State Ex Rel. Hansen v. Salt Lake City

445 P.2d 691, 21 Utah 2d 318, 1968 Utah LEXIS 649

• Court: Utah Supreme Court
• Decided: September 24, 1968
• Docket: 11047, 11174
• Status: Published

Opinions

CALLISTER, Justice:

This action involves a challenge to the .constitutionality of a comprehensive ordinance of Salt Lake City to license nonprofit clubs. There were two cases which 'were consolidated for this appeal. In one, .the Attorney General sought a declaratory judgment determining that Section 29 of

Title 20 of the Revised Ordinances of Salt Lake City, was unconstitutional. In the other, seven private clubs sought to enjoin the enforcement of the ordinance as it affects them individually. ■ The lower court upheld the validity of the ordinance except for the provisions requiring that the police chief be given a key to the premises of the club and authorizing police officers to enter the premises without a search warrant. Both the city and the plaintiffs appeal.

There are several aspects which must be considered in evaluating the constitutionality of Section 29, Title 20 of the Revised Ordinances of Salt Lake City, Utah.

Section 10-8-81, U.C.A.1953, authorizes the city to “regulate all social clubs, recreational associations, athletic associations and kindred associations, whether incorporated or not, which maintain club rooms or regular meeting rooms within the corporate limits of the city.”

Section 11-10-1, U.C.A.1953, as amend,ed 1967, authorizes cities to license all establishments, associations and corporations, which allow the customers, members or guests to possess or consume liquor on the premises.

This court has previously held that a city under the authority of Section 10-8-81, U.C.A.1953, may license and regulate nonprofit social clubs.¹ The issue of this case is to define the limits of the exercise of the city’s power to license nonprofit clubs or associations incorporated under Chapter 6, Title 16, U.C.A.1953. Insofar as the ordinance regulates clubs or associations not incorporated under Title 16, Chapter 6, U.C.A.1953, this opinion is not applicable.

In order to appreciate the dimensions of the issues before this court, it is necessary to examine Sections 16-6-13 through 16-6-15, U.C.A.1953, since the city has in effect reenacted these statutes with the substitution of the word “charter” with “license,” “Secretary of State” with “Board of Commissioners,” and the deletion of the $5000 bond required by Section 16-6-13.1, U.C.A.1953.

Section 16-6-13, U.C.A.1953, provides that the Secretary of State shall require proof from any association incorporating under Chapter 6, (1) that it is a bona fide club or association, the object of which is not for pecuniary profit; (2) that it is organized with actual participating members, a record of which will be continually maintained and available to the Secretary of State; (3) that it will not be used for permitting gambling or any other violation of law or ordinance. The statute further provides for the Secretary of State to hold a hearing, after notice, to determine whether an association incorporated or operating under the chapter is organized or operating in accordance with law. If it be shown after a hearing that the association (1) was actually organized for pecuniary profit, (2) was used for gambling or other purposes in violation of any law or ordinance, but not limited to violations of the Liquor Control Act, (3) has failed to maintain or make available to the Secretary of State a record of its membership, (4) failed to file a bond and/or keep on record with the Secretary of State a copy of its constitution, bylaws, and house rules in conformity with the requirements of Chapter 6, or has failed to conform or abide therewith, the Secretary of State shall revoke the charter of such corporation.

Section 16-6-13.1, U.C.A.19S3, provides that the constitution, bylaws, and/or house rules provide fourteen enumerated provisions, if the association maintains premises upon which liquor will be stored or consumed. These fourteen requirements were incorporated verbatim into Section 20-29-9 of the city ordinance.

Section 20-29-23, city ordinance provides that the license may be suspended or revoked by the Board of Commissioners for the violation of any provision of the ordinance or any other applicable ordinance or law relating to alcholic beverages.

The city ordinance in effect establishes the same requirements for a license as the state does for a charter, and the provisions for revocation of the license are substantially similar with the state’s for revocation of the charter.

Is this particular regulatory scheme adopted by the city in exercise of its power to regulate and license non-profit clubs or associations constitutional?

Article XI, Section S of the Utah Constitution provides that each city is granted “the authority to exercise all powers relating to municipal affairs, and to adopt and enforce within its limits, local police, sanitary and similar regulations not in conflict zvith the general lazv, * * (Emphasis added.)

The question raised in the instant action is whether the city ordinance is in conflict with the general law and is therefore unconstitutional.

The Constitution of the State of California, which contains a similar provision to Section 5, Article XI of the Utah Constitution, provides that a city “may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.” (Section 11, Article XI.) This constitutional provision has been interpreted as not only a delegation of power by the people to the local body but is also a limitation upon the local body.²

In the Abbott case,³ the court delineated generally those areas where an ordinance is in conflict with the general law and explained that the denial of power to a local body when the state has occupied the field is not based solely upon the superior authority of the state. The court stated:

* * * It is a rule of necessity, based upon the need to prevent dual regulations which could result in uncertainty and confusion. Thus, the term “conflict” as used in section 11 of Article XI has been held not to be limited to a mere conflict in language, but applies equally to a conflict of jurisdiction. In Pipoly v. Benson, (20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515), supra, this court said, 20 Cal.2d at pages 370-371, 125 P.2d at page 485: “Paradoxical as it may seem, it is apparent that an ordinance and a statute may be identical * * * and yet the ordinance is invalid because within the constitutional provision it is in conflict with the statute. * * * The invalidity arises, not from a conflict of language, but from the inevitable conflict of jurisdiction which would result from dual regulations covering the same ground. Only by such a broad definition of ‘conflict’ is it possible to confine local legislation to its proper field of supplementary regulation.” * * *

The court observed that whether the state has excluded local legislation in a given field depends not only upon the language of the statutes adopted, but upon the purpose and scope of the legislative scheme.

There is a strong similarity in principle between the instant action and Agnew v. City of Los Angeles,⁴ in which the validity of a city ordinance licensing electrical contractors was involved. The issue was whether the ordinance was in conflict with the state Business and Professions Code. The court held that where the state requires certain steps to be taken to procure a license to engage in a particular business and those steps are taken, and the license issued, the right of the licensee is affirmatively granted by the state and the implication ■ that no further requirements should be imposed upon him maybe naturally drawn.

There is a relevant distinction which should be observed: where the legislature imposes the requirement of doing some affirmative action, such as obtaining a license or a charter, upon a citizen, it may be implied that the legislature intended that the cities and counties shall not require him to do more. In contrast, where the legislature prohibits the citizens from doing some act, there is no basis to imply that the legislature intended that cities and counties should not add additional prohibitions. This concept is in accordance with Salt Lake City v. Kusse,⁵ where this court in commenting on various tests to determine whether there is a conflict between the statute and the ordinance, quoted with approval the following:

“ * * * The city does not attempt to authorize by this ordinance what the Legislature has forbidden; nor does it forbid tvhai the Legislature has expressly licensed, authorized, or required. * * ” (Emphasis added.)

Thus the lines of conflict on the instant action emerge, since the ordinance, as enacted by the city, is an encroachment upon the state’s exclusive right to determine the qualifications of. those entities who shall be entitled to operate as state-chartered non-profit clubs or associations. There is a conflict of jurisdiction because the effect of the ordinance could result in the city’s forbidding what the legislature has expressly licensed, authorized, or required.

To illustrate the matter, the Board of Commissioners might find that a club was operating for a profit and revoke its license. The Secretary of State might determine on the same factual basis that the club was a non-profit organization. The net result is an attempt on the part of the city to prohibit that which the legislature has expressly licensed, authorized or required.

From the foregoing, one must logically conclude that insofar as the ordinance incorporates the language and requirements of Sections 16-6-13 through 16-6-15, U.C. A.1953, and encroaches upon the jurisdiction of the Secretary of State, it is unconstitutional on the ground that it creates a conflict with the general laws of the State of Utah.

This conclusion in no way demeans the power to regulate these state-chartered entities granted to the city in Section 10-8-81, U.C.A.1953, for this court has previously held that this statute is merely in aid of the express powers elsewhere granted.⁶ The city is entitled to levy a license tax, since the grant of a state charter does not exempt an entity from muncipal taxation. The city further has the power to enact ordinances under its expressly granted powers concerning sanitary, fire and other police regulations, which will in effect regulate in a nondiscriminatory manner the quality and character of the operations of these chartered associations; but the city has no power to determine the qualifications of those entities, when the state has previously reviewed them and granted a charter and retains thereto jurisdiction to revoke. In the instant action, the challenged city ordinance tends to nullify the permission granted by the issuance of a state charter under the general law, for it attempts to provide a means whereby an association with a state charter may be denied the right to organize and function by a municipality.

The plaintiffs further challenge the constitutionality of Sections 20-29-7, 20-29-20 and 20-29-14 of the city ordinance.

Section 20-29-20 authorizes any peace officer to enter the premises and facilities of non-profit associations for the purpose of determining whether any laws or ordinances are being violated therein, and for those entities where beer or liquor is consumed or stored the police department is commanded to make periodic inspections and report its findings to the Board of Commissioners. This ordinance incorporates the authorization granted by Section 16-6-14, U.C.A.19S3, which provides that all peace officers shall have the right to enter the club rooms of the associations incorporated under Chapter 6, Title 16, for the purpose of determining whether any laws or ordinances are being violated therein.

Section 20-29-7 of the ordinance provides that if the association allows the consumption of beer or liquor on the premises and the entrance to the premises is by key or other device, such a key or device must be supplied to the chief of police.

Section 20-29-14 of the ordinance empowers all peace officers to confiscate without a warrant any liquor stored on the premises that is not properly labeled as to ownership or stored in a member’s locker and to which no one claims title.

This area of the law involving inspections of private premises for the purpose of discovering violations of municipal ordinances enacted under the police power has recently been reviewed by the United States Supreme Court in Camara v. Municipal Court,⁷ and See v. Seattle.⁸

In the Camara case⁹ the court observed that the question was not whether an inspection may be made, but whether it may be made without a warrant. The court held that searches of this kind “are significant intrusions upon the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections.”

In See v. Seattle,¹⁰ the court held that the basic component of a reasonable search under the Fourth Amendment — that it is not to be enforced without suitable warrant procedure — is applicable to business as well as residential premises. Therefore, an entry upon commercial premises not open to the public may only be compelled within the framework of a warrant procedure.

In the instant action, the provisions of the ordinance which compel the clubs to provide a key to the police, permit inspections for violations of the law and waive the necessity of a warrant, proscribe the safeguards of the Fourth and Fourteenth Amendments of the Constitution of the United States and are therefore unconstitutional.

Finally we are confronted with the issue of the effect of the severability clause contained in Section 20-29-25 of the ordinance. This court has previously held that even where a savings clause existed, where the provisions of the statute are interrelated, it is not within the scope of this court’s function to select the valid portions of the act and conjecture that they should stand independently of the portions which are invalid.¹¹

In the instant action, the paramount intent of the city, as indicated by the language of the ordinance, was to determine the qualifications of those entities incorporated under state law as non-profit associations. The various provisions of the ordinance are interrelated to accomplish this purpose.¹² Since it is properly the function of the city to regulate these entities within the express powers granted to municipalities by statute, we will not conjecture as to the intent of the city as to the remaining valid portions of the ordinance. Consequently, all of Section 29, Title 20 of the city ordinance is hereby held invalid.

TUCKETT, J., concurs.

1 . Salt Lake City v. Town House Athletic Club, 18 Utah 2d 417, 424 P.2d 442 (1967).

2 .Abbott v. City of Los Angeles, 53 Cal. 2d 677, 3 Cal.Rptr. 158, 349 P.2d 974, 979, 82 A.L.R.2d 385 (1960).

3 . Footnote 2, supra.

4 . 51 Cal.2d 1, 330 P.2d 385 (1958).

5 . 97 Utah 113, 119, 93 P.2d 671 (1939).

6 . American Fork City v. Robinson, 77 Utah 168, 171, 292 P. 249 (1930).

7 . 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

8 . 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

9 . Footnote 7, supra.

10 . See footnote 8, supra.

11 . Carter v. Beaver County Service Area No. One, 16 Utah 2d 280, 283, 399 P.2d 440 (1965); Pride Oil Co. v. Salt Lake County, 13 Utah 2d 183, 187, 370 P.2d 355 (1962).

12 . See State v. Nielsen, 19 Utah 2d 66, 68, 426 P.2d 13 (1967).