Salt Lake City v. Allred

COWLEY, District Judge:

The defendant was convicted in the city and district courts of aiding and abetting in the commission of a crime by directing a police officer to a certain apartment to obtain sexual intercourse for hire in violation of Section 32-2-1, subsections 7 and 8, of the Revised Ordinances of Salt Lake City, Utah, 1965. Defendant thereafter appealed to this court claiming that the ordinance under which she was convicted is invalid and unconstitutional.

This court held in a three to two decision that the state by enacting comprehensive and complete laws pertaining to sexual offenses which are covered by Sections 76-53-8 through 76-53-12, U.C.A.1953, and that said sexual offenses were felonies un-. der said sections, had therefore pre-empted the field of sexual offenses, except in that area that dealt with the disorderly house and prostitution under the express grant conferred on cities under Sections 10-8-411 and 10-8-51, U.C.A., 1953, respectively. As a result, subsections 7 and 8 were found to be invalid and defendant’s conviction wast reversed.

A petition for rehearing was granted in this case to reconsider this court’s previous opinion based upon the pre-emption theory.

The City and Amicus Curiae argue that the City has the authority to pass the ordinance in question by its general grant of police power under Section 10-8-84, U.C.A., 1953, which provides as follows:

They may pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and 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 * * *.

It is a -well-settled rule that it is a proper exercise of the police power as set forth in the above statute to preserve and protect the public morals, and any practice of business which has a tendency to weaken or corrupt the morals of those who follow it, as shown by experience, is such conduct as affects the public morals. 16 Am.Jur.2d, Constitutional Law, sec. 309.

This court held in the case of Salt Lake City v. Kusse, 97 Utah 113, 93 P.2d 671 (1938), that the grant of general police power to cities under the predecessor statute to Section 10-8-84, U.C.A.1953, authorized the city to pass an ordinance to prevent driving while under the influence of intoxicating liquor. If the public 'health, safety, morals and welfare are properly involved in upholding a drunk driving 'ordinance, it would appear reasonable that sexual intercourse for hire and related offenses would be included in such general police power.

-Also in accordance with the power contained in Section 10-8-84, U.C.A.1953, the Utah Supreme Court, in Ogden City v. Leo, 54 Utah 556, 182 P. 530, 5 A.L.R. 960, upheld as reasonable and valid a city ordinance prohibiting the maintenance of booths of certain dimensions in restaurants so as to prevent persons of both sexes having no regard for law or good morals from meeting in such places. If the prohibition involved in the Leo case had a reasonable relationship to the preservation of the public morals, the prohibition of an act of sexual intercourse for hire under the city ordinance in this case would also appear to bear a reasonable relationship to the preservation and protection of public morals.

The protection of public morals has always been a matter of local concern which requires regulation by municipalities, and properly falls within the scope of the police power, 42 Am.Jur., Prostitutes, Section 2; L’Hote v. City of New Orleans, 177 U.S. 587, 20 S.Ct. 788, 44 L.Ed. 899. The vice of prostitution and sexual offenses tends to increase and multiply according to the density of population which historically has required the municipalities to control and suppress such practices, and it can hardly be questioned that the practice of sexual offenses for hire and its allied activities properly falls under the exercise of the police power pertaining to public morals.-

We are of the opinion that the general police power is a sufficient grant of -authority to authorize .the city ordinance involved in this case unless “prohibited- by Statute or inconsistent therewith.” Salt Lake City v. Kusse, supra.

There is nothing' in the state statutes regulating sexual offenses that evidences any express or implied intent to preclude local governments from also attempting to prohibit and suppress the difficult problem of the sex offender. Therefore, it is our opinion that the City is not precluded in enacting the ordinance in question unless it is inconsistent or in conflict with the state statutes dealing with sex offenses.

It is a well-established principle in this state that the city has the right to legislate on the same subject as a state statute where either the general police power or express grant of authority is conferred upon the municipalities. Salt Lake City v. Kusse, supra; American Fork City v. Charlier, 43 Utah 231, 134 P. 739 (1913); Tooele City v. Hoffman, 42 Utah 596, 134 P. 558 (1913); Salt Lake City v. Howe, 37 Utah 170, 106 P. 705 (1912); Salt Lake City v. Doran, 42 Utah 401, 131 P. 636 (1913).

However, the defendant contends in the case before us that the ordinance in question is inconsistent and in conflict with state laws and therefore invalid on the grounds that the ordinance attempts to make crimes of acts which are not crimes under the state laws. Assuming this to -be true, a.careful examination of the city ordinance, 32-2-1, Revised Ordinances of Salt Lake City, Utah, 1965, and the material sections of the state laws pertaining to sexual offenses, 76-53-8 through 76-53-12, U.C.A. 1953, reveals that both the city ordinance and state statutes have the common purpose of defeating the practice of business of prostitution or the vice of sexual intercourse for hire and are closely related in subject matter. The mere fact that an act denounced as a crime under the ordinance, which is not denounced as a crime under, the statute would not necessarily render the act under the ordinance inconsistent with the statute where as here the ordinance is within the scope of the state law dealing with the same related subject of sexual offenses and is in no way repugnant to, but-on the other hand is in harmony with the state laws. We believe the ordinance is consistent with the statutes pertaining tp sex offenses.

As to whether or not the -difference of penalties between city ordinaneesr and state statutes on the same subject cre-p ates an inconsistency that will invalidate the’, ordinance receives our next consideration’' and causes some difficulty.. The previous decision in this case stated aS followsi

It must be conceded that the legislature.’ did not intend to grant 'to' Cities the 'art-', thority to prohibit acts as - misdemeanors1 which the State has denounced as felonies.;

It is stated in 37 Am.Jur., Municipal Corporations, Section 165, p. 791, as follows:

A municipal ordinance is not in conflict with a statute authorizing its adoption because of a difference in penalties. Thus, further and additional penalties may he imposed by statute, without creating inconsistency and conversely, at least in some instances lesser penalties may be imposed by the ordinance for violation than by the statute without conflict.

See also annotation, 138 A.L.R. 1208, 1214. McQuillin, Municipal Corporations, Section 17.15, footnote 71, cites cases where it is held that ordinance is valid when it relates to same subject matter as state law where the ordinance prescribed a smaller penalty. In these cases both ordinance and statute are misdemeanors.

Although we do not believe there is anything inherently wrong in allowing a local government to punish conduct amounting to a felony under state law by a municipal ordinance which is only a misdemeanor, nevertheless we do not have to decide this question since the case here involved, under, subsections 7 and 8 of the city ordinance, does not amount to a felony under any of the state statutes pertaining to sexual offenses. The elements involved in the present ordinance case would not be the same as under the statute, or if any of the elements were the same or common to both, the statute in a felony case would require proof of additional elements, therefore a claim of double jeopardy would not be valid. Double jeopardy contemplates all the elements of an entire offense. See State v. Thatcher, 108 Utah 63, 157 P.2d 258. We conclude that the difference in penalties does not create an inconsistency that will invalidate the ordinance where there can be no valid claim of double jeopardy.

In summary we conclude that the state has not pre-empted the field of sexual offenses since the ordinance in question is a proper exercise of the police power, and the ordinance is not inconsistent with the state statutes pertaining to sexual offenses.

Because of our opinion overruling the pre-emption theory of the first decision it now becomes necessary to consider defendant’s contention that subsection 7 of the city ordinance is vague and ambiguous and therefore invalid, which was not necessary to the first opinion because of the preemption ruling. Subsection 8 is merely an “aiding and abetting” section to be used in connection with one of the seven subsections and does not concern us on the ground of ambiguity.

Subsection 7 reads as follows:

* * * direct or offer to direct any person to any place or building for the purpose of committing any lewd act or act of sexual intercourse for hire or of moral perversion.

Defendant relies in her contention of vagueness that the two phrases in the subsection 7, namely, “lewd act” and “moral-perversion” are too indefinite and uncertain and therefore render subsection 7 invalid. It will be noted that in said subsection the three phrases, “lewd act,” or “act of sexual intercourse for hire,” or “of moral perversion,” are stated in the alternative and each is a separate and distinct act denounced by the ordinance (the same three phrases are contained in all subsections of the ordinance except subsection 4). Since neither the “lewd act,” nor the act “of moral perversion” is before us in this case we express no opinion as to the certainty or uncertainty of such phrases, hut leave that question open if a proper case ever comes before this court. As to the phrase denouncing the act of “sexual intercourse for hire” which is before us, we find is such conduct that is sufficiently clear to be understood by persons of ordinary intelligence and is definite and clear, and not ambiguous. We appreciate the fact that defendant did not contend this phrase to be uncertain. See Chief Justice Crockett’s concurring opinion in Jones v. Logan City Corp., 19 Utah 2d 169, 428 P.2d 160, and authorities therein cited.

Defendant’s conviction is affirmed.

CROCKETT, C. J., and ELLETT, J., concur.