City of Garden City v. Miller

• Decision Date: 11 May 1957
• Docket Number: No. 40524,40524
• Parties: The CITY OF GARDEN CITY, Kansas, Appellant, v. Frederick Willis MILLER, Appellee.
• Court: Kansas Supreme Court

Page 306

311 P.2d 306

181 Kan. 360

The CITY OF GARDEN CITY, Kansas, Appellant, v. Frederick Willis MILLER, Appellee.

No. 40524.

Supreme Court of Kansas.

May 11, 1957.

Syllabus by the Court

1. The Uniform Act regulating traffic on highways (G.S.1949, 8-501 et seq., as amended) is a complete and independent code dealing with the subject of vehicle and pedestrian traffic and was intended to be applicable and uniform throughout the state and in all political subdivisions and municipalities, and local authorities may not enact or enforce rules or regulations in conflict with its provisions unless expressly authorized. However, local authorities may enact additional traffic regulations pursuant to G.S.1949, 8-507, which do not conflict with the provisions of the act.

2. The city of Garden City was authorized by G.S.1949, 8-507 to adopt traffic regulations in addition to those provided in G.S.1949, 8-508, making it unlawful for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within the city and prescribe penalties not in conflict with G.S.1949, 8-530.

3. A single act may be an offense in violation of a city ordinance although it is made a public offense by statute, and a violation of such ordinance and statute by the same act constitutes separate offenses and subjects the offender to separate punishment.

4. Rule followed that a statute relating to a specific thing takes precedence over a general statute which might be construed to relate to it, and held: That a city ordinance imposing a penalty for driving any vehicle while under the influence of intoxicating liquor or narcotic drugs identical in language with the penalties prescribed in G.S.1949, 8-530 is valid notwithstanding a different penalty is prescribed in G.S.1955, Supp. 14-439 empowering cities to enact ordinances to maintain the peace, good government and general welfare of the city.

5. The record in a prosecution under an ordinance of the city of Garden City for driving a vehicle while under the influence of intoxicating liquor or narcotic drugs within such city, examined and held: (1) The governing body of the city was empowered and authorized by G.S.1949, 8-507 to adopt the ordinance; (2) the provisions of the ordinance do not conflict with G.S.1949, 8-530, or any other section of the Uniform Act regulating traffic on highways; (3) the ordinance was valid notwithstanding its penalty differed from that prescribed by G.S.1955 Supp. 14-439; and (4) the trial court erred in sustaining the defendant's motion for discharge and to dismiss the complaint.

Lloyd H. Haag, City Atty., Garden City, argued the cause and was on the briefs for appellant.

Logan N. Green, Garden City, argued the cause, and Ralph C. Fleagle, Lakin, and Ray H. Calihan, Daniel R. Hopkins and Ray H. Calihan, Jr., Garden City, were with him on the briefs for appellee.

FATZER, Justice.

The plaintiff, the City of Garden City, appeals from a ruling of the trial court sustaining a motion to discharge the defendant and dismiss a complaint drawn under a city ordinance. The ordinance reads as follows:

'Section 17-515 Revised Ordinances of the City of Garden City, Kansas 1951.

'Persons Under the Influence of Intoxicating Liquors or Narcotic Drugs. Section 15.

'(a) It shall be unlawful for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within the city.

'(b) Every person who is convicted of a violation of this section shall be punished by imprisonment for not more than one (1) year or by fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than ninety (90) days nor more than one (1) year, and, in the discretion of the court, a fine of not more than Five Hundred Dollars ($500.00). Provided, that the Police Judge of the city shall report any conviction hereunder to the vehicle department of the State Highway Commission and shall take up and endorse the license of the operator's or chauffeur's license of any such person and forward the same to the said department as provided by law.'

The complaint, omitting its signature, caption and verification, reads:

'Before the Police Judge of the City of Garden City, in Finney County, Kansas.

'State of Kansas, Finney County, SS

'Dale Davis, being duly sworn, on oath says that on the 1st day of January, A. D. 1956 in the City of Garden City, in Finney County and State of Kansas, one Frederick Willis Miller then and there being did then and there wilfully and unlawfully drive and operate a motor vehicle within the city limits of said city while under the influence of intoxicating liquor or narcotic drug (17-515) contrary to the ordinances of said city in such cases made and provided.'

The motion to discharge the defendant and dismiss the complaint filed May 11, 1956, reads, in part:

'In support of this motion, defendant respectfully represents to the Court that the Ordinance of the City of Garden City, Kansas, under which judgment was rendered against him in the Police Court of said City, being Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951, and under which Ordinance the prosecution herein was brought, is invalid, illegal, void and of no force or effect for the following reasons:

'1. That the same is a violation of and in conflict with Chapter 14, Article 4, Section 14-439, of the General Statutes of Kansas, 1949.

'2. That the same is in conflict with and a violation of the provisions of Chapter 8, Article 5, Section 8-507, 8-508 and 8-530 of the General Statutes of Kansas, 1949.

'3. That the same is not authorized under the laws of the State of Kansas, that no power to adopt that Ordinance has been granted the said City, and that by reason thereof, the same is illegal and void.'

The order of the trial court of September 11, 1956, sustaining the defendant's motion to discharge and dismiss the complaint, reads in part as follows:

'1. That Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951, under which judgment rendered against the defendant in the police court of said city is invalid, illegal, void and of no force or effect in that the penalty provisions of said section are a violation of and in conflict with Chapter 14, Article 4, Section 14-439 of the General Statutes of Kansas, 1949, and amendments thereto.

'2. That there is no expressed statutory authority granting said city, plaintiff herein, the power to enact the provisions of said Section 17-515; that by virtue thereof the police court of said city was and is without jurisdiction to hear the action herein against said defendant.'

The plaintiff made exception to the ruling of the trial court, and, pursuant to G.S.1949, 12-1102, reserved the following legal questions, which are here presented:

'1. Is Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951, invalid, illegal and void because the penalty provisions therein are in conflict with the provisions of G.S.1949, 14-439, and amendments thereto?

'2. Did the governing body of the City of Garden City, Kansas, have the power to pass an ordinance containing the provisions of Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951?'

We first discuss the second question reserved by the plaintiff, and note that the provisions of the ordinance are identical with G.S.1949, 8-530 except the statute applies to 'any vehicle within this state,' and that the ordinance directs the police judge to report convictions to the vehicle department of the State Highway Commission and to take up the operator's or chauffeur's license of persons convicted and forward it to that department.

As preliminary to considering this question, we next note the long and well-established rule of this jurisdiction to the effect that the power of a city to pass an ordinance must be vested by the legislature in the governing body in express terms or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation (City of Leavenworth v. Rankin, 2 Kan. 357; Anderson v. City of Wellington, 40 Kan. 173, 176, 19 P. 719, 2 L.R.A. 110; Brown v. City of Topeka, 146 Kan. 974, 74 P.2d 142; State v. Hannigan, 161 Kan. 492, 170 P.2d 138); that cities in this state are municipal corporations created primarily for the purpose of local government and have only such power and authority as is specifically given them by the legislature or those that are necessarily implied in the powers specifically given (Beach v. Leahy, 11 Kan. 23; In re Pryor, Petitioner, 55 Kan. 724, 728, 41 P. 958, 29 L.R.A. 398; State v. Downs, 60 Kan. 788, 792, 57 P. 962; City of Mankato v. Board of County Com'rs of Jewell County, 125 Kan. 674, 676, 266 P. 96; State ex rel. Eubanks v. Board of Com'rs of Sedgwick County, 150 Kan. 143, 91 P.2d 2); and that any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied (Anderson v. City of Wellington, supra; State ex rel. v. City of Coffeyville, 127 Kan. 663, 274 P. 258, 63 A.L.R. 610; Brown v. Arkansas City, 135 Kan. 453, 455, 11 P.2d 607; Ash v. Gibson, 145 Kan. 825, 829, 67 P.2d 1101). For additional authorities on this general subject see 7 West's Kansas Digest, Municipal Corp. k57, 59, and 4 Hatcher's Kansas Digest (Rev.ed.) Municipal Corporations, §§ 31, 34.

The plaintiff contends it has the power to enact the ordinance by virtue of the Uniform Act regulating traffic on streets and highways enacted by the legislature in 1937 (Laws 1937, Ch. 283; G.S.1949, 8-501 to 8-5,134, inclusive, as amended), and...