Nasfell v. Ogden City , 122 Utah 344 ( 1952 )

HENRIOD, Justice.

Appeal from a declaratory judgment holding the following Ogden City ordinance valid:

Sec. 27g67: Owner prima facie responsible for illegal parking.

“The presence of a vehicle in or upon any public street or highway in Ogden City stopped, standing or parking in violation of any ordinance of Ogden City, shall be prima facie evidence that the person in whose name such vehicle is registered as owner committed or authorized the commission of such violation.”

The judgment is reversed with costs to appellant.

This case is here on stipulated facts. A car registered in plaintiff’s name was parked in front of a parking meter between 9 a. m. and 8 p. m. A signal indicated the space was illegally occupied and a policeman place a notice of violation on the windshield of the car. Complaint was filed and summons served on plaintiff who pleaded not guilty. Before decision, he asked for a declaratory judgment in the district court, challenging the validity of the ordinance. The court ruled against plaintiff, holding the ordinance valid.

Under the decisions of this court Ogden has no express or implied power to pass the ordinance in question. Cities in Utah derive their powers through express legislative grant,¹ and we look to our own authority in testing Ogden’s powers to pass the ordinance. Counsel for Ogden cites but one Utah case² which we do not believe controlling here, and looks for support of his position to sister states where fountains of power radically may differ from our own. Repeatedly we have denied to' cities implied powers which had far greater proximity of purpose in implementing express powers given, than the implied power claimed here bears to the generic power granted by the legislature.

Ogden assumes that because cities have been given the power to regulate streets and the parking of vehicles for a fee,³ together with general power to enforce such powers, they necessarily have the implied power to pass an ordinance establishing a rule of evidence binding on the courts. Such assumption does not stand the test of logic, nor is it sustained by this court. Power to pass an ordinance establishing a rule of evidence binding on the courts is not granted to cities in express words, nor can it be fairly implied from, nor is it incident to, the powers expressly given. Neither is it essential to the accomplishment of the objects and purposes of the powers granted.

We are committed to the principle that cities have none of the elements of sovereignty,⁴ that

“any fair, reasonable, substantial doubt concerning the existence of the power is resolved by the courts against the corporation (city) and the power denied,⁵”

and that grants of power to cities are strictly construed to the exclusion of implied powers not reasonably necessary in carrying out the purposes of the express powers granted.

We have held before that cities have no implied power to pass an ordinance requiring barber shops to close after certain hours, though the legislature granted them express power to license, tax and regulate shops and to pass all ordinances necessary to carry out such express power. We said that

“It has been repeatedly stated by this court ‘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.”⁶

We have held that a city had no implied power to pass an ordinance making possession of liquor an offense, where the legislature granted it the express power

“to license and regulate, or prohibit the manufacturing, selling, giving away, or disposition in any manner of any intoxicating liquors.”⁷

Also, that cities have no implied power to sell gas under a statute granting them the express power to appropriate money for any purpose which in the judgment of the Board of Commissioners or City Council would provide for the safety, preserve the health, promote the prosperity, improve the morals, peace, order, comfort and convenience of the inhabitants of the city.⁸ So firm have we stood in construing express grants of power to cities as to conclude that cities have no implied power to prevent billiard playing, where the legislature granted express power to

“ ‘license, tax, regulate, and suppress billiard * * * tables * * * used for similar purposes’.”⁹

We have gone so far as to hold that statutory authority for cities “to construct, maintain, and operate street railways” carried with it no implied power to operate motorbuses.¹⁰

In emphasizing our viewpoint, we held, — not at all inconsistently, that where a city ordinance presuming to enlarge a vested right by implication is not involved, but a state statute is, greater latitude of interpretation is given, and that in such case “street railways” impliedly may include “motorbuses.”¹¹ Later we noted the distinction by reaffirming the principle that grants of power to municipalities should be construed strictly.¹²

The policy of our law thus is settled. The rule promotes a wholesome, uniform orderliness among the municipalities of the state. Its wisdom is not open to question at this date, and we ought not depart from it lightly. This case falls within the decisions of this court, and the conclusion is inescapable that Ogden’s claim of having an implied power to pass the ordinance mentioned is untenable. The authorities cited which assert that such an ordinance is necessary in order properly to regulate traffic have no magic here, since already we have decided the matter on the basis of scope of power. Ignoring our previous pronouncements would breathe life into an ordinance claimed to be wholesome, but in so doing we would place the proverbial cart before the horse, since the power to act must be established before approval can be given to the legislation.

McDonough, j., concurs. WADE, J., concurs in the results.

1 Walton v. Tracy Loan & Trust Co., 97 Utah 249, 92 P. 2d 724; Wadsworth v. Santaquin City, 83 Utah 321, 28 P. 2d 161; Salt Lake City v. Sutter, 61 Utah 533, 216 P. 234.

2 Gronlund v. Salt Lake City, 113 Utah 284, 194 P. 2d 464.

3 Title 57-7-85, U. C. A. 1943: “(a) The provisions of this act * * * shall not be deemed to deprive said authorities of existing powers with respect to streets * * * in: (1) Regulating the standing or parking of vehicles including the requirement for payment of a parking fee * * *.” See also, 15-8-11, 15-8-30 and 15-8-84, U. C. A. 1943.

4 Utah Rapid Transit Co. v. Ogden City, 89 Utah 546, 58 P. 2d 1.

5 1 Dillon, Municipal Corp., 5th ed., p. 448, Sec. 237; Salt Lake City v. Revene, 101 Utah 504, 124 P. 2d 537.

6 Salt Lake City v. Revene, supra [101 Utah 504, 124 P. 2d 538.]

7 Salt Lake City v. Sutter, supra [61 Utah 533, 216 P. 235].

8 American Petroleum Co. v. Ogden City, 90 Utah 465, 62 P. 2d 557.

9 American Fork City v. Robinson, 77 Utah 168, 292 P. 249, 250.

10 Utah Rapid Transit Co. v. Ogden City, supra [89 Utah 546, 58 P. 2d 3].

11 Utah Light & Traction Co. v. State Tax Commission, 92 Utah 404, 68 P. 2d 769.

12 Lewis v. Utah State Tax Commission, 118 Utah 72, 218 P. 2d 1074.