Ex parte Pappe

• Decision Date: 15 December 1948
• Docket Number: A-11139.
• Citation: 201 P.2d 260,88 Okla.Crim. 166
• Parties: Ex parte PATTE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

201 P.2d 260

88 Okla.Crim. 166

Ex parte PATTE.

No. A-11139.

Court of Criminal Appeals of Oklahoma

December 15, 1948

Original proceeding in habeas corpus by Richard Pappe, Jr., seeking his release from confinement in the city jail of Kingfisher Oklahoma.

Writ granted.

Syllabus by the Court.

1. Under constitutional provision for adoption of home-rule charter, city adopting such charter is accorded full power of local self-government and, as such, municipal corporation has power to enact, ordain, and enforce ordinances for purpose of protecting public peace, order, health, morals, and safety of inhabitants, even though general statutes exist relating to same subjects. Const. art. 18, § 3(a).

2. The provisions of a charter, adopted and approved in accordance with such constitutional provision supersede all laws of the state in conflict therewith in so far as such laws relate to merely municipal matters.

3. An ordinance passed under such charter provisions, 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.

4. 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.

5. An ordinance prohibiting the sale of 3.2 percent beer on Sunday within the limits of the city held void as inconsistent with and contrary to the general law of the State which permits the sale of 3.2 percent beer on Sunday, except between the hours of 2:00 o'clock a. m. and 1:00 o'clock p. m.

Louis V. Woodruff, of Kingfisher, Whitten & Whitten, of Oklahoma City, for petitioner.

Shutler, Shutler & Bradley, of Kingfisher, for respondent.

JONES Judge.

This is an original action in habeas corpus instituted by the petitioner, Richard Pappe, Jr., to secure his release from confinement in the city jail of the City of Kingfisher.

In the verified petition it is alleged that on July 4, 1948, the petitioner was charged with selling beer for consumption on the premises of seller between the hours of 1:40 p. m. and 9:30 p. m., contrary to the provisions of Ordinance No. 444 of the City of Kingfisher, Oklahoma; that said Ordinance is null and void, contrary to and conflicting with the laws of the State of Oklahoma. Petitioner further alleged that on August 28, 1948, his case came on for trial and that the evidence introduced affirmatively showed that the liquid which he sold at the time in question did not have an alcoholic content in excess of 3.2 percent by weight; that on September 20, 1948, the court rendered judgment, finding petitioner guilty of violating the provisions of Ordinance No. 444 of the City of Kingfisher, assessed a fine of $20 and in default of payment of said fine, further committed the petitioner to the city jail until such fine was paid at the rate of $1 per day for each day served in the jail. The petitioner further alleged that said fine was not paid and he was taken into custody by the Chief of Police and placed in the city jail where he is now unlawfully restrained of his liberty.

A copy of the City Ordinance in question is attached to the petition. This ordinance prohibits the selling or giving away of beer either in draught, bottles or cans between 12:00 a. m. on Sunday and 6:00 a. m. on Monday of each week for consumption on the premises of the seller or donor.

A Rule to Show Cause was issued and a hearing held before this Court, at which time the issues were presented upon a stipulation of facts signed by the interested attorneys. This stipulation in substance stated that Ordinance No. 444 of the City of Kingfisher is the only Sabbath-breaking Ordinance in full force and effect in the City of Kingfisher; that the petitioner on Sunday, July 4, 1948, between the hours of 1:40 p. m. and 9:30 p. m., did sell a beverage commonly called 3.2 beer which did not contain more than 3.2 percent of alcohol by weight; that petitioner has a valid license issued by the Oklahoma Tax Commission to sell beverages containing not more than 3.2 percent of alcohol by weight, and in addition has a valid license to sell such beverages both in Kingfisher County and in the City of Kingfisher, Oklahoma; that the petitioner was arrested, tried, and committed into the custody of the Chief of Police as set out in his petition; that the sole question to be determined in this habeas corpus proceeding is the validity of Ordinance No. 444, of the City of Kingfisher and its application to the facts in this case.

The City of Kingfisher is a City of the first class and is operating under a charter form of Government adopted under the authority of Section 3(a), art. 18 of the State Constitution.

In the case of Ex parte Hodges et al, 65 Okl.Cr. 69, 83 P.2d 201, 203, this Court stated:

'Under the constitutional provisions any city containing a population of more than 2,000 inhabitants may frame a charter form of government, consistent with the support of the constitution and laws of the State of Oklahoma, and a city adopting a charter is accorded full power of local government, and as said municipal corporation under its charter it has power to enact ordinances and enforce ordinances for the purpose of protecting public peace, order, health, morals and safety of the inhabitants, even though general statutes exist regulating the same subjects. Shinn v. Oklahoma City, 59 Okl.Cr. 433, 61 P.2d 1126.

'The courts of this state have uniformly held that the provisions of a charter adopted and approved in accordance with such constitutional provisions becomes an organic law of such municipality and supersedes the laws of the state in conflict therewith in so far as they attempt to regulate municipal matters. In re Simmons, 4 Okl.Cr. 662, 112 P. 951.

'It has also been further held that such charter provisions, where they conflict with the general laws of the state must give way, and while they may run concurrent with the general laws of the state they must not run counter thereto. State ex rel. Burns v. Linn, 49 Okl. 526, 153 P. 826; Ann.Cas.1918B, 139. In other words a municipality may move in the same direction as the legislature but not contrary to or in opposite directions. 3 McQuillin on Municipal Corporations, section 894; Ex parte Johnson, 20 Okl.Cr. 66, 201 P. 533; Ex parte Johnson, 13 Okl.Cr. 30, 161 P. 1097.'

The petitioner contends that the City Ordinance of Kingfisher is inconsistent with and contrary to the general law of the State.

Tit. 21 O.S.1941 § 908 provides:

'The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:

'First. Servile labor, except works of necessity or charity.

'Second. Trades, manufacturers...