Ex parte Sloan

217 P. 233, 47 Nev. 109, 1923 Nev. LEXIS 32

• Court: Nevada Supreme Court
• Decided: July 14, 1923
• Docket: No. 2588
• Status: Published

Opinions

By the Court,

Ducker, C. J.:

This is an original proceeding in habeas corpus. The return to the writ shows that petitioner was convicted in the municipal court of the city of Reno for the violation of section 2 of Ordinance No. 299 of said city, and sentenced to pay a fine of $500 or serve one day in the city jail of the city of Reno for each dollar of the fine remaining unpaid.

From the judgment of the municipal court petitioner appealed to the Second judicial court of the State of Nevada, in and for the county of Washoe. Petitioner was tried in said district court before the court sitting without a j ury, found guilty, and sentenced to pay a fine of $100, in default of which it was adjudged that he be confined in the city jail of the city of Reno, Washoe County, Nevada, for a period not to exceed one day for each dollar of said fine remaining unpaid. In default of the payment of the fine petitioner was remanded to the custody of the chief of police of said city of Reno, to be incarcerated in the said city jail. On the issuance of the writ from this court petitioner was admitted to bail.

Section 2 of the city ordinance under which petitioner was charged, tried, and convicted, reads as follows:

“It shall be unlawful for any person, firm, association, or corporation to manufacture, keep or store, sell, or otherwise dispose of, except as hereinafter provided, any intoxicating liquors in the city of Reno; provided, that nothing in this ordinance shall prohibit the manufacture, sale, keeping, or storing of said liquors where the manufacture, sale, keeping, or storing of the same is permitted by the laws of the State of Nevada, or of the United States of America.”

In respect thereto petitioner contends that the city of Reno is without power to pass or enforce any ordinance relating to the subject or subjects mentioned therein, because the authority-so to do has not been granted in its charter.

It is pointed out that the charter of 1917 of the city of Reno contained certain provisions empowering the city council to license, regulate, and limit places where intoxicating liquors were sold or given away, which were eliminated when the legislature amended the said charter act in 1921. From this it is urged that the legislature, in thus amending the charter, had under consideration the question as to whether or not power should be given to the city council to enact any ordinance governing the licensing, regulating, or prohibiting the manufacture or sale of intoxicating liquors, and did not intend to grant the city council any power in regard to these subjects. Wie do not agree with this view. The provisions eliminated pertained to the licensing or ‘regulating of places where intoxicating liquors were sold or given away, and were in conflict with the state prohibition law enacted in 1919, which prohibited the manufacture, sale, keeping, or storing for sale in this state, or offering or exposing for sale of intoxicating liquors in the state. Stats. 1919, p. 1. It is clearly evident that these provisions were removed from the charter act by the legislature of 1921 for this reason, and we perceive nothing in the amendment from which to indulge an inference that it was intended to withhold from the city council the power to legislate by ordinance in regard to prohibiting the sale or disposal of intoxicating liquors within the limits of the city of Reno. It is true this authority is not expressly granted by the charter. Counsel for the respondent concedes so much, and claims that the authority has been given to the municipality under the general delegation of powers appearing in the charter in what is designated as the general-welfare clause. This clause reads as follows:

“To adopt and enforce by ordinance, all such measures and establish all such regulations in case no express provision is in this charter made, as the city council may from time to time deem expedient and necessary for the promotion and protection of health, comfort, safety, life, welfare, and property of the inhabitants of said city, the preservation of peace and good order, the promotion of public morals and the suppression and prevention of vice in the city, and to pass and enact ordinances on any other subject of municipal control or-to carry into force or effect any other powers of the city, and to do and perform any, every, and all acts and things necessary or required for the execution of' the powers conferred or which may be necessary to fully carry out the purpose and intent thereof.” Stats. 1921, p. 56.

This clause of the charter contains a delegation of police powers. It is well settled that the legislature may delegate to municipal corporations the lawful exercise of police powers within their boundaries, and do so under a general grant. 28 Cyc. 705, and cases cited; 19 R. C. L. pp. 798, 799; Cooley’s Municipal Corp. p. 313; 3 McQuillin, Mun. Corp., sec. 895; City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258, 4 Ann. Cas. 235; Crum v. Bray, 121 Ga. 709, 49 S. E. 686, 1 Ann. Cas. 991; Village of Fairmont v. Mayer, 83 Minn. 456, 86 N. W. 457; Commonwealth v. Cutter, 156 Mass. 52, 29 N. E. 1146.

It is unnecessary to adduce or cite authority in this case to show that the prohibition of the sale of intoxicating liquors is comprehended within the scope of police powers. Legislation of this character was declared to be the exercise of such power by the people and legislature of this state (section 23, Stats. 1919, p. 11), and was a legitimate exercise thereof. State v. Reno Brewing Co., 42 Nev. 397, 178 Pac. 902.

There is nothing in the charter act to indicate that the legislature intended to withhold this portion of its police power from being exercised by the city of Reno, and the preservation of the health, comfort, good order, safety, morals, and welfare of the people is within the ordinary scope of municipal authority. A rule deducible from ample authority, which we think should be given application here, is, if the power to pass ordinances upon any subject is specifically given, the power so granted cannot be enlarged or changed by the general clause; but, if the subject is omitted altogether in the specific powers, authority to pass ordinances upon the omitted subject may be conferred under the general clause. The only restriction in the general - welfare clause upon the subjects pertaining to police power is in case express provision is made in the charter, and there is no special provision in regard to the sale of intoxicating liquors. It seems, therefore, that the city council was clothed with ample authority to adopt the ordinance in question.

But counsel for petitioner contends that, the state having passed a general law prohibiting the manufacture and sale of intoxicating liquors fixing the degree of the offense, and providing the penalty therefor, the city council of Reno cannot pass or enact a valid ordinance governing the same subject-matter, and is without power to prosecute any person for the violation of any such ordinance. There is a conflict of authority upon this question. The decided weight of authority, however, is to the effect that the same act may constitute an offense both against the state and a municipal corporation. “Indeed,” says Judge Cooley, in his work on Constitutional Limitations (7th ed.) p. 279, “an act may be a penal offense under the laws of the state, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other.”

This principle was recognized in Ex Parte Siebenhauer, 14 Nev. 365. The trend of authority in this respect is thus stated in 28 Cyc., pp. 696-698:

“The legislature may confer police power upon a municipality over subjects within the provisions of existing state laws. Accordingly, unless it is prohibited by some express constitutional or statutory provision, by the great weight of authority municipal corporations may, by ordinance, prohibit and punish acts which are also prohibited and punishable as misdemeanors under the general statutes of the state, or which may involve a common-law offense.”

“The power may be granted expressly or by implication.” Id. 693.

As was said in City of Chicago v. Ice Cream Co., 252 Ill. 311, 96 N. E. 872, Ann. Cas. 1912D, 675, in which it was held that the fact that the state had legislated upon a subject does not necessarily deprive a city of power to deal with the same subj ect by ordinance:

“Municipal corporations are bodies politic, vested with many political and legislative powers for local government and police regulations, established to aid the government by the state. The necessity for their organization may be found in the density of the population and the conditions incidental thereto. Because of this, the muncipal government should have power-to make further and more definite regulations than are usually provided by general legislation and to enforce them by appropriate penalties.”

The following additional authorities are among those sustaining the principle, which we think is more in consonance with good government, that the same act may be prohibited and punished by municipal and state law: Borok v. Birmingham, 191 Ala. 75, 67 South. 389, Ann. Cas. 1916c, 1061; Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38, 22 Am. St. Rep. 214; Hunt v. Jacksonville, 34 Fla. 504, 16 South. 398, 43 Am. St. Rep. 214; Rossberg v. State, 111 Md. 394, 74 Atl. 581, 134 Am. St. Rep. 626; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722; State v. Walbridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663; Howe v. Treasurer of Plainfield, 37 N. J. Law, 145; Riley v. Trenton, 51 N. J. Law, 498, 18 Atl. 116, 5 L. R. A. 352; Rogers v. Jones, 1 Wend. (N. Y.) 237, 19 Am. Dec. 493; Brazier v. Philadelphia, 215 Pa. 297, 64 Atl. 508, 7 Ann. Cas. 548; Seattle v. MacDonald, 47 Wash. 298, 91 Pac. 952, 17 L. R. A.(N. S.) 49, and note on page 54; Hamilton v. State, 3 Tex. App. 463; In Re Thomas, 53 Kan. 659, 37 Pac. 171; Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548; Theisen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234.

The power of a municipality to punish as a distinct offense an act which also constitutes an offense against the state may be included in the general powers conferred on the former. Thiesen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234; Borok v. City of Birmingham, 191 Ala. 75, 67 South. 389, Ann. Cas. 1916c, 1061; Seattle v. MacDonald, 47 Wash, 298, 91 Pac. 952, 17 L. R. A. (N. S.) 49; City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; City of Brownville v. Cook, 4 Neb. 101; City Council v. Leopard, 61 S. C. 99, 39 S. E. 248; State ex rel. Milwaukee v. Newman, 96 Wis. 258, 71 N. W. 438.

Mr. Dillon, in his work on Municipal Corporations, quoted from extensively by counsel for petitioner, expresses the opinion with some diffidence that a general grant of power to a municipal corporation is not sufficient to confer authority to punish an act as an offense which is also punishable by the state law. But the author concludes the subject, which he characterizes as complex, by concurring in the opinion that there are many acts of such a nature that they may, if the legislature has so provided, be an offense against the state at large and also against the special and local government of the municipality. “Accordingly,” he says, “where an act is prohibited both by statute and by ordinance, it may constitute two offenses, one against the state and the other against the city or town, and where such is the case a conviction of one may not be pleaded as constituting former jeopardy when the offender is prosecuted for the other, and where such is the case the weight of authority also seems to hold that power to enact ordinances with reference thereto may be included in the general powers conferred on cities and towns by statute.” 2 Dillon’s Municipal Corporations (5th ed.), secs. 632, 633.

The same subject is discussed by Mr. McQuillin in his treatise on Municipal Corporations. The author says:

“As to the proposition whether this is true only where express authority has been given the municipal corporation to legislate on the subject, and that under general grant of power no implied authority to penalize acts punishable by statute exists, there is lack of harmony in the judicial decisions. The exigencies of municipal life require more rigid regulations than is required in rural sections of the state. Clearly many acts are far more injurious, and the temptation to commit them much greater, in congested centers than in the state at large, and when done are not only injurious to the public at large but added injury to the inhabitants of the local community. The better doctrine therefore is that' the municipality may exercise necessary implied authority in police control, in imposing penal regulations consistent with the constitution and laws of the state, although the act has been made a penal offense by statute.” 7 McQuillin’s Municipal Corporations (Supplement) sec. 878.

The keeping for sale, or selling, or other disposal of intoxicating liquors denounced by section 2 of the city charter fall within the category of acts which may be prohibited and punished by municipal ordinance, notwithstanding such acts have been made penal by state legislation. The ordinance in this respect is not in conflict with the state law in effect when the amendment to the charter was adopted and when the offense was committed, but is consistent with it. On account of the conditions ordinarily prevailing in populous centers, the acts penalized by the ordinance constitute an offense against the municipality as well as against the laws of the state; consequently the ordinance is not subject to the constitutional inhibition that no person may be placed twice in jeopardy for the same offense. It is objected that the ordinance is unconstitutional because under it, by virtue of another provision of the charter, the right of trial by jury is denied before the police magistrate. The objection is untenable. Express authority is found in the charter for summary proceeding in cases of violation of city ordinances. Section 3, article 14, City Charter of Reno (Stats. 1905, p. 132).

Violations of municipal ordinances belong to that class of minor offenses which were in general triable in a summary manner prior to the adoption of the several constitutions, and a denial of a jury trial in such cases-is not a violation of general constitutional provisions. 24 Cyc. 145; State v. Ruhe, 24 Nev. 251, 52 Pac. 274. Said the court in the latter case, quoting approvingly from Sedgwick St. & Const. Law, p. 497:

“Extensive and summary police powers are constantly exercised in all of the states of the union for the repression of breaches of the peace and petty offenses; and these statutes are not supposed to conflict with the constitutional provisions securing to the citizens a trial by jury.”

The acts sought to be repressed by section 2 of the charter belong to a class of minor or petty offenses to which constitutional guaranties of trial by jury do not extend. If in a given class of offenses trials without a jury were formerly the prevailing rule, this rule is not changed by the constitution. Hunt v. City of Jacksonville, 34 Fla. 504, 16 South. 398, 43 Am. St. Rep. 214; Howe v. Treasurer of Plainfield, 37 N. J. Law, 145; State v. McClear, 11 Nev. 39; McInerney v. City of Denver, 17 Colo. 302, 29 Pac. 516; Am. & Eng. Ency. 974; Pomeroy’s Const. Law, sec. 246; Proffatt on Jury Trials, sec. 95.

In adopting general legislation as to the same acts, the legislature has declared it to be in the exercise of police powers of the state for the protection of the public health, peace, and morals. Acts made penal for such purposes by municipal ordinances have always been prosecuted without a jury under the common law. McInerney v. City of Denver, supra. In the case just cited the court said:

“A careful examination of authorities has led us to the conclusion that, both in this country and in England, the transgression of municipal regulations enacted under the police power for the purpose of preserving the health, peace and good order, and otherwise promoting the general walfare within cities and towns had, for more than a century prior to the adoption of our constitution, been generally prosecuted without a jury,” citing numerous authorities.

Petitioner complains that the maximum penalty which may be imposed under the ordinance is more severe than the penalty which might be imposed under the state prohibition law of 1919. There is very respectable authority to the effect that the fact that the punishment provided in a city ordinance is more severe than that fixed in the state law on the same subject does not necessarily render the ordinance invalid. But we are of the opinion that petitioner is in no position to raise this constitutional objection. He was sentenced to pay a fine of $100, and on default of the payment of the fine to be imprisoned for a period of not to exceed one day for each dollar of the fine unpaid. At the utmost he could only be imprisoned for 100 days. The punishment adjudged was within the limitations fixed by the state law, and petitioner is in no wise injured if the penalty which could be imposed under the ordinance exceeds the maximum penalty of the former. One who is not injured by an act cannot question its constitutionality. Ex Parte Zwissig, 42 Nev. 360, 178 Pac. 20. The same rule applies to city ordinances.

The objection to the title was practically waived in petitioner’s brief, and fully waived on oral argument.

It is ordered that the writ be dismissed.

Coleman, J.: I concur.