City of Fargo v. Glaser

244 N.W. 905, 62 N.D. 673, 1932 N.D. LEXIS 233

• Court: North Dakota Supreme Court
• Decided: October 25, 1932
• Docket: File No. 92 Cr.
• Status: Published

Opinions

Burke, J.

This is an appeal from a judgment of conviction entered in the district court of Cass county on the 15th day of April, 1932. In November, 1931 a complaint was filed in the office of the police magistrate of- the city of Eargo, charging the defendant, Joe Glaser, with the offense of driving an automobile while under the influence of intoxicating liquor in violation of the city ordinance of the city of Fargo.

A demurrer to the complaint was filed on the ground, first, that the police magistrate court had no jurisdiction of the offense charged; second, that the facts stated do not constitute a public offense, and third, the city ordinance under which the act was instituted was invalid. The demurrer was overruled and from a judgment of conviction, the defendant appealed to the district court, where the defendant’s demurrer was again overruled and judgment of conviction entered.

It is the contention of the appellant that chapter 162 of the Laws of 1927 is exclusive legislation on the subject matter of the act, except in certain specified matters, in which the city is authorized to act.

It is agreed that there is but one question involved in the case and that is, Did the city of Fargo have authority to pass the ordinance under which the prosecution is instituted.

The ordinance is in part as follows:

“Ordinance 545, city of Fargo, (effective from and, after March 17, 1930).

“It shall be unlawful and punishable as provided in section 62 of this ordinance for any person whether licensed or not, who is an habit-’ ual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon any highway within this city.

“Every person who is convicted of a violation of § 2 of this ordinance relating to habitual users of narcotic drugs and driving while under the influence of intoxicating liquor or narcotic drugs, shall be punished by a fine of not more than one hundred dollars or by imprisonment in the county or municipal jail for a period not exceeding ninety days, or by both such fine and imprisonment.

“Providing that the court in sentencing any person either for a first or a subsequent violation of this ordinance may suspend any sentence of imprisonment, or any part thereof, and make its order that the person so sentenced shall be precluded from driving any automobile within this city for a period of not to exceed ninety days. Upon proof to the satisfaction of the court that such order has been disobeyed, such suspension shall be by the court revoked.”

The difference between the ordinance and the statute is in the punish ment inflicted.. A violator of the ordinance cannot be fined more than one hundred dollars or be imprisoned in the county or municipal jail for a period exceeding ninety days or by both imprisonment and fine. A violator of the statute may be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars or by imprisonment in a county jail for a period of not exceeding one year or by both such fine and imprisonment. On second or subsequent conviction he shall be punished by imprisonment for not less than ninety days nor more than one year, and, in the discretion of the court, a fine of not more than one thousand dollars. There is also a provision for suspension of sentence and an authority to preclude the defendant from driving an automobile for a period of not exceeding two years.

The purpose of chapter 162 of the laws of 1927 as expressed in its title is, “an act regulating the operation of vehicles on highways and providing for traffic signs and signals and defining the power of local authorities to enact or enforce ordinances, rules or regulations in regard to 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 make uniform the law relating to the ■subject matter of this act.”

One purpose of the act is to define the power of local authorities to enact or enforce ordinances, rules or regulations in regard to matters embraced within the provisions of the act, and the authority of the city to enact the ordinance in question must be sought in the act itself.

Section 21 of the act provides:

“The State Highway Commission with reference to state highways and local authorities with reference to highways under their jurisdiction are hereby authorized to designate main traveled or through highways by erecting at the entrances thereto from intersecting highways signs notifying drivers of vehicles to come to a full stop before-entering or crossing such designated highway, and whenever any such signs have been so .erected it shall be unlawful for. the driver of any vehicle to fail to stop in obedience thereto. All such signs shall be illuminated .at night or. so placed as to be illuminated by the. headlights of an approaching vehicle or by street lights.”

It will be observed that while this section gives to the state higlrway commission-and to local authorities the authority to designate certain highways as through highways and the authority to place stop signs thereon, the failure of the driver to stop is a violation of the state law and punishable as provided in § 61, which reads as follows:

“Every person convicted for a violation of any of the provisions of this act for which another penalty is not provided shall-for a conviction thereof be punished by a fine of not more than one hundred dollars or by imprisonment in the county or municipal jail for not more than ten days.”

Under subdivision “C” of § 4 of chapter 162 of the 1927 session law’s,' “Local authorities in their respective jurisdictions are hereby authorized in their discretion to increase the speed which shall be prima facie lawful upon through highways at the entrances to which vehicles are by ordinance of such local áuthorities required to stop before entering or crossing such through highways. Local authorities shall place and maintain upon all through highways upon which the permissible speed is increased adequate signs giving notice of such special regulations and shall also place and maintain upon each and every highway intersecting any said through highway, appropriate stop signs which shall be illuminated at night or so placed as to be illuminated by the headlights of an approaching vehicle or by street lights.”

Section 68 of chapter 162 provides: “This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law' of those states which enact it.”

It thus appears to be the intention of the legislators that this act should have uniform operation in the state and in other states.

Section 69 of chapter 162 provides: “This act may be cited as the Uniform Motor Vehicle Act Regulating the Operation of Vehicles.”

Section 71 repeals §§ 2972, 2973, 2974, and 2976L Compiled Laws of North Dakota for 1913 and §§ 2976tl0 and 2976tl2, Supplement to the 1913 Compiled Laws of North Dakota. Sections 2972, 2973, 2974 and 2976 relate to the operation of motor vehicles on the road and § 2976tl0 Supplement to 1913 Compiled Laws relates to the operation of a motor vehicle while intoxicated. Section 2976tl3 provides the punishment for driving motor vehicles while intoxicated. Thus showing that chapter 162, laws of 1927, is not intended as additional legislation on the subject of motor vehicles, but is a complete act in itself. This further appears in.§ 65 which provides that: “Whenever any person is arrested for a violation of any provision of this act punishable as a violation, the arresting officer shall, except as otherwise provided in this section, take the name, and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice, such time to be at least five days after such-arrest rmless the person arrested shall demand an earlier hearing, and such person shall, if he so desire, have a right to an immediate hearing or a hearing within twenty-four hours at a convenient hour and such hearing to be before a magistrate within the township or county wherein such offense was committed.”

Section 66 provides: “Every justice of the peace or police magistrate or court in this state shall keep a full report of every case in which a person is charged with violation of any provision of this act.”

Section 67 provides: -“All fines or forfeitures collected upon conviction or upon forfeiture of bail of any person charged with a violation of any of the provisions of this act shall be disposed of as by law provided.” -. ■

Section 58 provides: “-Local authorities in their respective jurisdictions may cause'Appropriate signs to he erected and maintained, designating resident .and business districts, highway and steam or interurban railway grade crossings and such other signs, as may be deemed -necessary to carry out the .provisions of this act, and such additional signs as may be appropriate to give notice of local parking and other special regulations. Local parking and other special regulations shall not be enforcible against, an alleged violator if, at the time and place of the alleged violation, an appropriate sign giving notice thereof, is not in proper position and sufficiently legible to be seen by an ordinarily observant person.”

Section 59 prohibits the erection and maintenance of signs, markers, signals or lights by an unauthorized person.

Section 60 provides: “That any person who shall deface, injure, knock down or remove any sign posted as provided in this act shall be guilty of a violation of this act.”

Section 33 of chapter 162, laws of 1927,'known as the uniform motor vehicle act regulating the operation of vehicles reads as follows: “Powers of Local Authorities. Local authorities except as expressly authorized by § 4 (c) aud § 21 shall have no power or authority to alter any speed limitations declared in this act or enact or enforce any rule or regulation contrary to the provisions of this act, except that' local authorities shall have power to provide by ordinance for the regulations 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 ono 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 in all entrances to such parks adequate signs giving notice of any such special speed regulations.”

There is no other provision in the law authorizing local authorities to legislate upon the subject matter of the act and it seems clear that the power of local authorities is defined and limited to the provisions of subdivision C of § 4, § 21, § 33 and § 58.

Subdivision 0 of § 4 relates to the power of the local authorities to 'increase the speed upon through highways and the placing and maintaining upon such through highways adequate signs giving notice of such special regulation with appropriate stop signs illuminated at night.

Except as provided in § 4c and § 21, § 33 provides that the local authorities shall have no power or authority to alter any speed limitations declared in this act or to enact or enforce any rule or regulation' contrary to the provisions of this act, except that local authorities shall have power to provide by ordinance for the regulation of traffic by means of traffic officers, 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 in all entrances to such parks adequate signs giving notice of any such special speed regulations.

The power of local authorities is limited by the act to the authority granted in §§ 4c, 21, 33 and 58. Nowhere in the act is there any authority granted to the local authorities except as provided in the said .sections. The sections named do not authorize local authorities to pun ish any one for driving an automobile when intoxicated. That offense is covered by the uniform state law and therefore the city had no authority to pass the ordinance in question. This is also the view of tbe attorney general, who passed upon the question in opinion 478, page 52, Report of Attorney General to the Governor, 1928 — 1929.

Chapter 1G2 of the Laws of 1927, known as the Uniform Motor Vehicle Law, which was prepared by experts with the view of making it uniform in every state, is a very comprehensive law regulating the operation of motor vehicles upon the highways in the state and is in fact a complete code upon the subject. It defines highways as “Every way or place of whatever nature open to the use of the public, as a matter of right, for the purposes of vehicular travel.” It applies to every street and alley in every city in the state and it has been adopted by Arkansas, Colorado, Delaware, Idaho, Louisiana, Michigan, Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, Oregon, South Dakota and Utah.

The ordinance involved in the instant case is an exact copy of the Uniform Motor Vehicle Act, except in a very few particulars. The’ title is practically the same as the title of the statute. It adopts the same definition of “motor vehicle,” “motorcycle,” “truck tractor,” “farm tractor,” “road tractor,” “trailer,” “semi-trailer,” “pneumatic tires,” “solid rubber tires,” “metal tires,” “persons,” “owner,” “highway,” “private road or driveway,” “intersection,” “safety zone,” “right of way,” “residence district,” “business district” as defined in the statute. It adopts without change provisions of the statute regulating the driving of any vehicle upon any highway. It authorizes the state highway commission to conduct the investigation of any public bridge, causeway or viaduct. It regulates the speed of the vehicles on the highway. It makes it unlawful to drive any vehicle upon any public bridge, causeway or viaduct. It provides that upon all highways except one way streets, the driver shall drive the same upon the right half of the highway. It provides that the driver shall keep to the right crossing intersections or railroads, regulates the conduct of vehicles meeting or overtaking a vehicle, in fact it is the Uniform Motor Vehicle Law with very few changes. It is not additional legislation but the same legislation. Section two of the ordinance, which is involved in the instant case, is in the exact words of Section two of the statute and Section sixty-two of the ordinance providing the penalty is the same as Section sixty-two of the statute, except the penalty has been changed to bring’ the matter within the jurisdiction of the police court.

Clearly the ordinance attempts to punish the identical offense punishable under Section sixty-two of the statute, for the offense in both statute and ordinance is defined in the same language. The question of whether the same act can be punished once under a general law forbidding it and also under a municipal ordinance is one upon which there is a great division of authorities and the reason for the conflict arises on the difference in granted powers. If the municipality has concurrent jurisdiction with the state to punish an offense, an ordinance punishing the offense is legal, although there may be a statate under which the offender may be also punished and a conviction under the one jurisdiction is not a bar to a conviction under the other.

Section 130 of the Constitution gives to the legislature absolute authority to provide by general law for the organization of municipal corporations without restrictions and the municipality is in this state a creature of the statute.

“In this state cities have oidy the following powers: (a) Those granted in express words, (b) Those necessarily implied or incident to the powers expressly granted, (c) Those essential to the declared objects and purposes of the corporation — not simply convenient but indispensable.” Stern v. Fargo, 18 N. D. 289, 122 N. W. 403, 26 L.R.A.(N.S.) 665.

“Cities and villages in North Dakota are municipal corporations and possess only such powers as are conferred on them by statute. Doubtful claims of power, or doubt or ambiguity in the terms used by the legislature, are resolved against the corporation.” North Fargo v. Fargo, 49 N. D. 597, 192 N. W. 977; Weeks v. Hetland, 52 N. D. 351, 202 N. W. 807.

The city of Fargo is organized under the commission form of government and its powers are defined in § 3818, Compiled Laws, 1913, in seventy-five subdivision sections, which define specifically the powers of the commission relating to municipal affairs. Subdivision 73 provides that it has authority to pass all ordinances, rules and regulations proper or necessary to cany into effect the powers granted to cities with, such fines, penalties or forfeitures as the city commissioners may deem proper; provided that no fine or penalty shall exceed one hundred dollars and no imprisonment shall exceed three months for one offense.

It is clear from this statute that the offenses which the legislature intended that the city should have jurisdiction over were not of a serious nature or the city would not have been limited to a maximum fine of one hundred dollars and three months’ imprisonment.

Cooley on Constitutional Limitations (7th ed.) on page 270 says: “The charter itself, or the general law under which they (cities) exist, is the measure of the authority to be exercised. And the general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them; thus applying substantially the same rule that is applied to charters of private corporation. The reasonable presumption is that the State has granted in clear and unmistakable terms all it has designed to grant at all.”

' Judge Dillon states the rule as follows: “Where the act is, in its nature, one which constitutes two offenses, one against the State and one against the municipal government, the latter may be constitutionally authorized to punish it, though it be also an offense under the State law; but the legislative intention that this may be done ought to be manifest and unmistakable, or the power in the corporation should be held not to exist. Where the act or matter covered by the charter or ordinance, and by the State law, is not essentially criminal in its nature, and is one which is generally confided to the supervision and control of the local government of cities and towns, but is also of a nature to,require general legislation, the intention that the municipal government should have power to make new, further, and more definite regulations, and enforce them by appropriate penalties, will be inferred from language which would not be sufficient were the matter one not specially relating to corporate duties, and fully provided for by the general laws.” 2 Dill. Mun. Corp. 5th ed. § 632. 3 McQuillin, Mun. Corp. § 933, states that under ample charter power acts may be forbidden and punished by ordinance and by statute and then specifies the offenses. In other words if there is ample charter power the ordinance is valid.

If the instant case was one not essentially criminal in its nature and one generally under the control of local government of cities there would be merit in respondent’s contention, but driving an automobile while intoxicated is directly perilous to human life and is malum in se. 9 Iíuddy, Enc. of Automobile Law, § 14; King v. State, 157 Tenn. 635, 11 S. W. (2d) 904; Keller v. State, 155 Tenn. 633, 299 S. W. 803, 59 A.L.R. 685.

There is a very able discussion of the principle in the case of State v. Ferguson, 33 N. H. 424. Tinder the statute the city of Concord was given the power to prohibit the selling or giving away of any ardent spirits by any store-keeper, trader or grocer to be drunk, etc., except by inn-keepers, duly licensed and forbid the selling or giving away of any ardent spirits or other intoxicating liquors to any child, apprentice or servant without the consent of his parent, master or guardian or to any Indian. The city passed an ordinance providing that no person should sell intoxicating liquors within the city of Concord without a license. The court said: “The ordinance undertakes to prohibit the sale of intoxicating liquors, except such as are mentioned in the Pamph. Laws, chap. 846, act of July 6, 1849; ... It in fact extends the prohibition as to those intoxicating liquors to every case of sale to any person, or for any purpose, and by any person not licensed by the mayor and aldermen. . . .

“But this statute, like all other legislative acts, is to be so construed that all its parts shall stand, if this may be done. Eor that purpose the meaning of each of its provisions is to be gathered by reading it in connection with all others, and thus construing it in the light of its context. . . .

“If this general provision confers the power to enact the ordinance, it is clear that the clauses which expressly give the power to regulate sales by store-keepers, etc., and to Indians and children, are unmeaning and useless; for if the general clause authorizes this ordinance, then it equally authorizes one in the precise terms of either or both of those special clauses to regulate such sales. ... To hold, then, that the general clause confers the power, is in effect to expunge these special provisions from the charter; and not these only, but all the numerous clauses which go to limit and define the precise boundaries of the power to be exercised by the gity in the various cases specified for the enacting of bylaws and ordinances. . . .

". . . The power to enact a by-law to prohibit the sale of spirituous and other intoxicating liquors, by or to certain persons designated, or for certain purposes specified, is by implication, as a general principle, a denial of the power to prohibit sales by or to other persons, or for other purposes. Expressio unius est exclusio alteráis. . . .

“The power to make by-laws, when not expressly given, is implied as incident to the very existence of a corporation, but in the case of an express grant of tlu' power to enact by-laws limited to certain specified cases and for certain purposes, the corporate power of legislation is confined to the objects specified; all others being excluded by implication. ... In Child v. Hudson’s Bay Co. 2 P. Wms. 207, 24 Eng. Reprint, 702, it is laid down that a ‘corporation has an implied power to make by-laws; but when the charter gives the corporation power to make by-laws, they can only make them in such cases as they are enabled to do by the charter, for such power given by the charter implies a negative that they shall not make by-laws in other cases.’ ”

In the case of Swann v. Baltimore, 132 Md. 256, 103 Atl. 441, at page 442, the court said: “The statute, it appears, covers the whole subject of the designation and regulation of hack or cab stands in the City, which was formerly dealt with by § 6 of the Ordinance of 1908, and the Act further repeals all laws and parts of laws inconsistent with the Act. State v. Gambrill, 115 Md. 506, 81 Atl. 10; Montel v. Consolidation Coal Co. 39 Md. 164.

“In 17 Am. & Eng. Enc. Law, 246, the general rule, upon this subject, is stated, as supported by authority, to be that Vhere a municipal corporation has been empowered to make ordinances in regard to certain subjects and the legislature subsequently enacts a law regulating the same matter, which had been before permitted to be regulated by such ordinance, it shows most satisfactorily that the legislature intended to take the regulation of the matter out of the hands of the corporation to the extent to which such general law regulated it.”

Where a statute confers certain specific powers on a municipality, those not enumerated are withheld. Van Eaton v. Sidney, 211 Iowa, 986, 231 N. W. 475, 71 A.L.R. 820.

Where the legislature specifically enumerates various powers which the common council of a municipality may render effectual by means of ordinances, this enumeration is an implied exclusion of the right to act otherwise than as specifically directed. Cumnock v. Little Rock, 154 Ark. 471, 243 S. W. 57, 25 A.L.R. 608.

.Tn the case of State v. Mandehr, 168 Minn. 139, 209 N. W. 750, at page 751 where the offense of driving an automobile while intoxicated was charged, the Minnesota court reached the same conclusion as the California court in the case of Helmer v. Superior Ct. 48 Cal. App. 140, 191 Pac. 1001, the Minnesota court said “The true purpose of all municipal ordinances is to regulate local affairs. The sobriety of drivers of motor vehicles is not a local affair. It is a matter of concern to all the people of the state. A driver under the influence of intoxicating liquor is a menace to everyone who happens to be on the road or street while he is at large. It is true that he is a greater menace when he selects a busy street as a driveway instead of a remote country road. . . . It is too clear for argument that to drive a motor vehicle is to use it, and the conclusion follows that Mandehr’s conviction was unauthorized for the reason that the ordinance had been superseded by the statute. In reaching this conclusion, we have consulted with profit Helmer v. Superior Ct. 48 Cal. App. 140, 191 Pac. 1001, and Buffalo v. Lewis, 192 N. Y. 193, 84 N. E. 809.”

In the case of Helmer v. Superior Ct. 48 Cal. App. 140, 191 Pac. 1001, the California court held, that because of the necessity of uniform regulation of motor vehicles, such regulation was not a municipal affair but a matter of state wide importance and the motor vehicle act making it a felony while driving a vehicle while intoxicated is an act for the protection of the lives of the citizens and not a mere regulation of motor traffic.

In the case of the city of Buffalo v. Lewis, 192 N. Y. 193, 84 N. E. 809, the court said the necessity for a uniform law throughout the state was apparent and the motor vehicle law was clearly designed as a new, complete and general enactment to take the place of all previous statutes relating to the use of streets and highways by motor vehicles.

In the case of Ayres v. Chicago, 239 Ill. 237, 87 N. E. 1073, at page 1075, the court said: “The legislature has by the Motor Vehicle act taken the subject of the regulation of the speed and operation of automobiles out of the hands of local authorities and passed the Motor Vehicle law as a general, uniform regulation, applicable alike to all municipalities of the State. The effect of this law manifestly is to abrogate all municipal ordinances designed to regulate tbe use of motor vehicles passed prior to the time such law went into force and to deprive such municipalities of the power to pass such regulating of ordinances in the future. The necessity for such uniform law was a matter of legislative determination, with which the courts have nothing to do. Clearly, the purpose of the legislature was to pass a new and complete law designed to take the place of all municipal ordinances or rules regulating the equipment and operation of motor vehicles.”

In the case of State v. Charles, 16 Minn. 474, Gil. 426, the court held that it is not competent for the legislature to confer on justices of the peace jurisdiction over offenses punishable by the state law as a felony. The court said: “The legislature could not delegate the legislative authority on the subject, because it is per se a crime against the state, an offense against society at large; malum in se, like rape, burglary, arson, larceny, perjury, etc., and not merely an offense against the city of St. Paul, or malum prohibitum, like leaving a horse unhitched neglected to shovel snow off the sidewalks, erecting a frame building within densely populated districts, etc.” This case was followed in the case of State v. Oleson, 26 Minn. 507, 5 N. W. 959. See also Robinson v. Franklin, 1 Humph. 156, 34 Am. Dec. 627.

We have been unable to find any decisions construing chapter 162, Session Laws, 1927, 9 Uniform Laws Anno. 337; but the decisions of the courts in states where they have uniform legislation upon tire subject is certainly applicable to the Uniform Act Regulating Traffic on Highways. The' experts who drew the uniform act had the benefit of all former uniform laws upon the subject and it was clearly their intention to cover the entire field and make the law uniform throughout the United States. That is the purpose of the act, as expressed in its title and it is also the purpose of the act as expressed in its title, to restrict the authority of the municipality to those powers which are specifically granted in the act.

It follows that the police court of the city of Fargo had no jurisdiction over the defendant for the reasons: (1) The powers granted to municipalities by the Uniform Motor Vehicle Act are exclusive and do not include the power to prohibit the driving of an automobile by a person while under the influence of intoxicating liquor. (2) The regulation in the Uniform Motor Vehicle Act relating to the offense of driving an automobile while under the influence of intoxicating liquor is not a municipal affair but is a matter of state wide importance, intended for the protection of the lives of the citizens of the state and not a mere regulation of motor traffic.

The judgment is reversed.

Nuessle and Burr, JJ., concur.