State v. Frederic

• Decision Date: 15 March 1916
• Citation: 155 P. 977,28 Idaho 709
• Parties: STATE, Appellant, v. WM. FREDERIC, Respondent
• Court: Idaho Supreme Court

155 P. 977

28 Idaho 709

STATE, Appellant, v. WM. FREDERIC, Respondent

Supreme Court of Idaho

March 15, 1916

CONSTITUTIONAL LAW-STATUTORY CONSTRUCTION-MUNICIPAL ORDINANCES-JURISDICTION OF POLICE JUDGE-AS COMMITTING MAGISTRATE.

1. Sec 2238k, amending sec. 2238, Rev. Codes (Sess. L. 1915, p 232), which provides that any city or village may "Make all such ordinances, by-laws, rules, regulations, resolutions not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this title granted, maintain the peace, good government and welfare of the corporation and its trade, commerce, manufacture, and to enforce all ordinances by inflicting fines or penalties for the breach thereof,...." does not delegate to municipalities authority to prohibit by ordinance the possession of intoxicating liquors and to inflict a punishment for the possession thereof.

2. Under grants of power by the legislature to municipal corporations, only such powers and rights can be exercised as are clearly comprehended within the words of the granting act or derived therefrom by necessary implication, regard being had to the object of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the granting power. Regard must also be had to constitutional provisions intended to secure the liberty and to protect the rights of citizens, to the end that no citizen shall be deprived of life, liberty or property without due process of law.

3. A municipality has no power to confer upon police judges jurisdiction to summarily hear and determine acts denominated by the general law of the state as indictable misdemeanors by the enactment of an ordinance prohibiting such acts and prescribing a punishment therefor.

4. Under sec. 8, art. 1, of the constitution, which provides that "No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace,...." the jurisdiction of justices of the peace and probate courts is limited to such cases as are by statute made cognizable by such courts.

5 Secs. 2202, 3854 and 7511, Rev. Codes, make the jurisdiction of a police judge concurrent with that of justices of the peace and probate judges to try persons charged with having committed a nonindictable misdemeanor committed within the city limits, and to hold preliminary examinations of persons charged with indictable misdemeanors or felonies committed within the city limits under the general laws of the state.

6. Under sec. 8, art. 1, of the constitution, the legislature cannot confer upon municipalities authority to prohibit or punish indictable misdemeanors.

7. Held, that in the case at bar the city police magistrate was without jurisdiction except as a committing magistrate, and that the ordinance of the city of Coeur d'Alene purporting to confer jurisdiction upon the police magistrate to summarily try the defendant and inflict punishment for an act which, under the state law, constitutes an indictable misdemeanor, is null and void.

8. Held, that it was the duty of the police magistrate in this case to proceed to hold a preliminary examination under the provisions of secs. 7565-7589, Rev. Codes, and, if the evidence warranted, to hold the defendant to answer to the district court.

9. Held, that the defendant had a constitutional right to a preliminary examination unless he expressly waived the same, before he could lawfully be placed upon trial for the offense with which he was charged.

[As to police power of municipal corporation to punish crimes, see note in 110 Am.St. 149]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Prosecution for violation of city ordinance prohibiting unlawful possession of intoxicating liquor. Judgment for defendant. Affirmed.

Affirmed.

Jas. H. Frazier, for Appellant.

Under sec. 2, art. 12, of the constitution, this court in a number of cases has held that the cities have the power to prescribe and enforce police regulations, notwithstanding a general statute prescribing a punishment for the same offense. (State v. Preston, 4 Idaho 215, 38 P. 694; State v. Quong, 8 Idaho 191, 67 P. 491.)

The burden of policing the different cities should not be thrown upon the state nor upon the county in particular in which the city may be situated, and prompt and efficient police service is absolutely necessary to a well-regulated and well-conducted city. (In re Ridenbaugh, 5 Idaho 371, 49 P. 12.)

Cities have not only such powers as are expressly conferred by statute, but certain implied authority, to enforce the general laws of the state, and to enact and enforce ordinances in a reasonable, necessary and harmonious way, where the peculiar local conditions of the city demand certain police and sanitary regulations. (2 McQuillin on Municipal Corp., p. 1570, sec. 724.)

No appearance in this court for Respondent.

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

On August 23, 1915, a criminal complaint was filed in the police court of the city of Coeur d' Alene, charging respondent with unlawfully having in his possession, on or about August 22, 1915, intoxicating liquors, to wit, whisky and beer, in violation of the provisions of an ordinance of that city. A warrant was thereupon issued; respondent was arrested and brought into the police court. A trial was had in that court without a jury, and respondent was found guilty as charged in the complaint and assessed a fine of $ 50 and costs, from which judgment he appealed to the district court of the eighth judicial district, in and for Kootenai county.

On September 23, 1915, a jury was regularly impaneled and the cause proceeded to trial. After the evidence for the prosecution was introduced, the trial judge, of his own motion, dismissed the jury and directed that respondent be discharged and his bond exonerated. Judgment was thereupon entered dismissing the action against respondent.

This is an appeal by the state from the judgment of dismissal.

From an examination of the judgment-roll it appears the trial court reached the conclusion that, under the provisions of sec. 2238, Rev. Codes, as amended by the Session Laws of 1915, p. 231 (sec. 2238h), relating to the powers of cities and villages, which, among other things, are that any city or village may, by ordinance or by-law, "License, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amounts to be paid for such license; . . . . " the prosecution in this case could not be maintained, for the reason that the city of Coeur d' Alene must derive all its powers with regard to regulation, license and prohibition of the liquor traffic from this statute, and that inasmuch as the statute failed to mention, or in express terms prohibit, the possession of intoxicating liquor, or to make the possession thereof a crime, the city of Coeur d' Alene is without authority to enact an ordinance prohibiting the possession of intoxicating liquor and making the possession of the same a crime; and, therefore, the provisions of said ordinance in this respect are void.

This amendment to section 2238 was passed by the thirteenth session of the legislature and approved March 15, 1915, and by reason of an emergency clause took effect and was in force from and after the date of its passage and approval. In our opinion it was enacted by the legislature for the purpose of providing for the licensing, regulating and prohibiting the selling or giving away of intoxicating liquors within municipalities located in counties within the state, which had not adopted the provisions of the local option law. The amendment has since been superseded by chapter 28, House Bill 142, Sess. Laws 1915, p. 83, under which statute the entire state is made a prohibition district.

On September 23, 1915, which was the date of the trial of respondent in the district court of the eighth judicial district, the county of Kootenai, including the city of Coeur d'Alene, having adopted the provisions of Senate Bill 62, Sess. Laws 1909, p. 9, and Chapter 15, Sess. Laws 1911, p. 30, was, within the meaning of the provisions of Senate Bill 50, Sess. Laws 1915, p. 41, constituted a prohibition district in which sec. 2238, Rev. Codes, as amended (sec. 2238h, Sess. L. 1915, p. 231), could have no application, as in such prohibition district the sale of intoxicating liquors except as expressly provided in Senate Bill 50 is prohibited, and the sale of such excepted intoxicating liquor is not subject to license. Therefore sec. 2238h, supra, had no application to the case at bar.

But it is insisted that the trial court failed to consider section 2238k, which is also an amendment to sec. 2238, Rev. Codes enacted by the same session of the legislature (Sess. L. 1915, p. 232), and approved and effective on the same date as section 2238h, and which provides that any city or village may "Make all such ordinances, by-laws, rules, regulations, resolutions not inconsistent with the laws of the State, as may be expedient, in addition to the special powers in this title granted, maintain the peace, good government and welfare of the corporation and its trade, commerce, manufacture, and to enforce all ordinances by inflicting fines or penalties for the breach thereof, not exceeding One Hundred Dollars ($ 100) for any one offense,...