State v. Sheldon , 1976 Utah LEXIS 740 ( 1976 )

ELLETT, Justice:

This appeal is from a conviction in the district court of a violation of a Salt Lake County ordinance reading as follows:

9-9-1. It shall be unlawful for any person, corporation, partnership, or legal entity owning or occupying real property in the county to fail to control the growth of injurious and noxious weeds on such property or to fail to remove from the property any such weeds, or refuse, unslightly or deleterious objects or structures after having been given notice from the director of the board of health.

Mr. Sheldon owns approximately one and one-third acres of land in a residential district of Salt Lake County. He was charged in the Murray City Court with “keeping unsightly or and (sic) deleterious objects on property in violation of Title 9, Chapter 9, Section 1 of the Revised Ordinances of Salt Lake County,” and the charge specified that he “did keep junk cars and other deleterious objects on the property . . . after having been notified in writing by the Board of Health.”

A jury trial was demanded by Mr. Sheldon, and upon being convicted by a jury he appealed to the district court, where he had a trial de novo and was again convicted by a jury.

Since Murray City Court is ex officio a justice court having jurisdiction throughout the county, appeals to the district court are, by Article VIII, Section 9 of the Utah Constitution, made final except as to cases involving the validity or constitutionality of a statute.

In view of the constitutional provision, Mr. Sheldon did not bring a transcript of his trial before us. We, therefore, consider only the question of the constitutionality of the ordinance.¹

In the Eureka City case (footnote 1) this court in speaking of the exception to the finality of district court judgments on appeal from a justice court said:

. The effect of this exception is to allow an appeal to this court in every case which originates in a justice’s court, and in which the validity or constitutionality of a statute is drawn in question, made an issue, and decided by the district court on appeal. In all other cases brought before justices of the peace, and transferred to the district courts by appeal, the final judgment of those courts is conclusive. But does the exception include a case so brought and transferred, where the validity or constitutionality of a city ordinance was litigated, and decided by the district court? We are of the opinion that it does; for, while an ordinance is an enactment of a municipal government, and its application is local, still, when valid, it has the force and effect, in favor of the municipality and against persons bound thereby, of a legislative enactment, and acts done in contravention thereof become unlawful, the same as when done in contravention of a statute. An ordinance, which can only be passed in pursuance of some legislative enactment, may, like a statute, affect property rights and individual liberty; and the framers of the constitution evidently intended, by the use of the word “statutes” to include “ordinance,” and that the appellate court should have the power to determine the validity of any law, whether of local or general application, and whether enacted directly by the lawmaking power, or by a municipality through a delegation of power by the legislature. While the lawmaking power of the state is vested in the legislature, yet it is competent for the legislature to delegate power to municipal corporations to pass ordinances which shall have the same force, within the municipality, as a statute, to control its municipal affairs. Hence reasons which exist for the review of statutes by appeal exist for the review of ordinances.

In the case of Salt Lake City v. Perkins,² the question was raised, to-wit: Can an appeal be made to this court from the ruling of the district court on a constitutional question which was not raised in the district court when the appeal is from the justice of the peace courts? This court again said:

Furthermore, it is essential to the jurisdiction of this court over judgments of the district courts, in cases which originate in and are appealed from justices of the peace, that it shall appear that a question of the validity or constitutionality of a statute was presented to the district court. No such question was thus presented.

For other cases to the same effect see Ogden City v. Crossman, 17 Utah 66, 70, 53 P. 985; Overland Gold Mining Company v. McMaster, 19 Utah 177, 187, 56 P. 977.

In the absence of a transcript of the record, we cannot say that the constitutional question was raised in the district court, and since it does not appear from the record before us that it was, we do not consider it on this appeal.

Other questions are raised, but we deem them to be without merit. They do not appear to have been called to the attention of the district court, and so we affirm the judgment of the district court.³ No costs are awarded.

TUCKETT, J., concurs.

1 . Eureka City v. Wilson, 15 Utah 53, 48 P. 41, affirmed 173 U.S. 32, 19 S.Ct. 317, 43 L.Ed. 603.

2 . 9 Utah 2d 317, 343 P.2d 1106 (1959).

3 . The dissent misses the point of this opinion. This court lacks jurisdiction to consider any case tried in the district court on appeal from a justice court unless the constitutionality of a statute or ordinance was raised in the district court. If no such issue was raised, then the ruling of the district court is final and we are without any jurisdiction to consider any phase of the case.