American Fork City v. Charlier

FEICK, J. Appellant was convicted by a jury of having unlawfully sold intoxicating liquor within the corporate limits of American Fork City, contrary to the provisions of a certain ordinance alleged to be in force in said city. The ordinance in question reads as follows: “It shall be unlawful for any person, directly or indirectly, or upon any pretense or by any device, to manufacture, sell, exchange, barter, dispense, serve, give away, or keep for sale any intoxicating liquors, or to solicit, take or accept any order for the purchase, sale, shipment, service or delivery of any such liquor, or to aid in the delivery or distribution of any intoxicating liquors so ordered or shipped, or to own, keep, or in any way be concerned, engaged or employed in the owning or keeping of any intoxicating liquors with intent to violate any of the provisions of this ordinance, or to authorize or permit the same to be done within the corporate limits of American Fork City, Utah County, Utah. — 234 — “Sec. 10. Any natural person who shall violate any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars or more than two hundred and ninety-nine dollars, or by imprisonment in the city jail of American Fork City for not less than thirty days or more than six months, or by both such fine and imprisonment. If any natural person shall be convicted the second time for violating any of the provisions of this ordinance, such persons shall be fined for such second and each subsequent violation by both such fine and imprisonment.” The validity of the foregoing ordinance is assailed upon various grounds, which we shall consider in the order in which they are argued in appellant’s brief. The first objection, stating it in the language of counsel, is : “There is no competent evidence of the ordinance or of its publication.” This objection is, in our opinion, clearly untenable. The ordinance was produced in court, and it was proved that it had been duly passed, and it was also proved that publication thereof had been made as required by Comp. Laws 1907, section 205, as amended by Laws 1911, p. 228. The proof was clearly sufficient. McQuillin, Mun. Ords. section 387. In holding the proof of the ordinance sufficient in this case, we do not wish to be understood as intimating that it is necessary to prove municipal ordinances in the so-called police courts or in those courts that are clothed with original jurisdiction under our statutes to enforce municipal ordinances. 1 The next ground of invalidity is stated thus: “The ordinance is invalid as being repugnant to, and in conflict with, section 65 of chapter 106, Laws of Utah 1911.” Counsel, as one of the reasons why the ordinance should be held invalid, say that it is so because “the statute and ordinance make criminal precisely the same acts.” Assuming this to be true, yet why should this invalidate the ordinance? Whether' such would be the effect does not depend upon the reason just stated by counsel, but rather depends upon whether, in the absence of some constitutional — 235 — inhibition, American Fork City was authorized by the Legislature of this state to pass such an ordinance. Section 68 of chapter 106, Laws of Utah 1911, at least permits, if it does not directly authorize, the cities of this state to pass ordinances upon the subject covered by the one in question here. That section provides: “Nothing in this act contained shall prevent or prohibit any city council, board of trustees or board of county commissioners from enacting restrictions upon and regulations of the traffic in intoxicating liquors in addition to but not in conflict with the provisions of this act.” Moreover, at the same session of the legislature at which said chapter 106 was passed, and with the terms and provisions thereof in mind, the legislature also amended subdivision 41 of section 206, Comp-. Laws 1907, in which section the charter powers of cities are enumerated. In the amendment aforesaid the legislature expressly authorized the councils of the various cities of this state to regulate or prohibit the sale or disposition of intoxicating liquors. The section as amended, so far as material here, reads as follows: “To license and regulate or prohibit the manufacturing, selling, giving away, or disposition in any 'manner of any intoxicating liquor.” (Laws 1911, ch. 120.) In another subdivision of the same section (section 206 x 87) the city councils are expressly empowered “to pass all ordinances . . . necessary for carrying into effect . . . all powers and duties conferred by this title.” It is further provided that the city councils are empowered “to enforce obedience to such ordinances” by the imposition of fines and imprisonment. Such fines must, however, be “in any sum less than $300, or by imprisonment not to exceed six months, or by both such fine and imprisonment.” We have already held, on a former occasion, that “the legislature could confer police powers upon the municipality over subjects within the provisions of existing state laws, and authorize it, by ordinance, to prohibit and punish acts which are also prohibited and punishable as misdemeanors under the general statutes of the state.” — 236 — (Salt Lake City v. Howe, 37 Utah, 170, 106 Pac. 705, Ann. Cas. 1912C, 189.) In view of the several provisions of tbe statutes we have quoted above, can any reasonable doubt exist in tke mind of any one tkat tke legislature intended to and did confer ample power upon tke municipalities of tkis state to pass ordinances prohibiting and punishing tke sale or other disposition in any manner within tke corporate jurisdiction of intoxicating liquors, and that tkis may be done although tke statutes of tke state likewise prohibit and punish suck sales and dispositions? Tke overwhelming weight of authority in tkis country is to the effect tkat, where suck power is conferred upon municipalities, they may prohibit and punish tke same acts that are prohibited and punished by the state laws, and may impose the same penalties imposed by the state laws, if within the jurisdiction of the municipal courts. 2 McQuillin, Mun. Corps, sections 877, 878; 28 Cyc. 696; Black on Int. Liqs. section 225; 1 W. & T. Law of Int. Liqs. section 280. See, also, Ex parte Simmons, 4 Okl. Cr. 662, 112 Pac. 951; same case on rehearing, 5 Okl. Cr. 399, 115 Pac. 380, where the authorities upon the subject are reviewed in an exhaustive opinion. To the same effect is Oklahoma City v. Spence (Okl. Cr.) 126 Pac. 701. It is not necessary for us to cite the numerous cases from the different states upon this question, since they are collated in footnotes to the different sections referred to in the several text-books to which reference has been made. The California cases cited by counsel can be given no weight under the statutes of this state. The Supreme Court of California, in obedience to certain constitutional and statutory provisions in force in that state, has continuously held that the cities of that state have not the power to prohibit and punish any acts which are prohibited and punished by the general laws of the state. Nor are the other cases cited by counsel in point here. There is, however, one case from Iowa namely, Iowa City v. McInnerny, 114 Iowa, 586, 87 N. W. 499, which is sometimes cited as holding contrary to the views we have herein expressed. By referring to that — 237 — case it will be noticed that the decision is based upon a somewhat peculiar statute. In view of that fact, the decision cannot be regarded as of controlling influence under a statute like ours. We are clearly of the opinion that there is nothing in the ordinance in question which is in conflict with chapter 106 aforesaid, and further that under the statutes of this state American Fork City, the respondent here, had ample power to pass and enforce the ordinance in question, unless the same is invalid for some other reason. 2, 3, 4, 5 Counsel, however, further insists that “the alleged ordinance is invalid for want of power in the city council, for unreasonableness, and in being discriminatory.” We have already disposed of the question of power. Nor can we see in what respect the ordinance is so unreasonable as to authorize, much less require, a court to declare it invalid on that ground. We think the ordinance, if otherwise valid, is clearly not invalid for the reason that it is unreasonable-. The contention that the ordinance in question is discriminatory at first blush seems to present a question somewhat difficult, if not serious. This contention arises out of the following circumstances: The ordinance makes it “unlawful for any person, directly or indirectly,” to do the acts prohibited therein. The last section, however, limits the punishment to a “natural person.” It is contended that this invalidates the ordinance because it does not operate equally upon all those who may violate its provisions. As we remarked above, at first blush that contention seems reasonable, but when the ordinance is considered in the light of our statute, the general law upon the subject, and when the jurisdiction of the municipal courts of this state is kept- in mind, the contention is far more plausible than sound. In section 65 of chapter 106, the penalties for violating any of the provisions of said act are specifically stated. It is there provided that, if a natural person shall violate any of the provisions of the act, he shall be punished by a fine of not less than fifty dollars nor more than $299, or by imprisonment of not less than thirty days nor more than sis months, or by both such fine and imprisonment; — 238 — and in case of a second offense the punishment must be by both fine and imprisonment, and the same for each subsequent offense. It is further provided that, if any of the provisions of the act shall be violated by a corporation, it shall be punished by a fine of not less than $100 nor more than $1000 for the first offense, and in case of a second offense the fine shall be not less than $300 nor more than $5000, and a like fine for each subsequent offense. It will be seen, therefore, that the penalty which may be imposed upon natural persons is within, while that which may be imposed upon corporations is clearly beyond, the penalties that municipalities are authorized to impose for the violation of their ordinances. It is further made apparrent that the penalties that may be imposed upon corporations are beyond the jurisdiction of the municipal and justice courts of this state. It was for this reason, no doubt, that the penalty clause in the ordinance in question was made to read as it does. In this connection it may not be improper to state that under the laws of this state a corporation cannot legally be organized for the purpose of selling or disposing of intoxicating liquors at retail, but may be for the purpose of manufacturing it or selling it at wholesale. The sale or any other disposition of intoxicating liquors, other than in wholesale quantities, by a corporation would, therefore, be ultra vires in the strictest sense of that term. But appellant contends that a corporation cannot be punished under the ordinance in question for doing acts for the doing of which he may be punished, and hence he contends that the ordinance is discriminatory, and for that reason void. It seems to us, however, that this contention is not sound. A corporation is a mere artificial legal entity, which may neither be arrested nor imprisoned, and can act only through its agents. True, it may be indicted or informed against, and in such event may, by special process, be brought into court, and may be tried and convicted of certain offenses, and. be fined in a specific sum of money, and the fine may be collected upon execution if there is any corporate.property or assets. This is as far as the state can enforce its criminal — 239 — laws against tbe artificial legal entity called a corporation. But since a corporation can and does act only through some authorized agent or agents, such agents, in case they violate the laws of the state or the ordinances of a municipality, may be arrested and punished the same as any other individual offender may be arrested, tried, and punished. Again, for ultra vires acts the agents responsible for them are usually the only ones who are made to suffer punishment, and for acts not ultra vires, if prohibited and illegal, they ordinarily may be punished, although the corporation may also be punished as a joint offender. In volume 2 of the Laws of Intoxicating Liquors by Woollen & Thornton, section 692, the authors lay down the rule governing that subject in the following language: “If a corporation illegally make a sale, or illegally keep liguors, its officers who participate in such illegal act become liable, and it is no protection that the illegal act was the act of the corporation.” The law that the officers or agents of a corporation who commit or participate in an illegal' act are criminally liable for such act is also clearly stated in 5 Thompson on Corporations, section 5648. Such, in the very nature of things, must be the law, for, if it were not, an insolvent corporation could, through its agents, always violate the law with impunity, since, as we have seen, it cannot be imprisoned. The contention, therefore, that the ordinance is discriminatory because a corporation is permitted to do what an individual may not, is not true in fact. The primary and controlling purpose underlying all ordinances which prohibit and punish the sale or other disposition of intoxicating liquors is to deter those who are inclined to dispose of such liquors from doing so within the corporate jurisdiction! But, viewing this case entirely apart from the law that the agents of corporations are personally liable for acts that are violative of a law or ordinance like the one in question, we think that no one will contend that, under the provisions of the ordinance in question, it is possible for any — 240 — officer or agent of a corporation to escape punishment, if corn victed of any act which is prohibited thereby, if an individual doing the act would be subject to punishment. In view of this, it is not true, therefore, that a corporation may sell or dispose of liquors within the territorial jurisdiction of the city court of American Fork City with impunity. Is not the fact that the agents of a corporation are personally liable and subject to punishment by both fine and imprisonment for any violation of the ordinance a far better deterrent than the mere imposition of a fine against the corporate entity, would be ? But the corpoi'ation, as such, may also be punished under the state law, and np doubt the only reason why it was not made punishable under the ordinance in question was because it was assumed by the framers, thereof that, since the penalty that under the statute is required to be imposed upon corporations exceeds the jurisdiction of the municipal courts, a penalty within that jurisdiction may not be imposed by ordinance. Whether this assumption be correct or not is not controlling here, since neither the purpose nor effect of the ordinance, as we have seen, is discriminatory for the reason that every violation of the ordinance, whether such violation is by a natural person or by a corporation, is punishable by fine or imprisonment, or by both. It is therefore not true, as contended by appellant, that, while he is subject to punishment for certain acts, similar acts, when committed by a corporation, are not punishable. If all acts that are prohibited by the ordinance in question are punishable in the same manner and to the same extent, how can it be said that it is discriminatory in its effect? Does the fact that a corporation under the ordinance can be reached only through its agents, and that it may be fined in a larger sum than an individual in a court other than a municipal court invalidate the ordinance? In view of these conditions the corporation might perhaps deem itself discriminated against, but certainly the individual is not. Under such circumstances, the mere fact that the penalty clause of the ordinance is limited to natural persons in order to make it conform to the statute cannot be given the effect — 241 — contended for by appellant. If sucb effect were given it, tbe letter, although without force, rather than the clearly expressed purpose and intention of the lawmaker and the natural effect of the law, would prevail. It might with as much force be contended that a law or ordinance is discriminatory because under it a natural person may be imprisoned while a corporation may not. Again, it could be contended that, because a corporation is fined in an amount larger than a natural person for the same act, therefore the law or ordinance is discriminatory. In looking at the mere letter of such a law or ordinance, such would no doubt appear to be so; but when the reason and purpose of the whole subject-matter covered by a statute or ordinance and its actual effect are kept in mind there is no discrimination, either in fact or in law. Such is the case here. 6 In connection with this assignment, counsel also raised some question with respect to the alleged fact that the word “natural” is contained in the ordinance published and proved, while that word is omitted from the ordinance as recorded. The ordinance as published and proved is the only one before us, and the word “natural” is contained therein. Whether that word was inadvertently omitted from the record, as contended by counsel for the respondent city, or not, is, in view of the conclusions we have reached clearly immaterial, since that word is really without effect. If the word were entirely omitted from the ordinance the effect we have given it would still be the same. We have carefully examined the cases cited by appellant other than those we have already referred to, but we have found none that in any way touches the real questions involved here. Upon both reason and principle we are clearly of the opinion that the appellant’s contention with respect to this assignment should not prevail. 7 The final reason stated by counsel why the ordinance is invalid is as follows: “It is beyond the power of a city to fix a minimum fine.” Upon this point counsel have cited some cases from New Jersey. Those cases are — 242 — all based upon special statutes and can be given no effect here, for tbe simple reason tbat a mere cursory examination of tbem will convince any one tbat if tbe New Jersey court bad been governed by our statute instead of tbe one in force in New Jersey it could not and would not bave arrived at tbe conclusions arrived at in those cases. We-can see no reason whatever why tbe cities of this state may not, under tbe power conferred upon tbem by tbe statute,, fix a minimum fine for tbe violation of ordinances, so long as tbe fine imposed is within tbe limits fixed by tbe charter- or some special statute, and it is neither unreasonable nor excessive when considered in connection with tbe act sought to be punished. Tbe boobs abound with cases wherein it'is held tbat much larger penalties and much longer terms of imprisonment as -punishment for tbe illegal and prohibited sales of intoxicating liquors are neither unreasonable nor excessive. If tbe minimum fine imposed by tbe ordinance in question is neither unreasonable nor excessive, tbe question is one of policy or expediency, rather than one of power, and is therefore legislative and not judicial. 8. Since writing tbe foregoing opinion appellant has called our attention to tbe case of People v. Edwards (Mich.) 140 N. W. 473-475, in which it was held tbat under tbe local option statute of Michigan tbe courts cannot take judicial notice of whether elections bave been held under tbe statute, nor of what tbe result of such an election, if one was held, was. Whether such should be held to be tbe law of this state need not now be decided. We do take judicial notice tbat an election was held under tbe mandatory provisions of tbe law in June, 1911. What tbe result of tbat election was is immaterial here, since tbe validity of tbe ordinance in question would not necessarily depend upon what tbe result of tbe election was. Under our statute a person could be guilty of an illegal sale of intoxicating liquors, if sold as charged regardless of whether tbe people of American Fork City voted wet or dry. This being so it is quite immaterial to determine tbe result of tbe election in this case. We can — 243 — •do no more under the constitutional provisions of this state than to inquire into tbe validity of the ordinance. Any matter, therefore, that does not affect its validity is beyond our jurisdiction. The judgment is affirmed; respondent to recover costs for printing brief in this court. McCAETY, C. J., concurs.