Allgood v. Larson
| Decision Date | 12 January 1976 |
| Docket Number | No. 14094,14094 |
| Citation | 545 P.2d 530 |
| Parties | Vivian ALLGOOD, Plaintiff and Respondent, v. Delmar LARSON, Sheriff of Salt Lake County, Utah, and Salt Lake City, Utah, Defendants and Appellants. |
| Court | Utah Supreme Court |
Roger F. Cutler, Salt Lake City Atty., Paul G. Maughan, Deputy Salt Lake City Atty., Salt Lake City, for defendants and appellant.
Stephen R. McCaughey of Salt Lake Legal Defenders Assn., Salt Lake City, for plaintiff and respondent.
Plaintiff was arrested, charged, and convicted of trespassing; under a Salt Lake City ordinance. She was sentenced to six months in jail. Petition was made to the district court for a writ of habeas corpus, the writ was granted; and plaintiff was released from custody. It is from the district court's order that defendant city appeals.
The district court ruled 'that since the state law provides no jail sentence for trespass, which is classified as 'an infraction,' that the city cannot impose a greater sentence than that provided by state law, and it is for that reason that the court grants the petition for a writ of habeas corpus.' With this we agree and affirm the trial court.
The city ordinance, Section 32--3--3, provides that it shall be unlawful for any person to walk upon the premises of another without permission of the owner or occupant. There is no penalty provision in that section. Plaintiff was sentenced to jail under an omnibus clause, Section 26--1--8, of the Revised Ordinances of Salt Lake City. That section provides when there is no other penalty prescribed, the person shall be punished by a fine not exceeding $299, or imprisonment in the city jail for a period not longer than six months, or by both such fine and imprisonment.
On July 1, 1973, an entirely new criminal code became effective for the state of Utah. The statutory references which follow are to U.C.A.1953, as amended.
76--1--103(1) specifies: 'The provisions of this code shall govern the construction of, the punishment for, . . . any offense defined in this code . . . any offense defined outside this code . . .'
76--1--104 provides that the code shall be construed in accordance with these general purposes; and Subsection (3), dealing with penalties, states: 'Prescribe penalties which are proportionate to the seriousness of offenses . . .'
Under the new criminal code, Section 76--3--102, offenses are designated as felonies, misdemeanors, or infractions. The legislature has created a new class of offenses known as infractions, and 76--3--205 states:
The trespass for which plaintiff was convicted is designated as an infraction under 76--6--206(3). Thus it falls within the new criminal code, is one of a new class of offenses, and carries with it the legislative policy prescribing penalties which are proportionate to the seriousness of the offense.
Defendant city advances the provisions of 10--8--50 and 10--8--84 as grants of power to the city to provide for punishment of trespass, to pass ordinances necessary for carrying into effect powers and duties conferred upon the city, and to enforce such ordinances by fines of less than $300, and imprisonment not to exceed six months. The powers granted in the foregoing statutes were correlated with the penalties provided in 76--1--16 of the old penal code for misdemeanors. In that code, 76--1--12, only two types of crimes were provided for, viz: felonies and misdemeanors.
The subsequent enactment of the new criminal code controls any general provisions of 10--8--84. It is it be noted that 10--8--84, by its express terms, limits the grant of power to municipalities to pass ordinances, to those 'not repugnant to law.'
Article XI, Section 5, Constitution of Utah, has been interpreted by this court as not only a delegation of power by the people to a municipality, but also as a limitation. 1 That constitutional provision, in conferring policy power upon municipalities, limits the grant to an area 'not in conflict with the general law.'
Although this court has dealt with the contest between cities and the State on several occasions, this is the initial case of that nature involving the provisions of the new criminal code. In Lark v. Whitehead 2 we said:
In Nasfell v. Ogden City, 3 this court stated that it was committed to the principle that cities have none of the elements of sovereignty and that any fair, reasonable, substantial doubt concerning the existence of the power is resolved by the courts against the corporation (city) and the power denied; grants of power to cities are strictly construed to the exclusion of implied powers which are not reasonably necessary in carrying out the purposes of the express powers granted.
In the matter of Smith v. Hyde 4 this court had before it, as in the instant matter, a writ of habeas corpus, which brought to its attention Section 7 of the Tremonton City Ordinances. Section 7 provided for incarceration at the rate of one day for each one dollar of the fine remaining unpaid. This was found to be in conflict with 15--8--85, R.S., Utah, 1933, which required two dollars for each day of the confinement. The court held:
The part of Section 7 of the Tremonton Ordinances which is in conflict with the section of the statute quoted must fall. The result is that the part of the sentence imposing incarceration must fall for lack of power in the City Justice of the Peace to impose it.
Defendant city brings to our attention Salt Lake City v. Allred, 5 Salt Lake City v. Kusse 6 and 5 McQuillin, Municipal Corporations. 7 To find Allred applicable here we would have to hold that a city legislating within the purview of a state statute could impose a punishment exceeding that provided for the same offense proscribed by the State. As has been shown, this the city cannot do. Kusse is cited for the proposition that 'where the legislature prohibits the citizens from doing some act, there is no basis to imply that the legislature intended that cities and counties should not add additional prohibitions.' This is a correct statement of the law, in certain limited instances, 8 but here we are not dealing with prohibitions. Salt Lake City seeks to exceed the public policy declared by the legislature relating to a new class of offense. It does not have that power of amendment. A cogent statement of the law, as it is applicable to the instant matter, is stated by Mr. Justice Larson, in his dissent to Kusse: 9
But the state may always invade the field or 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.
As for McQuillin, the law of Utah is correctly stated in Section 17.15, at page 326:
. . . If the ordinance penalty conflicts with that of the general law of the state covering the same subject, the ordinance penalty is void. The charter or ordinance penalty cannot exceed that of the state law.
The power of the city to regulate the peace and good order of its citizenry is not dependent only on statute. It is constitutional, being derived from Sec. 5., Art. XI, which states in part:
Each city forming its charter under this section shall have, and is hereby granted, the authority to exercise all powers relating to municipal affairs, and...
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