(dissenting).
The opinion of the majority makes the following statement:
“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.”
In the opinion is found the following also:.
, ¡¡ * * ^e record before us presents a single serious question for our determination, namely; Pías 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.”
In the record it will be found that the city and the state,-through its highway department, entered into three agreements regarding the street in question. There was the original contract, made on February 11, 1953, a first supplemental agreement, made on July 15, 1953 providing for the widening and the paving ¡of a portion of Second Street in Roswell for a distance of three blocks extending from Richardson Avenue on the west to the railroad tracks of the Santa Fe on the east, and a second supplemental agreement on August 27, 1953. The first of these fixed a maximum sum to be paid by the state; the second supplement recited the making of the original contract and the first supplement, adopted both except as provided in it, and then obligated the state to participate in making partial payment to the contractor during the term of his contract and provided that the engineer in charge should cause progress estimates to be made of the work and that the estimates be on a form provided by the chief highway engineer of the state. It further provided that inspection of work be made or approved of by the chief highway engineer of the state or his representative; that the state pay 85% of the proportionate share with the understanding that adjustment be made at the time of the making of final payment. In consideration of the obligations previously taken in the contracts and the obligation under the second supplemental agreement as just stated the city, by its officials, undertook to provide that it would not permit parking anywhere upon the street or highway except as permitted by written authority of the state; that it would permit no advertising signs, signboards, or devices within the right of way of the street or highway and that it would place no sign of any kind with reference to traffic on the highway or adjoining thereto without approval of the state; that the city would permit no removal, excavation or undermining, change or damage to such street without the express permission in writing from the state, and if any act such as just mentioned be permitted the city would guarantee to replace, fill or re-: pair said street or highway to its original condition. This agreement was executed on behalf of the state by its chief highway engineer and was executed by the mayor and. city clerk authorized thereto by resolution of the city council.
On the 9th day of August 1955 the city council enacted ordinance numbered 706 which is set out in full in the opinion pf the majority. The chief effect of this ordinance is to provide penal provisions for the violation of that portion of the agreement previously - entered into with respect to parking within the three block distance from Richardson on the west to the tracks of the Santa Fe railroad on the east.
I think the statement as to what is the chief issue in the case is mistakenly stated in the majority opinion. The bartering, if any, and I think there was bartering, was done by contract previous to the enactment of the ordinance.
The minutes of the meeting of August, 1953, show that the plans for widening the three block.portion of Second Street were drawn up for four lanes of traffic, and one parking lane; that federal aid was requested and denied; that then the state offered one-third participation if the plans were left as drawn. The city issued bonds and construction work started, the plans being left as they had been drawn. This meeting occurred after the first of the supplemental agreements had been made.
The opinion of the majority as to the purpose of the meeting of the council held on August 8, 1953 is in direct conflict with the purpose of the meeting as stated by the president of the council immediately after the roll call of the members of the council. I quote from the minutes:
“The President announced the Special Meeting had been called to consider the matter of prohibiting parking on Second Street between Richardson and the Railroad, and the street marking on the newly reconstructed street.”
The opinion of the majority is that there were several purposes for holding that particular meeting. I quote from that opinion :
“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.”
I do not find anything in the record which justifies the comments just quoted from the majority opinion as to the purpose of that meeting. The president of the council seems to have adequately and fully stated the purpose of the meeting. It appears from the minutes of the meeting that the president stated that agreements had been made with the State Highway Department before the commencement of reconstruction work on Second Street and that these agreements covered various phases of the work, but that
“Now the State was asking the City to eliminate parking on Second Street between Richardson and the Railroad.. The president asked Alderman Littell to report on a meeting held months ago, with the Highway Commissioner, City Manager, and the Second Street merchants, and the Streets and Alleys Committee.
“Alderman Littell reported plans were drawn up for four lanes of traffic, one parking lane. Federal aid was requested and denied. Then the State offered 1/3 participation if plans were left as drawn. The Bond Issue was floated, passed and construction started. Plans were left as they were. The Center line on the street should be laid so as to provide for the four driving lanes, and the one parking lane. Parking on the North or South side of the street was left to Council discretion.”
Alderman Littell after making the statement of previous arrangements, as I understand it, next moved that as to Second Street west from Richardson to Sunset parking be enforced on the south side of the street allowing for four eleven foot driving lanes “in compliance with the state requirement.” The motion was carried.
Next a statement was made that between Richardson and the railroad Second Street be built forty-six feet in width with seven foot sidewalks; Alderman Littell further said that the State had required that all parking be eliminated on this portion of Second Street; thereupon he moved to restrict parking on Second Street between Richardson and the railroad tracks to comply with the State Highway Department mandate. By passing Mr. Littell’s motion the council admitted that it was acting under the control of the State Highway Department.
In its supplemental agreement with the state on August 27, 1953 the city obligated itself “not (to) permit parking in, along, or upon said street or highway except as permitted by written authorization from the State.” Not only did the city by the agreement last mentioned surrender its authority in the matter of permitting or restricting parking to the State Highway Department, but it surrendered also practically every other control of the three blocks of Second Street notwithstanding the statute which gives cities, towns and villages the control of all streets in all particulars.
The minutes of the city council for the meeting of March 30, 1954 show that:
“* * * the Special Called Meeting has been called to discuss the parking problem on Second Street, between Richardson and the Railroad tracks, posed by the Complete Elimination of parking on the three blocks involved, and subsequent protest from businesses and property owners affected. The City had eliminated parking in the area, under agreement with the State Highway Department.”
A long discussion was had at this meeting, property owners and businessmen in the territory affected taking part in the discussion as well as members of the council. Alderman Burns then moved to restore parking in this part of the street immediately. This was done and as pointed out in the opinion of the majority, parking was continued until July 15, 1954.
The minutes of a meeting of the city council held July 6, 1954 show that the city council was again called upon by people seriously interested in the parking situation between Richardson and the Railroad. A statement was made by Alderman Russell as to the outcome of the meeting with Mr. Erwin, Chief Highway Engineer. It was said that the State required that parking be eliminated completely from the three blocks of Second Street, and that “the only alternative was to have it unpaved, or unimproved”. It is also shown that the “city felt it was bound to honor its agreements with the State Highway Department”. A motion was then made that parking on Second Street between Richardson and the railroad be eliminated by the 15th of July following. This ended the attempt on the part of the council to permit parking within this territory. It will be recalled that it had stopped parking several months during the previous year and then opened the street for parking at the March meeting and it is clear that the final action to stop parking between Richardson and the railroad tracks was at the direction of the Highway Department and in order to secure financial assistance in improving Second Street.
It seems to be the fact that the members of the city council were reluctant to prevent parking on Second Street; but when it became apparent that it was a matter of no parking or no paving with financial assistance from the State, the council yielded to the mandate of the State.
It is clear to my mind that in this particular case the city actually sold the authority delegated to it by the state acting through its legislature. Ordinance 706 was evidently passed to provide penalties for any parking within the three block area. The ordinance was so passed in conformity to agreements previously made with the State as to no parking. This is manifest by the third paragraph of the preamble to the ordinance. This reads:
“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 * * * ”
Recalling that the motion referred to was that made by Alderman Littell to comply with the mandate of the State Highway Department, it appears that the ordinance preventing parking on Second Street within the area bounded on the west by Richardson and on the east by the railroad tracks was passed in the same spirit and with the same intent that moved the councilman to make his motion and the city council to pass it — to comply with the mandate of the Highway Department. The city can no more sell or give away or in any way delegate any of its legislative or discretionary powers to any other state organization than it can receive authority to exercise any power not already granted to it by the legislature. Municipal corporations receive their powers from the people of the state, acting through the legislature and they cannot barter away those powers. No rule of law is better settled than that the police power cannot be bartered away. Baker v. City of Princeton, 226 Ky. 409, 11 S.W.2d 94; Tilton v. City of Utica, Sup., 60 N.Y.S.2d 249; City of Chicago v. O’Connel, 278 Ill. 591, 116 N.E. 210, 8 A.L.R. 916; City of Princeton v. Poole, 197 Ky. 248, 246 S.W. 819; Hudson County Water Company v. McCarter, 209 U.S. 349, 28 S.Ct. 529, 52 L.Ed. 828; 6 McQuillen on Municipal Corporations (3rd Ed.) § 24.41 et seq., pp. 530-532.
In the case of Risser v. City of Little Rock, 1955, 225 Ark. 318, 281 S.W.2d 949, 950 the city authorities and the county authorities entered into an agreement with the Fourche Dam Community east of Little Rock whereby certain streets and roads were to be closed and the city and county would jointly construct a new paved road in an agreed location. This agreement was modified later so that the city undertook to improve East 10th street and to improve and maintain East 26th street with a right of way of 160 feet. Appellants in the case had filed suit to enjoin the city from abandoning the old routes in favor of new ones. The Chancellor denied the injunction and the residents of the Fourche Community have appealed. The appellants, among other things, contended that the city was precluded from closing the roads by a contract made with the residents of the area. From the opinion of the case, I quote:
“Any attempt on the part of the city to enter into a contract relating to the permanent establishment or abandonment of its public streets would be ultra vires. In establishing, maintaining or abandoning its streets, the city acts in a governmental capacity and no city administration has the authority to bind a future administration in such matters. Cities have the authority to control, supervise and regulate all streets within their corporate limits. Ark.Stats. §§ 19-2313, 19-2304. ‘A municipality cannot bind itself by a perpetual contract, or by one which lasts an unreasonable length of time. Thus, a municipal corporation cannot obligate itself to keep a particular street open forever.’ 38 Am.Jur. 174. It is also said in 25 Am.Jur. 553: ‘It is established that the governmental power to control and regulate the use of highways in the public interest cannot be surrendered, or impaired by contract. Particularly as to municipalities, control over streets is given to them for the benefit of the public. It is in the nature of a trust held by the corporation, from which arises a continuing duty on the part of such corporations to exercise legislative control over their streets at all times and places when demanded by the public good. They have no power, by contract, ordinance, or by law, to cede away limit, or impair their legislative or governmental powers, or to disable themselves from performing their public duties in this regard, at least without the explicit consent of the legislature, or to delegate the exercise of such powers and the performance of such duties to others, so as to relieve themselves of responsibility in this respect.’ ”
In 1954 the Supreme Court of South Carolina had under consideration the proposition above discussed and in the case of Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153, 157, said:
“It is a fundamental principle of constitutional law that no legislative body may part with its right to exercise the police power, nor may a municipality to which such power has been delegated divest itself of same by contract or otherwise. It is a continuing power which may be exercised as often as required in the public interest and must always remain fluid. Douglas v. City Council of Greenville, 92 S.C. 374, 75 S.E. 687, 49 L.R.A.,N.S., 958; 11 Am.Jur., Constitutional Law, Section 254.
“We think that the covenant to maintain during the life of these bonds parking meters on the streets of Beaufort and to charge fees for the use of parking spaces thereon sufficient to service said bonds, constitutes an ineffective attempt to barter away the police power, The Legislature may not authorize the City Council of Beaufort to adopt a system of on-street parking and make it irrevocable-during the life of the bonds, so as to-preclude a future council from adopting some other, and better, method of regulating traffic, or from prohibiting’ parking entirely on any or all of the-streets. The governing body of the-City of Beaufort must be left unrestricted in the future to adopt any parking regulations necessary for the.public safety and welfare.”
Further authority would seem to be unnecessary to support the proposition of law that a city may not barter away its police-power or any part thereof.
In the case before us the city of Roswell has clearly undertaken to barter away,, I think every vestige of its police power over the three blocks in question. Not only has the city, if its contract with the State-Highway Department is valid, lost all control as to questions of parking in the three blocks, but it can do nothing in those three blocks in the exercise of its control of the streets of the city delegated to it by statute,, without the written approval of the State Highway Department. The city can no-longer mend a hole in the paving within the three blocks, if one should appear,, without getting written consent from the State Highway Department, though the city and not the State Highway Department would be liable in damages to any one injured by neglect about keeping up one of its No longer can the city, without streets. getting written permission from the State Highway Department, open the paving to take care of broken or leaking water or sewer pipes, if its contract is good.
It is true that in the third clause of the preamble to the ordinance the city, when enacting it, made a declaration as to interest in the safety and the welfare of the whole of the city, but it likewise is true that it followed that declaration with the statement which shows that the real basis for the passage of the ordinance was to keep faith with the State Highway Department with reference to the motion adopted at the August 8th meeting of 1953 when the city undertook to eliminate all parking within the three blocks at the mandate of the State Highway Department. The order is therefore the development and culmination of the agreement entered into between the city and the State Highway Department whereby the city attempted to surrender all its powers over the three blocks of Second Street. The city made that attempt for the purpose of obtaining financial assistance from the state.
That the city could make no such surrender whether by contract or by ordinance I think has been shown clearly. The contract is invalid and the ordinance was enacted upon the same consideration and is likewise invalid in my opinion.
I dissent.