Summary
In City of Ellisville v. State Highway Commission, 186 Miss. 473, 191 So. 274 (1939), we ruled that a municipal parking ordinance controls a street that is part of a state highway.
Summary of this case from Robinson v. Indianola Mun. Separate Sch. DistOpinion
No. 33777.
October 9, 1939. Suggestion of Error Overruled November 20, 1939.
1. MUNICIPAL CORPORATIONS.
A "street" is a road or highway within a municipality.
2. MUNICIPAL CORPORATIONS.
Where a public highway in rure has been included within municipal boundaries by annexation, the highway becomes ipso facto a "street" and subject to municipal control, and when a public highway is projected into or through a municipality, there is the same result unless statutes expressly and clearly provide otherwise (Laws 1938, chap. 200, sec. 12).
3. AUTOMOBILES.
Where State Highway Commission granted permit to construct concrete driveways over unpaved portion of state highway within municipality so as to connect gasoline service station platform with pavement at center of highway with understanding that space between highway pavement and curb should not be used for servicing automobiles, agreement between station operators and commission could not bind municipality or rights of public.
4. AUTOMOBILES.
The regulation of traffic including the parking of automobiles is an ordinary power of police generally exercised by municipalities as regards all the streets within their boundaries.
5. AUTOMOBILES.
A legislative intent to take away power of municipalities to regulate traffic including parking of automobiles and confer such power upon some other authority must be clearly expressed.
6. AUTOMOBILES.
The statute conferring on municipalities full jurisdiction to regulate traffic on city streets including parking of automobiles was not modified by subsequent statutes requiring State Highway Commission when using streets of town of less than 2,500 population as part of state highway system to pave streets so used, and vesting commission with full jurisdiction over matters relating to construction and maintenance of state highways and to make regulations for control of traffic on state highways (Code 1930, secs. 2414, 5005, 5006; Laws 1938, chap. 200, sec. 26).
7. AUTOMOBILES.
A municipality has power and jurisdiction to prescribe, within reason, the manner, the place at which, and the time within which an automobile may be parked upon any street in municipality, including those streets which are part of a state highway (Code 1930, secs. 2414, 5005, 5006; Laws 1938, chap. 200, sec. 26).
8. AUTOMOBILES.
A municipal ordinance permitting automobiles to be parked at curb parallel with street and permitting automobiles there to be serviced for not exceeding one hour with gasoline, oil, grease, air for tires, water for battery and radiator and the like is not unreasonable, notwithstanding street is part of a state highway (Code 1930, sec. 2414).
9. MUNICIPAL CORPORATIONS.
Permanent structures or obstructions may not be placed in a street for commercial purposes, but such rule has no application to temporary stops for a reasonable time at edge of street when allowed by municipal ordinance.
10. AUTOMOBILES.
Where municipal ordinance permitted the parking of automobiles at curb parallel with street for servicing with gasoline, oil, grease and the like, State Highway Commission, which was prohibited from making regulations in conflict with municipal ordinance, could not, for sole purpose of preventing or obstructing the operation of ordinance, build into street which was part of a state highway a concrete curbing enclosing grass plot with shrubbery so that no automobiles could park next to curb at or near service station (Code 1930, secs. 2414 5005, 5006; Laws 1938, chap. 200, sec. 26).
11. COMMON LAW.
No party may accomplish by indirection that which he is not permitted to do directly.
APPEAL from the circuit court of Jones county; HON.W.J. PACK, J.
Welch Cooper, Deavours Hilbun, and Milton Weems, all of Laurel, and Green, Green Jackson, of Jackson, for appellants.
There is in question in this case, not only the matter of the validity of the ordinances of the City of Ellisville, but whether the Highway Commission or the municipal authorities have the paramount authority in the matter of dealing with police power with reference to the highways through the municipality where a street or streets have been utilized in constructing the highway.
Under the general grant of powers to each municipality, all municipalities are "to exercise full jurisdiction in the matter of streets, sidewalks, sewers and parks; to open, lay out and construct the same; to repair, maintain, pave, sprinkle, adorn and light the same."
Section 2414, Code of 1930.
Municipalities are not only given supervision over streets and alleys, but they are held liable to the general public for failure to maintain streets in a reasonably safe condition for travel. The erection of a bumper in a street intersection was held to be negligence for which the city would be liable in the case of Vicksburg v. Harrelson, 136 Miss. 872, 101 So. 713.
In the case of Isola v. Humphreys County, 99 So. 147, it was held that a municipality has the superior jurisdiction to the county over a bridge, across a bayou on a street within the city. In the case of City of Laurel v. Hearn, 143 Miss. 201, 108 So. 491, it was held that streets may be devoted to any proper use incidental to construction and maintenance of a public thoroughfare, although the city may be liable to abutting property owners for damages sustained by them in making drains or ditches.
In the case of the Town of Senatobia v. Dean, 127 So. 773, the Supreme Court of Mississippi held that a municipality has no authority to surrender any jurisdiction or authority conflicting with its duty to keep the streets, alleys and sidewalks in a reasonably safe condition.
At the time of the decision of Dean's case, unquestionably Section 2414, Mississippi Code of 1930, was in full force and effect and without limitation by legislative act, express or implied. Following the decision of the Supreme Court in the Dean case, an act was passed by the 1934 regular session of the Legislature providing that the municipalities will not be liable for acts of negligence of the Highway Department in failing to maintain a street as a part of the highway where a part of its highway and primary road shall be what was formerly a street in a municipality. This act was not approved until October 22, 1935, and appears as Chapter 32 in the general and local and private laws of Mississippi, Extraordinary Session of 1935.
It seems perfectly clear that unless Section 2414, Mississippi Code of 1930, has been modified by some act of the Legislature subsequent to the adoption of the Code, the ordinances passed by the City of Ellisville are valid and that the rules and regulations adopted by the Mississippi State Highway Commission in conflict therewith are void and unenforceable.
We know of no statute subsequent to the enactment of Chapter 47, Laws of 1930, which in any way enlarges the right of the Commission with reference to the matter involved in this case.
As we see it, this is a case to determine if Sections 15 and 16 of Chapter 47, General Laws of Mississippi of 1930, by implication repeals or modifies Section 2414, Code of 1930. Unquestionably, the ordinances adopted by the City of Ellisville are reasonable and valid and are binding unless the Legislature of Mississippi has taken the power away from the City to exercise jurisdiction over the streets that are a part of the highway system.
Certainly Section 2414, Code of 1930, has never been expressly repealed. Implied repeals are not favored.
Pattison v. Clingan, 93 Miss. 310, 47 So. 503; State v. Jackson, 119 Miss. 727, 81 So. 1; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; Panola County v. Town of Sardis, 171 Miss. 490, 157 So. 579; Sections 158 and 159 under "Statute," Mississippi Digest.
A statutory enactment cannot be repealed by implication, if the implication does not necessarily follow from the language used.
Richards v. Patterson, 30 Miss. 583.
The Legislature by its acts since the enactment of Chapter 47, Laws of 1930, has shown that there was no purpose to repeal or modify Section 2414 of the Code.
What the Mississippi State Highway Commission is trying to do in this case is to take away from a municipality a right that it unquestionably had and vest the right in a Commission at Jackson. It is destructive of local government. It is an effort to further government by commission and to destroy any right of self determination and any right of local government.
We submit that the rules and regulations contemplated by Section 16 of Chapter 47, General Laws of Mississippi of 1930, are merely rules and regulations to govern the Commission in the manner in which it shall handle powers delegated to it. It was not intended to give the Commission the right to adopt rules and regulations which would have the effect of law.
Clark v. State, 152 So. 820; Mary v. Lawson, Executrix, v. Jeffries et ux., 47 Miss. 686; New Orleans, Mobile Chicago R.R. Co. v. State, 110 Miss. 290, 70 So. 355; State ex rel. Salter v. Board of Supervisors of Bolivar County, 72 So. 700.
It is true that a municipality is a creature of the Legislature and the Legislature gives to it such authority as it has and the Legislature can take authority away from a municipality. We earnestly submit that the reservations made in Paragraph D of Section 16, Chapter 47 and of Section 26-A, Chapter 200, Laws of 1938, show that it was not the purpose of the Legislature to deprive the City of Ellisville of full jurisdiction in the matter of policing and regulating the parking of automobiles on its streets, whether the streets be a part of the highway or not. If it has the right to govern the parking of cars, then it has the further right to prevent the placing of obstructions on the streets which will prevent the parking in the manner fixed by ordinances. The powers sought to be exercised by the Highway Commission are in hopeless conflict with the lawful rights of the municipality. The bill should have been dismissed and the injunction dissolved and the defendants awarded their costs.
Beyond question, the city had the authority prior to 1930 to adopt reasonable ordinances governing the subject matter of the two ordinances in question. That authority is found in Sections 2393, 2396, 2406, 2414, and 2434, Mississippi Code of 1930.
McQuillins Municipal Ordinances, Sections 458, 459, and 460.
The Highway Commission claimed the right to put up the posts which the city claimed to be a menace to the traveling public but by a rule of their own they undertook to prohibit the removal of such dangerous obstacles. The issue is clear cut. There is conflict of authority between the Highway Commission and the municipality. Both the City of Ellisville and the Highway Commission are claiming paramount authority as to the police power over that part of the highway that is within the City of Ellisville. We have pointed out the authority under which the City of Ellisville claims the right to act. We are persuaded that the Commission is without the authority claimed by it and we say that it has not pointed out any authority except its rule making power and we will say that is negative by legislative provision, as herein pointed out.
The Commission is as much a creature of the Legislature as is the municipality. Where can there be found in the acts of the Legislature one sentence or one line giving this new creature, the Highway Commission, authority to nullify acts of a municipality, acting within the legislative grant of power.
Edwin R. Holmes, Jr., Assistant Attorney-General, and Heidelberg Roberts, of Hattiesburg, for appellee.
Municipalities are mere creatures of the legislature from which they derive their powers, and these powers may at the whim or will of the legislature be taken away from them.
Adams v. Kuykendall, 83 Miss. 571; Hodges, Tax Collector of Meridian, v. Western Union Tel. Co., 18 So. 84, 72 Miss. 910; Gillis v. Indian Creek Drainage Dist., 155 Miss. 160, 124 So. 262; Gully, State Tax Collector, v. Williams Bros., 180 So. 400.
The question involved in this case is whether or not the legislature has, by subsequent legislation, taken from municipalities a part of the power and jurisdiction conferred upon them by Section 2414, Mississippi Code of 1930.
As we read the brief of opposite counsel, they contend that Section 2414, Code of 1930, has never been impliedly repealed or modified in any respect whatsoever. We do not contend that this section has either been expressly or impliedly repealed, but it is our contention that the subsequent acts of the legislature, to which we will hereafter refer, impliedly modified this statute and insofar as one of the primary highways of the state, designated by the legislature as such primary highway, might constitute a street in a municipality, this section has been impliedly modified to the extent that full and complete jurisdiction thereover is now vested in the State Highway Commission and not in the municipal authorities.
Chapter 255 of the Laws of 1914 is, so far as we have been able to find, the first statute enacted by the legislature which in any way modified the statute which now appears as Section 2414, Code of 1930, and while the Court held in the case of Atkinson v. Town of Decatur, 95 So. 689, 131 Miss. 707, that this statute did not take away from municipalities all control of their streets and relieve them of their duty of maintaining same, it in effect did provide for a joint control thereover insofar as the particular roads referred to were concerned.
In 1922, the legislature passed the necessary resolution to amend Section 107 of the Constitution so as to create the State Highway Commission, and vested in it jurisdiction over certain roads. In November, 1922, an election was held and this amendment passed, and in 1924, the legislature passed a resolution inserting this amendment in the Constitution.
Chapter 143, Laws of 1924.
In accordance with the authority conferred upon it by this constitutional amendment, the legislature of 1924 (Chapter 278, Laws of 1924) created a system of state highways and placed them under the supervision of the State Highway Commission and provided for their maintenance by the State Highway Department.
Chapter 231, Laws of 1926; Sec. 6359, Code of 1930.
In 1928 the legislature enacted a statute (Chapter 82, Laws of 1928) authorizing the board of supervisors to construct and maintain, or contribute to the construction and maintenance of state highways, both within and without the limits of a municipality.
Village of Ridgeland v. Madison County, 122 So. 753, 154 Miss. 613; Chapter 218, Laws of 1926; Chapter 45, Laws of 1928, Extraordinary Session.
Canton v. Canton Cotton Warehouse Co., 84 Miss. 290, 291, 36 So. 266; Code of 1930, Section 6360.
It appears that the statute first enacted in the days of the wagon and the one-horse shay, brought forward as Section 2414, Code of 1930, was impliedly modified insofar as state highways were concerned even before the adoption of the Code of 1930, and even before the enactment of Chapter 47, Laws of 1930, and that the legislature at its first session after the decision of the court in the Village of Ridgeland case gave its legislative approval to the interpretation by the court of the existing law by amending Chapter 82, Laws of 1928, so as to provide that the jurisdiction vested in the county in cooperation with the State Highway Commission could be exercised either with or without the consent of the municipal authorities.
In 1930 the legislature adopted a complete new scheme in Chapter 47, Laws of 1930, which is found in Chapter 122, Code of 1930.
Section 8 of the act, being Section 4998, Code of 1930, gave to the Highway Commission complete control and supervision over state highways and also granted to it the power of eminent domain.
This section alone gives to the State Highway Commission full jurisdiction over the road in question through the City of Ellisville as this road is one of the primary highways designated by the legislature, and this section of the act under discussion is not referred to by opposing counsel in their brief.
Section 16 of the act, being Section 5006, Code of 1930, defines the powers of the State Highway Commission, among which are the following:
"Full and general supervision over all matters relating to the construction or maintenance of state highways." (Paragraph A.)
"To receive and assume exclusive control for the benefit of the state of any, and all highways, herein or hereafter fixed as roads constituting a part of the state highway system." (Paragraph B.)
"To enforce, by mandamus or other proper legal remedies, all legal rights, or rights of action of the State Highway Commission with other public bodies, corporations or persons." (Paragraph C.)
This section also gives power to adopt rules and regulations and among other rights, is the following right: "To establish and enforce setback regulations."
It therefore appears that the jurisdiction of the State Highway Commission over those roads constituting a part of the state highway system is by Chapter 47, Laws of 1930, full, complete, and exclusive.
While Section 2414, Code of 1930, is not expressly amended by Chapter 47, Laws of 1930, the necessary effect of the latter statute is to impliedly modify or amend Section 2414 so as to exclude therefrom any municipal control, or supervision, or jurisdiction over those roads passing through the municipality which constitute a part of the state highway system.
As further evidence of the intention of the legislature to vest in the State Highway Commission exclusive control of the state highways, whether within or without a municipality, and to divest the municipalities of any jurisdiction of such highways, the legislature, at the 1934 regular session, enacted House Bill No. 768. This act was not approved until October 2, 1935, and therefore appears as Chapter 32, Extraordinary Session of 1935.
Attention is also called to the fact that Section 15 of Chapter 47, Laws of 1930, and Section 5005, Code of 1930, which requires the Highway Commission to pave, as well within as without a municipality of 2500, any of said state highways, likewise recognizes the fact that that portion of a state highway lying within a municipality is a part of the state highway system, over which the State Highway Commission has exclusive jurisdiction.
The case of Town of Senatobia v. Dean, 157 Miss. 207, 127 So. 773, if it ever had any application to the question of whose jurisdiction is paramount as between the State Highway Commission and the municipality, is no longer authority on that subject insofar as a state highway is concerned for the reason that it was amended, as heretofore pointed out, in the Code of 1930, it now appearing in the Code as Section 6458, and contains this proviso: "Provided, further, that this section shall not be construed as any limitation upon those sections of this chapter in reference to state highways."
Section 6458 further limited the provisions of Chapter 255, Laws of 1914, to those public highways "being constructed or improved or maintained by any separate road district," where the same run or extend into or through a municipality.
Chapter 32 of the Extraordinary Session of 1935; Chapter 316, Laws of 1938; Section 6360, Code of 1930.
The foregoing statutes conclusively demonstrate the legislative intent to take from municipalities jurisdiction theretofore exercised over any street where such street constitutes one of the highways constituting a part of the state highway system, without the consent of the municipal authorities thereto, and when so taken over, the State Highway Commission not only is given full jurisdiction thereover, but the municipality is relieved of all liability on account of any negligent construction or maintenance thereof, and that insofar as local roads are concerned the municipality is given the authority to enter into an agreement with the board of supervisors for their construction and maintenance, but is not required to do so, and when it enters into such an agreement, there is thereafter a joint control thereof and the municipality in this event is not relieved of its liability for negligent construction or maintenance, but this liability becomes joint as between the county and the municipality.
Section 26, Chapter 200, Laws of 1938, does not authorize municipal authorities even to regulate the standing or parking of vehicles on state highways within the limits of the municipality. It provides that: "The provisions of this act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction, and within the reasonable exercise of the police power," from doing certain things, including the regulation of the standing or parking of vehicles. In the first place, as pointed out heretofore, the state highway involved in this case is not a highway under the jurisdiction of the municipal authorities, and in the second place, the only local authority which is recognized by this section is such authority as comes within the reasonable exercise of its police power.
When the Constitution authorized the legislature to designate certain highways as state highways and place same under the control and supervision of the Highway Commission for construction and maintenance, that carried with it the authority on the part of the Highway Commission, when this was done, to exercise all the necessary powers to provide and keep up a system of highways.
Handy v. Johnson, 51 F.2d 809; Brown v. Graham, 58 Tex. 254 [ 58 Tex. 254]; Abbott v. State, 106 Miss. 340, 63 So. 667; Hawkins v. Hoye, 108 Miss. 282, 66 So. 741; Bailey Bean v. Wilson, 128 Miss. 49, 90 So. 362; Moss v. Mississippi Livestock Sanitary Board, 154 Miss. 765, 122 So. 776.
U.S. Highway No. 11 passes through the City of Ellisville — which has a population of 2,100 — in a northerly and southerly direction. In doing so it occupies what was before, and is now, one of the streets of that municipality. This street was originally 66 feet wide, but when it was paved by the highway commission an additional strip of 14 feet was procured along the east side of the original street, thus making the present street 80 feet wide.
We say the present street is 80 feet wide, thereby including the additional 14 feet, because a street is defined in the law to be a road or highway within a municipality, Mobile O. Railroad Co. v. State, 51 Miss. 137, 140; and there is not a word in the record that the strip of 14 feet was not to be used for and as a part of the highway as such. It seems to be uniformly held that where a public highway in rure has been included within municipal boundaries by annexation, the highway becomes ipso facto a street and subject to municipal control. 44 C.J., p. 889, and cases there cited. Upon the same reasoning when a public highway is projected into or through a municipality, there is the same result, unless the statute expressly and clearly provide otherwise. See, also, Section 12, Chapter 200, Laws 1938.
The concrete paving is a strip 20 feet wide in the center of the 80 feet, thus leaving 30 feet unpaved on each side. To the east and immediately adjoining the street is a lot upon which some of appellants operate a gasoline service station.
When those appellants were about to construct this station, they applied to the State Highway Commission for a permit to lay down two concrete driveways, so as thereby to connect each end of the service platform within the station with the main pavement at the center of the street; and this permit was granted with the stipulation that the area or space bounded by the right-of-way line on the east, and by the main highway pavement on the west and by the two driveways on the north and south should not be used as a driveway or for servicing cars.
But when the station was built and was put into operation, some of the travelers would drive up to the station to the west of the pumps which were located near the right-of-way line, thereby placing themselves within the area or space above mentioned, instead of following the station driveways which lead to the east of the pumps and entirely off the right of way. The station operators did not refuse to serve patrons who drove up to the west of the pumps, and who remained while being served, in the highway-street but immediately at the edge thereof. The highway commission thereupon erected around this space between the filling station and the paved portion of the highway, a number of concrete posts, which were so obviously a menace to the safety of travelers that the city, on June 13, 1938, adopted an ordinance prohibiting any person from placing in any street within the said City of Ellisville any obstruction of whatever nature which would endanger travelers, or which would interfere with the free use of the streets by them, and further ordered that any such obstructions should be removed. The city on the same date enacted a general parking ordinance which provided that automobiles and other motor driven vehicles should park, and be allowed to park, on certain streets including the one here in question, at the curb and parallel with the street; and the ordinance further provided that motor driven vehicles when so parked might be serviced by any filling station, provided the parking for such service should not exceed one hour.
In obedience to the ordinance first mentioned the city authorities removed the posts, whereupon the State Highway Commission, on June 28, 1938, adopted a rule or regulation declaring that "no part of any state highway shall be used by any person, firm or corporation for the purpose of servicing automobiles" or other motor driven vehicles, and ordering that no person should interfere with any posts, or other structures placed in a state highway by the commission for the purpose of confining traffic to that portion set apart by the commission for traffic purposes.
And as the next step, the highway commission caused to be placed along the lines previously occupied by the posts, a concrete curbing about four inches high enclosing a grass plot with shrubbery therein, so situated that no automobile could park in the said space next to the curb at or near said service station. And when the city authorities were about to remove this as an obstruction within the terms of the ordinance aforementioned, the highway commission filed its bill for an injunction against the city, making the owners of the service station parties; and on the final hearing the bill was sustained, the injunction was awarded and was made perpetual.
The city and the highway commission have joined in the request that there be decided, on the consideration of this appeal, the outstanding legal question as follows: As between the municipal authorities and the highway commission, which of the two has the paramount jurisdiction with reference to rules and regulations governing the use of streets by travelers, and particularly of the parking of cars on a street in a municipality where such street is a part of one of the primary highways of the state. We will endeavor to decide that question, and in doing so will put to one side the aforementioned agreement between the station operators and the commission, since obviously that agreement could not bind the city or the rights of the public. If the commission desire to pursue the matter further as to the station operators, it may do so by a new bill, the present bill not being adequately framed to separately reach the last mentioned parties. However, we intimate no opinion as to whether the commission has any cause of action in this regard.
Section 2414, Code 1930, brought forward from previous Codes, confers upon municipalities that full jurisdiction in respect to streets which was exercised by the municipality in the enactment of the above-mentioned ordinances, and unless that section has been modified by subsequent legislation so as to clearly confer that particular power upon the highway commission as respects primary state highways within the boundaries of municipalities, the decree in this case must be reversed.
It is said that such a modification has been worked by Chapter 47, Laws 1930, and particularly by Sections 15 and 16 of that chapter. These sections were inserted in the Code of 1930 as Sections 5005 and 5006. Section 15 requires the highway commission, when it uses the streets of a town of less than 2,500 population as a part of the state highway system, to pave the streets so used, this pavement to be uniform in dimensions and material with the said state highway; and Section 16 vests in the highway commission the powers of full jurisdiction over all matters relating to the construction and maintenance of such state highways; "to receive and assume exclusive control for the benefit of the State, of any and all highways herein or hereinafter fixed as roads [italics ours] constituting a part of the State Highway System," and "to make and publish rules, regulations and ordinances for the control of and to police the traffic on State Highways." Apparently, it is upon this latter section that the highway commission chiefly relies. However, that section contains the following express limitation: "Provided no rule, regulation or ordinance shall be made that conflicts with any statute now in force or which may hereafter be enacted, or with any ordinance of incorporated cities or towns."
And it is significant that in the latest legislative act, Chapter 200, Laws 1938, which is a comprehensive statute regulating traffic on highways, Section 26 thereof provides that nothing in that statute shall be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the standing or parking of vehicles. The city contends that this provision is to be read in pari materia with the quoted limitation in Section 16, Chapter 47, Laws 1930, and that when so read it will be fairly apparent that it was not intended to divest the municipalities of police jurisdiction of any part of their streets even though some one or more of such streets had become a part of the state highway system.
We may more safely rest our conclusion upon the fact that the regulation of traffic, including the parking of automobiles, is an ordinary power of police generally exercised by municipalities as regards all the streets within their boundaries, and since the municipalities are naturally and ordinarily vested with this power, a legislative intent to take it away and confer it upon some other authority must be clearly expressed. 44 C.J., p. 930. In our opinion this unusual intent has not yet been clearly expressed by the legislature. If and when the legislative department comes to a definite and distinct conclusion in respect to these matters, it will be the province of that department to express that conclusion in definite and distinct language. In the meantime, as against doubtful or inconclusive construction, we must permit the controverted powers to remain as they have rested in the past.
It has remained, therefore, within the power and jurisdiction of the municipality to prescribe, within reason, the manner, the place at which, and the time within which, an automobile may be parked upon any street in the municipality, including those streets which are a part of a state highway. And when, as here, the parking ordinance permits an automobile to be parked at the curb parallel with the street, it allows only that which has been permitted ever since parking ordinances were first adopted in this state. And when thus parked, the ordinance further permits the automobile there to be serviced, for not exceeding one hour, with gasoline, oil, grease, air for the tires, water for the battery and radiator and the like, as does the ordinance here, we would have to be able to say that such a permission has palpably no substantial connection with a use of the street as such and is an unreasonable exercise of the powers of municipal regulation in respect to automobiles in the street before we could sanction a disregard of the ordinance; and this we cannot say or hold.
The highway commission argues that the city ordinance which allows the servicing of motor vehicles as aforementioned is invalid for the reason that it allows a street to be used for private commercial purposes. The use of streets and highways, for commerce, in other words, for commercial purposes, is one of the principal uses to which they are devoted. Permanent structures or obstructions may not be placed in a street for such purposes; but this has no application to temporary stops for a reasonable length of time at the edge of the street when allowed by ordinance. Else an automobile could not stop at the curb in front of a restaurant and be there served with sandwiches or soft drinks, or in front of a drug store and have brought out to it a package of medicine, or a farmer could not park his truck in front of a general store and unload his produce into the store and receive where parked, the goods taken in exchange. These illustrations could be extended by numerous others. This could be prohibited on extremely narrow streets and where the peculiar conditions of traffic would render it necessary so to do, but no such conditions are presented here.
Concluding, as we do, that a municipal ordinance providing and permitting as above mentioned is valid even as to a street which is a part of a state highway, and since the statute expressly provides that no rule, regulation or ordinance of the highway commission shall be made which conflicts with such a municipal ordinance, may the commission, for the sole purpose of preventing or obstructing the operation of the ordinance, build into the street any such a contrivance as was here built which, — laying aside any dangers attendant upon such a contrivance, — was designed for no other real purpose or object than to prevent the parking of an automobile next to the curb and being serviced there as allowed by the ordinance? This question is to be answered in the negative upon the universal principle that no party may accomplish by indirection that which he is not permitted to do directly; and, further than this, we do not deem it necessary to pursue the discussion on that point, save to say that it is not shown, or attempted to be shown, that the contrivance built into the street in front of the filling station had any other real purpose or object or design than as above stated, along with the purpose of the highway commission to prevent the servicing of automobiles anywhere within a state highway and whether within or without the boundaries of a municipality. As to territory outside of a municipality, we are not here concerned; we deal only with the case presented which has its setting within and not without, the municipality.
Reversed, injunction dissolved and bill dismissed.