Salt Lake City v. Kusse

• Decision Date: 31 December 1938
• Docket Number: 6020
• Citation: 97 Utah 113,93 P.2d 671
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. KUSSE

93 P.2d 671

97 Utah 113

SALT LAKE CITY v. KUSSE

No. 6020

Supreme Court of Utah

December 31, 1938

On Rehearing September 8, 1939.

Appeal from District Court, Third District, Salt Lake County; H. M Schiller, Judge.

Don Kusse was convicted of violating a Salt Lake City ordinance prohibiting the driving of an automobile while under the influence of intoxicating liquor, and he appeals.

:For original opinion see 97 Utah 97, 85 P.2d 802.

AFFIRMED.

Frank Armstrong, of Salt Lake City, W. Douglas Allen, of Murray and A. Pharis Johnson, of Grantsville, for appellant.

Fisher Harris, City Atty., and E. R. Christensen and Gerald Irvine, Asst. City Attys., all of Salt Lake City, for respondent.

WOLFE Justice. FOLLAND, C. J., McDONOUGH and PRATT, JJ., concurring. LARSON, Justice, MOFFAT, Chief Justice, dissenting.

OPINION

WOLFE, Justice.

Appellant was tried and convicted in the City Court of Salt Lake City for a violation of Section 1379, Revised Ordinances of Salt Lake City 1934, which prohibits driving an automobile while under the influence of intoxicating liquor. On appeal to the Third Judicial District Court a trial de novo was held and defendant found guilty and again sentenced. Appellant seeks here a reversal of that judgment of conviction, on the ground that the ordinance in question is invalid as not within the permitted limitations of Revised Statutes of Utah 1933, Title 57, as amended by Laws of Utah 1935, Chap. 48. This question was raised by demurrer and motion to quash in the District Court where the demurrer was overruled and the motion denied. The action of the court is assigned as error.

Section 1379, Rev. Ord. Salt Lake City 1934, is as follows:

"It shall be unlawful for any person who is an habitual user of narcotic drugs, or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon any street within this city. Every person convicted of a violation of this section shall be punished by imprisonment in the city jail for not less than thirty days nor more than six months, or by a fine of not less than $ 100.00 or more than $ 299.00, or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than ninety days nor more than six months, and in the discretion of the court a fine of not more than $ 299.00."

This ordinance is identical with R. S. U. 1933, Sec. 57-7-14, except that the statute applies to "any highway within this state"; provides for imprisonment "in the county or municipal jail"; and the punishment provided for a second offense is imprisonment "for not less than ninety days nor more than one year, and, in the discretion of the court, by a fine of not more than $ 1000."

Appellant's position is that the statute applies throughout the state and makes invalid any ordinance covering the subject matter as being necessarily in conflict with the statute and this ordinance in particular is in conflict since it provides a different punishment for a second offense.

The analysis may be divided into two parts: (1) does the city have power under its general powers to pass an ordinance prohibiting driving while under the influence of intoxicating liquor; and (2) if so, does Sec. 57-7-14, R. S. U. 1933, prevent the city from prohibiting such driving by the ordinance here involved?

1. The powers of municipalities as related to this subject matter are contained in the statutes as follows (Sec. 15-8-30, R. S. U. 1933):

"They may regulate the movement of traffic on the streets, sidewalks and public places, including the movement of pedestrians as well as of vehicles, and the cars and engines of railroads, street railroads and tramways, and may prevent racing and immoderate driving or riding." (Italics added.)

Section 15-8-84 provides:

"They may pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and such as are necessary and proper to provide for the safety and preserve the health, and promote the prosperity, improve the morals, peace and good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; and may enforce obedience to such ordinances with such fines or penalties as they may deem proper; provided, that the punishment of any offense shall be by fine in any sum less than $ 300 or by imprisonment not to exceed six months, or by both such fine and imprisonment."

There may be some question whether Sec. 15-8-30 does not pertain only to the regulation of the actual movement of traffic and the actual prevention of racing and immoderate driving; that is, whether the section permits only the operation on these acts as they occur without giving power to prevent an act or a condition which itself, if permitted, might affect the movement of traffic or be likely to result in racing or immoderate driving. While this seems a narrow construction, it need not now be decided because we think Section 15-8-84, R. S. U. 1933, definitely permits the city to pass an ordinance to prevent driving while under the influence of intoxicating liquors. In the cases of People v. Ekstromer, 71 Cal.App. 239, 235 P. 69, 71 and People v. Dingle, 56 Cal.App. 445, 205 P. 705 (cited with approval in the opinion of Mr. Justice Folland in State v. Johnson, 76 Utah 84, 287 P. 909) it was held that the intoxicating liquor taken by defendant must have affected adversely his ability to drive. Under such definition of the "influence of intoxicating liquor" the prohibition of such person's propelling or driving a car is definitely and closely related to the safety of the inhabitants and the preservation of property. It comes under the principle laid down in Wadsworth v. Santaquin City, 83 Utah 321, 28 P.2d 161, which held as follows, 28 P.2d at page 171:

"* * *That a city organized and operating under general law may possess and exercise only the powers granted in express words and such as are necessarily or fairly implied in, or incident to, the powers expressly granted, or those essential to the declared objects and purposes of the corporation not merely convenient but indispensable."

Section 1379, Rev. Ordinances of Salt Lake City 1934, was within the powers conferred on cities by Sec. 15-8-84, R. S. U. 1933. The case of Salt Lake City v. Sutter, 61 Utah 533, 216 P. 234, is distinguished on the very ground on which that case was put. There was nothing in the statutes which gave the city power to prohibit possession of intoxicating liquors. There was power to pass an ordinance to prevent the sale, disposition, and manufacture of intoxicating liquors; but as there said the power to prohibit possession could not be inferred from the power to prohibit sale because it was not necessary to accomplish such prohibition nor was it fairly implied as an incident of such power.

Does Sec. 57-7-14, R. S. U. 1933, being of state wide application and designed to prevent driving anywhere in the state while under the influence of intoxicating liquor, prevent the enactment of an ordinance preventing in the cities the same thing?

The solution of this question depends on the following principles: An ordinance dealing with the same subject as a statute is invalid only if prohibited by the statute or inconsistent therewith. Covey Drive Yourself v. City of Portland, 157 Ore. 117, 70 P.2d 566, 569; Clayton v. State, 38 Ariz. 466, 300 P. 1010; State v. Cook, 84 Mont. 478, 276 P. 958, 961; Eanes v. City of Detroit, 279 Mich. 531, 272 N.W. 896; Kizer v. City of Mattoon, 332 Ill. 545, 549, 164 N.E. 20; Hack v. Mineral Point, 203 Wis. 215, 221, 233 N.W. 82; Ex parte Snowden, 12 Cal.App. 521, 525, 107 P. 724, Sims v. Martin, 33 Ga.App. 486, 126 S.E. 872. But see Marshall v. City of Griffin, 173 Ga. 782, 161 S.E. 622.

There is nothing in Title 57 which expressly prohibits the passage of ordinances directed against driving while under the influence of intoxicating liquors. In fact, there are provisions in that act which would appear to grant permission to pass ordinances not inconsistent with the act. Sec. 57-7-74, as amended by Chapter 48, Laws of Utah 1935, recites:

"It is a misdemeanor for any person to violate any of the provisions of this title or of a municipal or county ordinance complying with or within the terms of this title, unless such violation is by this title or other law declared to be a felony."

Section 57-7-6, as amended by Laws of Utah 1935, Chapter 48, reads in part as follows:

"Local authorities, except as expressly authorized, shall have no power or authority to alter any of the regulations declared in this chapter, or to enact or enforce any rule or regulations contrary to the provisions of this chapter, except [as next indicated] * * *."

The exception deals with matters such as parking of vehicles, regulating traffic by semaphores or traffic officers, providing for one way traffic, and regulation of processions or assemblages or speed in parks. It will be noted that the inhibition is against "altering any of the regulations" or against "enacting or enforcing any rule or regulation contrary to the provisions" of the chapter. (Italics added.) Then follow special exceptions where there may be contrary regulations. Certainly Sec. 57-7-6 did not prohibit any ordinance consistent with and not contrary to the provisions of Title 57. It expressly permitted inconsistent and contrary regulations in certain matters to be made by

In Quillin v. Colquhoun, 42 Idaho 522, 247 P. 740, it was held, 247 P. at page 743:

"By prohibiting the passage of other ordinances inconsistent with the provisions of the act, the statute thereby...