City of Bellingham v. Schampera

• Decision Date: 20 October 1960
• Docket Number: No. 35046,35046
• Citation: 57 Wn.2d 106,356 P.2d 292,92 A.L.R.2d 192
• Parties: , 92 A.L.R.2d 192 CITY OF BELLINGHAM, Respondent, v. John SCHAMPERA, Appellant.
• Court: Washington Supreme Court

Page 106

57 Wn.2d 106

356 P.2d 292, 92 A.L.R.2d 192

CITY OF BELLINGHAM, Respondent, v. John SCHAMPERA, Appellant.

No. 35046.

Supreme Court of Washington, En Banc.

Oct. 20, 1960.

Sherwood & Forrest, Bellingham, for appellant.

Charles R. Olson, John T. Slater, Bellingham, for respondent.

Robert M. Smythe, City Atty., Auburn, amicus curiae.

Agee & Long, by Alva C. Long, Auburn, amici curiae.

HILL, Judge.

October 1, 1958, John David Schampera was charged in the municipal court of Bellingham with a violation of § 143 of ordinance No. 5777, as amended by ordinance No. 6952, prohibiting the driving of a motor vehicle while under the influence of intoxicating liquor. He was convicted, and appealed to the superior court where he had a trial de novo. He was again convicted and sentenced to ninety days in the county jail (fifty days of which were suspended), fined one hundred dollars, and his motor vehicle operator's license suspended for a period of six months.

He appeals to this court and challenges the validity of the Bellingham ordinance under which he was charged and tried. Basically, his contentions are three:

1. The state of Washington by RCW 46.56.010 (a part of the Washington motor vehicle act), making it '* * * unlawful for any person who is under the influence of or affected by the use of intoxicating liquor * * * to drive or be in actual physical control of any vehicle upon the public highways.'

has precluded Bellingham, or any other city in Washington, from passing ordinances directed against the same offense.

2. If Bellingham can enact such legislation, it cannot, as a penalty for its violation, suspend the license of a motor vehicle operator inasmuch as the state has pre-empted the field of the issuance, regulation, and suspension of motor vehicle operators' licenses; and it is, further, not within the maximum penalty provisions allowed to be imposed by first class cities under RCW 35.22.470.

3. If Bellingham can enact such legislation, the particular ordinance now before the court is invalid because the maximum fine and prison term, which it prescribes for the violation of the ordinance, exceed the maximum fine and prison term allowed to be imposed by first class cities under RCW 35.22.470.

We disagree with the contention that Washington cities can not, by ordinance, prohibit driving within their limits by persons under the influence of, or affected by the use of, intoxicating liquor.

We agree that no Washington city can prescribe, as a penalty for a violation of its ordinances, the suspension of a motor vehicle operator's license.

We agree that the city of Bellingham can not impose penalties in excess of those provided by RCW 35.22.470, but we do not agree that this necessarily invalidates the ordinance; and hold that since the penalties of fine and imprisonment, which were imposed, were within the limits which the city could impose they will be affirmed.

We will consider these contentions and amplify our answers thereto under three subheads.

Re: Contention that There Has Been a Pre-Emption by the State of the Prohibition and Punishment of the Offense of Driving on Highways while under the Influence of Intoxicating Liquor.

We have recognized, in numerous cases involving various types of offenses, the right of a city to enact ordinances prohibiting and punishing the same acts which constitute an offense under state laws so long as the city ordinance does not conflict with the general laws of the state, or the state enactment does not show upon its face that it was intended to be exclusive. Seattle v. Hewetson, 1917, 95 Wash. 612, 164 P. 234 (prohibiting the sale of intoxicating liquor); Allen v. City of Bellingham, 1917, 95 Wash. 12, 163 P. 18 (regulating jitney busses); Seattle v. MacDonald, 1907, 47 Wash. 298, 91 P. 952, 17 L.R.A.,N.S., 49 (prohibiting gambling); Bellingham v. Cissna, 1906, 44 Wash. 397, 87 P. 481 (regulating speed of automobiles); City of Seattle v. Chin Let, 1898, 19 Wash. 38, 52 P. 324 (prohibiting lotteries).

These cases point out our constitutional provision declaring that any

'* * * county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.' Washington constitution, Art. XI, § 11.

Of this constitutional provision (§ 11), we have said:

'This is a direct delegation of the police power as ample within its limits as that possessed by the Legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws.' Detamore v. Hindley, 1915, 83 Wash. 322, 326, 145 P. 462, 463. See also State v. Tucker, 1926, 137 Wash. 162, 242 P. 363, 246 P. 758.

Bellingham, together with other first class cities, has the power by ordinance

'* * * to provide for the punishment of all disorderly conduct, and of all practices dangerous to public health or safety, and to make all regulations necessary for the preservation of public morality, health, peace, and good order within its limits; to provide for the arrest, trial, and punishment of all persons charged with violating any of the ordinances of said city; to provide for the imposition by police judges of a fine not to exceed three hundred dollars or imprisonment not to exceed ninety days, or both such fine and imprisonment. (1923 c. 182 § 1; RRS § 8992-1.)' RCW 35.22.470.

Another section of our motor vehicle statute should also be in our thinking as we discuss this phase of the case. RCW 46.08.020 is as follows:

'Precedence over local vehicle and traffic regulations. The provisions of this title relating to vehicles shall be applicable and uniform throughout this state and in all cities and towns and all political subdivisions therein and no local authority shall enact or enforce any law, ordinance, rule, or regulation in conflict with the provisions hereof unless expressly authorized by law to do so and any laws, ordinances, rules, or regulations in conflict with the provisions of this title are hereby declared to be invalid and of no effect. Local authorities may, however, adopt additional vehicle and traffic regulations which are not in conflict with the provisions hereof. (1937 c. 189 § 2; RRS § 6360-2.)'

Particular attention is directed to the authorization to local authorities to adopt additional traffic and vehicular regulations which are not in conflict with the other provisions of the act.

No case in this state has considered whether an ordinance, prohibiting driving while under the influence of intoxicating liquor is in 'conflict' with our state law on the same subject, i. e., RCW 46.56.010, either under its present form (Laws of 1955, chapter 393, § 3), or as enacted by Laws of 1937, chapter 189, § 119.

The following cases from other states have held that ordinances prohibiting driving while under the influence of intoxicating liquor are invalid--either on the theory that such driving was not a matter of local concern, or that the ordinance was in conflict with state law, or that, if it was concurrent in its effect, the state had pre-empted the field. City of Canon City v. Merris, 1958, 137 Colo. 169, 323 P.2d 614; City of Billings v. Herold, 1956, 130 Mont. 138, 296 P.2d 263; City of Fargo v. Glaser, 1932, 62 N.D. 673, 244 N.W. 905; Clayton v. State, 1931, 38 Ariz. 135, 297 P. 1037 (rehearing) 38 Ariz. 466, 300 P. 1010; Helmer v. Superior Court of Sacramento County, 1920, 48 Cal.App. 140, 191 P. 1001.

The following cases have upheld such ordinances, as dealing with matters of local concern and not in conflict with the state law though operating concurrently: State ex rel Coffin v. McCall, 1954, 58 N.M. 534, 273 P.2d 642; State v. Poynter, 1950, 70 Idaho 438, 220 P.2d 386; Mares v. Kool, 1946, 51 N.M. 36, 177 P.2d 532; Salt Lake City v. Kusse, 1939, 97 Utah 113, 93 P.2d 671; Shaw v. City of Norfolk, 1937, 167 Va. 346, 189 S.E. 335; Kistler v. City of Warren, 1937, 58 Ohio App. 531, 16 N.E.2d 948; State v. Hughes, 1930, 182 Minn. 144, 233 N.W. 874; Village of Struthers v. Sokol, 1923, 108 Ohio St. 263, 140 N.E. 519.

We find the reasoning of the latter group of cases more convincing and, particularly, the New Mexico and Utah cases which construed acts quite similar to our own, i. e., the Uniform Motor Vehicle Act; and, further, because in the Utah case the City of Salt Lake had copied the state statute quite closely. (In the present case, Bellingham had copied the statute verbatim.) The court, in the Utah case, says (97 Utah at page 119, 93 P.2d at page 673):

'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',

and follows that statement with the following quotations from Ohio and Wisconsin cases:

"'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, 108 Ohio St. 263, 140 N.E. 519. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits' State [ex rel. Cozart] v. Carran, 133 Ohio St. 50, 11 N.E.2d 245, 246.

"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; not 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 (132 Neb. 535) 272 N.W. 547; City of Mobile v. Collins, 24 Ala.App. 41, 130 So. 369'. Fox...