City of Lyons v. Suttle

• Decision Date: 16 June 1972
• Docket Number: No. 46380,46380
• Citation: 498 P.2d 9,209 Kan. 735
• Parties: , 57 A.L.R.3d 1058 CITY OF LYONS, Appellant, v. Monty SUTTLE, Defendant. CITY OF LYONS, Appellant, v. Tim NEWMAN, Defendant.
• Court: Kansas Supreme Court

Page 9

498 P.2d 9

209 Kan. 735, 57 A.L.R.3d 1058

CITY OF LYONS, Appellant, v. Monty SUTTLE, Defendant.

CITY OF LYONS, Appellant, v. Tim NEWMAN, Defendant.

No. 46380.

Supreme Court of Kansas.

June 16, 1972.

Syllabus by the Court

1. Courts cannot set aside ordinances unless they are unconstitutional, ultra vires, and under certain conditions unreasonable.

2. If there is room for fair debate, the court will not substitute its own judgment of reasonableness for that of the legislative body charged with the primary duty and responsibility of determining the question of reasonableness.

3. In considering the reasonableness of a police power ordinance the court merely considers whether the object of the ordinance is a proper one and whether the means adopted to accomplish that object are appropriate.

4. A section of a municipal ordinance prohibiting any person, while in a vehicle upon the public ways and streets of the city, from drinking cereal malt beverage or from having in his possession an open container of cereal malt beverage is examined and it is held that section of the ordinance is not unconstitutional for any of the reasons discussed in the opinion and the appeal is sustained.

Firman G. Gladow, Lyons, argued the cause and was on the brief for appellant.

Wendell E. Yockey, Topeka, was on the brief for the League of Kansas Municipalities, amicus curiae.

FROMME, Justice.

The question to be answered in this appeal is whether Section 2 of an ordinance of the City of Lyons, Kansas, which prohibits any person, while in a vehicle upon the public ways and streets of that city, from drinking cereal malt beverage or from having in his possession an open container of cereal malt beverage is constitutionally permissible.

The defendants, Monty Suttle and Tim Newman, were arrested on separate occasions in the early morning hours by the police in Lyons, Kansas. They were separately charged and convicted in the municipal court of violating Section 2 of ordinance No. 1247. The two convictions were appealed to the District Court of Rice County. Separate trials de novo to the court resulted in acquittals for both defendants. The question of the constitutionality of the ordinance on which the acquittals were based was reserved by the City of Lyons and this appeal followed.

Ordinance No. 1247 of the City of Lyons in pertinent part provides:

'Section 2. Any person who shall drink or consume cereal malt beverages or have in his possession an open container of cereal malt beverages while in any vehicle upon the public highways, roads, streets, alleys, sidewalks, parks or any other municipally owned or public facility, shall upon conviction thereof be deemed guilty of a misdemeanor and shall be punished as hereinafter provided.'

The uncontradicted evidence introduced or stipulated in both of the cases establishes that each defendant was arrested while transporting an open container of cereal malt beverage in a motor vehicle upon the streets of the City of Lyons, Kansas. Disregarding the evidence the district judge found each of the defendants not guilty. The reason given by the judge for the acquittals was as follows:

'. . . because of lack of constitutionality of City Ordinance No. 1247 of the City of Lyons, Kansas, for the reason that said ordinance is simply an ordinance to enable the arrest of undesirable persons because they are undesirable, not because they have done something contrary to the public interest.'

At the outset we note the record is wholly devoid of evidence bearing upon the habits, character or undesirability of either of the defendants. We have difficulty in understanding the basis which the district court gave for its holding. The defendants below did not appear on appeal and we have no guidance from them.

The acquittals by the court are premised upon the statement that the ordinance is unconstitutional because it is simply an ordinance to enable the arrest of undesirable persons because they are undesirable. As previously pointed out the statement is wholly without a basis in the evidence. However, such a statement might indicate reliance by the judge on recent cases from the United States Supreme Court striking down certain vagrancy ordinances. One of these cases is Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. In Papachristou the high court referred to the vagrancy ordinance as a net making it easy to round up so-called undesirables. These vagrancy ordinance cases are not in point here. The ordinances in those cases are held to be constitutionally impermissible because of ambiguity and vagueness in the description of persons affected. In Papachristou the ordinance attempted to permit the arrest of rogues, vagabonds, dissolute persons, beggars, gamblers, jugglers, drunkards, night walkers, thieves, pilferers, lewd persons, wanderers, loafers and persons neglecting all lawful business. In holding the ordinance unconstitutionally vague the high court stated the ordinance failed to give a person of ordinary intelligence fair notice of what specific behavior was forbidden and it encouraged arbitrary and erratic arrests and convictions.

No similar charge could be upheld against the present section of the ordinance for the acts prohibited are clearly set forth in ordinance No. 1247. Any person of ordinary intelligence can understand what conduct is forbidden, i. e., a person (whether undesirable or not) while in a vehicle upon the public ways or streets, shall not drink cereal malt beverages and such person shall not have in his possession an open container of cereal malt beverage. The present ordinance is not vague under the federal cases. It is not vague under the Kansas law set forth in State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750.

The holding by the district court might also indicate it felt the present ordinance was not a proper exercise of the police power by the city governing body. The appellant in its brief speaks to that question, so we will primarily address ourselves to that area of constitutional law.

What are the boundaries for a valid exercise of the police power by a municipality in the area of constitutional law?

In Grigsby v. Mitchum, 191 Kan. 293, 380 P.2d 363, the boundaries to be considered are defined as follows:

'Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.

'Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.' (p. 302, 380 P.2d at p. 370.)

One additional limiting factor on the exercise of the police power by a municipality may arise by reason of state pre-emption by means of legislative fiat. State pre-emption in the area of consumption of alcoholic liquor was discussed but found not to exist in Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 733, 495 P.2d 524. There we noted the pre-emptive clause contained in the Liquor Control Act (K.S.A. 41-208) contained no reference whatever to the consumption of alcoholic liquor. In Blue Star Supper Club we said:

'In concluding that the regulation and control of the consumption of alcoholic liquor is not an area exclusively reserved by the state, we believe it is significant that when the legislature adopted K.S.A.1971 Supp. 41-2631 as a component part of the Private Club Act, and forbade therein the enactment of any ordinance include a pre-emptive provision . . .' include a pre-emptive provision. . . .' (p. 735, 495 P.2d at p. 527)

An examination of the provisions of the Cereal Malt Beverage Act (K.S.A. 41-2701 et seq.) discloses no pre-emptive clause of any kind in that act. We conclude that control of the consumption of cereal malt beverages is not an area of concern exclusively reserved by the state.

Now let us inquire as to whether the consumption of cereal malt beverages, regardless of the percentage of alcoholic content, bears a substantial relation to the public health, safety, morals and general welfare of the public.

Beverages with some alcoholic content have long been considered of such a nature and effect that laws regulating sales and consumption have been passed and enforced. In the Intoxicating-Liqour Cases, 25 Kan. 751 (1881), various concoctions with varying alcoholic content, such as McLean's cordial, tolu and wild cherry and prickly-ash bitters were discussed. It was held that whether their manufacture and sale was illegal under the prohibitory law depended upon whether their primary use was for beverage purposes. In Monroe v. City of Lawrence, 44 Kan. 607, 24 P. 1113, it was thought that the tendency of cider to ferment was sufficient to justify regulation of sales of that beverage. In the case of In re Jahn, Petitioner, 55 Kan. 694, 41 P. 956, sales and consumption of hop-tea which contained 2% or less alcohol by weight was restricted.

At the present time Kansas has two separate laws directed toward regulation and control of beverages with an alcoholic content. The first is the Kansas Liquor Control Act (K.S.A. 41-101 et seq.) which applies to beverages including beer with an alcohlic content of more than 3.2% by...