Lead Opinion
This is аn appeal from an action to recover general and special 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 оf 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 еxistence 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 established 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 adоpted the provisions of the 1967 Edition of the Uniform
On the dаte 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 аnd the absence of required safety equipment such as handrails.
The sole issue raised on appeal 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 I.C. § 6-904. Nor do we address the question of whether Caesar might have recovered under a theory of law other than negligence per se, resulting from a violation of the ordinancе.
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 absence of a state statute subjecting state buildings to city ordinances, the restrictions contained in ID. CONST, art. 12, § 2 prevent the application of local police regulations to state buildings. Former I.C. § 67-2304 vested the authority to provide and secure all plans and specifications for public works costing more than one thousаnd dollars in the Commissioner of Public Works. Finally, the court found that a conflict existed between the local ordinance and general laws of the state due to the authority vested in the city building inspector by the local ordinance and that vested in the Commissioner of Public Works under the statute.
Our analysis 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 expressly or impliedly granted to it. Sandpoint Water & Light Co. v. City of Sandpoint,
The City of Boise was originally one of three “special charter” cities which received its charter from the territorial legislature. See 1866 Idaho Sess. Laws, ch. 52, p. 205 (An Act to Incorporate Boise City). As a “special charter” municipality it could enaсt and regulate matters of purely local concern; the legislature could not regulate in those areas and preempt the authority of the city. Moore, supra at 149, n. 28, n. 29.
Article 12,,§ 2 of the Idaho Constitution has been viewed as a grant of local police powers to Idaho cities. State v. Clark,
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,
Classification of a matter as either “local” or “statewide” has been decided in other jurisdictions on numerous occasions. Luhrs v. City of Phoenix,
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 tо 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,
Former I.C. § 67-2304 empowered the Commissioner of Public Works to provide and secure all plans and specifications for, and to have supervision of the construction, alteration, equipping and furnishing or repair of any and all public buildings and improvements, the cost of which repairs or construction exceeded $1,000 in value. The Commissioner’s actions were subject to the approval of the Permanent Building Fund Council. Under I.C. § 67-2304 the Permanent Building Fund Council had the option of adopting rules and regulations, including those consistent with existing law, for a program of inspection and preventive maintenance in order to carry out the provisions of that act. The council was not required to do so, however, and pеrhaps more important, the legislature did not expressly authorize municipalities to adopt such rules and regulations in the event that the Building Fund Council did not.
Since the purpose of Title 67, Chapter 23, as expressly stated in I.C. § 67-2311 was “to render all public buildings now or hereafter owned or maintained by the state of Idaho, or any official, department, board, commission or agency thereof reasonably free from hazards to the general public,” we deem that the legislature intended to allocate this police power to the stаte in its concern for the safety of the general public.
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. ID. CONST. art. 12, § 2. To recognize the authority placed in the Boise City building inspector would conflict with the authority vested in the Idaho Industrial Commission and the Department of Labor by I.C. § 67-2312 and is thus impermissible. ID. CONST. art. 12, § 2; Stаte v. Musser, supra; United Tavern Owners of Philadelphia v. School Dist. of Philadelphia, supra; Boyle v. Campbell, supra. As a result, the Boise City Building Code cannot apply to state-owned buildings. In reaching this conclusion we note that several of our sister states have reachеd the same result on facts similar or analogous to those in the case at bar. Chugach Electric Ass’n v. City of Anchorage,
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,
Concurrence Opinion
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,
Here, as the majority notes, the Permanent Building Fund Council had the option under I.C. § 67-2304 of adopting rules and regulations covering the “construction, alteration, equipping and furnishing and repair” of state buildings. However, it appears from the appeal record presented that no such rules and regulations were ever adopted, from which it follows that at the time the State built Bronco Stadium the State had promulgated no specific code of safety regulations for state buildings,
The City of Boise, on the оther 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-chance determination by the Boise City Council. Rather, Boise had adopted the provisions of the 1967 еdition of the Uniform Building Code (Code),
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.
Notes
. The Idaho Building Code Advisory Act, I.C. §§ 39-4101 to 4129, was thereafter adopted, in 1975, to provide for uniform building codes throughout Idaho.
. Idaho adopted the Uniform Building Code on a statewide basis in 1975 in I.C. § 39-4109.