State v. Bird

• Decision Date: 26 April 1916
• Parties: STATE, Respondent, v. L. E. BIRD, Appellant
• Court: Idaho Supreme Court

156 P. 1140

29 Idaho 47

STATE, Respondent, v. L. E. BIRD, Appellant

Supreme Court of Idaho

April 26, 1916

CITIES AND VILLAGES - POWERS - ORDINANCES - VOID IN PART-FINES AND IMPRISONMENT.

1. The facts in this case held sufficient to sustain a judgment of conviction.

2. The portion of ordinance No. 77 of the village of Post Falls wherein it is attempted to provide for imprisonment in the village jail, except for default in the payment of a fine and costs, is in excess of the village powers, and is void.

3. If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provision unless they are plainly dependent upon each other and so inseparably connected that they cannot be divided without defeating the object of the ordinance or statute.

4. Held, that the portion of said ordinance wherein it is attempted to provide for imprisonment, except for default in the payment of a fine and costs, may be stricken out, and will be disregarded and the remaining provisions enforced.

[As to validity of sentence not authorized by law, see note in 55 Am.St. 264]

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Appellant was convicted of a violation of ordinance No. 77 of the village of Post Falls. Affirmed.

Judgment of the district court affirmed and costs awarded to respondent.

Elder &amp Elder, for Appellant.

When the municipal authorities have no power to make a municipal regulation, it is void, although the regulation in itself is reasonable, just and proper, and even necessary for the preservation of peace and good order. (Taylor v. District of Columbia, 24 App. (D. C.) 392.)

A municipality cannot pass an ordinance in the absence of express legislative authority which contravenes the law of the state, and such authority cannot be inferred. (Moran v. City of Atlanta, 102 Ga. 840, 30 S.E. 298; State v. Godfrey, 54 W.Va. 54, 46 S.E. 185.)

An ordinance which conflicts with the state law is void. (Ex parte Cross, 44 Tex. Cr. 376, 71 S.W. 289.)

In the absence of express charter powers, a city has no authority to impose a penalty on one engaging in business. (City Council of Augusta v. Clark & Co., 124 Ga. 254, 52 S.E 881.)

Where a municipality works to uphold an ordinance by virtue of its incidental power, or under a general grant of authority, it will be declared invalid and void unless the ordinance is reasonable, fair and impartial. (Pittsburgh etc. Ry. Co. v. Crown Point, 146 Ind. 421, 45 N.E. 587, 35 L. R. A. 684; State v. Godfrey, 54 W.Va. 54, 46 S.E. 185; City of Elkhart v. Lipschitz, 164 Ind. 671, 74 N.E. 528.)

W. F. Morrison, E. N. La Veine and N. D. Wernette, for Respondent.

An unconstitutional provision in an ordinance does not vitiate the whole ordinance unless the two provisions are so closely connected in subject matter that the one cannot exist without the other and the object of the law accomplished as intended by the law-making body. Furthermore, it will never be presumed that a law-making body intended to enact an unconstitutional provision in a law or ordinance, and therefore if one is found therein, the courts will, if possible, sustain the validity of the ordinance by treating the unconstitutional provision as surplusage. (Knight v. Trigg, 16 Idaho 256, 261, 100 P. 1060; Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71.)

By-laws forbidding certain acts within the scope of the charter powers, but affixing constitutional as well as unconstitutional penalties, are sustained in all features except the unconstitutional penalty. (28 Cyc. 374; Keokuk v. Dressell, 47 Iowa 597; Town of Eldora v. Burlingame, 62 Iowa 32, 17 N.W. 148; State v. Cantieny, 34 Minn. 1, 24 N.W. 458; City of Elk Point v. Vaughn, 1 Dak. 113, 46 N.W. 577; Templeton v. City of Tekamah, 32 Neb. 542, 49 N.W. 373; Seattle v. Pearson, 15 Wash. 575, 46 P. 1053; Shook v. Sexton, 37 Wash. 509, 79 P. 1093.) When the constitutionality of a law has been attacked, unless the alleged unconstitutional feature of the law is involved or has affected the party seeking to attack it upon the ground of its unconstitutionality, the court will not consider the validity or invalidity of such feature. (Gillesby v. Board of County Commrs., supra; State v. Mulkey, 6 Idaho 617, 59 P. 17; In re Abel, 10 Idaho 288, 77 P. 621; Seattle v. Pearson, 15 Wash. 575, 46 P. 1053.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

Appellant was convicted in the justice's court of Post Falls precinct, Kootenai county, of engaging in and carrying on the business of poolselling and bookmaking upon horse races within the village of Post Falls without having first procured a license so to do, in violation of ordinance No. 77 of that village. He appealed to the district court, where, by agreement of the parties, the case was tried by the judge, without a jury, and was submitted upon oral and documentary evidence and upon a stipulation of the parties, wherein it was agreed as follows:

"That the above-named defendant was arrested on or about the 19th day of April, 1913, charged with violating an ordinance of the village of Post Falls; that the defendant contends that the village of Post Falls was never duly, regularly or lawfully organized under the laws of the state of Idaho, or in any manner; and the defendant further claims that the land and premises where he was operating were not within the incorporated limits of the village of Post Falls, and that said village, if it ever acquired jurisdiction over said land, had lost its said right and authority by reason of its failure to exercise taxing power, police control or jurisdiction of any kind or character over said land.

"The defendant further contends that the village of Post Falls had no authority, right or jurisdiction to enact ordinance number 77 of the village of Post Falls; and that the said ordinance did not have any force or effect on or over the premises where the defendant was operating.

"It is hereby stipulated and agreed and understood that all the agreements and admissions in this stipulation are made with the express understanding that if the court shall inquire into and decide the question hereinbefore submitted, that this agreement shall be binding upon the defendant, but if the said court shall determine that it has no jurisdiction to inquire into the matters hereinbefore mentioned, and has no jurisdiction to...