Clayton v. State

• Decision Date: 13 April 1931
• Docket Number: Criminal 733
• Citation: 38 Ariz. 135,297 P. 1037
• Parties: C. E. CLAYTON, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

297 P. 1037

38 Ariz. 135

C. E. CLAYTON, Appellant, v. STATE, Respondent

Criminal No. 733

Supreme Court of Arizona

April 13, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbons, Judge. Judgment reversed and cause remanded, with directions to discharge defendant.

Messrs Flanigan & Fields, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Arthur T. La Prade Assistant Attorney General, Mr. Charles A. Carson, Jr., City Attorney, and Mr. James E. Nelson, Assistant City Attorney for the State.

OPINION

ROSS, J.

The defendant, C. E. Clayton, upon a charge of driving an automobile in the streets of Phoenix while under the influence of intoxicating liquor, was tried and convicted under an ordinance of the city in the police court thereof. Upon an appeal to the superior court of Maricopa county he was accorded a trial de novo and again convicted, and sentenced to serve 40 days in the city jail and to pay a fine of $250. He has appealed.

On November 27, 1929, the city commission of the city of Phoenix passed Ordinance No. 1492 "regulating traffic upon the public streets of the city," section 55 of which reads, in part, as follows:

"It shall be unlawful for any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon any street or other public way."

It provides a penalty of not less than 30 days nor more than six months in the city jail, or a fine of not less than $100 nor more than $300, or both such fine and imprisonment.

It is contended the city was without statutory or charter authority to enact section 55, for two reasons: (1) Because the subject matter therein is completely covered by the legislature in chapter 31, sections 1557-1726, Revised Code of 1928, commonly known as the Highway Code; and (2) because said section 55 does not have for its purpose the regulation of traffic upon the streets of Phoenix, but is an interdiction upon certain physical and mental conditions of motor vehicle drivers. The legislation on the subject of insobriety of motor vehicle drivers is found in the Highway Code, section 1688, reading as follows:

"Any person under the influence of intoxicating liquor or narcotic drugs, or who is an habitual user of narcotic drugs, who shall drive any vehicle upon any highway within this state shall be guilty of a misdemeanor and punished by imprisonment in the county jail for not less than ninety days nor more than one year, or by fine of not less than two hundred nor more than five thousand dollars."

The Highway Code as originally passed was carried forward into the Revised Code of 1928 with some modifications but with no material changes, especially as to its purpose and object. Its title as originally enacted (chapter 2, 4th Sp. Sess., Laws 1927) is, in part, as follows:

"To provide a code for the systematic and orderly administration of all matters and affairs directly affecting or concerning the highways of the state; . . . to regulate the operation of vehicles on highways, and promote the convenience and safety of highway travel; to provide penalties for violations of the provisions of this act," etc.

In Olson v. State, 36 Ariz. 294, 285 P. 282, we held that the Highway Code as contained in the revision of 1928 covered "fully and completely the subject of highway legislation" and repealed directly and by implication all previous legislation on the subject matter of highways.

That the regulations of the Highway Code were intended to apply to city streets is not only manifest from the title of the act as originally passed, but from its various provisions, wherein the speed of motor vehicles in business and residential districts is fixed (section 1587); wherein the local authorities may authorize increased speed upon through highways (section 1588); wherein police, firemen, ambulances in emergencies, and physicians may exceed the speed limit (section 1591); wherein police and fire vehicles are given right of way over others (section 1598); wherein the manner of passing street-cars and safety zones are provided for (section 1601); and wherein parking before fire hydrants, fire stations, and private driveways is prohibited (section 1603). In these, and other particulars not enumerated, the Highway Code manifests a purpose to cover the whole subject of highways and to regulate their use by the public in cities and towns as well as in the country. The inhibition against a driver under the influence of intoxicating liquor is one of the many regulations to be observed by those using the public highways, rural and urban alike. Section 1664 provides that if any person is convicted of violating any law regulating the operation of a motor vehicle upon the highways his license shall be revoked, and names as such a violation the offense of driving a motor vehicle while under the influence of intoxicating liquors as prescribed in section 1688.

Under section 1574 the matter of "local parking and other special regulations" is left in the control of the governing body of the city; that is, matters of peculiar local concern are left with the local authorities. The reservation to cities and towns of power over "local parking and other special regulations" would seem to emphasize a purpose on the part of the legislature to make the provisions of the Highway Code in all other respects the guiding and controlling rule throughout the state. Any deviations from the regulations prescribed in the Highway Code to suit local conditions or convenience are provide for therein.

The regulation or provision as to the insobriety of a driver is exactly the same in the Highway Code and section 55 of the city ordinance, except as to punishment. The punishment under the ordinance is not as great as may be inflicted under the state law, and the confinement is in the municipal and not the county jail. Under the state law the offense is a high misdemeanor. The act condemned in both is the same. "Highway" is defined in section 1686 as "any way, road or place of whatever nature, open to the use of the public as a matter of right for the purpose of vehicular travel," which includes streets and public ways of a city or town.

We have this situation: The sovereign state and one of its agencies, the city of Phoenix, have legislated upon the identical subject matter, for the same purpose, to wit, to secure the safety of travel upon the highways of the state. The prohibition in the city ordinance and in the statute is not against inebriety, but against driving on the highways while under the influence of liquor. The provisions in each are primarily regulatory, the punitive feature being incidental. Their purpose is to secure safe driving of a very dangerous instrumentality, which is not regarded as possible when the driver's condition is influenced by intoxicating liquor. Have these two jurisdictions concurrent power to legislate on the same subject matter, as they have done? There is no question about the state's right. The state, acting through its legislature, has plenary power over the highways of the state, including those within cities and towns. It is said:

"Such power (to control and regulate the use of highways) may be delegated to local authorities, but the power so delegated will be strictly construed, and the authorities to whom it is delegated must keep within the limits of the grant, and cannot exercise it beyond what is necessary to facilitate travel." 29 C.J. 646, § 409.

Therefore, if the city of Phoenix can pass by-laws to regulate the conduct of drivers in the use of highways within its boundaries, it is because the power to do so has been delegated to it by the state. The city may acquire such power in any one of three ways, according to 1 Dillon on Municipal Corporations, fifth edition, section 237:

"First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation -- not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."

Phoenix has a "freeholders'" or "home rule" charter. Section 2 of article 13 of the state Constitution provides that the electors of a city of more than thirty-five hundred population "may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the State"; that when ratified at an election and approved by the Governor such charter "shall become the organic law of such city and supersede any charter then existing (and all amendments thereto) and all ordinances inconsistent with said new charter."

Freeholders' charters, similar or identical with ours, have been provided for by several of the states in their Constitutions. The courts in construing such charters uniformly hold that the grant of power therein to the municipality is confined to its municipal affairs, or those incident or appertaining thereto. The rule stated by the Missouri court has been frequently cited and approved. It is:

"A charter framed under that clause of the Constitution, within the limits therein contemplated, has a force and effect equal to one granted by an act of the Legislature. But it is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution does not confer on the city the right [in framing its charter] to assume all the powers that the state may exercise within the city limits, but only powers incident to its...