City of Aberdeen v. Forkel , 72 S.D. 536 ( 1949 )

Appellant challenges the validity of an ordinance of the City of Aberdeen which provides in substance that any person convicted of driving while under the influence of intoxicating liquor is prohibited from operating any motor vehicle upon any street of said city for a period of one year from the date of such conviction. Said ordinance also provides punishment for a violation thereof. Being found guilty of a violation of said ordinance, sentence was entered reciting the filing of a complaint charging the defendant with the commission of a public offense, to wit: "Violating a Court Order restraining him from operating an automobile", and imposing a fine of $150. The complaint against Forkel does not charge him with the violation of a court order. The same charges a violation of the ordinance above mentioned. It is obvious, however, that the sentence was imposed not as punishment for disobedience of a court order but for an infraction of the prohibiting ordinance.

I find no escape from the view that the purpose and effect of the ordinance in question is to invoke a punishment and penalty upon persons who are theretofore convicted of driving while intoxicated and that such an ordinance is not authorized under SDC 45.0201 (32) nor by any other provision of our statutes.

For the violation of an ordinance a city is empowered to provide punishment by a fine not exceeding fixed amounts or by imprisonment not exceeding stated periods or by both such fine and imprisonment. SDC 45.0201 (19). An ordinance which exceeds these express limitations cannot be sustained upon the theory that the punitive ordinance relates but to the use of motor vehicles and therefore regulates use and traffic thereof as authorized by SDC 45.0201 (32) and other code provisions referred to in the majority opinion. The policy of the law is to require of municipal corporations a reasonably strict observance of their powers. Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89. A penalty imposed by ordinance must be within the limit prescribed in the grant of power. McQuillin, Municpal Corporations, 2d Edition, Vol. 2, § 757, page 854. The scope of sovereignty delegated to municipal corporations should not be enlarged by liberal construction. 37 Am. Jur., Municipal Corporations, § 113, page 725, note 17. Only by the most liberal construction can it be said that the power to "regulate" the use of motor vehicles includes authority to suspend or prohibit the right of an individual to the use and enjoyment of his property for a substantial period. See McQuillin, Municipal Corporations, 2d Edition, Vol. 1, § 372, pp. 1031 to 1033.

I believe that the assailed ordinance is an unlawful attempt to impair the common right of the individual to the use and enjoyment of his property, rather than a lawful and reasonable regulation of the exercise of such right. I therefore dissent.