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City of Wichita v. Hackett5/30/2003
00 expansively defines a "vehicle" as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks." In short, it does not exclude devices moved by human power.
The City's authority to expand the State's definition of vehicle ostensibly derives from K.S.A. 8-2001, which provides:
"The provisions of this act [Uniform Act Regulating Traffic; Powers of State and Local Authorities] shall be applicable and uniform throughout this state and in all cities and other political subdivisions therein, and no local authority shall enact or enforce any ordinance in conflict with the provisions of this act unless expressly authorized; however, local authorities may adopt additional traffic regulations which are not in conflict with the provisions of this act." (Emphasis added.)
Since the City has clearly adopted additional traffic regulations, the question becomes whether City Ordinances 11.38.150 and 11.04.400 "conflict" with K.S.A. 8-1567 and K.S.A. 8-1485. City of Junction City v. Lee, 216 Kan. 495, 501, 532 P.2d 1292 (1975), provides guidance on this issue:
"A test frequently used to determine whether conflict in terms exists is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict, but where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict. [Citation omitted.]" (Emphasis added.)
K.S.A. 8-1567 and K.S.A. 8-1485 do not "expressly authorize" the operation of bicycles by those under the influence of alcohol. They merely fail to proscribe it. Consequently, no conflict exists between city ordinances and state statutes. The city ordinance is valid.
City of Junction City v. Lee, 216 Kan. 495, is on point. There, like the instant case, we observed that the language of the city ordinance which concerned the unlawful use of weapons was identical to the State criminal statute's, with two exceptions. The city ordinance prohibited a person from merely carrying specifically-listed dangerous weapons, while the state statute made carrying the same weapons a crime only when concealed or carried with the intent to use unlawfully against another. We held that no conflict existed between the statute and ordinance because one did not forbid what the other permitted; rather, the ordinance was merely more restrictive than the statute. 216 Kan. at 499-502.
Similarly, in Clemons v. Wilson, 151 Kan. 250, 98 P.2d 423 (1940), the issue was whether a city ordinance making it illegal to possess gambling devices was in conflict with a state statute declaring it merely to be a nuisance to set up gambling devices. In determining that no conflict existed, we stated: "The fact that the legislature made places where gambling devices are set up nuisances did not prohibit the cities from going further and making their possession an offense. The statute just did not go as far as the ordinance did, that is all." 151 Kan. at 256; see Blevins v. Hiebert, 247 Kan. 1, 795 P.2d 325 (1990), and the numerous cases discussed therein at pages 5 through 8 which contain such an analysis with similar results.
In summary, the City of Wichita has the authority to prohibit the operation of bicycles while under the influence of alcohol.
Issue
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