State v. Poynter
220 P.2d 386
Idaho
1950
Check Treatment

*1 P.2d 386 v. POYNTER. STATE

No. 7582.

Supreme of Idaho. Court

May 18, 1950.

Rehearing July Denied 1950. *2 Gen., Atty. Smylie, E. and R.

Robert J. Gen., respondent. Smead, Atty. Asst. -did, Poynter on the said Forest Lee March, at Lewis day about Pocatello, City & Railroad Ave. unlawfully Idaho, wilfully State of Ordinance City in violation Revised Li- operate an bearing automobile 7-402, cense IB No. while intoxicants.” the influence of Pocatello, Anderson, ap- .for Walter H. court, appel- arraignment On pellant. pleaded guilty, lant was tried appeal guilty. found On the district County, he was tried court of Bannock April 16, again found anew guilty. made motions in arrest judgment judgment and for notwith- verdict, de- standing the court nied, sentenced to fine pay *3 judgment of convic- From $100.00. appealed. district court he tion assigns contends: error and proceed- under which the ordinance The invalid, unconstitutional is were had ings a authority for and there is no void and ordinance pass such an municipality to of Idaho of the State since the state laws to attempted entire field have covered ordinance. covered municipal is a City The of Pocatello KEETON, Justice. corporation first class so declared of the 1921, 4, proclamation February dated here) was (appellant Poynter Defendant power possesses the cities of of court with the crime charged power as has villages additional such the streets on an automobile driving 12, Art. conferred law. in- been influence of under while Pocatello provides: 2, the Idaho Constitution part charging of Sec. toxicating liquor, incorporated county or town “Any complaint being “That as follows: limits, municipal state and cor enforce, its may within make jurisdiction may concurrent poration have and other police, sanitary all local such subject matter in which its the same conflict over regulations are not in with regula municipality may make event laws.” general charter or with subject notwithstanding on tions Codes, 50-130, munici- grants Sec. thereon, regulations pro state existence of right: corporations following pal regulations vided the or laws are not in * * * and limit the traffic control “ conflict. streets, public places; on avenues [*] [*] ifc » mere fact that the state has legislated on does not necessari 49-202, Motor Ve- I.C., Uniform Sec. deprive a deal with ly power “ * * * Act, nor shall provides: hicle C.J., subject by ordinance. 43 § prevent chapter be construed so as to 214; Corpora Municipal page C.J.S., incorporated villages of this cities and tions, 286; Preston, page State v. § enacting enforcing general from state 694; Musser, 4 Idaho P. prescribing ordinances additional rules 199; 67 Idaho speed regulations as to the or manner of Romich, 176 P.2d 204. operating vehicles on motor driving municipal corporation A any villages, cities or ex of the streets [*] [*] [*] 3i ercise police power on the subjects con municipal concerns, nected with are which 50-1109, I.C., grant is a proper legislation. also for state power for the enactment of ordinances We cities are not inconsistent therefore conclude under that provision legisla laws of the the constitutional state. quoted, tive acts and authorities above Driving motor any high- vehicle on City of Pocatello way within this state while the in- enact and enforce ques the ordinance in liquor fluence an intoxicating made tion. 49-502, offense under law. Sec.

I.C. appellant The second contention of purported complaint that the prose-

The ordinance under which the *4 signed were had proceedings was by an had in cution was substance the same police officer and left at the station the 49-502, I.C., as Sec. and under the state night appellant was arrested and was laws, the offense ais misdemeanor triable justice probate courts, signed police and verified before in the or the not question conflict, Hence, proceedings ordinance in judge. does thereafter not nor is inconsistent with the state statute. were void. had its regular appellant in complaint appealed. The penalty

The for the appellant provide the ordinance preliminary does not face. The made no license, as revocation of driver’s but quash complaint to and entered motion guilty. attack on the case was tried anew in the district plea of not The court, in judge police complaint, any, have been made action of the if should prior regard quash, or us for review. plea to the motion to before by dismiss, appeal judg- The proceedings, here taken is from the appropriate or other We imposed judge. have ment complained should the district and the matter juris- called attention of the conclude that the district court been to the diction. judge. or district complaint hav objection to the No proposi appellant’s The fourth made, quash, to motion ing been no in ad tion submits error committed that was com no made as to the matters showing Re mitting the ordinance in evidence. complaint, if plained of, defects City Pocatello vised Ordinances Further, there is noth any, were waived. admitted, “A”) which (State’s exhibit transcript definitely that estab ing in the under contains the ordinance book appear be that officer lishes did addition, prosecuted. In appellant was If assume he magistrate. we did fore the clerk city the ordinance certified as advantage taken not, the same cannot be mayor proceedings was admitted. Clark, 4 State of after conviction. v. prove the ordinance were followed to 710; Collins, 4 35 P. Idaho v. approved City of Idaho in the same 38; Marshall, In re Idaho P. Simpson al., 63 Idaho Grimmett, et Falls 470; Bates, 63 In 516, re P. Idaho 461. 1017; parte Ex Mur 748, 125 P.2d 50-2005, I.C., ordi- “All provides: 647; 351, 157 P. ray, 39 Nev. pursuant passed be nances shall Holt, 219 P. 557. 47 Nev. regulations not inconsistent rules judg Appellant contends that relating thereto as the laws police court for in entered ment was provide; may board of trustees council or court never ac the district which reason proved by ordinances be all such him ren quired jurisdiction try or the clerk seal certificate impose or sentence. The judgment, der printed village, and or when police judge shows entry of the docket pamphlet book form or published a plea entered of not the defendant village, shall guilty and fined guilty, was found $100.00 in all courts evidence received read year. revoked for one driver’s license proof.” further without places the judgment must be from which This

443 hook, copy of the The ordinance certified instance was the means of unlawful. If admitted, proof ordinance con and other arrest it could not be were unlawful the ordi prima stitute evidence that chargeable sovereignty, facie the and state 47 Clark, discharging nance was in effect. State v. for would furnish reason prisoner proceeding Idaho the the 278 and not with P. 776. 12 prosecution. Moyer, In re Idaho complains the that after L.R.A.,N.S., 85 P. Am.St. city case, rested its of on motion Rep. 214. attorney, case permitted the judge re-opened Judgment be intro We reversible error. and further evidence find no and case re-opening duced. The of is affirmed. dis

admission was evidence of further cretionary the trial court. GIVENS, HOLDEN, J., POR- C. TAYLOR, JJ., TER concur.

Appellant further contends that at the time of taken the arrest he

jail and any confined without warrant of Rehearing for On Petition arrest, or for crime that had been com any KEETON, officer, Justice. presence

mitted in any void, illegal that such arrest was petition Poynter, filed a Appellant, has therefore not by innuendo he be could rehearing in which he asserts: “that the for prosecuted. per is accused Where the holding that an error in Court committed court, jurisdiction sonally before the herein was ordinance involved impaired try court to him is not valid, great weight of is brought before the manner in he is validity ordinance against any the court. field of which upon entire law;” fur- appellant, if has been covered State remedy will observed in read- ther asserts: “it any, go prose does to the limits of the not cution, question ing the statute that for the first State bearing has no innocent, is not than punishment offense the less guilty is of whether he arrest, thirty days more six was, if it nor than months illegal no reason jail, not than nor charge not fine less $100.00 he why should answer * * * more than brought him before tri against $300.00 when party the convicted jurisdiction. conviction shall having The manner second bunal exemption imprisonment undergo peni- for not cause from arrest is * * * tentiary less than he two and it follows that prosecution * * * years; subjected than five being juris more to the nor wronged by “ * * * Further, municipal ordinance diction, his first even if detention fel- and fo: rea- punishment of hold void such ordinances provide for the cannot son, among pro- law;”, or as in claiming with the statutes conflict under State onies viding punishment offense. In for the same overrules things that decision other says: case Frederic, 155 P. 977. last above the court cited very ‘The are question so decisions on this a con- that there appellant admits *6 conflicting they present no that obstacle question presented authority flict on the of one,’ etc., to our a considering as new he not to follow what and asks this Court proceeds one, it as a to consider new minority rule. the designates and hold care- such ordinances void. After in is Conceding that there some conflict fully authorities on both considering the authorities, in the the the rule announced question, sides of I that clear this find the long precedents established decision follows authority weight against of reason is Idaho, a impres- case of first in supreme adopted by the rule the court of sion here. California, and conclude that said ordinance valid, sustained, is be cite should Preston, early 4 In the case of v. support in a few of the thereof authorities 695, 215, 694, 38 P. the defendant Idaho (citing which position:” sustain our numer- vagrancy crime of in charged with the authorities). ous city ordinance. The violation of a defend- towns villages ant “that contended: Quong, In the case of State v. 8 Idaho vagrancy, for the reason punish for cannot 191, 491, 492, was charged 67 P. defendant punishable under that crime is the with battery, and contended: “that inas- ** Penal Code much battery gen- as a crime under is state, eral of criminal statutes this contention, support he cited In re To municipality enact an cannot ordinance Sic, 142, 14 P. 405. This Court Cal. ** *, making it a crime as the ordi- refused to fol- by Judge Sullivan speaking general nance law conflicts with of the reasoning, and said: low the California state.” Sic, supra] re has been decision “This [In subsequent several decisions reaffirmed in Court, speaking through This Chief Jus- of that supreme state. Those court of the Quarles, 194, page tice at 67 P. at proceed upon theory to seem decisions 492, page “The said: ordinance is not in and villages pun- to towns permit that to conflict, harmony, with the general but punishable are under that offenses ish for law. The of the to enact of the state be would statutes penal regulations, and to them, enforce provision they any constitu- contrary general to where do not contravene state, is, provisions that no one shall be of the provides law which tion constitution, beyond question. our offense, same jeopardy put in twice even law though general not take from municipal government legislated right, matter. any constitutional citizen —has express pro- so, yet by the power to do — The rule adhered to stated in 19 Rul- is 12, power 2, art. of section visions Law, 804, ing page Case 111. After police regu- sanitary and and enforce make recognizing a conflict in the authorities given to cities expressly is lations same, supporting citations the author ap- provision is object towns. said: “In other states it held that under * * * This necessity urgent. parent, its delegation power municipal settled, judicial far as so question was corporation may impose penalties for acts v. concerned, case of State action is state are statutes de- 694, 695, 215, where Preston, 38 P. 4 Idaho clared to be crimes. An ordinance enacted raised, urged was question here the same pursuance express authority legis- adversely appellant’s con- decided particular subject late generally tention.” valid, held to though there are statutes Musser, 67 Idaho the case of State In * * * covering subject; the same 199, 201, speaking this Court In Henry, Re page at opinion written through an Justice L.R.A.,N.S., at page 99 P. Budge, the above held follows: “Under *7 207, Court, provision 2, speaking through Article this constitutional [Section Justice counties, and 12 the cities Ailshie, Constitution] recognizing rule that cities local power full in affairs of towns have villages might legislate subject aon laws government notwithstanding general by general matter statute covered said: defining punishing the state same “The state of facts on which the conviction offense.” police was jus- had in court and city pro- same,

An ordinance of the of Boise tice’s court was the two weapons hibiting carrying concealed prosecutions involved the same transaction. police power was held to be within the however, prosecution, The first police constitution, municipality even court, city for the violation of a was ordi- state, though general laws of the Sec. prosecution The second nance. 17-3102,I.C.A., 18-3302,I.C., now Sec. had justice’s court was for violation of the covered the same matter. State v. petit defining larceny pro- state statute Hart, 217, 66 Idaho 72. P.2d * * * punishment viding therefor. A city ordinance, of a conviction Alloway, violation In the case of Clark v. facts, covering the same state of although an ordinance of the prosecution under the to a is not a defense defining vagrancy upheld of Boise was approval State In upholding validity state statute.” and of the ordinance cited challenged here, Preston, Quong, v. not establish- supra, Court is ing precedent, supra. deciding a new a matter impression, simply following of first but is Frederic, The case of State v. long by line prior this Court. decisions in conflict with P. Petition for is denied. rehearing case, expressed. In latter view above sub- attempted legislate on a HOLDEN, J., GIVENS, C. POR- juris- ject not within the coming matter TAYLOR, JJ., TER and concur. courts, police justice, probate or diction of municipality “A has and this held: Court juris- power police judges to confer summarily hear determine

diction to law of the

acts denominated ‘indictable misdemeanors’ state as 220 P.2d 384 prohibiting an ordinance enactment of punishment there- prescribing a acts and HALLIDAY et al. HANCOCK for.” No. 7552. in the case before us does decision Supreme Court of Idaho. that holding. aside

not or set overrule July 1950. contends that further provide cannot municipal ordinance for the under state law.

punishment felonies agree. ap contention we

With this charged with a

pellant, Poynter, was misdemeanor under

felony an indictable law, prescribed offense” or a “second pointed 49-561, out in I.C., and opinion, crime with which original justice, charged cognizable in

he was

probate courts. rule else

Whatever the

where, it has been long rule fact an ordinance covers the

that the as the state law does offense

same make therewith, in conflict inconsistent or in for that reason.

valid