C. E. CLAYTON, Appellant,
APPEAL from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbons, Judge. Judgment reversed and cause remanded, with directions to discharge defendant.
Messrs. Flanigan & Fields, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Arthur T. La Prade, Assistant Attorney General, Mr. Charles A. Carson, Jr., City Attorney, and Mr. James E. Nelson, Assistant City Attorney, for the State.
[38 Ariz. 137] ROSS, J.
The defendant, C. E. Clayton, upon a charge of driving an automobile in the streets of Phoenix while under the influence of intoxicating liquor, was tried and convicted under an ordinance of the city in the police court thereof. Upon an appeal to the superior court of Maricopa county he was accorded a trial de novo and again convicted, and sentenced to serve 40 days in the city jail and to pay a fine of $250. He has appealed.
On November 27, 1929, the city commission of the city of Phoenix passed Ordinance No. 1492 "regulating traffic upon the public streets of the city," section 55 of which reads, in part, as follows:
"It shall be unlawful for any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon any street or other public way."
It provides a penalty of not less than 30 days nor more than six months in the city jail, or a fine of not less than $100 nor more than $300, or both such fine and imprisonment.
It is contended the city was without statutory or charter authority to enact section 55, for two reasons: (1) Because the subject matter therein is completely covered by the legislature in chapter 31, sections 1557-1726, [38 Ariz. 138] Revised Code of 1928, commonly known as the Highway Code; and (2) because said section 55 does not have for its purpose the regulation of traffic upon the streets of Phoenix, but is an interdiction upon certain physical and mental conditions of motor vehicle drivers. The legislation on the subject of insobriety of motor vehicle drivers is found in the Highway Code, section 1688, reading as follows:
"Any person under the influence of intoxicating liquor or narcotic drugs, or who is an habitual user of narcotic drugs, who shall drive any vehicle upon any highway within this state shall be guilty of a misdemeanor and punished by imprisonment in the county jail for not less than ninety days nor more than one year, or by fine of not less than two hundred nor more than five thousand dollars."
The Highway Code as originally passed was carried forward into the Revised Code of 1928 with some modifications but with no material changes, especially as to its purpose and object. Its title as originally enacted (chapter 2, 4th Sp. Sess., Laws 1927) is, in part, as follows:
"To provide a code for the systematic and orderly administration of all matters and affairs directly affecting or concerning the highways of the state; . . . to regulate the operation of vehicles on highways, and promote the convenience and safety of highway travel; to provide penalties for violations of the provisions of this act," etc.
In Olson v. State, 36 Ariz. 294, 285 P. 282, we held that the Highway Code as contained in the revision of 1928 covered "fully and completely the subject of highway legislation" and repealed directly and by implication all previous legislation on the subject matter of highways.
That the regulations of the Highway Code were intended to apply to city streets is not only manifest from the title of the act as originally passed, but from [38 Ariz. 139] its various provisions, wherein the speed of motor vehicles in business and residential districts is fixed (section 1587); wherein the local authorities may authorize increased speed upon through highways (section 1588); wherein police, firemen, ambulances in emergencies, and physicians may exceed the speed limit (section 1591); wherein police and fire vehicles are given right of way over others (section 1598); wherein the manner of passing street-cars and safety zones are provided for (section 1601); and wherein parking before fire hydrants, fire stations, and private driveways is prohibited (section 1603). In these, and other particulars not enumerated, the Highway Code manifests a purpose to cover the whole subject of highways and to regulate their use by the public in cities and towns as well as in the country. The inhibition against a driver under the influence of intoxicating liquor is one of the many regulations to be observed by those using the public highways, rural and urban alike. Section 1664 provides that if any person is convicted of violating any law regulating the operation of a motor vehicle upon the highways his license shall be revoked, and names as such a violation the offense of driving a motor vehicle while under the influence of intoxicating liquors as prescribed in section 1688.
Under section 1574 the matter of "local parking and other special regulations" is left in the control of the governing body of the city; that is, matters of peculiar local concern are left with the local authorities. The reservation to cities and towns of power over "local parking and other special regulations" would seem to emphasize a purpose on the part of the legislature to make the provisions of the Highway Code in all other respects the guiding and controlling rule throughout the state. Any deviations from the regulations prescribed in the Highway Code to suit [38 Ariz. 140] local conditions or convenience are provide for therein.
The regulation or provision as to the insobriety of a driver is exactly the same in the Highway Code and section 55 of the city ordinance, except as to punishment. The punishment under the ordinance is not as great as may be inflicted under the state law, and the confinement is in the municipal and not the county jail. Under the state law the offense is a high misdemeanor. The act condemned in both is the same. "Highway" is defined in section 1686 as "any way, road or place of whatever nature, open to the use of the public ...