American Fork City v. Charlier

• Decision Date: 29 April 1913
• Docket Number: 2445
• Court: Utah Supreme Court
• Parties: AMERICAN FORK CITY v. CHARLIER

134 P. 739

43 Utah 231

AMERICAN FORK CITY v. CHARLIER

No. 2445

Supreme Court of Utah

April 29, 1913

On application for Rehearing, July 10, 1913.

APPEAL from District Court, Fourth District: Hon. J. E. Booth, Judge

Geo. D Charlier was convicted of violating an ordinance of American Fork City. He appeals.

AFFIRMED.

E. A Walton and M. E. Wilson for appellant.

Geo. P Parker for respondent.

FRICK J. McCARTY, C. J., STRAUP, J., concurring.

OPINION

FRICK, J.

Appellant was convicted by a jury of having unlawfully sold intoxicating liquor within the corporate limits of American Fork City, contrary to the provisions of a certain ordinance alleged to be in force in said city. The ordinance in question reads as follows:

"It shall be unlawful for any person, directly or indirectly, or upon any pretense or by any device, to manufacture, sell, exchange, barter, dispense, serve, give away, or keep for sale any intoxicating liquors, or to solicit, take or accept any order for the purchase, sale, shipment, service or delivery of any such liquor, or to aid in the delivery or distribution of any intoxicating liquors so ordered or shipped, or to own, keep, or in any way be concerned, engaged or employed in the owning or keeping of any intoxicating liquors with intent to violate any of the provisions of this ordinance, or to authorize or permit the same to be done within the corporate limits of American Fork City, Utah County, Utah.

"Sec. 10. Any natural person who shall violate any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars or more than two hundred and ninety-nine dollars, or by imprisonment in the city jail of American Fork City for not less than thirty days or more than six months, or by both such fine and imprisonment. If any natural person shall be convicted the second time for violating any of the provisions of this ordinance, such persons shall be fined for such second and each subsequent violation by both such fine and imprisonment."

The validity of the foregoing ordinance is assailed upon various grounds, which we shall consider in the order in which they are argued in appellant's brief.

The first objection, stating it in the language of counsel, is: "There is no competent evidence of the ordinance or of its publication." This objection is, in our opinion, clearly untenable. The ordinance was produced in court, and it was proved that it had been duly passed, and it was also proved that publication thereof had been made as required by Comp. Laws 1907, section 205, as amended by Laws 1911, p. 228. The proof was clearly sufficient. McQuillin, Mun. Ords. section 387. In holding the proof of the ordinance sufficient in this case, we do not wish to be understood as intimating that it is necessary to prove municipal ordinances in the so-called police courts or in those courts that are clothed with original jurisdiction under our statutes to enforce municipal ordinances.

The next ground of invalidity is stated thus: "The ordinance is invalid as being repugnant to, and in conflict with, section 65 of chapter 106, Laws of Utah 1911." Counsel, as one of the reasons why the ordinance should be held invalid, say that it is so because "the statute and ordinance make criminal precisely the same acts." Assuming this to be true, yet why should this invalidate the ordinance? Whether such would be the effect does not depend upon the reason just stated by counsel, but rather depends upon whether, in the absence of some constitutional inhibition, American Fork City was authorized by the Legislature of this state to pass such an ordinance. Section 68 of chapter 106, Laws of Utah 1911, at least permits, if it does not directly authorize, the cities of this state to pass ordinances upon the subject covered by the one in question here. That section provides:

"Nothing in this act contained shall prevent or prohibit any city council, board of trustees or board of county commissioners from enacting restrictions upon and regulations of the traffic in intoxicating liquors in addition to but not in conflict with the provisions of this act."

Moreover, at the same session of the legislature at which said chapter 106 was passed, and with the terms and provisions thereof in mind, the legislature also amended subdivision 41 of section 206, Comp. Laws 1907, in which section the charter powers of cities are enumerated.

In the amendment aforesaid the legislature expressly authorized the councils of the various cities of this state to regulate or prohibit the sale or disposition of intoxicating liquors. The section as amended, so far as material here, reads as follows: "To license and regulate or prohibit the manufacturing, selling, giving away, or disposition in any manner of any intoxicating liquor." (Laws 1911, ch. 120.)

In another subdivision of the same section (section 206 x 87) the city councils are expressly empowered "to pass all ordinances . . . necessary for carrying into effect . . . all powers and duties conferred by this title." It is further provided that the city councils are empowered "to enforce obedience to such ordinances" by the imposition of fines and imprisonment. Such fines must, however, be "in any sum less than $ 300, or by imprisonment not to exceed six months, or by both such fine and imprisonment." We have already held, on a former occasion, that "the legislature could confer police powers upon the municipality over subjects within the provisions of existing state laws, and authorize it, by ordinance, to prohibit and punish acts which are also prohibited and punishable as misdemeanors under the general statutes of the state." (Salt Lake City v. Howe, 37 Utah 170, 106 P. 705, Ann. Cas. 1912C, 189.)

In view of the several provisions of the statutes we have quoted above, can any reasonable doubt exist in the mind of any one that the legislature intended to and did confer ample power upon the municipalities of this state to pass ordinances prohibiting and punishing the sale or other disposition in any manner within the corporate jurisdiction of intoxicating liquors, and that this may be done although the statutes of the state likewise prohibit and punish such sales and dispositions? The overwhelming weight of authority in this country is to the effect that, where such power is conferred upon municipalities, they may prohibit and punish the same acts that are prohibited and punished by the state laws, and may impose the same penalties imposed by the state laws, if within the jurisdiction of the municipal courts. 2 McQuillin, Mun. Corps. sections 877, 878; 28 Cyc. 696; Black on Int. Liqs. section 225; 1 W. & T. Law of Int. Liqs. section 280. See, also, Ex parte Simmons, 4 Okla. Crim. 662, 112 P. 951; same case on rehearing, 5 Okla. Crim. 399, 115 P. 380, where the authorities upon the subject are reviewed in an exhaustive opinion. To the same effect is Oklahoma City v. Spence (Okl. Cr.) 8 Okla. Crim. 121, 126 P. 701.

It is not necessary for us to cite the numerous cases from the different states upon this question, since they are collated in footnotes to the different sections referred to in the several text-books to which reference has been made. The California cases cited by counsel can be given no weight under the statutes of this state. The Supreme Court of California, in obedience to certain constitutional and statutory provisions in force in that state, has continuously held that the cities of that state have not the power to prohibit and punish any acts which are prohibited and punished by the general laws of the state. Nor are the other cases cited by counsel in point here. There is, however, one case from Iowa namely, Iowa City v. McInnerny, 114 Iowa 586, 87 N.W. 498, which is sometimes cited as holding contrary to the views we have herein expressed. By referring to that case it will be noticed that the decision is based upon a somewhat peculiar statute. In view of that fact, the decision cannot be regarded as of controlling influence under a statute like ours. We are clearly of the opinion that there is nothing in the ordinance in question which is in conflict with chapter 106 aforesaid, and further that under the statutes of this state American Fork City, the respondent here, had ample power to pass and enforce the ordinance in question, unless the same is invalid for some other reason.

Counsel however, further insists that "the alleged ordinance is invalid for want of power in the city council, for unreasonableness, and in being discriminatory." We have already disposed of the question of power. Nor can we see in what respect the ordinance is so unreasonable as to authorize, much less require, a court to declare it invalid on that ground. We think the ordinance, if otherwise valid, is clearly not invalid for the reason that it is unreasonable. The contention that the ordinance in question is discriminatory at first blush seems to present a question somewhat difficult, if not serious. This contention arises out of the following circumstances: The ordinance makes it "unlawful for any person, directly or indirectly," to do the acts prohibited therein. The last section, however, limits the punishment to a "natural person." It is contended that this invalidates the ordinance because it does not operate equally upon all those who may violate its provisions. As we remarked above, at first blush that contention seems reasonable, but when the ordinance is considered in the light of our statute, the general law upon the subject, and when the jurisdiction of the municipal courts of this state is kept in mind, the contention is far more plausible than sound. In section 65 of chapter 106,...