85 P.2d 802 | Utah | 1938
Lead Opinion
For opinion on rehearing see
Section 1379, Rev. Ord. Salt Lake City 1934, is as follows:
"It shall be unlawful for any person who is an habitual user of narcotic drugs, or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon any street within this city. Every person convicted of a violation of this section shall be punished by imprisonment in the city jail for not less than thirty days nor more than six months, or by a fine of not less than $100.00 or more than $299.00, or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than ninety days nor more than six months, and in the discretion of the court a fine of not more than $299.00."
This ordinance is identical with R.S.U. 1933, Sec.
Appellant's position is that the statute applies throughout the state and makes invalid any ordinance covering the subject matter as being necessarily in conflict with the *99 statute and this ordinance in particular as in conflict since it provides a different punishment for a second offense.
The analysis may be divided into two parts: (1) does the city have power under its general powers to pass an ordinance prohibiting driving while under the influence of intoxicating liquor; and (2) if so, does Sec.
1. The powers of municipalities as related to this subject matter are contained in the statutes as follows: (Sec. 15-8-30, R.S.U. 1933.)
"They may regulate the movement of traffic on the streets, sidewalks and public places, including the movement of pedestrians as well as of vehicles, and the cars and engines of railroads, street railroads and tramways, and may prevent racing and immoderate driving or riding." (Italics added.)
Section 15-8-84 provides:
"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 prosperity, 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 obedience 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 fine and imprisonment."
There may be some question whether Sec. 15-8-30 does not pertain only to the regulation of the actual movement of traffic and the actual prevention of racing and immoderate driving; that is, whether the section permits only the operation on these acts as they occur without giving power to prevent an act or a condition which itself, if permitted, might affect the movement of traffic or be likely to result in racing or immoderate driving. While this seems a narrow construction, it need not now be decided because we think *100
Section 15-8-84, R.S.U. 1933, definitely permits the city to pass an ordinance to prevent driving while under the influence of intoxicating liquors. In the cases of People v. Ekstromer,
"* * * That a city organized and operating under general law may possess and exercise only the powers granted in express words and such as are necessarily or fairly implied in, or incident to, the powers expressly granted, or those essential to the declared objects and purposes of the corporation not merely convenient but indispensable."
Section 1379, Rev. Ordinances of Salt Lake City 1934, was within the powers conferred on cities by Sec. 15-8-84, R.S.U. 1933. The case of Salt Lake City v. Sutter,
Does Sec.
The solution of this question depends on the following principles: An ordinance dealing with the same subject as a statute is invalid only if prohibited by the statute or inconsistent therewith. Covey Drive Yourself v. City ofPortland,
There is nothing in Title 57 which expressly prohibits the passage of ordinances directed against driving while under the influence of intoxicating liquors. In fact, there are provisions in that act which would appear to grant permission to pass ordinances not inconsistent with the act. Sec. 57-7-74, as amended by Chapter 48, Laws of Utah 1935, recites:
"It is a misdemeanor for any person to violate any of the provisions of this title or of a municipal or county ordinance complying with or within the terms of this title, unless such violation is by this title or other law declared to be a felony."
Section
"Local authorities, except as expressly authorized, shall have no power or authority to alter any of the regulations declared in this chapter, or to enact or enforce any rule or regulations contrary to the provisions of this chapter, except [as next indicated] * * *."
The exception deals with matters such as parking of vehicles, regulating traffic by semaphores or traffic officers, providing for one way traffic, and regulation of processions or assemblages or speed in parks. It will be noted that *102
the inhibition is against "altering any of the regulations" or against "enacting or enforcing any rule or regulation contrary
to the provisions" of the chapter. (Italics added.) Then follow special exceptions where there may be contrary regulations. Certainly Sec.
In Quillan v. Colquhoun,
"By prohibiting the passage of other ordinances inconsistent with the provisions of the act, the statute thereby expressly grants the right to make ordinances not inconsistent with the statute."
We see nothing inconsistent between that part of the ordinance which prohibits driving while under the influence of liquor and the provisions of Title 57.
"`In determining whether an ordinance is in "conflict" with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.' Village of Struthers v. Sokol,
"The statute, as well as the ordinance, in the case at bar, is prohibitory, and the difference between them is only that the ordinance goes farther in its prohibition — but not counter to the prohibition under the statute. The city does not attempt to authorize by this ordinance what the Legislature has forbidden; nor does it forbid what the Legislature has expressly licensed, authorized, or required. * * * Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail. Bodkin v. State [
"There is no question in the instant case that the rule of conduct established by the ordinance does not contravene the state law, in that it does not make it less stringent or relax it." Brennan v. Recorder of Detroit,
See Berry on Automobiles, 6th Ed., Secs. 97 and 98; UnitedStates Fidelity and Guaranty Co. v. Guenther,
We have carefully considered the authorities on which appellant so strongly relies. Some have already been averted to.Clayton v. State,
"If the Legislature had not in the Highway Code taken over and appropriated to itself, to the exclusion of others, the power and right to prescribe the qualifications of motor vehicle drivers, and to punish them for driving while under the influence of intoxicating liquor, we would be inclined to hold that a city could, under the general welfare clause, legally legislate on the subject." (Italics added.)
The court went on to observe that such an ordinance "might be legally incorporated into the city's ordinances, notwithstanding it is a state law, if the charter or the general laws affecting the powers of cities authorized it. It is not a novelty in the law to find the same act punishable by statute and by city ordinance." It should be noted that the Arizona court was not construing the sections of the Uniform Act Regulating Traffic on Highways which are before us. That court was considering an act which, as it said, "appropriated the field" and "to the exclusion of others" by setting out specifically, throughout the act, the precise powers of local authorities with reference to each subject dealt with. There was in that act no section recognizing the rules, regulations (or ordinances) of local authorities if not "contrary to the provisions" of the act as in our statute. And that court recognized, as do we, that a general grant of power to cities will support an ordinance prohibiting driving automobiles while under the influence of liquor.
State v. Mandehr,
In Fargo v. Glaser,
Helmer v. Superior Court,
"It is true that the ordinances of a city are supreme in `municipal affairs.' But the act charged against petitioner is not a `municipal affair.' This is so even if the claim is sound that ordinances designed to control the use of streets prevail over general laws. The act of driving a motor vehicle while under the influence of intoxicating liquors is of no immediate or special concern to the city as such. It is of general concern to the inhabitants of a city in common with all other residents of the state. * * *
"While it is more dangerous in a crowded street, it is so only because there are more persons to be injured, but as to each person it is but slightly more dangerous than to one of the smaller number in a less crowded locality. Speeding is dangerous because of the locality. The drunken driver is a danger in any locality, if there are persons present to be injured.
"The fact that he is a menace to life and to private property justifies the state in prescribing penalties for the act, just as it may do for violations of general sanitary, health and comfort laws."
It is admitted here that the Motor Vehicle Act applies uniformly throughout the State of Utah. We are at liberty to construe a city's prohibiting driving on its streets while under the influence of intoxicating liquor as a municipal affair without being confronted with a constitutional provision which would make a municipal ordinance in this regard superior to a state statute.
We need not consider the portion of Ordinance 1379 which deals with a second offense for it does not appear that such provision affects this case. If such provision is inconsistent with the provisions of Title 57, it is easily severable. Appellant's demurrer was properly overruled and his motion to dismiss properly denied.
This opinion is not concurred in by three members of the Court, but a majority of the Court not voting for a reversal, the judgment of the district court is affirmed.
FOLLAND, C.J., concurs. *106
Concurrence Opinion
I concur in the views expressed by Mr. Justice LARSON in his dissenting opinion.
Dissenting Opinion
I dissent. The only question presented is: Has a city the power by ordinance to prohibit people under the influence of intoxicating liquor from driving automobiles, and to prosecute and penalize such as do so? Cities have only such power as is expressly granted to them by the legislature or as is implied from the granted powers, or such as is essential to the accomplishment of the declared objects and purposes of the corporation. Am. Fork City v. Robinson,
If the city has the power it claims in this case it must be derived from one of three sources: (1) The grant found in Sections
I shall briefly explore each of these sources.
15-8-30: "They may regulate the movement of traffic on the streets, sidewalks and public places, including the movement of pedestrians as well as of vehicles, and the cars and engines of railroads, street railroads and tramways, and may prevent racing and immoderate driving or riding."
The first of these sections referring to the use of streets has to do with the purposes for which streets can be used, *107 to the end that things may not be done upon the street which unreasonably interfere with the movement of traffic; to the end that any unusual or extraordinary use of the highways be permitted only under regulation, so as to prevent or minimize the interference with the usual and ordinary use thereof. It is not concerned with the question as to who may use the street but as to the purposes for which it may be used by anyone.
The second section quoted by its express terms relates to the "movement of traffic" and preventing "racing and immoderate driving or riding." Here too there is no grant of power to saywho may use the street, but only to regulate the movement of traffic thereon. The section itself is a limitation on the power of the city and prevents too wide an application of the wordtraffic. It does not say to regulate traffic upon the street but does say the movement of traffic. I do not say that the word traffic could never mean anything more than movement. That question is not before us. But certainly the movement oftraffic cannot be extended to include a designation of who may enter into traffic, that is, as to who may use the street for its ordinary and usual purposes.
(2) The opinion of Mr. Justice Wolfe is founded upon the theory that authority for the ordinance is found in Section 15-8-84. So far as material here it reads:
"They may pass all ordinances and rules, and make all regulations, not repugnant to law, * * * such as are necessary and proper to provide for the safety and preserve the health, and promote the prosperity, improve the morals, peace and good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; * * *." (Italics added.)
This is a general or omnibus grant of police power to the municipality, and applies therefore only to matters which are commonly spoken of as "matters of local concern" or as "municipal affairs." That is, the details of the specific grants of power. The legislature may grant unto cities *108 certain more extensive powers but such grants of power must be specific and express. The general grant of power is confined to the use of police power for the well-being of the citizens in matters of local or community concern only. The city does not assume all the powers of the state within its limits but only such as are incident to a city government. Under such general grants of power the city must confine itself to matters of its local affairs. And when a city seeks to legislate on a matter not of local concern but of statewide concern, it must look for its power to some grant other than the general power to provide for health and safety. The police power inheres in the state, and the municipality has only what the state delegates to it directly or by necessary implication. 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. Is then the question of people under the influence of liquor driving automobiles one of "local concern," a "municipal affair," or is it one of "statewide concern," a "state affair"? At this point I shall simply say that it is a matter of statewide concern, and not a "municipal affair" coming within the general grant of safety. The development of this point will appeal later in this opinion. I find therefore no authority for this ordinance under the section under discussion.
(3) Does the Motor Vehicle Act (Title 57, R.S.U. 1933) grant or deny such power to the city? Title 57 is the so called Uniform Motor Vehicle Act, adopted and in effect in many of the states. It is a comprehensive act dealing with many if not all phases of law relative to motor vehicles. It was first enacted in 1931 as Chapter 49, Laws of Utah 1931, under the title:
It has been carried forward with only minor changes as Chapter 7 of Title 57, R.S.U. 1933. The act as written in 1931 as well as its incorporation in the Motor Vehicle Code in the Revision of 1933 is a comprehensive piece of legislation, revealing an intention of the legislature to cover fully and completely the subject of use of the highways of the state and motor vehicles and their use on the highways. Such legislation supplants all previous legislation on the subject unless specially saved by the provisions of the act itself. Olson v. State,
"Local authorities, except as expressly authorized, shall have no power or authority to alter any of the regulations declared in this chapter, or to enact or enforce any rule or regulations contrary to the provisions of this chapter, except that the local authorities shall have power to provide by ordinance for the regulation of the standing or parking of vehicles and electrictrolley coaches, for the regulation of traffic by means of traffic officers or semaphores or other signaling devices on any portion of the highway where traffic is heavy or continuous, and may prohibit other than one-way traffic upon certain highways, and may regulate the use of the highways by processions or assemblages. Local authorities may also regulate the speed of vehicles in public parks and shall erect at all entrances to such parks *111 adequate signs giving notice of any such special speed regulations." (Italics added.)
The italicized part was added in 1935, the rest of the section being as it stood in the 1931 and 1933 enactments. This section and section
Let us briefly note how other states which have the Uniform Motor Vehicle Act have construed it. The Arizona Court inClayton v. State,
"Under section 1574 the matter of `local parking and other special regulations' is left in the control of the governing body of the city; that is, matters of peculiar local concern are left with the local authorities. The reservation to cities and towns of power over `local parking and other special regulations' would seem to emphasize a purpose on the part of the legislature to make the provisions of the Highway Code in all other respects the guiding and controlling rule throughout the state. Any deviations from the regulations prescribed in the Highway Code to suit local conditions or convenience are provided for therein.
"The regulation or provision as to the insobriety of a driver is exactly the same in the Highway Code and section 55 of the city ordinance, *112 except as to punishment. The punishment under the ordinance is not as great as may as inflicted under the state law, and the confinement is in the municipal and not the county jail. Under the state law the offense is a high misdemeanor. The act condemned in both is the same."
The Arizona Court then points out that cities are confined to matters of local concern in legislation, and that a city by-law or ordinance on a matter of statewide concern is not a rightful subject of legislation as given in general grants of power. The state must therefore be the one to determine whether the use of streets by one under the influence of liquor is a matter of state or local concern.
The Arizona court held that the Uniform Motor Vehicle Act clearly indicated an intention on the part of the legislature to make such problem one of statewide concern and control, and in a very well reasoned opinion held that the state had pre-empted the field for control of drunken driving saying:
"We conclude that the Legislature in the Highway Code has determined that the sobriety or insobriety of a motor vehicle driver on the public highways of the state is a matter of state-wide policy and concern, and that it was desirable that the rule with reference to such drivers should be uniform throughout the state.
"It follows, then, that section 55 of Ordinance No. 1492 of the city of Phoenix is invalid, and that the court was without jurisdiction of the defendant or the subject-matter."
The California courts in Helmer v. Superior Court,
In the Clayton Case, supra, upon petition for rehearing,
"* * * we think the Legislature looked upon the act of incapacitating one's self by drinking intoxicants as not unimportant and trivial or a police court matter. The Legislature evidently took the view that irresponsible and reckless driving that usually accompanies *113 liquor drinking should be tried in a court of record and upon conviction severely punished, and for that reason chose to make its rule the rule throughout the state.
"The motion for rehearing is denied."
For the reasons above stated, I think the judgment should be reversed.
