to its day in court on whether it was not, at the same time, acting in good faith for the safety of all its inhabitants, in imposing the regulation it did. It is the unwillingness of the plaintiffs to concede the issuable character of the basic question presented, namely whether the City actually surrendered, or intended to surrender, by the agreement made its regulatory control over its streets, and as well the zeal and tenacity with which counsel have maintained their position here, that have caused us to give this case the unusual study and deliberation we have.
But it is said by counsel that the City lacked power to enter into a cooperative agreement with the State through its highway commission for the improvement in question. Obviously, they would not question power of state highway commission to contract regarding a subject, the construction and maintenance of highways, representing so inherently the very purpose of its creation. Nor, who would question the power of the City to do on its own initiative, at its own cost, what it here has agreed to do in cooperation with state highway commission in the paving and widening of a segment of Second Street? This it was expressly empowered and enjoined to do by 1953 Comp. § 14-37-1 (L.1884, c. 39, § 73), reading:
“The city council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.”
' Thus, the statute quoted gives it the power and enjoins upon it the duty to do what by virtue of the supplemental agreement it has contracted to do in cooperation with the state highway commission under an arrangement whereby the state will share the expense of the improvement up to a maximum amount of $175,892.51. Under the circumstances, it would have amounted almost to an act of nonfeasance for the members of the City Council to fail or refuse to commit the City to a saving of this large amount of money in providing a necessary improvement which, but for the opportunity thus afforded, the City would have to pay for in its entirety.
We see nothing either immoral or illegal in the agreement made. Where two separate governmental agencies, or political subdivisions, are committed by the inherent nature of each to the attainment of a common purpose or end, we know of no ethical consideration which proscribes nor any sound business practice which condemns, an agreement between the two to cooperate in achieving the common aim of both.
We should, perhaps, not close our opinion without mentioning the fact that the trial court, while basing its judgment on the fundamental finding there was here no surrender of the city’s police power by the supplemental agreement and ordinance challenged; yet, it did not overlook a consideration pertinent to the claim of plaintiffs that they had suffered and, in the future would suffer, damage in the depreciated value of their property on the three blocks in question by the enforcement of said ordinance. !As to this claim, if it had merit, the trial court concluded that the plaintiffs possessed a speedy, adequate and complete remedy at law for the redress of any injury their property may have suffered. See 1953 Comp. § 22-9-22 and compare cases of Summerford v. Board of Commissioners of Dona Ana County, 35 N.M. 374, 295 P. 410 and Hobbs v. Town of Hot Springs, 44 N.M. 592, 106 P.2d 856, which seem to lend support to the trial court in the conclusion drawn.
It follows from what has been said that the judgment of the trial court is correct and should be affirmed.
It is so ordered.
LUJAN, C. J., and COMPTON, J., concur. KIKER, J., dissenting. McGHEE, J., not participating.