C. Keller v. State, Criminal 815

• Decision Date: 08 July 1935
• Docket Number: Criminal 815
• Citation: 46 Ariz. 106,47 P.2d 442
• Parties: C. KELLER, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

47 P.2d 442

46 Ariz. 106

C. KELLER, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 815

Supreme Court of Arizona

July 8, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed with instructions.

Mr. V L. Hash, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. P. H. Brooks Assistant Attorney General, and Mr. M. M. Hill, City Attorney, for Respondent.

OPINION

LOCKWOOD, C.J.

This is an appeal by C. Keller, hereinafter called defendant, from a judgment of the superior court of Maricopa county sentencing the defendant to pay a fine of $25 and costs of $54 for the crime of reckless driving, or to be imprisoned in the county jail for a period of not in excess of twenty-five days. While the case on its face is one of minor importance, yet it involves questions of law which merit most careful and serious consideration.

The facts necessary for a determination of the matter may be stated as follows: A complaint was filed in the city court of the city of Phoenix on the 30th day of December containing the following allegations:

"That one C. Keller on or about the 23rd day of December, 1933, at said City of Phoenix, County and State aforesaid, has committed a misdemeanor, as follows, to-wit:

"That he, the said C. Keller, on or about the 23rd day of December, 1933, at and in the said City of Phoenix, did then and there and upon certain streets in said City, to wit, on 7th Avenue and Grant Street, willfully and unlawfully drive a vehicle, to wit, an automobile, carelessly and heedlessly and in willful and wanton disregard for the rights and safety of others and without due caution and circumspection and in a manner and at a speed so as to endanger other persons and property these being.

"All of Which is contrary to the form of the Ordinance in such case made and provided, and against the peace and dignity of the City of Phoenix and the said State of Arizona."

The case was tried to the court, which found defendant guilty, and he was fined $25 with the alternative of imprisonment, whereupon he appealed to the superior court of Maricopa county. The case was tried in that court before a jury, which also found the defendant guilty, and he was sentenced to pay a fine of $25 and $54 costs, or, in lieu thereof, to suffer imprisonment, and from such judgment this appeal is taken.

There are a number of assignments of error, but we think we need consider only the first one, which reads as follows:

"1. For error of the court in overruling the objection of defendant to any evidence being given under the complaint for the reason that the complaint was void and that the ordinance under which the complaint was drawn purported to legislate on a subject of general moment which had theretofore been legislated upon by the State laws of the State of Arizona, and that the ordinance was in conflict with the State law, unconstitutional, void, and of no force and effect."

The city of Phoenix is a so-called "home rule" city, having framed its charter under section 2, article 13, of the Constitution of Arizona. By the charter the legislative powers of the city are vested in a city commission, and the commission on November 27, 1929, regularly passed ordinance 1492, which was a regulatory traffic ordinance, governing the operation of automobiles on the streets of the city. The ordinance contained, among other things, the following section, "Section 56. Reckless Driving. Any person who drives any vehicle upon a street carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving," and it was upon this section that the complaint was based. There is no express power in the charter of the city of Phoenix authorizing it to adopt ordinances regulating drivers of motor vehicles in the use of its streets and public ways, and if such power can be implied therefrom, it must be from the provisions of sections 1 and 2, chapter 4, of the charter which read, in part, as follows:

"Section 1. The legislative powers of the City of Phoenix shall be vested in and exercised by the Commission except as herein limited or reserved to the electors of the city. The legislative powers of the city shall extend to all rightful subjects of legislation not forbidden by the constitution of the United States, the constitution or laws of the State of Arizona, or the provisions of this Charter.

"Section 2. As the legislative organ of the City of Phoenix, the Commission, subject to the provisions and restrictions of this Charter, shall have the power by proper ordinances or resolutions, to carry out each and every power, right, and privilege herein and hereby vested in the City of Phoenix, and by such legislation to enforce said rights, powers and obligations, and to secure the performance of all obligations and indebtedness to others. And in addition to the powers hereinabove enumerated and referred to, the city, and the Commission acting for and in its behalf, shall have the further powers hereinafter enumerated and set forth, to-wit....

"'(64) To enact appropriate legislation and do and perform any and all other acts and things which may be necessary and proper to carry out the general powers of the city or any of the provisions of this Charter; to exercise any and all powers not in conflict with the constitution of the State, with this Charter, or with the ordinances adopted by the people of the city; to do and perform all acts required by the laws of the State; to exercise and carry into effect whenever deemed necessary or proper, any and all additional powers vested in the city or the Commission by the laws of the State.' (The first 63 subdivisions of section 2 are specific grants of power, none of which refer to the subject matter under discussion.)"

It is the contention of defendant that the entire subject of the use of public highways in the state of Arizona, including the streets of all incorporated cities thereof, has been fully covered by the legislature in chapter 31, Revised Code 1928, commonly known as the "Highway Code," and that it has particularly dealt with the subject of reckless driving in section 1689, Revised Code 1928, which reads as follows:

§ 1689. Reckless driving; penalty. Any person who drives any vehicle upon a highway without due caution and at a speed or in a manner endangering or likely to endanger any person or property, shall be guilty of a misdemeanor and punished by imprisonment in the county jail for not less than five nor more than ninety days, or by a fine of not less than twenty-five dollars, nor more than two hundred and fifty dollars, or by both such fine and imprisonment."

It is his further contention that by so doing the legislature has withdrawn from all municipalities the right to legislate on the subject of reckless driving on the streets of the municipality, and that the ordinance under which the complaint in this case was drawn attempts to cover the precise subject covered by section 1689, supra, and is therefore void. If this be true, it necessarily follows that a complaint predicated thereon does not state a public offense, and a conviction upon such a complaint is a nullity. In support of this contention he refers to the very recent case of Clayton v. State, 38 Ariz. 135, 297 P. 1037, 1038, rehearing denied 38 Ariz. 466, 300 P. 1010.

It is the contention of the state: First, that the legislature has expressly excluded all highways in incorporated cities of the character of Phoenix from all the provisions of the Highway Code that are not specifically by such Code stated to be applicable thereto. In support of this position it cites section 1687, Revised Code 1928, which reads as follows:

"§ 1687. Width of highways: errors in establishing. All highways heretofore constructed, laid out opened or established as public highways by the territory or state or by any board of supervisors or legal subdivision of the state, and which have been used continuously by the public as thoroughfares for free travel and passage for two years, or more, regardless of any error, defect or omission in the proceeding to establish such highways, or in the recording of such proceedings, and all highways which shall be hereafter established pursuant to law, are hereby declared to be public highways sixty-six feet wide, unless the width thereof is otherwise specified; provided, that no portion of a public highway within the limits of an incorporated city or town having a population of more than twenty-five hundred shall come under the provisions of this chapter except as specifically provided for herein." (Italics ours.)

Second, that even if the ordinance is invalid, under the principles laid down in the Clayton case, supra, that nevertheless the complaint charges a public offense under the provisions of section 1689, supra, and that defendant was legally tried and convicted of such offense in courts which had full jurisdiction to hear a charge under said section, to wit, the city court of the city of Phoenix and the superior court of Maricopa county.

It will be seen that the questions involved are of considerable importance, both as to the respective powers of the state and of many of our incorporated cities in controlling traffic in such cities, and as to the jurisdiction of police courts and of the superior courts.

We consider first the validity of the ordinance. The general principle involved was considered and discussed by us very elaborately in the case of Clayton v. State supra. In that case we determined whether an ordinance of the city of...