City of Lyons v. Suttle

498 P.2d 9, 209 Kan. 735, 57 A.L.R. 3d 1058, 1972 Kan. LEXIS 630

• Court: Supreme Court of Kansas
• Decided: June 16, 1972
• Docket: 46,380
• Status: Published

Opinions

The opinion of the court was delivered by

Fromme, J.:

The question to be answered in this appeal is whether Section 2 of an ordinance of the City of Lyons, Kansas, which prohibits any person, while in a vehicle upon the public ways and streets of that city, from drinking cereal malt beverage or from having in his possession an open container of cereal malt beverage is constitutionally permissible.

The defendants, Monty Suttle and Tim Newman, were arrested on separate occasions in the early morning hours by the police in Lyons, Kansas. They were separately charged and convicted in the municipal court of violating Section 2 of ordinance No. 1247. The two convictions were appealed to the District Court of Rice County. Separate trials de novo to the court resulted in acquittals for both defendants. The question of the constitutionality of the ordinance on which the acquittals were based was reserved by the City of Lyons and this appeal followed.

Ordinance No. 1247 of the City of Lyons in pertinent part provides:

“Section 2. Any person who shall drink or consume cereal malt beverages or have in his possession an open container of cereal malt beverages while in any vehicle upon the public highways, roads, streets, alleys, sidewalks, parks or any other municipally owned or public facility, shall upon conviction thereof be deemed guilty of a misdemeanor and shall be punished as hereinafter provided.”

The uncontradicted evidence introduced or stipulated in both of the cases established that each defendant was arrested while transporting an open container of cereal malt beverage in a motor vehicle upon the streets of the City of Lyons, Kansas. Disregarding the evidence the district judge found each of the defendants not guilty. The reason given by the judge for the acquittals was as follows:

“. . . because oí lack of constitutionality of City Ordinance No. 1247 of the City of Lyons, Kansas, for the reason that said ordinance is simply an ordinance to enable the arrest of undesirable persons because they are undesirable, not because they have done something contrary to the public interest.”

At the outset we note the record is wholly devoid of evidence bearing upon the habits, character or undesirability of either of the defendants. We have difficulty in understanding the basis which the district court gave for its holding. The defendants below did not appear on appeal and we have no guidance from them.

The acquittals by the court are premised upon the statement that the ordinance is unconstitutional because it is simply an ordinance to enable the arrest of undesirable persons because they are undesirable. As previously pointed out the statement is wholly without a basis in the evidence. However, such a statement might indicate reliance by the judge on recent cases from the United States Supreme Court striking down certain vagrancy ordinances. One of these cases is Papachristou v. City of Jacksonville, 405 U. S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839. In Papachristou the high court referred to the vagrancy ordinance as a net making it easy to roundup so-called undesirables. These vagrancy ordinance cases are not in point here. The ordinances in those cases are held to be constitutionally impermissible because of ambiguity and vagueness in the description of persons affected. In Papachristou the ordinance attempted to permit the arrest of rogues, vagabonds, dissolute persons, beggars, gamblers, jugglers, drunkards, night walkers, thieves, pilferers, lewd persons, wanderers, loafers and persons neglecting all lawful business. In holding the ordinance unconstitutionally vague the high court stated the ordinance failed to give a person of ordinary intelligence fair notice of what specific behavior was forbidden and it encouraged arbitrary and erratic arrests and convictions.

No similar charge could be upheld against the present section of the ordinance for the acts prohibited are clearly set forth in ordinance No. 1247. Any person of ordinary intelligence can understand what conduct is forbidden, i.e., a person (whether undesirable or not) while in a vehicle upon the public ways or streets, shall not drink cereal malt beverages and such person shall not have in his possession an open container of cereal malt beverage. The present ordinance is not vague under the federal cases. It is not vague under the Kansas law set forth in State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A. L. R. 2d 750.

The holding by the district court might also indicate it felt the present ordinance was not a proper exercise of the police power by the city governing body. The appellant in its brief speaks to that question, so we will primarily address ourselves to that area of constitutional law.

What are the boundaries for a valid exercise of the police power by a municipality in the area of constitutional law?

In Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363, the boundaries to be considered are defined as follows:

“Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.

“Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.” (p. 302)

One additional limiting factor on the exercise of the police power by a municipality may arise by reason of state pre-emption by means of legislative fiat. State pre-emption in the area of consumption of alcoholic liquor was discussed but found not to exist in Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 733, 495 P. 2d 524. There we noted the pre-emptive clause contained in the Liquor Control Act (K. S. A. 41-208) contained no reference whatever to the consumption of alcoholic liquor. In Blue Star Supper Club we said:

“In concluding that the regulation and control of the consumption of alcoholic liquor is not an area exclusively reserved by the state we believe it is significant that when the legislature adopted K. S. A. 1971 Supp. 41-2631 as a component part of the Private Club Act, and forbade therein the enactment of any ordinance conflicting with the act, it did not include a preemptive provision. . . (p. 735)

An examination of the provisions of the Cereal Malt Beverage Act (K. S. A. 41-2701 et seq.) discloses no pre-emptive clause of any kind in that act. We conclude that control of the consumption of cereal malt beverages is not an area of concern exclusively reserved by the state.

Now let us inquire as to whether the consumption of cereal malt beverages, regardless of the percentage of alcoholic content, bears a substantial relation to the public health, safety, morals and general welfare of the public.

Beverages with some alcoholic content have long been considered of such a nature and effect that laws regulating sales and consumption have been passed and enforced. In the Intoxicating-Liquor Cases, 25 Kan. 751 (1881), various concoctions with varying alcoholic content, such as McLean’s cordial, tolu and wild cherry and prickly-ash bitters, were discussed. It was held that whether their manufacture and sale was illegal under the prohibitory law depended upon whether their primary use was for beverage purposes. In Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, it was thought that the tendency of cider to ferment was sufficient to justify regulation of sales of that beverage. In the case of In re Jahn, Petitioner, 55 Kan. 694, 41 Pac. 956, sales and consumption of hot-tea which contained 2% or less alcohol by weight was restricted.

At the present time Kansas has two separate laws directed toward regulation and control of beverages with an alcoholic content. The first is the Kansas Liquor Control Act (K. S. A. 41-101 et seq.) which applies to beverages including beer with an alcoholic content of more than 3.2% by weight.

A provision in the Kansas Liquor Control Act makes it unlawful for any person to transport in any vehicle upon a public highway, street or alley any alcoholic liquor except in the original package which shall not have been opened. Opened containers may be transported if placed in a locked outside compartment not accessible to the driver and passengers. (K. S. A. 41-804.) However, in the absence of a pre-emptive clause, 41-804 does not prevent a municipality from adopting a similar ordinance so long as the ordinance does not conflict with the state law. As previously held in Blue Star Supper Club the regulation and control of the consumption of such beverage alcohol is not an area exclusively reserved by the state.

In City of Garden City v. Miller, 181 Kan. 360, 311 P 2d 306, it was pointed out:

“The fact that the state has enacted legislation on a subject does not necessarily deprive a city of the power to deal with the same subject by ordinance. [Citations omitted.] A municipality may legislate on the same subject so long as the municipal ordinance does not conflict with the state law [Citations omitted.], and if there is no conflict, both laws may stand. . . .”

(p. 366)

(See also Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P. 2d 183; and Blue Star Supper Club, Inc. v. City of Wichita, supra.)

The second state law directed toward control over beverages with an alcoholic content is the Cereal Malt Beverage Act (K. S. A. 41-2701, et seq.) which applies to cereal malt beverages containing no more than 3.2% of alcohol by weight. This act contains no state prohibition against the transportation of such beverages in opened containers. The act does provide for licensing and regulating the sale of the beverage at retail on a city or county level. Under the provisions of the act the governing body of the city may prescribe hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed. The act prohibits persons under eighteen years of age from buying or drinking any of such beverages in or about the licensed premises. (See K. S. A. 41-2704 as amended.)

We see no conflict in the provisions of these two legislative acts (K. S. A. 41-101 et seq., and K. S. A. 41-2701 et seq.) and the city-ordinance with which we are presently concerned.

The state laws which exist in this area of concern adequately attest to the fact that regulations pertaining to transportation of open containers and consumption of beverages containing alcohol are generally considered to be within a proper exercise of the police power. (See also Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877; and State v. Logan, 198 Kan. 211, 424 P. 2d 565.) We see no reason why municipalities may not regulate and limit the transportation and consumption of cereal malt beverages on city streets if such regulation does not conflict with existing state laws.

The present ordinance should be accorded a presumption of validity. (State ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; Moore v. City of Pratt, 148 Kan. 53, 79 P. 2d 871; Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P. 2d 1004.) When an ordinance is not oppressive or unreasonable it is the duty of a court to hold it valid, provided it does not conflict with the limitations placed upon the municipality by the constitution or laws of the state.

It must be kept in mind that courts cannot set aside ordinances unless they are unconstitutional, ultra vires, and under certain conditions unreasonable. If there is room for fair debate the court will not substitute its own judgment of reasonableness for that of the legislative body charged with the primary duty and responsibility of determining the question of reasonableness. In considering a police power ordinance the court merely considers whether the object of the ordinance is a proper one and whether the means adopted to accomplish that object are appropriate. (16 Am. Jur. 2d, Constitutional Law, § 278.)

This court can take judicial notice of the problems created by drinking beverages containing alcohol while driving a motor vehicle. If alcohol is consumed in sufficient quantities a person loses some of his normal powers of coordination and perception. This may affect a driver’s ability to perceive and react to traffic conditions which confront him during ordinary driving. “Driving while under the influence” is listed on the accident reports of this state as a contributing cause of many serious vehicular accidents. The present ordinance appears to be directed toward reducing the incidence of vehicular accidents contributed to by drinking cereal malt beverages while driving.

Various regulations governing the use of highways by the motoring public to protect the public safety and welfare have been held to be a proper exercise of the police power. In Pinkerton v. Schwiethale, 208 Kan. 596, 493 P. 2d 200, it was said:

“The use and ownership of motor vehicles generally have been considered proper areas of concern for the exercise of the police power. Various laws restricting rights arising from the use and ownership of motor vehicles have been found constitutionally permissible.” (pp. 599, 600)

We believe the object of this police power ordinance is a proper one and that the means adopted to accomplish that object are appropriate. We believe the district court should not have substituted its own judgment of reasonableness for that of the city governing body.

We also feel the trial court misconstrued the meaning of the word, unconstitutional. Unconstitutional, as understood and applied by the courts, means that the ordinance assailed is in conflict with some provisions of the constitution or law and not that it is considered unwise, conflicts with generally accepted policy or is contrary to sound principles. (See United States v. American Brewing Co. (Pa.) 1 F. 2d 1001 (E. D. Pa. 1924); and Ketterer v. Lederer, 269 F. 153 (E. D. Pa. 1920.)

A Pennsylvania court expressed a legally accepted meaning for the term “unconstitutional” in this manner:

“Whatever else may be said of legislation, it is not unconstitutional in the legal meaning of that term as used in America, unless the legislation be in conflict with a provision of our written Constitution. In other words, the enactments of our Legislatures and of Congress are not unconstitutional merely because unwise, or in conflict with sound principles of legislation, but because the statutory enactment conflicts with a constitutional provision. . . .” (Pennsylvania Co. for Ins. on Lives, etc. v. Lederer, 292 F. 629 (E. D. Pa. 1921) at p. 632.)

In summary, the consumption of beverages containing alcohol and the use of the streets by motorists have long been the subjects of regulation under the police power. These subjects bear a real and substantial relation to the public safety and welfare. Section 2 of ordinance No. 1247 of the City of Lyons is a proper exercise of the police power. Neither the state Liquor Control Act nor the state Cereal Malt Beverage Act contain a pre-emptive clause which would preclude the adoption of the present section of the ordinance. We find no conflict between Section 2 of the ordinance and any state laws dealing with these subjects. We are not able to say that Section 2 of the ordinance is unreasonable without substituting our judgment for the judgment of the city governing body which is charged with the primary duty and responsibility of determining the question of reasonableness. Section 2 of ordinance No. 1247 of the City of Lyons is not unconstitutional for any of the reasons discussed herein.

Accordingly the appeal is sustained .