Salt Lake City v. Sutter

• Decision Date: 31 May 1923
• Docket Number: 3879
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. SUTTER

216 P. 234

61 Utah 533

SALT LAKE CITY v. SUTTER

No. 3879

Supreme Court of Utah

May 31, 1923

Petition for rehearing denied, June 29, 1923.

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

John Doe Sutter was convicted of violating an ordinance of Salt Lake City, and he appeals.

REVERSED AND REMANDED, with directions to discharge the defendant.

F. W James, of Salt Lake City, for appellant.

Wm. H. Folland, City Atty., and Shirley P. Jones, Asst. City Atty., both of Salt Lake City, for respondent.

GIDEON, J. WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

GIDEON, J.

The defendant was convicted of violating an ordinance of Salt Lake City, a municipality of this state. From that conviction he appeals. The ordinance in question, so far as material here, provides:

"It shall be unlawful for any person to knowingly have in his possession any intoxicating liquor," without authority.

Have municipalities of this state authority to make the unlawful possession of intoxicating liquor an offense? The appeal presents only that question.

It is convenient to refer to certain sections of the statute enumerating the powers of city commissioners and city councils of cities in this state. Comp. Laws Utah 1917, § 570x41, provides that the boards of city commissioners and city councils of cities shall have the powers "to license and regulate, or prohibit the manufacturing, selling, giving away, or disposition in any manner of any intoxicating liquors. * * *" Section 570x49 of the same compilation authorizes such commissions and councils "to prevent intoxication, fighting," etc.; and section 570x87 gives them the additional power "to 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 to enforce obedience to such ordinances with such fines or penalties as the city council 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."

By title 54, Comp. Laws Utah 1917 (sections 3341-3381), the Legislature of this state, impliedly at least, repealed the authority of the city commissions and city councils to license and regulate the "manufacturing, selling, giving away, or disposition in any manner of any intoxicating liquors." The defendant contends that the city commissioners of Salt Lake City had no authority to make the possession of intoxicating liquor an offense against the law.

The general rule limiting the powers of municipalities in enacting ordinances is stated in 1 Dillon on Municipal Corporations (5th Ed.) § 237, as follows:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: 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. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void." (Italics by the author.)

Numerous authorities are cited by the author to support the text, among others Ogden City v. Bear River, etc., Co., 16 Utah 440, 52 P. 697, 41 L. R. A. 305. See, also, 19 R. C. L. p. 800; Cortland v. Larson, 273 Ill. 602, 113 N.E. 51, Ann. Cas. 1916E, 775; City of Marion v. Criolo, 278 Ill. 159, 115 N.E. 820.

In section 239 of 1 Dillon on Municipal Corporations (5th Ed.), and on the same subject, it is further said:

"The rule of strict construction of corporate powers is not so directly applicable to the ordinary clauses in the charter or incorporating acts of municipalities as it is to the charters of private corporations; but it is equally applicable to grants of powers to municipal and public bodies which are out of the usual, or * * * which, in their exercise, touch the right to liberty or property, or, as it may be compendiously expressed, any common-law right of the citizen or inhabitant."

The sections of the statute quoted do not authorize municipalities to legislate upon the question of possession of intoxicating liquors. It is, however, contended that the power to enact the ordinance in question exists by reason of the general authority delegated by section 570x87, supra. There are certain well-defined limitations to the powers of a city under a charter or statute enumerating certain subjects upon which the municipality may enact ordinances, followed by a grant of power in general language. The rule supported by the great weight of authority is clearly and succinctly stated by the annotator in 34 Am. Dec. at page 629, in a note to the case of Robinson v. Mayor of Franklin, as follows;

"A municipal corporation may exercise the power of passing ordinances and by-laws, though its charter is silent in reference to the subject. Usually the power is conferred. In many cases the charter confers the power to enact ordinances in certain particular instances and for specified purposes. Following the clause in which the particular cases in which ordinances may be passed are expressly enumerated, a grant is often inserted, in general language, authorizing the corporation to pass all ordinances and by-laws, not in conflict with the Constitution or general laws, that the welfare, peace, and good order of the municipality may render necessary. Here is an express authority given to pass ordinances in a particular class of cases, followed by a general authority to pass all necessary laws. The express authority is held to be a limitation upon the general power, so far as it relates to matters which belong to the class of those expressly enumerated, but which are not, in terms, included. A general power granted to the corporation to pass all ordinances necessary for the welfare of the corporation, is qualified and restricted by those other clauses and provisions of the charter which specify particular purposes for which ordinances may be passed. Otherwise the general clause would confer authority to abrogate the limitations implied from the express provisions."

Reliance is had by the plaintiff upon the opinion of this court in Zamata v. Browning, 51 Utah 400, 170 P 1057 In that case the question under consideration was the validity of an ordinance of Ogden City prohibiting the sale of intoxicating liquors within the limits of that city. It was the contention of plaintiff there that the Legislature by title 54, Comp. Laws Utah 1917, had assumed exclusive jurisdiction over the subject of intoxicating liquors in every political subdivision of the state, and therefore Ogden City could not legislate upon the question. The holding was that the Legislature did not, by the so-called Prohibition Law of 1917 (title 54, supra),...