
    SALT LAKE CITY v. SUTTER.
    No. 3879.
    Decided May 31, 1923.
    Petition for rehearing denied, June 29, 1923.
    (216 Pac. 234.)
    1. MUNICIPAL CORPORATIONS-HAVE ONLY POWERS EXPRESSLY OR IMPLIEDLY Granted. A municipal corporation possesses only powers granted in express words and such as are necessarily implied in or incident to accomplishment ,of those powers; and those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, but indispensable.
    
    
      2. Intoxicating Liquors — General Authority to Pass Ordinances for Public Welfare is Qualified by Specific Powers. The general authority given a city by Comp. Laws 1917, § 570x87, to pass all ordinances and rules necessary for public health, prosperity, and morals, is qualified and restricted by the other clauses and provisions which specify the particular purposes for which ordinances may be passed, including section 570x41, authorizing the city to license and regulate or prohibit the manufacture, sale, and giving away or disposition of intoxicating liquors.
    3. Intoxicating Liquors — Municipal Corporations Have Never Been Given Power to Prohibit Possession of Intoxicating Liquors. Municipalities within the state have never been given the power to make possession of intoxicating liquors an offense; and therefore the rule that the Prohibition Law of 1917 (Comp. Laws 1917, §§ 3341-3381) did not repeal the statutes giving power to cities to prohibit the sale and manufacture of intoxicating liquors does not validate a city ordinance prohibiting the possession of intoxicating liquors.
    
    4. Courts — Language of Former Opinion not Necessary for Determination is not Authority. The language of an opinion of the court in a previous case which was not necessary for the determination of the question involved in that case is not authoritative or binding upon the court in a subsequent case in which the particular question was involved, and had been construed by counsel as it had not been in the former case.
    
    5. Municipal Corporations — Powers are Derived from Legislature. Under Const, art. 11, § 5, providing that the Legislature shall provide for the incorporation, organization, and classification of cities and towns, the power or authority which municipalities possess is derived from the Legislature.
    6. Intoxicating Liquors — Ordinance Prohibiting Possession of Intoxicating Liquors is Beyond City’s Powers. Since a city has never expressly been given the power to prohibit the possession of intoxicating liquors, and such power is not necessarily or fairly implied as incident to the power of prohibiting the manufacture, sale, or other disposition of intoxicating liquors, and is not essential to the accomplishment of a declared object and purpose of the corporation, an ordinance making it an offense to possess intoxicating liquors within a city is invalid.
    
      7. Intoxicating Liquors — Prohibition Law does not Enlarge Powers of Cities. The power of a city to enact an ordinance prohibiting the possession of intoxicating liquors must he controlled by the legislative grant of power found in the general statutes, and such power was not given by the Prohibition Law of 1917 (Comp. Laws 1917, §§ 3341-3381).
    8. Courts — Decision Cannot be Influenced bt Effect on Enforcement of Prohibition Law. The decision as to the power of a municipal corporation to prohibit possession of intoxicating liquor cannot be influenced by a consideration of the effect of such decision on the enforcement of the Prohibition Law of 1917 (Comp. Laws 1917, §§ 3341-3381).
    Appeal from District Court, Third District, Salt Lake County; Ephraim Hanson, Judge.
    John Doe Sutter was convicted of violating an ordinance of Salt Lake- City, and he appeals.
    ReveRsbd AND reMANded, with directions to discharge the defendant.
    
      F. W. James, of Salt Lake City, -for appellant.
    
      Wm. H. Folland, City Atty., and Shirley P. Jones, Asst. City Atty., both of Salt Lake City, for respondent.
    
      
      
        Ogden City v. Bear River, etc., Co., 16 Utah, 440, 52 Pac. 697, 41 L. R. A. 305.
    
    
      
      
        Zamata v. Browning, 51 Utah, 400, 170 Pac. 1057.
    
    
      
      
        State v. Hurst, 59 Utah, 543, 205 Pac. 335.
    
   GIDEON, J.

The defendant was convicted of violating an ordinance of Salt Lake City, a municipality of this state. From that conviction he appeals. The ordinance in question, so far as material here, provides:

“It shall be unlawful for any person to knowingly have in his possession any' intoxicating liquor,” without authority.

Have municipalities of this state authority to make the unlawful possession of intoxicating liquor an offense? The . appeal presents only that question.

It is convenient to refer to certain sections of the statute enumerating the powers of city commissioners and city eoun-oils of cities in this state. Comp. Laws Utah 1917, § 570x41, provides that the boards of city commissioners and city councils of cities shall have the powers “to license and regulate, or prohibit the manufacturing, selling, giving away, or disposition in any manner of any intoxicating liquors. * * *” Section 570x49 of the same compilation authorizes such commissions and councils “to prevent intoxication, fighting,” etc.; and section 570x87 gives them the additional power “to pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and such as are necessary and proper to provide for the safety, and preserve the health, and promote the prosperity, improve the morals, peace and good order, comfort, and convenience of the city and the inhabitants thereof, and for the protection of property therein; and to enforce obedience to such ordinances with such fines or penalties as the city council may deem proper; provided, that the punishment of any offense shall be by fine in any sum less than $300 or by imprisonment not to exceed six months, or by both such fine and imprisonment. ’ ’

By title 54, Comp. Laws Utah 1917 (sections 3341-3381), the Legislature of this state, impliedly at least, repealed the authority of the city commissions and city councils to license and regulate the “manufacturing, selling, giving away, or disposition in any manner of any intoxicating liquors.” The defendant contends that the city commissioners of Salt Lake City had no authority to make the possession of intoxicating liquor an offense against the law.

The general rule limiting the powers of municipalities in enacting ordinances is stated in 1 Dillon on Municipal Corporations (5th Ed.) § 237, as follows:

“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly-granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, hut indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved hy the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute hy which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liahility, not authorized thereby, or hy some legislative act applicable thereto. All acts beyond the scope of the powers granted are void.” (Italics hy the author.)

Numerous authorities are cited by the author to support the test, among others Ogden City v. Bear River, etc., Co., 16 Utah, 440, 52 Pac. 697, 41 L. R. A. 305. See, also, 19 R. C. L. p. 800; Cortland v. Larson, 273 Ill. 602, 113 N. E. 51, Ann. Cas. 1916E, 775; City of Marion v. Criolo, 278 Ill. 159, 115 N. E. 820.

In section 239 of 1 Dillon on Municipal Corporations (5th Ed.), and on the same subject, it is further said:

“The rule of strict construction of corporate powers is not so directly applicable to the ordinary clauses in the charter or incorporating acts of municipalities as it is to the charters of private corporations; hut it is equally applicable to grants of powers to municipal and public bodies which are out of the usual, or * * * which, in their exercise, touch the right to liberty or property, or, as it may be compendiously expressed, any common-law right of the citizen1 or inhabitant.”

The sections of the statute quoted do not authorize municipalities to legislate upon the question of possession of intoxicating liquors. It is, however, contended that the power to enact the ordinance in question exists by reason of the general authority delegated by section 570x87, supra. There are certain well-defined limitations to the powers of a city under a charter or statute enumerating certain subjects upon which the municipality may enact ordinances, followed by a grant of power in general language. The rule supported by the great weight of authority is clearly and succinctly stated by the annotator in 34 Am. Dec. at page 629, in a note to the ease of Robinson v. Mayor of Franklin, as follows;

■ “A municipal corporation may exercise the power of passing ordinances and by-laws, though its charter is silent in reference to the subject. Usually the power is conferred. In many cases the charter confers the power to enact ordinances in certain particular instances and for specified purposes. Following the clause in which the particular cases in. which ordinances may he passed are expressly enumerated, a grant is often inserted, in general language, authorizing the corporation to pass all ordinances and hy-laws, not in conflict with the Constitution or general laws, that the welfare, peace, and good order of the municipality may render necessary. Here is an express authority given to pass ordinances in a particular class of • cases, followed by a general authority to pass all necessary laws. The express authority is held to be a limitation upon the general power, so far as it relates to matters which belong to the class of those expressly enumerated, but which are not, in terms, included. A general power granted to the corporation to pass all ordinances necessary for the welfare of the corporation, is qualified and restricted by those other clauses and provisions of the charter which specify particular purposes for which ordinances may be passed. Otherwise the general clause would confer authority to abrogate the limitations implied from the express provisions.”

Reliance is bad by tbe plaintiff upon tbe opinion of tbis court in Zamata v. Browning, 51 Utah, 400, 170 Pac. 1057. In that case tbe question under consideration was tbe validity of an ordinance of Ogden City prohibiting the sale of intoxicating liquors within tbe limits of that city. It was the contention of plaintiff there that the Legislature by title 54, Comp. Laws Utah 1917, had assumed exclusive jurisdiction over the subject of intoxicating liquors in every political subdivision of the state, and therefore Ogden City could not legislate upon the question. The holding was that the Legislature did not, by the so-called Prohibition Law of 1917 (title 54, supra), repeal the statutes giving power.to cities to prohibit the sale and manufacture of intoxicating liquors. The opinion recites at some length the substance and history of the various acts of the Legislature relating to the power of cities to prohibit the sale and manufacture of intoxicating liquors within the boundaries of such municipalities. It is pointed out that nowhere in the various legislative enactments had the power been taken from the cities to prohibit, under the limits fixed in the acts, the sale and amnufacture of intoxicating liquors within such cities. The power to prohibit the sale and manufacture of intoxicating liquors has always existed in cities in the territory and state of Utah from its earliest history. The ordinance of Ogden City in question in that ease prohibiting the sale and manufacture of intoxi-eating liquors was not only exercising powers which had always existed in cities, but it was following along the lines which tended to carry out and assist' in the enforcement of the provisions of title 54, supra, known as the Prohibition Law. The power of municipalities to make the possession of intoxicating liquors a crime had never existed in Utah either before or after statehood. Not only was the power not granted in the original charter creating the various municipalities of the state, but it was at no time given by the general laws which superseded the powers granted in the charter of incorporation. It therefore cannot be contended or claimed that the authority to enact the ordinance in question existed prior to the enactment of the Prohibition Law of 1917. There is nothing in title 54 to indicate that it was the intention of the Legislature to grant this additional power to municipalities.

Reliance is also had upon the opinion of this court in State v. Hurst, 59 Utah, 543, 205 Pac. 335. The defendant in that case was charged with a felony, namely, unlawfully possessing liquor after having been previously convicted of a violation of a city ordinance making it an offense to have possession of intoxicating liquors. On that appeal the question of the validity of the ordinance under which the defendant had been previously convicted was not before the court. The opinion itself says:

“The concrete question for our determination is, Does the statute (title 54, Comp. Laws Utah 1917) relating to intoxicating liquors authorize a prosecution for a felony where the former conviction relied on was not for a violation of a statute, hut for a violation of a city ordinance?”

In the course of the opinion these words are employed:

“We know of no reason why a city, under existing statutes, may not create the offense in question and provide for the punishment thereof to the extent of its jurisdiction and power, hut, under the law as it now stands, we are compelled to hold that conviction for such offense under a city ordinance forms no basis for a charge 'of felony against the person so convicted.”

The opinion, including that statement, was unanimously approved by the court. However, it is apparent that the language was not essential or necessary for tbe determination of tbe question involved. Tbe particular question or subject under consideration in tbe instant case bad not been discussed by counsel or considered by the court. Therefore tbe words, “we know of no reason,” etc., are in no sense authoritative or binding upon tbe court in the case at bar.

We are cited to tbe opinion in Ex parte William McClain, 134 Cal. 110, 66 Pac. 69, 54 L. R. A. 779, 86 Am. St. Rep. 243, as supporting the city’s authority to enact tbe ordinance now under consideration. By tbe ordinance assailed in tbe McClain Case it was made “unlawful for any person to have in bis possession any lottery ticket,” etc. In tbe course of tbe opinion tbe court says:

“In this regard our cities and counties draw their power, not from legislative permission, hut from the direct grant of the Constitution itself, which by article II, § 11, empowers them to make and enforce within their limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.”

We have no such constitutional provision. Article 11, § 5, of our Constitution provides that—

“The Legislature, by general laws, shall provide for the incorporation, organization, and classification of cities and towns in proportion to population; which laws may be altered, amended or repealed.”

Whatever power or authority municipalities in this state have is derived from tbe Legislature.

It will hardly be contended that the ordinance in question was ‘ ‘ essential to tbe accomplishment of tbe declared objects and purposes of tbe corporation. ” As we have seen, it is not included within any express grant; nor is it necessarily or fairly implied as an incident to tbe powers expressly granted measured by, tbe rule laid down by the authorities.

It may be, and is, contended that tbe ordinance in question. is only carrying out tbe general policy of tbe state as reflected ' by tbe legislative enactment making it an offense against tbe state law for any person to knowingly have in his possession without authority intoxicating liquors within the state. But tbe policy of tbe state cannot control in determining the powers of a municipality. Those powers must be measured and determined by the grants found in the charter or in the general laws purporting to enumerate such powers.

We can see no escape from the conclusion that the board of city commissioners of Salt Lake City was without authority to enact the ordinance in question on this appeal.

The judgment is reversed, and the cause remanded to the district court, with directions to discharge the defendant.

WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

On Application for Rehearing.

GIDEON, J.

A petition for rehearing has been filed on behalf of the city, in which it is strenuously insisted that this court has failed to give to the provisions of title 54, Comp. Laws Utah 1917, commonly known as the “Prohibition Law,” the effect intended by the Legislature. We have carefully examined the provisions of that chapter called to our attention in the argument on the petition for rehearing, as well as the cases cited, and we see no reason to change the views expressed in the opinion. The power of the city to enact the ordinance must be controlled by the legislative grant found in the general statutes. This grant, measured by' the rules limiting the powers of cities, nowhere authorizes or gives to the city power to enact the ordinance in question.

Appellant’s counsel in his answer to the petition for a rehearing argues and stresses the result or effect on the enforcement of the Prohibition Law as affected by the decision of this court. The court, in the discharge of its duty, cannot, of course, be influenced by any such considerations, and does not base its conclusion upon that ground.

Petition for rehearing denied.

WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.  