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City of Bellingham v. Schampera10/20/1960
y to support the proposition that the city of Bellingham, or any other Washington city, has the authority to enact ordinances which carry as a penalty the suspension of a motor vehicle operator's license, or which empowers police courts or any court to suspend such licenses for violations of municipal ordinances, unless it be RCW 46.20.250 which is not applicable to the present case.
The appellant is, therefore, correct in his contention that the portion of the judgment and sentence appealed from, which purports to suspend his driver's license for the violation
of a city ordinance, is beyond the authority of the superior court to enter in this case and must be deleted.
Re: Contention that an ordinance which carries a penalty for its violation in excess of the power of the city to impose is invalid.
As we have indicated, Bellingham ordinance No. 6952 carried the penalties for a first conviction of the offense of driving while under the influence of intoxicating liquor of a fine of not less than fifty, or more than five hundred dollars; and not less than five days or more than one year in jail. As we have also pointed out, the maximum penalties which the city could impose were
". . . a fine not to exceed three hundred dollars or imprisonment not to exceed ninety days, or both such fine and imprisonment." RCW 35.22.470.
The question for consideration is whether there can be a valid sentence pronounced under an ordinance which authorizes a penalty in excess of that permitted by state statute. We have already pointed out, but here reiterate, that the fine and jail sentence imposed in this case, i.e., one hundred dollars and ninety days, are within the permissible limits fixed by state statute, i.e., RCW 35.22.470.
There is a division of authority on this question, but we adopt the majority and, we believe, the preferable rule: that an ordinance which authorizes a penalty in excess of that permitted by statute is not void, and a sentence pronounced under such an ordinance may be enforced to the extent that it is within the statutory limitations, if the city's legislative body would have enacted the ordinance knowing that only the lesser penalties could be imposed. See Kist v. Butts (1942), 71 N. D. 436, 1 N. W. (2d) 612, 138 A. L. R. 1206.
We entertain no doubt as to Bellingham's desire and intent to legislate in this field. It has had legislation of similar import with lesser penalties since 1938. It was only its erroneous interpretation of the 1955 amendment to RCW 46.56.010 which induced it to amend its ordinance in 1955 to impose the severer penalties of the state statute.
We, therefore, hold that the sentence of a fine of one hundred dollars and a jail sentence of ninety days (with fifty days suspended) should be affirmed. We are concerned, however, with the designation of the place of imprisonment in the judgment and sentence, i.e., the county jail.
The statute prescribing the limitations of the superior court's authority, on appeals from municipal courts in first class cities, specifically designates the city jail as the place of confinement. RCW 35.22.560.
If the trial court designated the county jail because ordinance No. 6952, which adopted the language of the state statute, refers to the county jail (and if Bellingham does have a city jail), then the judgment and sentence should be changed, because the city's authority to provide punishment for the violation of its ordinances is, as we have seen, not concurrent with the state's authority to punish for the violation of its statutes. On the other hand, if Bellingham by arrangement wit
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