CITIES AND TOWNS ‑- PARKING METERS ‑- ADVERTISING
Use of parking meters on city streets for commercial advertising purposes is illegal.
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March 23, 1950
Honorable Ralph G. Swanson
Olympia, Washington Cite as: AGO 49-51 No. 241
You have requested the opinion of this office concerning the following questions:
1. Is it within the legal power of a municipality to authorize a private corporation or firm or an individual to attach commercial advertising to parking meters or other traffic control equipment mounting posts when one of the conditions of the authorization is a payment to the municipality by the corporation, firm or individual of a percentage of the proceeds derived from the sale of such a commercial advertising privilege?
2. Is such legal power conditioned in any way by whether the authorization to use city property and equipment for commercial advertising purposes is granted by contract or by franchise?
3. If municipalities lack the legal power to authorize the use of city property and equipment for commercial advertising purposes, what is the legal position of city officials who approved contracts or franchises purporting to grant such authorization?
Our conclusions are that:
1. It appears a municipality does not have the legal authority to authorize a corporation, firm or individual to place commercial advertising on parking meters or other traffic control equipment regardless of any proceeds derived therefrom.
2. The legal power of the municipality in such cases is not conditioned in any way on whether the authorization for such advertising is granted by contract or franchise.
[[Orig. Op. Page 2]]
3. The city officials who in good faith approved contracts or franchises purporting to grant such advertising privileges have not incurred any personal liability.
In view of wide interest in this problem by many municipalities presently seeking new sources of revenue, a sincere effort to arrive at conclusive answers to your questions has been made. Our research, however, reveals that the courts of this and other states have not considered this innovation of the use of parking meters and for that reason the law has not been conclusively established. In approaching this problem we have considered the basic principles of law pertaining to municipalities and their police powers, but of necessity must leave questions of fact for future determination by the courts.
The legislature, within constitutional limitations, has absolute control over the highways of the state both rural and urban. Traditionally, however, the exercise of such control has been delegated to counties and municipal corporations except in the case of primary, and to some extent secondary, state highways. State ex rel. York v. Board of County Commissioners, 28 Wn. (2d) 891, 184 P. (2d) 577. The general rules pertaining to the use of highways and streets also pertain to the use of sidewalks adjacent thereto, Words and Phrases, Vol. 19, p. 462. Section 5, chapter 220, Laws of 1949, provides that a municipality has full control over the sidewalks within its incorporated limits to the exclusion of state control.
Such control is limited to the extent that municipal authorities have no power to grant the use of public property to private interests. 37 Am.Jur. (Mun. Corps.), section 276, 313; McQuillin on Mun. Corps. (Rev. 2d Ed.), section 1453.1; 9 L.R.A. (N.S.) 455; 72 A.L.R. 475; 156 A.L.R. 584. Streets and sidewalks are held in trust for the public, and the municipality has no right to authorize any obstruction or encroachment which would interfere with the enjoyment of the public right. State ex rel. Telegraph Co. v. Spokane, 24 Wash. 53, 63 Pac. 1116;Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516;State ex rel. York v. Board of County Commissioners, supra; 25 Am.Jur. (Highways), section 276. The public has the same rights on a street or sidewalk whether such public way was acquired by condemnation or by dedication. Reed v. Seattle, 124 Wash. 185, 213 Pac. 923.
The proponents of such advertising signs suggest that since parking meters have been held legal by our supreme court, any additional use of such parking meters which does not interfere with their primary use may be authorized by the municipality. The use of parking meters, however, has been upheld only as an exercise of the city's police powers to regulate traffic, Kimmel v. Spokane, 7 Wn. (2d) 372, 109 P. (2d) 1069. Hickey [[Orig. Op. Page 3]] v. Riley, 177 Or. 321, 162 P. (2d) 371. Clearly the proposed signs will not aid the regulation of traffic and may not be justified on that account, nor does the fact the revenues derived therefrom might be utilized by the city all or in part for traffic regulation alter the situation. It would seem to follow then, that the use of parking meters for other than regulatory purposes is governed by the general rules pertaining to the use of streets and sidewalks. Whether the proposed signs be placed directly upon the street, or be appended to a parking meter, the result is the use of the public streets for advertising purposes.
A municipality cannot devote streets to uses which differ from those for which they were acquired. The easement which the public acquires includes every reasonable means of transportation of persons and commodities, but uses beyond those defined have been denied to municipalities as well as to individuals. Motoramp Garage Company v. Tacoma, 136 Wash. 589, 241 Pac. 16. InState ex rel. York v. Board of County Commissioners, supra, certain general rules were stated. The court there said that the dedication of highways to the public use implies that they must be used primarily as public ways and:
"* * * must be kept free from obstructions, nuisances, or unreasonable encroachments which destroy, in whole or in part, or materially impair their use as public thoroughfares."
The court further stated that:
"* * * if a use (of a public street) is sanctioned by appropriate public authorities and in no manner whatever impair(s) the right of free passage and repassage, is not injurious to the adjoining property,and is either directly or indirectly advantageous to the public, then it is lawful. We think the above statement is a correct summary of the principles governing the incidental uses to which our highways may be put." (Emphasis supplied)
Using the above rule as a guide in answering your first question, it appears that such proposed advertising signs might, under certain circumstances, impair the free right of passage and repassage on the all ready overcrowded sidewalks of many cities in this state. This, of course, is a question of fact. Such advertising may also be "injurious" to the adjoining property owners for two reasons. First, competitors may receive the "right" to place their advertising in front of the adjoining owner's place of business, thus seriously impairing such owner's trade. Second, it may further impair the adjoining property owners right of free ingress and egress. This, however, is also a question of fact. The last element of the rule as given by theYork case, supra, requires that the incidental use to which the street may be put must be directly or indirectly advantageous to the public. The only possible advantage to the public would be the indirect benefit from the proceeds received under the contract or franchise. However, inKimmel v. Spokane, supra, it was held that where the parking meter ordinance is merely a revenue measure there is no sufficient justification for restricting rights of the public in the use of its streets and sidewalks.
[[Orig. Op. Page 4]]
The advertising signs on parking meters may well be an "obstruction," "nuisance," or "unusual encroachment on a public thoroughfare." This also is a question of fact. The propositions here set forth find support from other jurisdictions. InPeople ex rel. Healy v. Clean Street Co., 225 Ill. 470, 80 N.E. 298, a city ordinance served as the basis for a contract by which the defendant company agreed to purchase, place on the street, and maintain certain refuse receptacles in return for which the defendant was authorized to place advertising on the sides thereof and pay a percentage of any profits thereby derived to the municipality. In declaring the ordinance invalid the court stated that the city had no power to grant the use of any portions of its streets or other property for the exclusive benefit of private individuals since the public authorities are in the nature of trustees for the public and cannot obstruct the use of the streets by grant of privileges to private persons.
InState ex rel. Belt v. St. Louis, 161 Mo. 371, 61 S.W. 658, an ordinance similar to that in the Healy case,supra, was before the court on a writ of mandamus to the city officials ordering them to enter into a similar contract with the advertising company. The court held the ordinance invalid stating that a private gain may be derived from a public franchise only when the franchise is for a public use and the gain arises out of that use. An example of this would be the use of the streets for telegraph and telephone lines. The court further stated:
"But there is another view to be taken of this ordinance. It subjects the public streets to a purely private purpose, to wit, the advertising of the individual business and enterprises. Can the city devote its streets to such purpose? We hold that it cannot. * * * The city has attempted to farm out its sidewalks and streets to a private person for advertising. No power is reserved to the city, even if it were a purpose to which it could devote the streets, to regulate the charges for advertisements. The legislative authority of the city could not thus be delegated, nor could it abdicate its control over the public streets, held by it in trust for the public, and create a monopoly in favor of one advertiser."
The court also pointed out that it would be unfair to the abutting owners to permit rival advertising to be placed in front of their stores on the very sidewalk which the abutting owners were compelled to construct and pay for.
[[Orig. Op. Page 5]]
InState ex rel. Beck v. Hutchinson, 144 Kan. 700, 62 P. (2d) 865, the party contracting with the municipality agreed to purchase and install traffic signals in return for the privilege of placing private advertising on the sides of the signals. The court held the signs to be an encroachment on the public interests in the streets and an obstruction to the free use of such streets for traffic purposes. They concluded that such advertising had no function to perform in the nature of traffic regulation nor any relation to the public safety, convenience or welfare in the use of such streets and, therefore, could not be authorized by the municipality.
Your second question has been previously answered.
As stated at the outset of this opinion, we feel a test case will be necessary to answer conclusively your first two questions. In that regard, there may be a serious question as to who may contest the action of a municipality in authorizing such advertising. State ex rel. Vandervort v. Grant et al., 156 Wash. 96, 286 Pac. 63. Since no opinion has been requested on this point we are merely pointing out this possible difficulty.
Regarding your third question, there does not appear to be any statute covering this pint and we must assume there is no charter provision which would impose personal liability in the proposed situation. InHailey v. King County, 21 Wn. (2d) 53, 149 P. (2d) 823, our court said:
"It is well established that municipal authorities are not personally liable in the absence of fraud, for acts purportedly done in behalf of the municipality."
See, also, McQuillin on Mun. Corps., (Rev. 2d Ed.) Vol. 4, section 560.
It seems clear that the city officials have incurred no personal liability.
Very truly yours,