Gеorge O. CAESAR, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.
No. 12859.
Supreme Court of Idaho.
April 2, 1980.
Rehearing Denied May 19, 1980.
610 P.2d 517
Appellants’ reliance on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) is misplaced. In Bumper, the police misrepresented that they had a valid seаrch warrant with them, and consent to the search was premised on this false statement. In the present case, the trial court found that the officers did not state that they had a warrant with them. Rather, defendants believed the police would wait until a warrant arrived or that a warrant was on its way. The officers never conditioned their use of a warrant on a refusal by the defendants to consent. Further, both federal and state courts have held that a statement by the police that a warrant is on its way does not create an atmosphere of coercion which invalidates the accused‘s consеnt. United States v. Tortorello, 533 F.2d 809, 814-15 (2d Cir. 1976); United States v. Faruolo, 506 F.2d 490, 493-94 (2d Cir. 1974); United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974); United States v. Culp, supra; United States v. Curiale, 414 F.2d 744, 747 (2d Cir. 1969); People v. Ward, 27 Cal.App.3d 218, 103 Cal. Rptr. 671, 675-76 (1972); People v. Reyes, 174 Colo. 377, 483 P.2d 1342, 1343-44 (1971); State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253, 256 (1976); Mares v. State, 500 P.2d 530, 534, n. 1 (Wyo.1972). Thus, the trial court‘s finding that defendants consented to the search voluntarily is affirmed.
Appellants also ask this Court for a ruling that, in all criminal cases involving search and seizure, the defendant be advised by the police of his right to refuse consent to the search. Appellants assert that they were not advised of their right to refuse consent and that such lack of knowledge should negate the “voluntariness” of their consent. We decline to adopt such an express rule requiring that the defendant be advised of his right to refuse consent to a warrantless search.
In Schneckloth, the United States Supreme Court expressly rejected thе proposition that the accused must be advised of his right to refuse consent. 412 U.S. at 231, 93 S.Ct. at 2049, 36 L.Ed.2d at 865. Most federal courts have also adhered to this position. United States v. Matlock, 415 U.S. 164, 167, n. 2, 94 S.Ct. 988, 991, n. 2, 39 L.Ed.2d 242, 247, n. 2 (1974); United States v. Stanley, 597 F.2d 866, 869 (4th Cir. 1979); United States v. Stevens, 595 F.2d 569, 571 (10th Cir. 1979); United States v. Scott, 590 F.2d 531, 534 (3d Cir. 1979); United States v. Townsend, 510 F.2d 1145 (9th Cir. 1975); Hayes v. Cady, 500 F.2d 1212, 1214 (7th Cir. 1974), cert. denied, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 655 (1974); United States v. Cage, 494 F.2d 740, 742 (10th Cir. 1974). This Court has also adopted the federal position, State v. Post, supra, 98 Idaho at 837, 573 P.2d at 156;
Since the trial court‘s findings were supported by substantial evidence, we will not disturb them on appeal. State v. Post, supra, 98 Idaho at 837, 537 P.2d at 156. The convictions are hereby affirmed.
SHEPARD, BAKES, McFADDEN and BISTLINE, JJ., concur.
Iver J. Longeteig of Runft & Longeteig, Boise, for plaintiff-appellant.
David H. Leroy, Atty. Gen., William A. McCurdy, Sp. Asst. Atty. Gen. of Quane, Smith, Howard & Hull, Boise, for defendant-respondent.
This is an appeal from an action to recover general and spеcial damages arising from injuries suffered by plaintiff-appellant George O. Caesar. Caesar was injured as a result of a fall sustained while leaving Boise State University‘s Bronco Stadium at the end of a football game played on November 29, 1975. Caesar brought suit in the district court, alleging negligence on the part of the state in that it knew or should have known of the slippery and dangerous condition of the stadium‘s concrete steps and passageways. Following trial, the jury returned a special verdict and found the state not guilty of negligence. Judgment was entered to that effect.
Caesar then moved for a new trial on grounds that the trial court erred in sustaining state‘s objection to Caesar‘s offer of proof concerning the existence of a Boise City ordinance. Caesar claims that this ordinance required the installation of safety equipment at the site of his injuries and the excluded offer of proof estаblished negligence per se on the state‘s part. Caesar‘s motion was denied and he timely filed this appeal from both final judgment and the order denying motion for new trial. We affirm on both counts.
The ordinance which Caesar attempted to offer at trial was adopted by the Boise City Council on January 2, 1968, effective immediately. This ordinance adopted the provisions of the 1967 Edition of the Uniform
On the date of Caesar‘s injury, he was a paying spectator at a Boise State University football game. On the evening prior to the game it had snowed and there had been subfreezing temperatures and high winds. There was conflicting testimony concerning the slippery condition of the stadium‘s walkways during the game. At the conclusion of the game Caesar attempted to exit the upper deck of the stadium through stairwell No. 19 in the northwest corner. The stairwell, instead of having handrails, was protected by 36 inch high concrete walls on either side of the 6 foot stairwell. The walls were 8 inches wide. While negotiating the crowded stairwell, members of the crowd fell, carrying Caesar to the bottom of the stairwell where he suffered a fractured leg. Caesar suffered damages allegedly caused by the condition of the stairwell and the absence of required safety equipment such as handrails.
The sole issue raised on appеal is whether the trial court correctly sustained the state‘s objection to the offer of proof relating to the Boise City ordinance. Thus, we do not address the issue of whether the state is immune from liability under one of the governmental exceptions of
In considering the admissibility of evidence establishing the existence and terms of the ordinance the district court reached several conclusions. First, the state‘s objection to the admission of such evidence could not be sustained on grounds of materiality because Caesar‘s complaint charged a failure to provide safety equipment and this was sufficient to raise the issue of compliance with the ordinance. Second, the court concluded that in the absenсe of a state statute subjecting state buildings to city ordinances, the restrictions contained in
Our anаlysis of this issue necessarily involves a review of the basic tenets of municipal corporation law. Idaho has long recognized the proposition that a municipal corporation, as a creature of the state, possesses and exercises only those powers either exprеssly or impliedly granted to it. Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 503, 173 P. 972, 973 (1918); Boise Dev. Co. v. Boise City, 30 Idaho 675, 688, 167 P. 1032, 1034-35 (1917). This position, also known as “Dillon‘s Rule,” has been generally recognized as the prevailing view in Idaho. Moore, “Powers and Authorities of Idaho Cities: Home Rule or Legislative Control?“, 14 Idaho L.Rev. 143, 147, n. 18 (1977) (for cases supporting this view). Thus, under Dillon‘s Rule, a municipal corporation may exercise only those powers granted to it by either the state constitution or the legislature and the legislature has absolute power to change, modify or destroy those powers at its discretion. State v. Steunenberg, 5 Idaho 1, 4, 45 P. 462, 463 (1896).
The City of Boise was originally one of three “special charter” cities which received its charter from the territorial legislature. See
Municipal corporations which enjoy a direct grant of power from the Idaho Constitution are, however, limited in certain respects. The city cannot act in an area which is so completely covered by general law as to indicate that it is a matter of state concern. In re Hubbard, 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809, 812-13 (1964). Nor may it act in an area where, to do so, would conflict with the state‘s general laws. State v. Musser, 67 Idaho 214, 219, 176 P.2d 199, 201 (1946).
Classification of a matter as either “local” or “statewide” has been decided in other jurisdictions on numerous occasions. Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283 (1938); City of Pueblo v. Kurtz, 66 Colo. 447, 182 P. 884 (1919); State v. Lynch, 88 Ohio St. 71, 102 N.E. 670 (1913); Kalich v. Knapp, 73 Or. 558, 142 P. 594 (1914). This Court, however has not had occasion to define what a “local,” as opposed to a “general,” matter might be. “Genеrally those functions considered governmental or public in nature are considered to be of statewide concern, and not purely municipal or local.” Moore, supra at 166.
Presumably, it follows that those fields of activity fully occupied by the legislature reflect an intention that they will not be occupied by municipalities. It thus becomes necessary to review relevant statutory language to determine whether a Boise City building ordinance may apply to state-owned and operated buildings. Where it can be inferred from a state statute that the state has intended to fully occupy or preempt a particular area, to the exclusion of municipalities, a municipal ordinance in that area will be held to be in conflict with the state law, even if the state law does not so specifically state. United Tavern Owners of Philadelphia v. School Dist. of Philadelphia, 441 Pa. 274, 272 A.2d 868, 870 (1971); see Boyle v. Campbell, 450 S.W.2d 265, 267 (Ky.1970).
Former
Since the purpose of Title 67, Chapter 23, as expressly stated in
Taken as a whole, these statutes indicate that the area of state-owned buildings is completely covered by the general law and may not be subjected to an ordinance which is purely local in nature.
In those cases which have upheld the validity of the municipal ordinance, it should be noted that the courts in those cases recognized the absence of any state regulations on the particular subject, and in the absence of such state regulations, held that compliance with the municipal codes was mandatory. Smith v. Board of Education, 359 Mo. 264, 221 S.W.2d 203, 205 (1949); Kansas City v. School Dist. of Kansas City, 356 Mo. 364, 201 S.W.2d 930, 934 (1947); Port Arthur Independent School Dist. v. City of Groves, 376 S.W.2d 330, 333 (Tex.1964). We therefore hold that the offer of proof was rightfully denied. The judgment and the order denying motion for new trial are affirmed. Costs to respondent. No attorney fees allowed.
SHEPARD, BAKES and McFADDEN, JJ., concur.
BISTLINE Justice, concurring and dissenting.
The first question here is whether the State of Idaho is bound to comply with a city building code when it builds a state building within the city limits, and I think that the Court‘s opinion provides the correct answer—no it need not. E. g., Board of Regents v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960) (where the city was enjoined from applying its building codes and regulations to the construction of a state structure). The further question arises, however, whether a state building that does not comply with the city building code is necessarily safe for public use just because it is a state building. Obviously this is not true, and it is for the jury to determine whether the state building was negligently designed and built. The final and determinative question thus becomes whether the Boise ordinance was relevant to the issue of the alleged negligence of the State.
Here, as the majority notes, the Permanent Building Fund Council had the option under
The City of Boise, on the other hand, had adopted a building code that, among other things, required the installation of handrails in stairways. This determination that handrails should be required was not a mere off-chancе determination by the Boise City Council. Rather, Boise had adopted the provisions of the 1967 edition of the Uniform Building Code (Code),2 which contained the requirement for handrails in § 3305(i). The Code stated that it was first published by the Pacific Coast Building Officials Conference in 1927, and that it has been revised every three years thru 1967. Testimony аt trial indicated that a major percentage of buildings in the United States are covered by the Code, and that the basic purpose for setting up these standards was “maintaining life safety regulations for all public buildings.” From this it readily follows that the Boise City ordinance, although it could not establish negligence pеr se, was admissible as evidence on the issue of negligence. See, e. g., Frazier v. Continental Oil Co., 568 F.2d 378 (5th Cir. 1978); St. Louis-San Francisco Railway Co. v. Burlison, 262 So.2d 280 (Fla.App.1972); Jorgensen v. Horton, 206 N.W.2d 100 (Iowa 1973); Nordstrom v. White Metal Rolling & Stamping Corp., 75 Wash.2d 629, 453 P.2d 619 (1969); Vogel v. Alaska Steamship Co., 69 Wash.2d 497, 419 P.2d 141 (1966).
Because it cannot be said that the rejection of the Boise building code falls into the category of harmless error, I am unable to join the Court in affirming.