City of Billings v. Herold, 9521

• Decision Date: 20 April 1956
• Docket Number: No. 9521,9521
• Citation: 296 P.2d 263,130 Mont. 138
• Parties: The CITY OF BILLINGS, Plaintiff and Respondent, v. Andrew J. HEROLD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 263

296 P.2d 263

130 Mont. 138

The CITY OF BILLINGS, Plaintiff and Respondent, v. Andrew J. HEROLD, Defendant and Appellant.

No. 9521.

Supreme Court of Montana.

Submitted Oct. 28, 1955.

Decided April 20, 1956.

Sandall & Moses, Joseph P. Hennessey, Marion B. Porter, Billings, for appellant. Charles S. Moses, Billings, argued orally.

George J. Hutton, City Atty., and Bernard E. Longo, Billings, for respondent.

ADAIR, Chief Justice.

This is an appeal from a judgment of conviction entered in the district court of Yellowstone County.

Complaint. By complaint filed by a police officer in the police court of the City of Billings it was charged that the appellant 'Andrew Herold on or about the 10th day of November, A.D. 1951, within the corporate limits of the City of Billings, in the County of Yellowstone, State of Montana, committed the crime of operating a motor vehicle while under the influence of intoxicating liquor, in that the said Andrew Herold, then and there being, did then and there on First Avenue North between 29th and 30th Streets, operate and drive a motor vehicle while under the influence or intoxicating liquor, contrary to the ordinance of the City of Billings in such case made and provided.'

Ordinance. Section 1623A of Article XVI of Traffic Ordinance No. 1839 of the City of Billings is the ordinance which the appellant was charged with violating. Passed by the city council on December 20, 1949, such city ordinance makes 'Driving or operating of an automobile * * * or other motor vehicle upon or over any street, highway or public thoroughfare within the City of Billings while under the influence of intoxicating liquor, or any drug or narcotic' a misdemeanor.

Prior to and at his trial in the police court the appellant challenged the authority of the city to legislate upon the subject covered by the ordinance, contending that such ordinance is repugnant to and in conflict with the statutes and laws of the state and particularly contrary to R.C.M.1947, Secs. 11-901, 31-108, 31-109, 32-1107, 32-1108, 32-1109, and 31-145. Appellant also challenged the jurisdiction of the city police court to entertain, hear, try or determine the prosecution against him. Upon the disallowance of his challenges appellant entered a plea of not guilty and was tried, convicted and sentenced to pay a fine of $100 and costs.

An appeal was taken to the district court of Yellowstone County, where, upon a trial de novo, appellant was again convicted of the offense charged and ordered to pay a fine of $100. This appeal is from the judgment of conviction so entered in the district court.

A municipal corporation is a body politic, created by the incorporation of the people of a prescribed locality invested with subordinate powers of legislation to assist in the civil government of the state and to regulate and administer local and internal affairs of the community. State ex rel. McIntire v. City Council of Libby, 107 Mont. 216, 82 P.2d 587. It is a legal institution formed by charter from sovereign power for the purpose and with the authority of subordinate self-government and improvement in the local and internal affairs of the community. 62 C.J.S., Municipal Corporations, Sec. 1, p. 61.

Charter. It has long been the policy of the legislature to vest in local municipal authorities the power to determine the local affairs that affect the local community, State ex rel. McIntire v. City Council of Libby, supra, and, consistent with such policy, and Legislative Assembly of the Territory of Montana, by an Act approved March 10, 1885, entitled 'An Act to Incorporate the City of Billings' created, organized and incorporated the City of Billings and grandted it a charter. Laws of Montana, 14th Session, 1885, at pages 147 to 161.

Section 16 of Article VII of the charter provides:

'This act is declared to be a public act, and may be read in evidence in all courts of law and equity within this territory without proof.' Laws of Montana, 14th Session, 1885, at p. 158.

The state through its legislature primarily has the power to control and regulate the public highways and their use. The power is an exercise of the police power of the state to protect the highways and promote the safety, peace, health, morals and general welfare of the public. 40 C.J.S., Highways, Sec. 232, pp. 240, 241. In State ex rel. Charette v. District Court, 107 Mont. 489, 497, 86 P.2d 750, this court held that the right of the state to regulate the use of its own highways is not open to question. Compare State ex rel. Thompson v. District Court, 108 Mont. 362, 91 P.2d 422.

The city streets belong to the state and the city is but the trustee thereof. Bidlingmeyer v. City of Deer Lodge, Mont., 274 P.2d 821, 824.

The source of the police power of municipalities is the state. While the state delegates authority over the city streets to the cities yet it may, at any time, take away or revoke a part or all of the authority which it may have theretofore delegated to the cities. Bidlingmeyer v. City of Deer Lodge, supra.

In State ex rel. Rocky Mountain Bell Telephone Co. v. Mayor of Red Lodge, 30 Mont. 338, 76 P. 758, 760, the court said: 'The state does does not surrender to municipalities entire control over its streets and highways. They are under legislative control. 'Municipal by-laws must also be in harmony with the general laws of the state, and with the provisions of the municipal charter. Whenever they come in conflict with either, the by-law must give way.' Cooley on Cons. Lims. [(7th Ed.) 278.] 'Public highways are under legislative control. * * *' People v. Eaton , 59 N.W. 145, 24 L.R.A. 721. 'The power conferred upon incorporated towns by the general incorporation act is but a mere grant of limited power to the municipality, which it holds subject to the general laws of the state.' In re O'Brien, 29 Mont. 530, 75 P. 196. 'But municipal corporations are subordinate parts of the state, and invested with limited powers. The Legislature, in granting such powers, does not divest itself of any power over the inhabitants of the district which it possessed before the charter was granted.' Wilcox v. Deer Lodge County, 2 Mont. 574. 'No city or village has the power by ordinance or by-laws to make the general laws of the state inoperative.' People v. Kirsch , 35 N.W. 157. See, also, Section 4703, Pol.Code Mont., which prescribes a limitation upon the powers of cities.' Compare Gamewell Co. v. City of Phoenix, 9 Cir., 216 F.2d 928, 933, and City of Tucson v. Polar Water Co., 76 Ariz. 404, 265 P.2d 773, 774.

In Stephens v. City of Great Falls, 119 Mont. 368, 371, 175 P.2d 408, 410, this court said: 'There is no principle of law better established than that a city has no power, except such as is conferred upon it by Legislative grant, either directly or by necessary implication. [Citing cases.] Resting as it does upon legislative grants the legislative branch of the government may, at its pleasure, modify or withdraw the power so granted. 'It may, if it chooses, repeal any charter, or any law under which municipalities may be created, and destroy any municipal corporation at its will and pleasure.' Brackman's v. City of Huntington, 126 W.Va. 21, 27 S.E.2d 71, 73.'

The powers conferred on cities by the general laws of the state, to regulate the use of streets, must be construed in connection with the limitations, expressed and implied, in a particular statute, such as the Highway Code, for a city's charter or other grant of power must yield to the constitutional general laws of the state. See 37 Am.Jur., Municipal Corporations, Sec. 279, p. 907, notes 11-15; 25 Am.Jur., Highways, pp. 545, 546, notes 7-16.

In 1943 the legislature enacted Chapter 198 of the Montana Session Laws of 1943, pp. 370-372, entitled: 'An Act to Amend Sections 1746.1 and 1746.2 of the Revised Codes of Montana 1935, Relating to Offenses for Operating Motor Vehicles on Highways and Streets of This State While Intoxicated or Under the Influence of Intoxicating Liquor, Drug or Narcotic; Prescribing Penalties for Violation of the Provisions of This Act and for Revocation of Driver's License, and Repealing All Acts and Parts of Acts in Conflict Herewith' which Act became effective from and after March 5, 1943.

Section 1 of Chapter 198, supra, amended section 1746.1 of the Revised Codes of Montana 1935 to read: "It shall be unlawful for any person while in an intoxicated condition or under the influence of intoxicating liquor or any drug or narcotic to drive, operate or run upon or over any highway or street or public thoroughfare within the State of Montana, whether within or without a municipality, and automobile, truck, motorcycle or any other motor vehicle." Emphasis supplied.

Section 2 of Chapter 198, supra, amended section 1746.2 of the Revised Codes of Montana 1935 to read: "Any person driving, operating or running any such motor vehicle upon or over any highway, street or public thoroughfare of the State of Montana, whether within or without a municipality while in an intoxicated condition or under the influence of intoxicating liquor or of any drug or narcotic shall upon conviction thereof be punished by a fine of not less than fifty dollars ($50.00) nor more than three hundred dollars ($300.00), or shall be imprisoned in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment. Such fine or imprisonment shall be assessed against any such person so convicted regardless of whether or not his act or acts or omission have resulted in any damage to a person or property of any person, firm or corporation. Such conviction shall of itself forthwith operate as revocation of such driver's license to operate any motor vehicle and shall of itself render such license null and void and the person so convicted and punished shall not be eligible to apply for a receive a license to operate any motor vehicle, nor shall he be permitted to...