Vivian ALLGOOD, Plaintiff and Respondent, v. Delmar LARSON, Sheriff of Salt Lake County, Utah, and Salt Lake City, Utah, Defendants and Appellants.
No. 14094.
Supreme Court of Utah.
Jan, 12, 1976.
544 P.2d 1263
I would remand for a new trial on all issues.
HENRIOD, C. J., concurs in the views expressed in the оpinion of TUCKETT, J.
Roger F. Cutler, Salt Lake City Atty., Paul G. Maughan, Deputy Salt Lake City Atty., Salt Lake City, for defendants and appellant.
Stephen R. McCaughey of Salt Lake Legal Defenders Assn., Salt Lake City, for plaintiff and respondent.
MAUGHAN, Justice:
Plaintiff was arrested, charged, and convicted of trespassing; under a Salt Lake City ordinance. She was sentenced to six months in jail. Petition was made to the district court for a writ of habeas corpus, the writ was granted; and plaintiff was released from custody. It is from the district court‘s order that defendant city appeals.
The district court ruled “that since the state law provides no jail sentence for trespass, which is classified as ‘an infraction,’ that the city cannot impose a greater sentence than that provided by state law, and it is for that reason that the court grants the petition for a writ of habeas corpus.” With this we agree and affirm the trial court.
The city ordinance, Section 32-3-3, provides that it shall be unlawful for any person to walk upon the premises of another without permission of the owner or occu-
On July 1, 1973, an entirely new criminal code became effective for the state of Utah. The statutory references which follow are to
Under the new criminal code,
The trespass for which plaintiff was convicted is designated as an infraction under
Defendant city advances the provisions of
The subsequent enactment of the new criminal code controls any general provisions of
Although this court has dealt with the contest between cities and the State on several occasions, this is the initial case of that nature involving the provisions of the new criminal code. In Lark v. Whitehead2 we said:
In Nasfell v. Ogden City,3 this court stated that it was committed to the principle that cities havе none of the elements of sovereignty and that any fair, reasonable, substantial doubt concerning the existence of the power is resolved by the courts against the corporation (city) and the power dеnied; grants of power to cities are strictly construed to the exclusion of implied powers which are not reasonably necessary in carrying out the purposes of the express powers granted.
The part of Section 7 of the Tremonton Ordinances which is in conflict with the section of the statute quoted must fall. The result is that the part of the sentence imposing incarceration must fall for lack of power in the City Justice of the Peace to impose it.
Defendant city brings to our attention Salt Lake City v. Allred,5 Salt Lake City v. Kusse6 and 5 McQuillin, Municipal Corporations.7 To find Allred applicable here we would have to hold that a city legislating within the purview of a state statute could impose a punishment exceeding that provided for the same offense proscribed by the State. As has been shown, this the city cannot dо. Kusse is cited for the proposition that “where the legislature prohibits the citizens from doing some act, there is no basis to imply that the legislature intended that cities and counties should not add additional prohibitions.” This is a cоrrect statement of the law, in certain limited instances,8 but here we are not dealing with prohibitions. Salt Lake City seeks to exceed the public policy declared by the legislature relating to a new class of оffense. It does not have that power of amendment. A cogent statement of the law, as it is applicable to the instant matter, is stated by Mr. Justice Larson, in his dissent to Kusse:9
But the state may always invade the field of regulation delegated to the cities and supercede, annul, or enlarge the regulation which the municipality has attempted. It may modify or recall the police power of the city as it may abolish the city itself.
As for McQuillin, the law of Utah is correctly stated in Section 17.15, at page 326:
. . . If the ordinance penalty conflicts with that of the general law of the state covering the same subject, the ordinance penalty is void. The chartеr or ordinance penalty cannot exceed that of the state law.
TUCKETT, J., concurs.
HENRIOD, C. J., concurs in the result.
CROCKETT, Justice (dissenting).
The power of the city to regulate the peace and good order of its citizenry is not dependent only on statute. It is constitutionаl, being derived from
Each city forming its charter under this section shall have, and is hereby granted, the authority to exercise all powers relating to municipal affairs, and to adopt and enforce within its limits, local poliсe, sanitary and similar regulations not in conflict with the general law, and no enumeration of powers in this Constitution or any law shall be deemed to limit or restrict the general grant of authority hereby conferred;
The Legislaturе has specifically granted authority to the City to prohibit criminal trespass by
. . . provide for the punishment of trespass and such other petty offenses as the board of commissioners or city council may deem prоper.
Ordinances—Punishment. They may pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and such as are necessary and proper to provide for the safety and preserve the health, and promote the prosрerity, improve the morals, peace and good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; and may enforce оbedience to such ordinances with such fines or penalties as they may deem proper; provided, that the punishment of any offense shall be by fine in any sum less than $300 or by imprisonment not to exceed six months, or by both such finе and imprisonment.
The doctrine is so well established as to be beyond question that when a city is acting within authority thus expressly granted, it has the power to legislate on the same subject as a state statute. See Salt Lake City v. Kusse, 97 Utah 113, 93 P.2d 671; American Fork City v. Charlier, 43 Utah 231, 134 P. 739 (1913); Tooele City v. Hoffman, 42 Utah 596, 134 P. 558 (1913); Salt Lake City v. Howe, 37 Utah 170, 106 P. 705 (1912).
It will be notеd that the statement from McQuillin in the main opinion is a generality excerpted from various statements concerning this general area of law. It cites cases decided under particular circumstances which do not necessarily have application to constitutional and statutory provisions such as ours. That same authority, in a context more specifically applicable to the situation here, also statеs:
Where the unlawful act may be an offense against both the state and the municipal corporation, decisions exist to the effect that the penalty of the ordinance, where it is not otherwise limited to such extent, may be greater than that provided in the state statute . . . Clearly, of course, a statutory penalty may be exceeded or increased by the penalty of an ordinance where power to impose such penalty by ordinance has been expressly given. [McQuillin, Municipal Corporations, Section 17.15, pp. 328, 329 (3rd Ed.)]
The test whether an ordinance is repugnant to or in conflict with state law is not whether it deals with the same subjeсt matter in a different manner by providing a different penalty, but it is whether the ordinance permits or licenses something which the state statute forbids or prohibits, or vice versa. See Salt Lake City v. Kusse, supra; and see, e. g. City of Columbus v. Molt, 36 Ohio St.2d 94, 304 N.E.2d 245, and authorities therein cited.
The ordinance here in question does nоt authorize what the state law has forbidden, nor does it forbid what the state law has authorized. It is therefore my opinion: that the ordinance is within the authority granted to the city and the responsibilities it is enjoined to carry out; thаt it is neither repugnant to nor inconsistent with other existing law, but is supplementary thereto; and that therefore it should not be declared void.
Further, without conceding, or intimating, any view on my part that the ordinance should be deсlared unconstitutional, I also observe that I can see no justification whatever for declaring the whole ordinance invalid. Nothing about it could possibly be invalid except only the jail sentence part, which can be regarded as severable. (All emphasis added.)
ELLETT, J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.