Ex parte Higgs, A-11968

• Decision Date: 18 November 1953
• Docket Number: No. A-11968,A-11968
• Citation: 263 P.2d 752,97 Okla.Crim. 338
• Parties: Ex parte HIGGS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 752

263 P.2d 752

97 Okla.Crim. 338

Ex parte HIGGS.

No. A-11968.

Criminal Court of Appeals of Oklahoma.

Nov. 18, 1953.

Syllabus by the Court.

1. The fundamental rule of construction is to ascertain the intention of the lawmakers in order that the true meaning of the legislature may be determined.

2. The rules of statutory construction are intended as an aid to resolve doubts and not to create them.

3. In construing a statute it is presumed that every word, sentence, or provision was intended for some useful purpose, and has some force and effect and that some effect must be given to each.

4. The different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole.

5. In the interpretation of a statute containing a proviso, resort should be had to the proviso, to the provision to which the proviso is appended, and to the act as a whole.

6. In the construction of a statute, where the court finds in a particular clause an expression not so definite in its import as those used in other parts of the same statute, if upon review of the whole act the real intention of the lawmaking power can be collected from the definite and extensive expressions used in other parts of the same statute, a construction should be adopted that will give effect to the definite expressions used, unless such a construction contravenes some other potent provision of law.

7. Where words of general import follow specific designations, the application of the general language is controlled by the specific.

8. The legislative intent as expressed in the provisions of Title 37, § 213, as amended by S.L.1953, House Bill No. 1132, was to delegate to cities and towns the authority to enact ordinances to prohibit the sale on Sunday of 3.2% beer for consumption on the premises, but it was not the intention of the legislature as expressed in Title 37, § 213, as amended, to interfere with the sale of 3.2% beer in original packages for consumption off the premises.

9. Courts will take judicial notice of the rules and regulations of the executive department, and such interpretations where they have long been acquiesced in, will be persuasive on the courts as a just medium for judicial interpretation.

10. Ordinance 428 enacted by the city of Altus in so far as it attempts to affect Sunday sales 'for consumption off the premises' constitutes an unauthorized exercise of power, but is otherwise valid.

11. It was the intention of the legislature to delegate to cities and towns power to close on Sunday all institutions, such as taverns and the like, engaged in dispensing nonintoxicating beverages on draught or in original packages for consumption on the premises.

12. Cities and towns may by ordinance provide that establishments licensed to sell nonintoxicating beverages for consumption both on and off the premises shall not be permitted to open their barroom facilities maintained for sales for consumption on the premises for Sunday sales.

13. Section 213, Title 37, as amended, O.S.1953, superseded the Sabbath-breaking statute as the same applied to beer sold for consumption off the premises.

Robert B. Harbison, Altus, France, Johnson, Gordon & Cook, Oklahoma City, for petitioner.

W. J. Ivester, Altus, for respondent.

BRETT, Judge.

This is an original proceeding in habeas corpus, brought herein by James Higgs, petitioner. Higgs complains he is being unlawfully restrained of his liberty by Clint Brake, chief of police of the city of Altus, Oklahoma. Petitioner alleges in substance that Title 37, § 213, O.S.1951, was amended in H.B. 1132 by the Oklahoma legislature, 1953 Session, and is being construed by the city of Altus, Oklahoma, as granting to cities and towns therein power by its ordinance, City of Altus No. 428, to prohibit the sale on Sunday of nonintoxicating beverages, i. e., 3.2% beer for consumption both on and off the premises. On the basis of said construction of Title 37, § 213, as amended, and its Ordinance No. 428, purportedly enacted thereunder, prohibiting sales of such beverages on Sunday for consumption off the premises, on an alleged violation of said ordinance ocurring on Sunday July 19, 1953, the petitioner was arrested and taken into custody on Monday July 20, 1953, by Chief of Police Clint Brake, respondent herein, and ever since said time has been under restraint. A Rule to Show Cause was issued by this Court and the petitioner released on bail pending determination of the issues herein involved.

Response to the Rule to Show Cause was filed herein alleging, in substance, that under and by virtue of the provisions of House Bill No. 1132 amending Title 37, § 213, O.S.A.1951, the city of Altus enacted Ordinance No. 428, that said ordinance prohibited all sales of 3.2% beer on Sunday for consumption both on and off the premises, and that said ordinance is valid and constitutional, and the petitioner's custody and restraint is therefore lawful. It is not necessary to set forth Ordinance No. 428, since its effect was as hereinbefore stated. On the issues thus joined it is stipulated by petitioner and respondent that the sole question herein involved is, 'that if the said ordinance is valid as applied to the sale of 3.2% beer for consumption off the premises between the hours of 12 o'clock p. m. on Saturday and 7 a. m. on the following Monday the writ of habeas corpus should be denied, but if the said ordinance is invalid as applied to such sales for consumption off the premises between the said hours the writ of habeas corpus should be granted.'

The cause was set for hearing and oral argument before this court on July 29, 1953. The matter was submitted with directions to the parties to prepare and file written briefs. The order to file briefs was finally fully complied with on September 30, 1953. A showing was made that a determination of the issues herein involved constituted an emergency of public concern, and the cause was advanced on the docket for an early hearing.

It is fundamental in matters of this character that a municipal corporation has only such powers as are conferred upon it by the legislature, and grants of such powers are strictly construed against such corporations. In re Jones, 4 Okl.Cr. 74, 109 P. 570, 31 L.R.A.,N.S., 548; Ex parte Hodges, 65 Okl.Cr. 69, 83 P.2d 201; Cain's Coffee Co. v. City of Muskogee, 171 Okl. 635, 44 P.2d 50; Martin v. Rowlett, 185 Okl. 431, 93 P.2d 1090; Marth v. City of Kingfisher, 22 Okl. 602, 98 P. 436, 18 L.R.A.,N.S., 1238; 43 C.J. 186, § 185; 62 C.J.S., Municipal Corporations, §§ 115, 119, p. 249. Moreover a city council has no power to enact an ordinance exceeding its delegated statutory powers by a definition which would include persons or principals not clearly within the terms of the act granting such power, and where an ordinance exceeds the delegated powers, any attempts to include within its scope matters not within the power granted or attempts to prescribe a meaning for statutory terms and limitations different from those intended by the legislature, or to extend their meaning, such an ordinance is said to be an excessive use of power and is therefore invalid and void. Furthermore when any fairly reasonable doubt exists as to the grant of power, such doubt is resolved by the courts against the corporation, and the existence of the power is denied. Cain's Coffee Co. v. City of Muskogee, supra; Martin v. Rowlett, supra.

It is also elemental that where a field of legislation has been reserved to the state that cities and towns are forbidden to enter except by express permission of the state. In the case at bar the 'legislature entered this fertile field and passed such regulations as they thought should surround the sale of this beverage', 3.2% beer. Ex parte Gammel, 89 Okl.Cr. 400, 208 P.2d 961, 965, Ex parte Pappe, 88 Okl.Cr. 166, 201 P.2d 260. In said cases we observed 'an ordinance passed under' municipal powers 'which conflicts with the general laws of the state, must give way, and, while it may run concurrent with the general laws of the state, it may not run counter thereto.' Also, 'the Legislature and not the courts must determine the policy of the State to be voiced in statutory enactments. Legislative power, not wisdom, is the concern of the courts.' In those cases the legislature had not granted the powers sought to be exercised and hence they were denied to the municipalities involved. But, as hereinbefore observed, such powers sought to be exercised must fall within the express limits of the delegated authority. The principles announced in the Gammel and Pappe cases are binding upon the petitioner, the city of Altus and this court as principles of law applicable herein. The powers sought to be exercised by a municipality must be found in an express grant of power or such as are within the fair intent and purpose of their creation or which are reasonably proper to give effect to the powers expressly granted. State ex rel. Woods v. Cole, 178 Okl. 567, 63 P.2d 730; 62 C.J.S., Municipal Corporations, § 117(d), p. 259, Note '50. Since the ordinance herein involved was enacted under a delegation of power from the legislature to cities and towns of Oklahoma the limits of the ordinance as to definition and scope must therefore be found within the provisions of Title 37, § 213, as amended by the Session Laws of 1953, House Bill No. 1132. Hence it is apparent in order to reach a conclusion as to the validity of said ordinance we must first define the limits of the grant of power to cities and towns as contained in the provisions of Title 37, § 213, as amended.

The respondent contends in substance that there is no necessity for a construction of the statute herein involved, for the reason that the language is clear and conclusive and there is nothing to construe. Sledge v. State, 40 Okl.Cr. 421, ...