City of Bellingham v. Schampera10/20/1960
rold (1956), 130 Mont. 138, 296 P.2d 263; Fargo v. Glaser (1932), 62 N. D. 673, 244 N. W. 905; Clayton v. State (1931), 38 Ariz. 135, 297 P. 1037, (rehearing) 300 P. 1010; Helmer v. Superior Court of Sacramento County (1920), 48 Cal. App. 140, 191 P. 1001.
The following cases have upheld such ordinances, as dealing with matters of local concern and not in conflict with the state law though operating concurrently: State ex rel.
Coffin v. McCall (1954), 58 N. M. 534, 273 P.2d 642; State v. Poynter (1950), 70 Idaho 438, 220 P.2d 386; Mares v. Kool (1946), 51 N. M. 36, 177 P.2d 532; Salt Lake City v. Kusse (1939), 97 Utah 113, 93 P.2d 671; Shaw v. Norfolk (1937), 167 Va. 346, 189 S. E. 335; Kistler v. City of Warren (1937), 58 Ohio App. 531, 16 N. E. (2d) 948; State v. Hughes (1930), 182 Minn. 144, 233 N. W. 874; Village of Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N. E. 519.
We find the reasoning of the latter group of cases more convincing and, particularly, the New Mexico and Utah cases which construed acts quite similar to our own, i.e., the Uniform Motor Vehicle Act; and, further, because in the Utah case the City of Salt Lake had copied the state statute quite closely. (In the present case, Bellingham had copied the statute verbatim.) The court, in the Utah case, says (p. 119):
"We see nothing inconsistent between that part of the ordinance which prohibits driving while under the influence of liquor and the provisions of Title 57,"
and follows that statement with the following quotations from Ohio and Wisconsin cases:
"'"In determining whether an ordinance is in 'conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N. E. 519. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits' State v. Carran, 133 Ohio St. 50, 11 N. E. 2d 245, 246.
"'The statute, as well as the ordinance, in the case at bar, is prohibitory, and the difference between them is only that the ordinance goes farther in its prohibition -- but not counter to the prohibition under the statute. The city does not attempt to authorize by this ordinance what the Legislature has forbidden; nor does it forbid what the Legislature has expressly licensed, authorized, or required. * * * Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail. Bodkin v. State [132 Neb. 535] 272 N. W. 547; City of Mobile v. Collins, 24 Ala. App. 41, 130 So. 369'. Fox v. City of Racine, 225 Wis. 542, 275 N. W. 513, 515."
We conclude that the ordinance of the city of Bellingham, here in question, was not in conflict with our state statute, and there is no indication that the legislature intended to pre-empt the field of legislation with which we are concerned in this phase of the appeal. The appellant's first contention is without merit. (It should be noted here that we are not concerned with any issue of double jeopardy; for a discussion of that subject see State v. Tucker, supra.)
Re: Contention that state has pre-empted the matter of the motor vehicle operators' licenses and that the cities have no authority to provide for their suspension.
The city of Bellingham provided, in its ordinance No. 6952, that on a first conviction of the offense of driving a motor vehicle while under the influence of intoxicants,
". . . the court shall impose a fine of not less than fifty dollars or more than five hundred dollars and not les
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