*1 be case, majority opinion appeal in that was dismissed in the physically inserted appeal cause the notice of was not having elapsed months transcript inside the cover and five I think having been done. argument without this after the oral we substituting form for substance. Since requirement I appeal can see copy of the notice were shown certified tran to the physically attached purpose having no useful been Likewise, should have I laches script. fail see where copy of furnishing applied. delay in the certified The Another court. the work of this appeal notice of did not affect undecided, day still all of same argued case on the penalizing too free in suggest that should not be would we for laches. another opinion in that ease. expressly
I think we should overrule judgment in instant I foregoing think the For the reasons trial. for a new remanded cause case should be reversed MR. ANDERSON: JUSTICE dissenting of Mr. Justice foregoing opinion I concur Angstman. BILLINGS,
THE OF CITY Respondent, Plaintiff Appellant. HEROLD, ANDREW J. Defendant No. 9521. April 20, 1956. 28, 1955. Decided October Submitted *2 Messrs. Moses, Joseph Sandall & P. Hennessey, Mr. Mr. Mar- ion B. Porter, Billings, appellant. George
Mr. Hutton, City J. Atty., and E. Longo, Mr. Bernard Billings, respondent. Charles Moses,
Mr. F. Longo Mr. Hutton and argued Mr. orally.
MR. CHIEF JUSTICE ADAIR: judgment appeal from a of
This an conviction entered in County. Yellowstone court of the district complaint police filed
Complaint. By po- officer appel- City Billings charged court of the of lice was November, day on or 10th of lant “Andrew Herold about the City Billings, corporate A.D. limits of the within Yellowstone, County State of committed operating crime the influence a motor vehicle while under Herold, intoxicating liquor, in that the said Andrew then being, Avenue North and there did then and there on First operate 29th drive a motor ve- Streets, between and 30th contrary intoxicating liquor while hicle under the influence made and City Billings in such case ordinance of ’’ provided. XVT 1623A Article of Traffic Ordi- Ordinance. Section Billings City No. 1839 of the ordinance nance charged by the violating. with Passed appellant ‘‘ makes Driv- council on December * * * or other ing operating automobile thorough- any street, highway upon or vehicle Billings under the influence of within the fare *3 a narcotic” misdemeanor. intoxicating liquor, drug or appellant the police at trial in the court Prior to and his authority upon the legislate to sub- challenged the the contending ject ordinance, that covered the in with the statutes and laws repugnant to and conflict sections contrary 1947, to R.C.M. particularly state and the 32-1107, 32-1108, 32-1109, 31-145. 11-901, 31-108, 31-109, and challenged city police the jurisdiction of also the Appellant against entertain, hear, try prosecution or determine challenges appellant his entered Upon the disallowance of him. tried, and sentenced plea guilty and was convicted pay $100 fine of and costs. district court of Yellowstone taken to the appeal was
An novo, appellant again trial de con where, upon County, pay a fine of charged $100. and ordered to the offense victed judgment so in of conviction entered from appeal This district court. body politic, created is a corporation municipal A in locality people prescribed incorporation of the of a powers legislation to assist vested with subordinate regulate and administer government civil of the state and to community. rel. Mc local and internal affairs State ex of the City (2d) 587. Libby, Intire Council 107 Mont. 82 Pac. v. legal sovereign power It is a institution formed charter purpose authority self-gov for the subordinate and with the improvement ernment and in the local and internal affairs of community. C.J.S., Corporations, Municipal section page 61. long policy legislature
Charter. It has been the of the to vest municipal local power authorities the to determine the local affairs community, that affect the local ex rel. McIntire City Libby, supra, and, pol Council of consistent with such icy, Legislative Assembly Territory Montana, by of the approved Act March “An Incorpo entitled Act to City rate the Billings” created, organized incorporated and Billings granted and it a charter. Laws of Mon tana, Session, 1885, 14th pages at 147 to 161.
Section 16 of VII provides: Article of the charter ‘‘This act is public act, declared to be a and be read evidence all equity territory courts of this law and within ’’ proof. without Session, 1885, page Laws of 14th at through legislature primarily power The state its regulate public highways their use. control police pro This is an exercise of the promote safety, peace, health, morals tect C.J.S., public. Highways, welfare of the Court, pages 240, 241. In State ex rel. Charette v. District (2d) 750, Mont. this court held *4 right regulate highways of the state to the use of its own is not open Compare Thompson question. State ex rel. v. District Court, 362, (2d) 108 Mont. 91 Pac. 422. city belong city the
The streets state and the but the
142 City Lodge, Deer Bidlingmeyer thereof. v. of
trustee 821, 292, 128 Mont. 274 Pac. 824. state. police power municipalities
The
of
source
city
authority
streets
delegates
While the state
part
may,
any time,
away
it
at
revoke
yet
to the
take
cities
delegated
authority
or all
which it
have theretofore
supra.
Bidlingmeyer
City
Lodge,
to the
of Deer
cities.
v.
Mayor
Rocky
Telephone
In
Bell
Co. v.
State ex rel.
Mountain
758,
760,
Mont.
the court said:
Lodge,
Red
30
municipalities entire control
“The
does not surrender to
state
highways. They
con
legislative
over its
are under
streets
by-laws
harmony
with the
‘Municipal
trol.
must also be
state,
provisions
the muni
general laws of the
with
either,
cipal
they
charter. Whenever
come
conflict with
by-law
way.’
[(7th Ed.)
give
Cooley
Cons. Lims.
must
on
* * *’
legislative
‘Public
are under
control.
278.]
721.
People
208],
59 N.W.
24 L.R.A.
Eaton
Mich.
v.
[100
general
power
upon incorporated
‘The
towns
conferred
grant
is but
to the
incorporation act
mere
of limited
subject
municipality,
general
which it
to the
laws of the
holds
O’Brien,
municipal
29
state.’ In re
Mont.
In principle “There is 410, this court said: no law (2d) 408, Pac. power, except no such as better established
143 directly by or upon by Legislative grant, it either is conferred upon it [Citing Besting as does necessary implication. cases.] may, legislative government legislative grants branch of the granted. ‘It modify so pleasure, at its or withdraw any charter, any or law under which may, chooses, repeal if corpo destroy any municipal municipalities may created, Hunt pleasure.’ ration at its will and Brackman’s ington, (2d) 71, 126 W. Va. S.E. 73.” powers general laws of the
The conferred on cities streets, must state, regulate the use of be construed limitations, expressed implied, par in a connection with the statute, city’s Highway Code, ticular such as the for a charter grant yield or other must to the constitutional Municipal Corporations, state. 37 Jur., laws See Am. sec 279, page 907, 11-15; Jur., Highways, tion notes 25 Am. pages 7-16. *6 against any imprisonment or be assessed
ment. Such fine shall person regardless of whether or his act such so convicted any damage person in to a or acts of omission have resulted any corporation. property person, or of firm or Such conviction operate shall of forthwith as revocation of such driver’s itself itself operate any vehicle shall of render license motor person null and such license void and so convicted eligible apply or receive a punished shall not be for license drive, any permitted nor shall he be operate vehicle, motor thirty days operate any vehicle, or such for from the run conviction; person of if that license has been date whose violation of this act aforesaid revoked his conviction of a drive, operate upon any highway, run street shall thereafter or state, or public thoroughfare within whether within with or this municipality any within time for out motor vehicle revoked, he shall suspended said has been or his license fifty punished by fine not less thereof be than conviction ($500.00) ($50.00) more five dollars dollars or than hundred by imprisonment county jail thirty days not less or months, imprison nor more than six or both such fine and ” supplied. Emphasis ment.’ Chapter Also Mon legislature enacted of the in 1943 the 372-388, “An 1943, pages entitled: Act Laws Session tana * * * Patrol Highway Board Defin Creating Montana Constituting Pertaining to Enumerating Acts Crimes ing and Operation Vehicles; Motor Highways of the the Use * * * Providing for Violations Prescribing Penalties * * * Provid Therefor and Fees Licenses State Driver’s There and Reasons Licenses Driver’s ing for the Revocation of * * * and Parts All Acts Repealing Other effective became this Act” which Act with Acts Conflict 5, 1943. and after March alia, provided: inter Chapter supra, 8 of
Section act, this purpose of Constituting For the “Acts Crimes. highways and of the relative to the use
following acts committed shall of Montana in the State operation of motor vehicles provided: hereinafter punishable by law as constitute a crime “ truck, motorcycle automobile, (41) Driving operating an or street or any highway or any upon or motor vehicle with- thoroughfare whether within the State of in- municipality, under the influence of or without ’’ any Emphasis supplied. toxicating liquor drug narcotic. alia, provided: inter Chapter supra, Section Driver’s License. The Penalties —Revocation violation sections, or provisions above-mentioned other of the * * * laws shall be provisions motor vehicle * * * punishable as follows: in- influence “For while under the the offense narcotic, shall toxicating liquor any drug the offender punishable provided Section 1746.2 of the Revised Codes *7 provisions Chapter Montana, 1935, subject of of Montana, 129 of the session laws of penalties, upon
“In addition to the above-mentioned convic- any of a motor driver of the above-mentioned tion vehicle of offenses, justice peace at it shall be the discretion of the of driver’s judge or district court to revoke the license (1) year. period a of not more than one any running or motor ve- driving, operating
“Any person thoroughfare, highway, public state or any upon or hicle or without a munei- Montana, whether within the State of of that his driver’s license any period of time during pality ineligible purchase possess or or while or revoked suspended suspension of or revoca- during period a license driver’s 146 punishable a a
tion, guilty shall be of misdemeanor and ($10.00) than ten nor more one fine of not less dollars ($100.00), imprisonment county in the hundred dollars and/or (60) sixty days. not more than jail for term of revocation, appeal an “In the of such order of event competent of the any jurisdiction of for a review had to subsequent determining or purpose For the of second order. of law, bail highway patrol the forfeiture offense under equivalent to conviction.” Chapter legislature In 1949 118 of the Montana enacted 1949, pages 223-228,entitled “An Act to Amend Session Laws of Chapter Montana Section of the Session Laws of Constituting Acts in the Use of the Relating to Crimes Highways Operation of Motor Vehicles in the State Repealing Montana; All Acts and Parts of Acts Con- day Act first flict Herewith” which became effective on the July 1949, 43-507, prior to the passage, R.C.M. section 1949, by Billings on December council of of section 1839, supra. 1623A of XVI Ordinance Article of Traffic No. Chapter supra, alia, provided: inter Section Chapter “That 8 of Session Section Laws Mon- 1943, be, hereby and the tana same is amended to read as follows: “ Constituting purpose ‘Section 8. Acts Crimes. For the act, following acts use of this committed relative to the operation and the of motor vehicles State of punishable Moutana as shall constitute crime law here- * * * provided: inafter “ ‘40. Driving automobile, truck, operating motor any highway or over cycle any other vehicle thoroughfare within street municipality, without under the in within or whether ” drug intoxicating liquor or narcotic.’ Em fluence supplied. phasis (originally 32-1107 1947, section enacted
R.C.M. *8 1 of by section 1929, and amended 166, 1 of Laws of Chapter provided: supra), Chapter 198, Laws of prohibited. It shall driving (1746.1) Drunken “32-1107. intoxicated condition any person while be for unlawful drug or liquor any intoxicating or or under the influence of any highway or drive, operate upon run or over narcotic or to Montana, public thoroughfare or within street automobile, truck, municipality, any a whether within or without supplied. motorcycle any Emphasis or other vehicle.” motor as section (originally 32-1108 enacted R.C.M. Chapter 3 of Laws of and amended Chapter 1943, supra), provided: Laws of (1746.2) Penalty
“32-1108. drunken —revocation for running any or such Any person driving, operating license. thor- upon any highway, or over street or motor vehicle oughfare or without of the state of whether within a municipality or under the an intoxicated condition shall intoxicating any drug narcotic liquor influence of or of or less than punished by thereof be of not conviction finé fifty ($50.00) dollars nor more than hundred dollars three ($300.00), county jail imprisoned or shall be less thirty days such months, nor than six or both more imprisonment imprisonment. fine shall be Such fine any against regardless assessed person such so convicted any whether or not his act or resulted acts omission have any damage person person, corpo- firm or property operate ration. itself forthwith Such conviction shall of operate any revocation of such motor vehicle driver’s license and shall of itself render such license null and void and the punished eligible apply shall not person so convicted any vehicle, operate nor shall license to receive operate any motor ve- drive, run or permitted he be conviction; if days date of such hicle, thirty from the revoked conviction of a license been his person whose drive, run shall thereafter act aforesaid of this violation public thoroughfare highway, street or with- operate upon *9 municipality any state, in this whether within or without a time his said license has been vehicle within the for which suspended revoked, pun- upon or he shall conviction thereof be by ($50.00) fifty ished a fine than or more of not less dollars imprisonment ($500.00) by than five hundred or dollars jail months, county thirty days not less than nor than six more by imprisonment.” Emphasis supplied. or both such fine and (originally
R.C.M. 32-1109 enacted as section section Chapter 166, 1929), provided: 4 of Laws of (1746.3) penalties. “32-1109. Additional In addition to penalties any person the provided, heretofore convicted of subject following penalties: violation of this act shall to the “ (1) being For the first the motor driven offense vehicle by person, violation, in such if owned the convicted shall not by thirty person period days, be used such for a not less months; however, provided, nothing nor more than six that any family prevent this section shall member of his or other person operating driving or such motor vehicle.
“(2) For the second offense the motor vehicle driven committing offense, if the by such second owned convicted person, any shall himself his not be used or member of fam- ily any months, purpose whatsoever, less than six year; provided, however, nor more than one that the court permit family within its discretion other members person any person operate other to such convicted or or drive such motor vehicle.
“(3) foregoing penalties Where the additional sec- this imposed by judgment duty tion are court shall be the give regis- imposing penalty notice to the entry judgment.” trar of motor vehicles of the of such 32-1107, 32-1109, R.C.M. sections 32-1108 and and sub- Chapter 118, 1949, supra, 40 of 1 of division Laws of in full and effect on November were force the date appellant charged it is section 1673 A whereon violated city’s 1839, supra, XVI of the Traffic Ordinance No. Article and such statutes and sections of Montana Codes ex- were streets, occurring on violations pressly applicable made “whether the state and public thoroughfares highways or municipality.” within or without a to define legislature purporting granted
The charter mayor in council and and duties of powers attempts Billings nowhere City of managing the affairs of the to enact any power authority council to confer relating operation regulating condition or under persons in an intoxicated of vehicles any drug or intoxicating liquor narcotic. influence of pages Session, 1885, 14th at 147-161. Laws of grants no provision Constitution There authority adopt ordinances to cities or towns the *10 the creating punishment for prescribing the offense operating driving highways, of streets motor vehicles on intoxicating public thoroughfares under influence of liquor here, already is drugs, where the matter covered by a valid statute. state in Mandehr,
In State v. 168 Minn. N.W. applying express denying municipality statute such au- thority purpose municipal said: true all “The of regulate sobriety is of ordinances to local affairs. The drivers is is motor vehicles not a local affair. It a matter con- the people cern to all of the state. A the influ- driver under intoxicating liquor every hap- is who ence a menace to one pens It large. to be on road or he is at is true street while greater a busy that he is a street as a menace when selects he * * * driveway instead country remote road. argument to drive a motor vehicle is too clear “It that Mandehr’s con it, the conclusion follows use that the ordinance had reason viction was unauthorized conclusion, reaching In this by superseded been statute. Superior Court, Helmer v. profit we consulted with have Lewis, of Buffalo v. App. 191 Pac. Cal.
N.Y. [193] 199, 84 N.E. 809.” App. 140, Superior Court, 48 Cal. Helmer holds the drunken driving provision in the state’s Motor Ve- hicle prevails Act city over a ordinance. There the court said: “The regulation of usually street past traffic in the near been municipal treated as a matter.. Until the advent of automobile, interurban negligible traffic was so small as and, as result, regulations traffic a matter were of concern only to the city. inhabitants But when autos and motor- trucks invaded our and streets tens and hundreds thousands, yesterday a matter that was local has become of * * * importance today. nationwide
“It is city true that supreme the ordinances of a are ‘muni- cipal affairs.’ charged against But the act petitioner is not a ‘municipal affair.’ This is so even if the claim is sound that designed ordinances prevail control the streets use of general laws. The act a motor vehicle while under intoxicating influence of liquors is spe- of no immediate or cial concern to the as such. It concern to the inhabitants aof in common with all other residents of the state. There exists a doubtful twilight separating zone those matters that are clearly municipal concern those that are not. This doubtful greater width, according zone is of or less viewpoint to the observer, but there seems to be no satis- factory for assigning reason question the act in this doubt- * * * ful zone. It is ‘municipal not a affair.’ ‘‘The drunken danger driver is any locality, if there are persons present injured. to be private
“The that he is a menace to life property fact and to *11 justifies in prescribing penalties act, just the state for the as may it general sanitary, do for violations of health and com- manslaughter by A fort laws. committed an intoxicated driver driving in his over a is punishable by vehicle victim as much city the state when committed on the streets of a as if com- A vast of punishable mitted elsewhere. number acts are made general their the Penal Code because commission involves a though in public, per- menace to the even their commission no injured. felony is It is a son an intoxicated trainman to precautions take certain druggist A must a train. run railroad carry con- to a misdemeanor drugs. It is selling poisonous in burning and unattended. campfire a weapons or to leave cealed enumerated that could be of others and dozens These cases power sovereign its in exercise state, that the demonstrate authority to interdict has people, of its protection and for driving highways every part in state on It is a person. other vehicle intoxicated motor or may by appropriate penalties rule that the fundamental every public peace in life, property, liberty, and the protect purely muni- territory; and, except as to matters part of its protection the denizens of it extend this to cipal concern, in districts.” the same as to those rural cities crowded is State, Ariz. Clayton In said: sovereign state and its have this situation: The one
“We Phoenix, upon the agencies, legislated have identical wit, subject-matter, purpose, same secure safety highways prohibi- state. of travel of the The against tion in the the statute is inebriety, against driving highways but on while under the liquor. provisions primarily regu- are influence The each punitive being purpose incidental. Their latory, the feature very dangerous instrumentality, safe secure regarded possible which is not as when condition driver’s by intoxicating jurisdic- liquor. is influenced Have these two legislate subject-matter, tions the same concurrent on they question done? There no the state’s as have about state, right. acting through Legislature, plenary The its cities “If over the '* * [*] towns. city by-law ** * is not state, including about a matter of those within muni- concern, it cipal but a matter of statewide would concern subject’ defined legislation, gen- ‘rightful not be a police power The power in the charter. inheres grant eral municipalities. agen- in its The latter are and not the state *12 police by cies of the state and powers only exercise and other grant given directly by necessary implication. either We grant think powers the broad in sections 1 and contained chapter be, be, IV of the charter, should and intended to by-laws concerning limited purely municipal affairs. then, “Who, determines whether the the use of streets and mghways the a person under the influence of intoxi- cating liquor purely statewide or of concern muni- cipal question, concern? Shall shall the state? the * * [*] be permitted determine this have already “We that Legislature seen the state in the * m * Highway Code regulate has assumed opera- ‘to the tion of on highways, promote vehicles and the and convenience safety highway provide travel’ and penalties ‘to for viola- provisions tions of the act.’ of this Highway the many respects, “While in Code as is shown analysis thereof, our delegated has municipalities or left to powers certain it highways, their streets and has most positive direct provision of drivers motor vehicles in the highways use of state, those in including cities and * * * towns. regulate “We think the therein conferred ‘to the use’ alleys, etc., must be streets, construed connection with expressed implied in Highway the limitations Code. may has The latter declared drive upon who motor vehicles * ** state; provided licensing has their their grounds licenses revoked * * grounds *, naming of such one of a motor intoxicating under liquor, vehicle while the influence of under has made an offense to drive words, Legislature In other High- such condition. way things, all these qualification Code made as to the of motor punishment fitness drivers and their vehicle regulations prescribed, infractions of the therein ‘state af- taking fairs,’ municipalities legislate there- * * * directly effectively prohibited on as as if them. Highway Code Legislature that “We conclude vehicle insobriety of a motor sobriety has determined of state- a matter state is highways of the driver on *13 rule concern, it was desirable and that policy and wide throughout be uniform driver should to such with reference state. 1492 No. 55 Ordinance follows, then, that section
“It
with-
was
that the court
is invalid and
of Phoenix
subject-matter.”
defendant or the
jurisdiction of the
out
760,
S.E.
759,
75
pages
Jones,
page 230. The
ordinance
subject matter, viz., operating a motor vehicle
deals with the same
under
City
Atlanta while
highways
on
or streets in the
drugs,
intoxicating liquors or
and does
the influence of
pres-
esseitial to
ingredient
introduce
or concomitant
city’s
health,
good order which is not
peace,
ervation
municipal
Code,
section 6S-307. Where a
ordinance
included
upon the same state
operate
and a
criminal statute
acts,
physical
unless the offense created
the ordinance is invalid
thereby
characterizing ingredient not contained
contains some
municipal
A
ordinance
[Citing
in the State offense.
cases.]
existing, cov-
punishing
penal
law then
an act made
State
yield to the
law.
subject matter, must
ering the same
law
ordinance and the state
[Citing
‘Where both the
case.]
offense, the offender
exist, covering the same act and same
under
put
jeopardy
twice for the same offense
cannot be
law. In such case he could
and under the state
Mayo
law.’
v.
only
for a violation of the state
punished
59, 60.” Also see Common-
Williams,
146
92 S.E.
Ga.
Nelson,
Pennsylvania
has municipality.” has The state or without a “whether within statutes, clearly power and, by resulting exercised that by a streets shown that deems the use of the drugs to intoxicating liquor or person the influence of under purely rather than a concern be a matter of statewide essential without municipal problem. The local ordi pass adopt the Such authority ordinance. juris trial was without is therefore void and the nance Clayton subject See v. appellant matter. diction of the 24; 918, 298 State, State, v. 174 Ark. S.W. supra; Canard Jones, supra; Court, supra; Jenkins v. Superior Helmer v. 1073; 237, N.E. State v. Ayres City Chicago, 239 Ill. v. City Lewis, v. N.Y. Mandehr, supra; of Buffalo 673, 244 Fargo Glaser, 62 N.D. N.W. 809; City N.E. Pac. Lodge, 124 Mont. Compare Dietrich v. of Deer 520, 177 (2d) 708; Corwin, 119 Mont. State ex rel. McCarten v. *14 (2d) 189; Schnell, 107 Mont. 88 Pac. (2d) Pac. v. City 119 Mont. Stephens Falls, 121 A..R. and of Great 175 Pac. appellant un- charged prosecuted The should have been and der legislature. the valid enactments of the He not prosecuted timely city under the invalid and his challenges complaint jurisdiction to the and to the of the lower prosecute try courts to him should have under the ordinance been allowed.
Accordingly and judgment the the district is reversed complaint the is dismissed. BOTTOMLY, ANDERSON, and DAVIS
MR. JUSTICES concur. (dissenting). ANGSTMAN:
MR. JUSTICE be affirmed. court should judgment I think of the district the The statutory construction. presented is question The one holds, first, It is barreled. majority opinion point on this double ordi- authority pass to city power had that the never the its on streets of an automobile prohibiting nance and, second, intoxicating liquor, under one the influence away. power it been taken if ever had the had then propositions these is sound I concede that if either of my opin- by my correct. In reached associates is the conclusion however, it had not ion, city power have that and does alleged away city taken at the time defendant is been from the he have the offense and at the time was convicted. to committed city power to “make gives Section 11-901 council the orders, resolutions, pass by-laws, ordinances, all and and repugnant States or of the to the constitution of United title, necessary this provisions or of the city management government of the affairs of for body corpo- powers town, for execution of the vested title.” rate, of this carrying provisions and into effect the power “regulate gives And section 11-911 council streets, sidewalks, prohibit upon and traffic sales grounds.” power given And section 11-1002 under regulate speed their within the limits “to motor vehicles and town, prescribe of such and enforce fines and 32- regulations.” penalties of such And section violation part may, by ordi- provides 1101 in that “cities and towns nance, regulate speed upon the within the and traffic streets incorporated Certainly regulate limits.” pro- streets vehicles traffic tbe carries being persons under hibit automobiles driven on the streets liquor. intoxicating the influence of 11-901 what is now section speaking
This court “In 258, 259, said: ef- 32 Mont. Kent, Helena v. ‘gener- usually determined provisions state what fect, these *15 is it well established clause,’ and under such clause al welfare statutory prohibition, city, exer- in the absence of that, may ‘establish all ordinances police power, suitable of its cise government city, of the the maintenance administering order, preservation the health of the inhabi- peace and 156
tants, and the convenient
its
transaction of business within
limits,
performance
required
and for
general
of the
duties
’
municipal
law of
corporations. McQuillin, Municipal Ordi-
nances,
directly
section 434.”
Section 11-901 deals
with
people
municipality.
health and
welfare of the
of the
City Kusse,
97,
Salt Lake
v.
(2d)
97 Utah
85
802.
Pac.
In the annotation in 147
566,
A.L.R.
the author states: “As
shown
the cases set
below,
out
the fact that
the state has
legislated upon
penalized
operating
the offense of
a motor
vehicle while under
intoxicating liquor
the influence of
will not
necessarily preclude municipality
enacting
ordi-
valid
punishing
nances
offense, particularly where,
identical
as
jurisdictions,
municipalities
some
expressly
are
authorized
statute or charter to
regulations affecting
make rules and
vehicles, or
regulations;
to make and enforce reasonable traffic
however, in some cases such an ordinance has been held invalid
prevailing
with the
statutes.” And see to the
in.conflict
effect,
same
McCall,
State ex rel. Coffin
58
273
v.
N.M.
(2d) 642;
Kool,
(2d) 532;
Pac.
51
Mares v.
N.M.
177 Pac.
Poynter,
Idaho
386.
is
objection
There
no
legislation by
city
valid
subject.
state on the same
Cook,
State ex rel. Brooks v.
Mont.
But associates hold to enact an prohibiting of an automobile on the intoxicating liquor streets while under the influence of away legislate taken when the state undertook to in this field expressly particularly since the state statutes cover a situ- municipality. ation whether within or without a. This is not
157 parti- I call attention many so as hold. of the above cited cases In that cularly Kusse, supra. Salt v. to the case of Lake in the justices participated justices (only four case two of the majority case) on in the most relied distinguished of the cases as we to statutes such opinion being applicable herein as generally had at the acts involved. The cases the time of herein subject of upon the municipality may legislate hold that a intoxi- the influence of operating a motor vehicle while under legislated on the same cating though state has liquor even McCall, subject. rel. v. Poynter, supra; ex Coffin State v. State Bloomfield, 267 supra; County supra; Kool, v. Mares v. Dane 144, (2d) Wis Minn. 193, 829; Hughes, 64 N.W. v. 182 State 531, 16 874; City Warren, App. 233 58 N.W. Kistler v. Ohio N.E. 948.
In that passing I call attention the fact the rule declared Mandehr, in quoted 209 N.W. State v. Minn. extensively from rule majority opinion longer no in Minnesota, appears Hughes, supra. as v.
The question resolves itself into that of whether the state “appropriated the field” as in “to the exclusion others” State, Clayton case of Pac. v. 38 Ariz. Pac. strongly majority so on in out opinion, pointed relied justices City Kusse, two of in I think supra. Salt Lake it did recog- not do so and that legislature itself in 1947 nized so, that it had not in it states done section 31-145 part: “Every having jurisdiction com- over offenses or muni- act, any act this state mitted under this other operation regulating vehicles on cipal board a record of the convic- highways, shall forward to the any for a violation said any person tion said court regulations governing standing parking, laws other operator’s suspension of the or chauf- recommend supplied. person of the so convicted. Italics feur’s license” (meaning that provides part board And 31-146 board) “shall forthwith revoke the license highway patrol receiving any record of such or chauffeur operator * * * * * following offenses conviction intoxi- influence of Driving under the a motor vehicle while cating drug.” liquor a narcotic declaration plain legislative
These sections constitute opera- regulating prosecutions municipal under ordinances driv- particularly for highways and tion of motor vehicles on per- are intoxicating liquor, ing while under the influence of alleged at the time defendant missible. Such was law *17 the time he was convicted. and at to have violated the ordinance Chapter passed legislature I then point out that since pow- all from the seemingly takes Laws of But that stat- ones. except specifically enumerated ers certain no there is here involved application no here. Also ute has and, far as first, This is question jeopardy. double only against defendant. know, prosecution directed we judgment right and I think the district court was should be affirmed. THE CRAWFORD, Plaintiff G. Appellant,
JOHN Respondents. BILLINGS, OF CITY al., et Defendants No. 9579. May 16, 1956. Decided April 1956. Submitted Pac. notes legislature Chapter In 1943 the enacted 198 of Montana 1943, pages 370-372, Session Laws of “An entitled: Act Amend Sections 1746.1 and 1746.2 of the Bevised Codes of Montana 1935, Belating to Offenses for Operating Motor Vehicles on Highways and Streets of This State While Intoxicated or Un- der the Intoxicating Liquor, Drug Influence of Narcotic; or Prescribing Penalties for Violation of the Provisions of This Act and for License, Bepealing Bevocation of Driver’s All Acts and Parts of Acts in Conflict Herewith” Act be- came effective and after March Chapter 198, supra, Section amended section 1746.1 of “ the Bevised Codes of Montana 1935 to read: shall ‘It be un- for-any lawful person while in an intoxicated condition or un- der the intoxicating influence of liquor, any drug or or narcotic drive, operate upon any or run highway or over or street public or thoroughfare within Montana, the State of whether within or without municipality, any automobile, truck, motor- ” cycle any Emphasis other motor supplied. vehicle.’ Chapter 198, supra, Section section 1746.2 of amended “ rgad: ‘Any person the Revised Codes of Montana driving, operating any upon such motor vehicle running any thoroughfare street highway, municipality whether within or without a in an condition or under the influence of intoxicat intoxicated ing liquor drug or of or narcotic shall conviction fifty punished thereof be fine of less than dollars ($300.00), or ($50.00) nor more than hundred dollars three days county jail thirty imprisoned shall be not less imprison fine and months, nor more than six both such