Salt Lake City v. Kusse ( 1938 )

I dissent. The only question presented is: Has a city the power by ordinance to prohibit people under the influence of intoxicating liquor from driving automobiles, and to prosecute and penalize such as do so? Cities have only such power as is expressly granted to them by the legislature or as is implied from the granted powers, or such as is essential to the accomplishment of the declared objects and purposes of the corporation. Am. Fork City v. Robinson, 77 Utah 168,292 P. 249; Salt Lake City v. Sutter, 61 Utah 533, 216 P. 234;Nelden v. Clark, 20 Utah 382, 59 P. 524, 77 Am. St. Rep. 917.

If the city has the power it claims in this case it must be derived from one of three sources: (1) The grant found in Sections 15-8-11 and 15-8-30, R.S.U. 1933, granting cities the right to regulate the use of streets and the movement of traffic thereon. (2) The general grant of power to pass ordinances "to provide for the safety and preserve the health, and promote the prosperity, improve the morals, peace and good order" of the city, as granted in Section 15-8-84, R.S.U. 1933. (3) The Motor Vehicle Act itself, being Title 57, embracing Sections 57-1-1 to 57-12-16, R.S.U. 1933, as amended by Chapters 46, 47, and 48, Laws of Utah 1935.

I shall briefly explore each of these sources.

15-8-11: "They may regulate the use of streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds, prevent and remove obstructions and encroachments thereon, and provide for the lighting, sprinkling and cleaning of the same."

15-8-30: "They may regulate the movement of traffic on the streets, sidewalks and public places, including the movement of pedestrians as well as of vehicles, and the cars and engines of railroads, street railroads and tramways, and may prevent racing and immoderate driving or riding."

The first of these sections referring to the use of streets has to do with the purposes for which streets can be used, to the end that things may not be done upon the street which unreasonably interfere with the movement of traffic; to the end that any unusual or extraordinary use of the highways be permitted only under regulation, so as to prevent or minimize the interference with the usual and ordinary use thereof. It is not concerned with the question as to who may use the street but as to the purposes for which it may be used by anyone.

The second section quoted by its express terms relates to the "movement of traffic" and preventing "racing and immoderate driving or riding." Here too there is no grant of power to saywho may use the street, but only to regulate the movement of traffic thereon. The section itself is a limitation on the power of the city and prevents too wide an application of the wordtraffic. It does not say to regulate traffic upon the street but does say the movement of traffic. I do not say that the word traffic could never mean anything more than movement. That question is not before us. But certainly the movement oftraffic cannot be extended to include a designation of who may enter into traffic, that is, as to who may use the street for its ordinary and usual purposes.

(2) The opinion of Mr. Justice Wolfe is founded upon the theory that authority for the ordinance is found in Section 15-8-84. So far as material here it reads:

"They may pass all ordinances and rules, and make all regulations, not repugnant to law, * * * 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; * * *." (Italics added.)

This is a general or omnibus grant of police power to the municipality, and applies therefore only to matters which are commonly spoken of as "matters of local concern" or as "municipal affairs." That is, the details of the specific grants of power. The legislature may grant unto cities certain more extensive powers but such grants of power must be specific and express. The general grant of power is confined to the use of police power for the well-being of the citizens in matters of local or community concern only. The city does not assume all the powers of the state within its limits but only such as are incident to a city government. Under such general grants of power the city must confine itself to matters of its local affairs. And when a city seeks to legislate on a matter not of local concern but of statewide concern, it must look for its power to some grant other than the general power to provide for health and safety. The police power inheres in the state, and the municipality has only what the state delegates to it directly or by necessary implication. But the state may always invade the field of regulation delegated to the cities and supercede, annul, or enlarge the regulation which the municipality has attempted. It may modify or recall the police power of the city as it may abolish the city itself. Is then the question of people under the influence of liquor driving automobiles one of "local concern," a "municipal affair," or is it one of "statewide concern," a "state affair"? At this point I shall simply say that it is a matter of statewide concern, and not a "municipal affair" coming within the general grant of safety. The development of this point will appeal later in this opinion. I find therefore no authority for this ordinance under the section under discussion.

(3) Does the Motor Vehicle Act (Title 57, R.S.U. 1933) grant or deny such power to the city? Title 57 is the so called Uniform Motor Vehicle Act, adopted and in effect in many of the states. It is a comprehensive act dealing with many if not all phases of law relative to motor vehicles. It was first enacted in 1931 as Chapter 49, Laws of Utah 1931, under the title:

"Uniform Act Regulating Traffic on Highways. "An Act regulating traffic on highways and providing for traffic signs and signals and defining the power of local authorities to enact or enforce rules and regulations regardingthe matters embraced within the provisions of this Act and to provide for the enforcement of this Act and the disposition of fines and forfeitures collected hereunder and to create a fund to be known as the highway improvement fund; providing penalties for the violations of this Act; and repealing * * * all laws in conflict with this Act." (Italics added.)

It has been carried forward with only minor changes as Chapter 7 of Title 57, R.S.U. 1933. The act as written in 1931 as well as its incorporation in the Motor Vehicle Code in the Revision of 1933 is a comprehensive piece of legislation, revealing an intention of the legislature to cover fully and completely the subject of use of the highways of the state and motor vehicles and their use on the highways. Such legislation supplants all previous legislation on the subject unless specially saved by the provisions of the act itself. Olson v. State, 36 Ariz. 294,285 P. 282. That the regulations of the state act apply and control within cities is not only manifest from the title of the act as originally passed but from its various provisions wherein the speed of motor vehicles in residential and business districts, by schools, railroad crossings and parks, is fixed (Sec. 57-7-16); exemptions for emergency vehicles (57-7-21). Provisions for licensing drivers and providing who may or may not drive motor cars, and for revoking licenses, regulations as to passing and rights-of-way, turning and stop signals, safety zones, and street cars, etc., all are dealt with, defined and regulated. In these and in numerous other ways the Act evidences a purpose to cover the whole subject of motor vehicular travel and to regulate the use of the highways, both in cities and the country, by the public, and to supercede all prior legislation on the subjects, both state and municipal. Back in 1921 the legislature declared that the state law governing the use of highways by motor vehicles and traffic regulations on the highways should be general throughout the state and should be uniform and that no city, town, or county could impose any conflicting regulation or impose any fine or penalty other than those prescribed by the state. Sec. 3984, Chapter 83, Laws of Utah 1921. This remained on the statute books until the enactment of the general Uniform Motor Vehicle Act in 1931, which as indicated above, in its title declared its purpose inter alia to define the power of local authorities to enact or enforce rules or regulations regarding the matters embraced within the provisions of the act. It must follow therefore that for ten years the policy of the state had withdrawn from the cities, had repealed from the grants of power to cities any right they might have had to enact any ordinance providing any other penalty or fine than that provided by the state law for violations of the motor vehicle or traffic act, or violations of regulations for use of the road. Such power, having been withdrawn, is not restored by repeal of the withdrawing or repealing act. I see no escape from the conclusion therefore that Section 7 of Chapter 49, Laws of Utah 1931 (which is the same as Section 57-7-6, R.S.U. 1933), defining the power of local authorities, carried forward the policy and principle declared in 1921, especially since Section 6 of said Chapter 49 (in substance repeated in Section 57-7-5, R.S.U. 1933), declares the Act shall be applicable and uniform throughout the state and in all political subdivisions and municipalities and no local authority shall enact anything in conflict with its provisions unlessexpressly authorized in the Act. The section with respect to power of local authorities is section 57-7-6, Laws of Utah 1935, chapter 48, which reads:

"Local authorities, except as expressly authorized, shall have no power or authority to alter any of the regulations declared in this chapter, or to enact or enforce any rule or regulations contrary to the provisions of this chapter, except that the local authorities shall have power to provide by ordinance for the regulation of the standing or parking of vehicles and electrictrolley coaches, for the regulation of traffic by means of traffic officers or semaphores or other signaling devices on any portion of the highway where traffic is heavy or continuous, and may prohibit other than one-way traffic upon certain highways, and may regulate the use of the highways by processions or assemblages. Local authorities may also regulate the speed of vehicles in public parks and shall erect at all entrances to such parks adequate signs giving notice of any such special speed regulations." (Italics added.)

The italicized part was added in 1935, the rest of the section being as it stood in the 1931 and 1933 enactments. This section and section 57-7-17 expressly provide that the local authorities shall have power to provide by ordinance for certain specified regulations. In view of the fact that for 10 years the local authorities could make no ordinance providing any fine or penaltyother than that provided by statute, it seems that this was now an express grant of some limited regulatory power to the city. If the old power under Sections 15-8-30 or 15-8-84, R.S.U. 1933, was still operative why did the legislature now grant it over again? But if section 57-7-6 be considered as a limitation on the cities' power, or rather as a measure of a grant of power not existing since 1921, it is all in harmony with the declared policy of the legislature. The Uniform Act when enacted in 1931 contained a declaration that it should be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Let us briefly note how other states which have the Uniform Motor Vehicle Act have construed it. The Arizona Court inClayton v. State, 38 Ariz. 135, 297 P. 1037, had an identical situation before it. That case involved an ordinance of the City of Phoenix, for all practical purposes the same as the ordinance involved here. The court says [page 1039]:

"Under section 1574 the matter of `local parking and other special regulations' is left in the control of the governing body of the city; that is, matters of peculiar local concern are left with the local authorities. The reservation to cities and towns of power over `local parking and other special regulations' would seem to emphasize a purpose on the part of the legislature to make the provisions of the Highway Code in all other respects the guiding and controlling rule throughout the state. Any deviations from the regulations prescribed in the Highway Code to suit local conditions or convenience are provided for therein.

"The regulation or provision as to the insobriety of a driver is exactly the same in the Highway Code and section 55 of the city ordinance, except as to punishment. The punishment under the ordinance is not as great as may as inflicted under the state law, and the confinement is in the municipal and not the county jail. Under the state law the offense is a high misdemeanor. The act condemned in both is the same."

The Arizona Court then points out that cities are confined to matters of local concern in legislation, and that a city by-law or ordinance on a matter of statewide concern is not a rightful subject of legislation as given in general grants of power. The state must therefore be the one to determine whether the use of streets by one under the influence of liquor is a matter of state or local concern.

The Arizona court held that the Uniform Motor Vehicle Act clearly indicated an intention on the part of the legislature to make such problem one of statewide concern and control, and in a very well reasoned opinion held that the state had pre-empted the field for control of drunken driving saying:

"We conclude that the Legislature in the Highway Code has determined that the sobriety or insobriety of a motor vehicle driver on the public highways of the state is a matter of state-wide policy and concern, and that it was desirable that the rule with reference to such drivers should be uniform throughout the state.

"It follows, then, that section 55 of Ordinance No. 1492 of the city of Phoenix is invalid, and that the court was without jurisdiction of the defendant or the subject-matter."

The California courts in Helmer v. Superior Court, 48 Cal. App. 140,191 P. 1001, have held to like effect. To like effect is State v. Mandehr, 168 Minn. 139, 209 N.W. 750; State v.Thompson, 149 Wis. 488, 137 N.W. 20, 43 L.R.A., N.S., 339, Ann. Cas. 1913C, 774.

In the Clayton Case, supra, upon petition for rehearing,38 Ariz. 466, 300 P. 1010, the court says [page 1011]:

"* * * we think the Legislature looked upon the act of incapacitating one's self by drinking intoxicants as not unimportant and trivial or a police court matter. The Legislature evidently took the view that irresponsible and reckless driving that usually accompanies liquor drinking should be tried in a court of record and upon conviction severely punished, and for that reason chose to make its rule the rule throughout the state.

"The motion for rehearing is denied."

For the reasons above stated, I think the judgment should be reversed.