*1 CITY, LAYTON Plaintiff and
Respondent, SPETH,
David J. Defendant Appellant.
No. 15200.
Supreme Court of Utah.
April Jones,
Thomas A. appellant. defendant and Barton, Layton City Atty., Lay- Bruce C. ton, for plaintiff respondent. ELLETT, Chief Justice: Mr. charged with violating an ordinance of the City Layton in that he “knowingly permitted his vehicle to be oc- cupied by persons unlawfully possessing substance, using controlled in the vicinity of Davis Drive Inn at about 9:55 P.M.” The ordinance under which was charged reads as follows: (1) It shall be unlawful: [******] owner, tenant, licensee, For any in any building, control of tenement, boat, vehicle, aircraft, other place, knowingly intentionally per- mit the same to be unlawfully, possessing, using or distribut- ing controlled substances therein.1 The defendant was convicted court appealed to the district court where he again ap- found He guilty. peals to claiming this Court under which he was is invalid. Layton Code, Municipal section 9.80.030. *2 At alleged the time of the offense the State of Utah has enacted stat The permitted statutes of Utah cities certain sale, controlling utes the gift, or use of powers including prohibition against a controlled substances. (2)(a)(ii) Subsections sale, “. . . the giving away or furnish- U.C.A., 1953, 58-37-8 contains the exact ing narcotics, of intoxicating liquors or or language of the ordinance set out above. of tobacco to any person under twenty-one The city had no or authority to copy years of age; . . . ”.2 The statute has the statute in its ordinance. since been amended but the amendment has city If the could enact an ordinance cov- no bearing present case. ering the same offenses as those set out in Cities are empowered by also statute statute, the there problem. would be a A ordinances, rules, to pass all regulations and violation of the ordinance only would be a for carrying powers all into effect and fine, punishable misdemeanor by not to ex- duties conferred “such as are necessary and sentence, by jail ceed or a $300 not to and proper provide for the and exceed six months while the state statute6 preserve the the promote pros- punishable declares the offense to be as morals, perity, improve the peace follows: order, comfort convenience of the city (a) offense, For the first a fine of or $299 thereof, and the inhabitants . . . ”.3 jail months, not to exceed six or question The ordinance in not one both; which is necessary carrying for into effect offense, For the second a fine of any purposes of the above mentioned. $1,000 jail or not to year, exceed one In the Ogden City4 case of Nasfell v. the both; ordinance in provided that (c) For the third subsequent convic- owner of a vehicle illegally parked on the tion, imprisonment in the Utah State Ogden City streets of facie prima Prison for not more years. than five one who parked holding the vehicle. In city The apply ordinance would penalty invalid, ordinance this Court said: to person multiple who was a offender as of power to cities [G]rants well as to a first offender for are strictly construed to the exclusion of applies simply anyone knowingly who implied powers reasonably necessary not permits his car to be carrying out the of the ex- purposes using controlled substances therein. press powers granted. The violating conviction of Mr. By the statute5 it is clear that the that ordinance be set aside. The must only authority given city to the are judgment reversed. No costs award- prohibit anyone selling, giving away, from ed. furnishing marijuana ato under twenty-one years age. is not doing any with of those unlawful MAUGHAN, J., concurs.
acts; that part of the ordinance which WILKINS, J., concurs in the result. attempts to make it unlawful for an owner automobile, of an knowingly and intention CROCKETT, (dissenting): Justice ally, permit persons it occupy use, possess, or distribute must by legislative Statutes enacted au- be held beyond city discharging responsi- to be of the of cities in thority is, therefore, to enact. The ordinance inval government bilities of are entitled to the id. same as other presumptions validity leg- supra. U.C.A., 1953, 5. See footnote 10-8-47. U.C.A., 1953, U.C.A., amended, 58-37-8(2)(b)(i), 10-8-84. as (ii), (iii). 344, 346, 4. 122 Utah
islation; and should not be ulating stricken down subject, the same one accused of its by judicial intervention they unless are violation might claim the benefit any clearly invalid.1 It is true that the powers lesser penalty provided by the statute. But of cities must be found in the statutes the fact that there is a state statute with a granting powers. those But it is also true prohibition, similar deprive does not is impossible spell out in the *3 of its duly-granted authority. With due generality of statutes all of the details nec- deference to contrary opinion of my essary to carry responsibilities of colleagues, I can see no reason whatsoever government; and that cities have those logic law or for the statement that powers expressly granted and those neces- city has “no power or authority copy to sarily implied carry to on such responsibil- statute.” The measure of authority that it ities.2 does have is exactly prohibit that: to acts which may statute; also be prohibited by
In regard involved, to the problem here and it may freely do so insofar as its ordi- the important general grant to nance does not transcend nor run contrary the city is that which necessary pre- is to to the state law. This indisputable princi- serve the order of ple clearly stated in City Salt Lake city and its v. inhabitants.3 The Allred: referred to in the main opinion, prohibit- ing the sale or furnishing of drugs to mi- It ... . well-established . nors,4 is a lesser and incidental one. It that the has right legislate on certainly subject should not be the same subject as a state statute where general grant referred to above either the general police power express includes authority to regulate pro- and/or grant of authority upon is conferred
hibit the possession or use of narcotic municipalities.6 [Citing numerous cases.] drugs; and this should be true wherever I would affirm the judgment. found, home, whether on person, one’s wherever drugs may such be. HALL, J., concurs in the expressed views The ordinance designed under attack is in the dissenting opinion CROCKETT, J. prohibit anyone from “knowingly and in- tentionally” permitting others possess drugs
use in violation of the law in any
“building, tenement, vehicle” etc. In
my judgment properly fashioned and
can be sensibly applied prohibit person
from knowingly aiding, assisting, or encour-
aging others in the commission of the of-
fense of possessing or concealing such inter-
dicted drugs.5 that,
I concede if the ordinance in some
way should transcend the state statute reg-
Gayland
County,
U.C.A.1953,
1.
10-8-47,
See
v. Salt Lake
11 Utah 2d
cited in
footnote
307,
633;
opinion.
State Water Pollution Con-
main
247,
trol Bd. v. Salt Lake
6 Utah 2d
P.2d 370.
76-2-202,
5. See Sec.
U.C.A.1953 which states:
“Every person,
encourages,
or intentional-
City Revene,
504,
ly
engage
101 Utah
aids another
in conduct
(1942);
City Corp.,
P.2d 537
Utah,
criminally
Butt v. Salt
which
Lake
constitutes an offense shall be
party