Ex parte Simmons

• Decision Date: 28 April 1911
• Parties: Ex parte SIMMONS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 380

5 Okla.Crim. 399, 1911 OK CR 99

Ex parte SIMMONS.

Court of Criminal Appeals of Oklahoma

April 28, 1911

Syllabus by the Court.

An express grant of power contained in a charter of a municipal corporation authorizes such corporation to enact any ordinances relating to police regulations which are clearly within the power so granted, and which will aid and assist in the accomplishment of the purposes for which such express grant of power was made.

A municipal corporation may exercise the powers with reference to police regulations which are necessarily or fairly implied in, or are incidental to, the powers expressly granted in its charter.

A municipal corporation can exercise any powers of police regulations which are necessarily essential to the declared objects and purposes of the corporation, and which are not prohibited by some statute or constitutional provision.

The adoption of the prohibition ordinance by the people of this state and the enactment of the prohibition law by the Legislature does not prevent cities of the first class from enacting ordinances as police regulations, prohibiting the sale of intoxicating liquors, or having such liqors in one's possession, with the intention of selling the same within the limits of such city.

The same act may constitute an offense against the state law and a violation of a city ordinance, and, the two offenses being different, any person committing such act may be proceeded against under either the city ordinance or the state law, or both.

One act may constitute two or more separate and distinct offenses, and may be subject to two or more separate and distinct penalties, and a prosecution and conviction for one of these offenses will be no bar to a prosecution and conviction for the others.

Violations of a city ordinance, such as fall within the description of municipal police regulations, may be prosecuted in a summary manner by and in the name of the city, and without trial by jury.

The first 10 amendments to the Constitution of the United States are not applicable to state governments in their operations upon the people within their borders, but they are restrictions on the exercise of power by the United States government.

On motion for rehearing. Motion denied.

For former opinion, see 4 Okl. Cr. 662, 112 P. 951.

FURMAN, P.J.

It is earnestly contended by the attorneys for the petitioner that the original opinion of this court, published in 4 Okl. Cr. 662, 112 P. 951, is in conflict with the statutes and Constitution of Oklahoma and with controlling decisions, but of what courts they do not say.

But two propositions are presented in their petition for a rehearing and in the brief filed in support thereof. The first is that the charter of the city of Tulsa does not expressly grant the power to prohibit within said city the unlawful possession of liquor for the purpose of sale. The second is that the petitioner was entitled to a trial by jury in the municipal court in the city of Tulsa. As all of the questions involved in this case are of great importance and are of first impression in this court, we have decided to re-examine and go over again the entire ground covered by our former decision. In fact, the two questions presented in the petition for a rehearing are so intimately and directly connected with, and necessarily incidental to, the ground upon which the entire decision rests that we could not consider [115 P. 381] them properly without again going over the entire case.

The charter of the city of Tulsa is not a delegation of lawmaking authority from the Legislature of the state, as the charters of cities in other states usually are. This fact is important and should be constantly borne in mind when we attempt to apply the decisions of other states to municipal corporations in this state. The charter of the city of Tulsa was adopted by the people of Tulsa under and by virtue of authority, and in pursuance of, section 3, art. 18, of the Constitution of this state. For this constitutional provision in full, see Simmons v. State, 4 Okl. Cr. 668, 112 P. 951. Under the express terms of the Constitution, when this charter was approved by the Governor, it became the organic law of the city of Tulsa. The Constitution of the state has clothed the city of Tulsa with full powers of municipal government and local legislation. The city of Tulsa is not exercising legislative powers delegated to it by some other legislative body; but it derives all of its powers by grant of authority directly from the sovereignty itself. It stands, therefore, upon a very different footing from those municipalities which possess only a delegation of delegated power. This is a part of the general theory upon which the entire government, state, county, and municipal, of Oklahoma is based, and that is the absolute sovereignty of the people and their capacity for self-government. Section 2, art. 2, of the charter of the city of Tulsa, among other things, provides: "That the specifications of particular powers herein authorized shall never be construed as a limitation upon the general powers herein granted, it being intended by this charter to grant to and bestow upon the inhabitants of the city of Tulsa full power of self-government, and it shall have and exercise all powers of municipal government not prohibited to it by this charter or by some general law of the state of Oklahoma, or by the provisions of the Constitution of the state of Oklahoma." Counsel for petitioner make no attempt to show wherein this provision is in conflict with the Constitution or statutes of this state.

Subdivision 3 of section 2 of said charter, in part, provides: "The city of Tulsa shall have power, by ordinance duly passed to prohibit dramshops, drinking saloons and other places where intoxicating liquors are sold." No effort has been made to show that this is in conflict with the Constitution or laws of the state. The express declaration contained in the charter, granting to the city of Tulsa authority to exercise all powers of a municipal government, not prohibited to it by the Constitution or by provisions of the statutes of Oklahoma, was doubtless inserted for the purpose of giving the city full power of municipal self-government and authority to legislate for all local purposes, in the event it should be found that the specifications of particular powers granted did not include some necessary powers of municipal self-government.

Counsel for petitioner, in their brief, say: "Subdivision 3 of article 2 of the charter of Tulsa, Oklahoma, expressly grants the power 'to prohibit dramshops, drinking saloons and other places where intoxicating liquors are sold,' but this is not an express grant of power to prohibit the unlawful possession of liquor for the purpose of sale." This is equivalent to assuming the position that a municipal corporation in Oklahoma, organized by virtue of our Constitution, cannot enact an ordinance upon any subject, unless the charter of such corporation, by express grant of power, authorizes the city to adopt such ordinance. Counsel fail, however, to cite any authorities or to make any argument in support of this position. They have assumed the proposition in controversy and have substituted assertion for authority and argument. If a city could not adopt an ordinance, unless authorized to do so by express grant of power, the very purposes of municipal government would be defeated, for no one could foresee and anticipate, and no charter could provide for, every ordinance which might become necessary on account of the exigencies of municipal government. If counsel had said that a municipal corporation could not adopt an ordinance, unless its charter clearly granted the power to do so, then they would have been more nearly correct; but in making this statement they would have taken their case out of court, because no one could maintain a dramshop, drinking saloon, or other place where intoxicating liquors are sold, unless he also has in his possession intoxicating liquors for the purpose of selling the same. To prohibit the possession of such liquors for the purpose of sale is the most effective means of prohibiting and suppressing dramshops, drinking saloons, and other places where intoxicating liquors are sold. It goes directly to the root of the evil, and is necessarily involved in the express grant of power contained in the charter of the city of Tulsa, and is therefore clearly granted by such charter. An express grant of power to do a certain thing clearly and necessarily carries with it the grant of power to do all other things which are included in such express grant of power, and which will aid and assist in the accomplishment of the purpose for which the express grant of power was made. This, to our minds, is the only tenable position to assume upon this question.

This court is irrevocably committed to the position that the common-law doctrine of a strict construction of penal statutes has no place in the criminal jurisprudence of Oklahoma. We propose to construe all statutes, charters, and ordinances liberally, to effect the purposes for which they were adopted or enacted, and in furtherance of justice; and whenever we can reasonably do so we will [115 P. 382] give them that construction which will enable them to reach and destroy the evils at which they are aimed. We are fully determined that, so far as criminal cases are concerned, the courts of Oklahoma shall be courts of justice, as well as courts of law. We will not allow any finespun, artificial distinctions to defeat the enforcement of law. The discovery of the truth, the enforcement of law, and the maintenance of justice should be and are paramount considerations in the decision of every case.

Counsel for petitioner, in their motion for a rehearing and brief supporting such motion, occupy what appears to us to be an utterly indefensible position. They...