Opinion
Arlo E. Rickett, Jr., City Atty. of Pomona, Robert C. Gustaveson, Deputy City Atty., for appellant.
Daniel N. Fox, Pomona, for respondent.
HERNDON, Justice.
The instant case was transferred to this court upon our own motion after decision by the Appellate Department of the Superior Court of Los Angeles County, pursuant to the provisions of section 1471 of the Penal Code and Rule 62 of the California Rules of Court. (See People v. Lopez, 207 A.C.A.Supp. 58, 24 Cal.Rptr. 412.)
Defendant Lopez was charged in the Municipal Court of Pomona Judicial District with a misdemeanor, to-wit, a violation of section 16-4 of ordinance 1673 of the City of Pomona, in that he did appear on January 30, 1962, 'in a public place, a place open to public view, to wit: Hull House, 800 West Fifth, Pomona, within the corporate limits of the City of Pomona, in a state of drunkenness or intoxication or under the influence of an alcoholic beverage.'
When the case was called for trial, and before the taking of any evidence, defendant moved the court to dismiss 'on the ground that subsection (f) of Section 647 of the Penal Code which was adopted at the last [1961] session of the Legislature preempted the field of drunkenness in public.' Defendant's motion was granted, and the city attorney, on behalf of the People, appealed to the superior court from the order of dismissal. We have concluded that the decision of the appellate department of said court reversing the order of dismissal is well-considered and sound.
The sole question here presented for our determination is whether or not it presently is within the power of a California city to enact an ordinance making it a penal offense for a person to be intoxicated (1) in a place open to public view although such place is not per se, a public place, and (2) in a public place although the degree of intoxication is not sufficiently extreme to cause such person (a) to be unable to care for his own safety or the safety of others, or (b) to interfere or obstruct or prevent the free use of any street, sidewalk or other public way.
The defendant urged, and the municipal court held, that such an ordinance is invalid because it relates to a subject matter which has been completely preempted by the State of California through the enactment of various statutes, and, particularly, subsection (f) of section 647 of the Penal Code. The ordinance here involved reads as follows:
'Any person who appears at or is in any public place, or in any place open to the public view, or on any street, sidewalk, parkway, alley, highway, court, public park, railway, depot, plaza, bus depot or public square in a state of drunkenness or intoxication or under the influence of an alcoholic Section 647 of the Penal Code, so far as here pertinent, reads as follows: 'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor; * * * (f) Who is found in any public place under the influence of intoxicating liquor, or any drug, or the combined influence of intoxicating liquor and any drug, in such a condition that he is unable to exercise care for his own safety or the safety of others, or by reason of his being under the influence of intoxicating liquor, or any drug, or the combined influence of intoxicating liquor and any drug interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.' (Emphasis added.)
The following California constitutional provisions state basic and fundamental principles which are vital and which must be correctly interpreted and properly applied in order to arrive at a correct answer to the question here presented. Article XI, section 11, provides that: 'Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' (Emphasis supplied.) Article XI, section 6, also declares the policy of preserving local self government by providing that chartered cities are empowered '* * * to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws.' (Emphasis added.) Article XI, section 8(j) contains provisions to the same effect.
Thus, the basic rule of law embodied in these constitutional provisions is that chartered cities which have availed themselves of these home rule provisions are empowered to legislate free from limitation by the Legislature in matters properly regarded as municipal affairs, (Wiley v. City of Berkeley, 136 Cal.App.2d 10, 288 P.2d 123) but are restricted in matters of statewide concern by the rule that local regulations which are in conflict with general law are invalid. (Chavez v. Sargent, 52 Cal.2d 162, 339 P.2d 801; Abbott v. City of Los Angeles, 53 Cal.2d 674, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2D 385; In re Lane (1962), 58 A.C. 97, 22 Cal.Rptr. 857, 372 P.2d 897.)
Let us now proceed to a more specific consideration of the question as to whether or not the instant ordinance either conflicts with state law, or deals with a subject matter forbidden to the city because of state preemption of the 'field'. The conclusion of the appellate department that the ordinance is valid is strongly supported by In re Boza, 41 Cal.App.2d 25, 29-30, 106 P.2d 29.
We recognize, of course, that a fatal conflict between a city ordinance and controlling state law may exist in various situations. The most obvious type of conflict occurs when a local ordinance prohibits something which state law expressly permits, or permits something which state law expressly prohibits. But aside from such a direct or express conflict, local law may be invalid because it conflicts with general state policy. (Chavez v. Sargent, supra, 52 Cal.2d 162, 339 P.2d 801.) Moreover, a conflict fatal to a local law may result from the fact that the Legislature by its enactments has occupied the field in question to such an extent and in such manner as to indicate a legislative intent to preclude local enactments in the same field. (Chavez v. Sargent, supra; Abbott v. City of Los Angeles, supra, 53 Cal.2d 674, 3 Cal.Rptr. 158, 349 P.2d 974; In re Lane (1962), supra, 58 A.C. 97, 22 Cal.Rptr. 857, 372 P.2d 897; In re Moss (1962), 58 A.C. 116, 23 Cal.Rptr. 361, 373 P.2d 425.)
It should be emphasized that the mere existence of state law in a particular field does not in and of itself preclude local legislation in the same area, because very often there may be a concurrence of local and state law in the same field under the principle declared in Pipoly v. Benson, 20 Cal.2d 366, 370, 125 P.2d 482, 147 A.L.R. Chavez v. Sargent,
We recognize also that a 'general scheme for the regulation of a particular subject' may be found either in a single comprehensive statute or in a combination of code sections which in the aggregate spell out and evidence a legislative intent to occupy an entire field of legislation so completely as to preclude local legislation in the same field. The general scheme found existent in In re Lane, supra, was derived from a consideration of numerous sections of the Penal Code 'so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject' (criminal sexual activity). (58 A.C. at page 101, 22 Cal.Rptr. at page 859, 372 P.2d at page 899.) However, as Chief Justice Gibson says in his concurring opinion at page 108, 22 Cal.Rptr. at page 863, 372 P.2d at page 903:
'Whether a particular statute or group of statutes is sufficiently comprehensive to show an intent to occupy the entire field is a matter which cannot properly be decided upon the basis of any single, precise test. Rather, the courts must rely upon broad general principles which are flexible enough to embrace our varied and rapidly expanding body of legislation. Determination of the question depends primarily upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate, and the intent of the Legislature is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme. (Tolman v. Underhill, supra, 39 Cal.2d 708, 712, 249 P.2d 280.) In order to hold that the field has been occupied, it is not necessary that the Legislature has specifically declared the scheme or policy is so many words, and the general intent may be found words, and the general intent may be found in a multiplicity of statutes taken together (Abbott v. City of Los Angeles, supra, 53 Cal.2d 674, 687, 3 Cal.Rptr. 158, 349 P.2d 974.) One of the factors stressed in the decisions is whether or not the subject calls for uniform treatment throughout the state. (Abbott v. City of Los Angeles, supra, 53 Cal.2d at pp. 687-688, 3 Cal.Rptr. 158, 349 P.2d 974; Tolman v. Underhill, supra, 39 Cal.2d at p. 713, 249 P.2d 280.)'
The essential problem with which we are now confronted, therefore, is to determine exactly what 'subject' or 'field' the state law has covered, and, in this connection, we consider it important briefly to review the events leading to the enactment of section 647 of the Penal Code in its present form.
On March 8, 1960, the California Supreme Court filed its decision in the case of In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116. The petitioner in that matter had been convicted of violating section 647, subdivision 11, Penal Code, in one count and section 4150 of the Long Beach Municipal Code in a second count. The provisions of the cited section of the Long Beach Municipal Code appear to be substantially the same as those of the Pomona ordinance in that it 'makes it a misdemeanor for any person to appear in a public place while intoxicated.' (In re Newbern, supra, page 797, 3 Cal.Rptr. page 372, 350 P.2d page 124.) Section 647 of the Penal Code, as it then stood, was captioned 'Vagrants Enumerated' and subsection 11 classified every common drunkard as a vagrant.
The Supreme Court, in the Newbern case, held that said subsection of the statute was 'unconstitutionally vague, uncertain and incapable of being uniformly enforced.' Section 647 of the Penal Code was thereupon amended and re-enacted by the Legislature in its present form by statutes of 1961, chapter 560, section 1. Each of the subsections was rewritten with an obvious eye to the weaknesses of definition denounced in the Newbern decision, i. e., general descriptions of criminal 'conditions' are more specifically defined in terms of prohibited conduct. Subsection (f), which is presently under consideration, was rewritten to change the prohibition from one against the condition of being a 'common drunkard' to one requiring a certain degree of intoxication in certain places in order to constitute 'disorderly conduct.'
As heretofore indicated, our Supreme Court, in its decisions in the Lane case, supra, expressly disapproved any statements in earlier decisions to the effect that local laws may be added in a field which has been occupied completely by state legislation. However, there is absolutely nothing in the language of the opinions in the Lane case which so much as suggests that long-standing principles applicable in fields not totally state-occupied are any less valid today. These principles are well stated in In re Hoffman, 155 Cal. 114, 118, 99 P. 517, 519, as follows:
See language of Chief Justice Gibson's concurring opinion in Lane, 58 A.C. at pages 107 and 108, 22 Cal.Rptr. 857, 372 P.2d 897.
'The state in its laws deals with all of its territory and all of its people. The exactions which it prescribes operate (except in municipal affairs) upon the people of the state, urban and rural, but it may often, and does often, happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities, so that it becomes proper, and even necessary, for municipalities to add to state regulations provisions adapted to their special requirements.'
Of course, it must again be stressed that the Lane decision distinguishes the Hoffman and other cases and disapproves any language suggesting that, notwithstanding the state's promulgation of a general scheme intended to constitute complete coverage of a particular subject, a municipality may nevertheless adopt additional or supplemental legislation. This is perfectly logical, for where the Legislature has indicated its intent to adopt a general scheme, either by express language to that effect or by clear implication, it has, in effect, determined that the special or distinguishable needs of the various municipalities within the state are not sufficiently compelling that their satisfaction by means of additional local legislation should be permitted. It is a practical and common sense recognition that, in some areas, the public interest is best served by uniform, statewide regulation.
With this general background in mind, we turn to a consideration of the nature of the 'subject' or 'field' involved in the present issue. Since all of the various legislative enactments found in the several codes dealing in one fashion or another with the use and sale of alcoholic beverages were in effect at the time of the Newbern decision, supra, and the Supreme Court nevertheless did not question the validity of the Long Beach ordinance there involved, it is apparent that the field in which the subject of alcoholic intoxication is found was not then considered to have been preempted by the extensive state legislation then existing. This would appear reasonable in any event, for most of the existing legislation regulating various aspects of the 'field' of alcoholic beverages has little, if any, direct bearing on the 'subject of intoxication', per se. Many of these statutes expressly recognize the existence of valid special interests of local governmental bodies in the same areas.
Thus, for example, sections 23000-25762 of the Business and Professions Code extensively The cited sections of the Government Code give cities the right and power to adopt zoning ordinances, and, as the result of this exception, the cities by their zoning ordinances actually may curtail the power of the State Board of Equalization to grant liquor licenses in certain parts of their territory, so long as the ordinance has a general purpose and is not simply an attempt to effect 'local option' indirectly. (Town Council of Town of Los Gatos v. State Board of Equalization, 141 Cal.App.2d 344, 296 P.2d 909.)
Sections 427 to 427.4 of the Health and Safety Code deal with alcoholic rehabilitation; however, section 427.1 thereof expressly states: 'The department may contract and cooperate with local governmental agencies * * * in connection with the development of local programs for the treatment and rehabilitation of alcoholics, and local governmental agencies * * * are authorized to establish clinics for the treatment and rehabilitation of alcoholics,' (Emphasis added.)
In the light of the Newbern decision, the validity of certain other state legislation may be questioned, such as section 397 of the Penal Code, relating to sales to 'any habitual or common drunkard'; section 273(g) regarding being 'habitually drunk' in the presence of a child; and sections 5400-5408 of the Welfare and Institutions Code, relating to persons 'subject to dipsomania or inebriety.' Regardless of any such question, (upon which we now express no opinion whatsoever) the treatment of the situations and conditions dealt with in these enactments obviously does not indicate any legislative design or intent fully to cover the subject of intoxication of every degree and in every possible circumstance. The Newbern decision clearly so indicated in its ruling regarding the Long Beach ordinance.
It is likewise true that the subject of 'intoxication', either with or without specification as to the degree thereof, or as to the temporary or chronic nature of the condition, has been dealt with in a number of situations. Without attempting a completely comprehensive catalogue, we might list the following: in connection (1) with the operation of motor vehicles, sections 13201a, 13352, 23101, and 23102 of the Vehicle Code and sections 367d and 367e of the Penal Code; (2) with the operation of aircraft, sections 21407.5, 21407.6 and 21415 of the Public Utilities Code; (3) with watercraft, sections 1292 and 1390 of the Harbors and Navigation Code; (4) with the conduct of public officers, sections 1770 (l) and 3001 of the Government Code; (5) with physicians, section 6581 of the Business and Professions Code; (6) with druggists, sections 4352 and 4388 of the Business and Professions Code; (7) with the cashing of checks, section 951 of the Financial Code; and (8) with the issuance of marriage licenses, section 69 of the Civil Code.
Certain of these statutes relate to such matters as disciplinary proceedings and the forfeiture of licenses. It would seem most fallacious to argue that simply because intoxication under certain conditions may result in the loss of some right or privilege, no other form of punishment can be permissible. It is of interest also to note that many of these enactments refer merely to a person being 'intoxicated' or 'under the influence of intoxicating liquor' without further definition of the extent or degree thereof. Obviously, the Legislature must have felt that the degree of intoxication forbidden in each instance generally would be understood in accordance with the logical demands of the situation. This appears perfectly reasonable, for a man well might be able to comprehend the nature of his acts in obtaining a marriage license in a condition that should absolutely disqualify him to operate an airplane or to mix drugs. These statutes to which we have referred, whether viewed individually or collectively, do not appear to this court to manifest any legislative intent to so preempt the field as to invalidate the ordinance here involved. Further, as heretofore indicated, all of these enactments were in force at the time of the Newbern decision. The conclusion is therefore inescapable that if the field of 'intoxication' in every degree and instance has been preempted, it must have occurred with the amendment of section 647 of the Penal Code.
What, then, is the 'subject' or 'field' covered by section 647 of the Penal Code? The initial wording indicates that it is 'disorderly conduct.' In referring to it in the Lane case, supra, 58 A.C. at page 101, 22 Cal.Rptr. 857, 372 P.2d 897, it was classified under the heading 'acts against public decency.' Subdivision (f) now under consideration indicates that intoxication to the point of helplessness in a public place constitutes 'disorderly conduct' or an 'act against public decency.' Can it reasonably be said that the Legislature, by condemning a particularly flagrant degree of intoxication in a particular locale intended thereby to declare lawful all lesser forms of intoxication in the same locale, or even that same helpless condition in other locations? Or to emphasize another practical aspect of the problem, is the entire subject of intoxication such that it reasonably 'calls for uniform treatment throughout the state'?
Our answers to the foregoing questions are in the negative. We would not hesitate to agree that helpless intoxication in a public place is of such 'general' importance that it should be prohibited throughout the geographic confines of the state. But we would not concede that the interests of 'uniformity' require that 100,000 residents of the City of Los Angeles be given the right to become intoxicated at an exciting and emotionally stirring athletic event in the Los Angeles Coliseum, so long as they are not rendered helpless by this alcoholic indulgence. The latent possibilities of uncontrollable riots, with resultant personal injury and property damage, are too apparent to require elaboration. (See Los Angeles Municipal Code, section 41.27(c).)
Perhaps it may not be necessary for a rural community to concern itself with a man 'passed out' in an apple orchard, but does it follow that urban dwellers must look only to self-help in dealing with drunken invaders of residential areas when they are found upon private property rather than a 'public way'?
It seems to us that local governments should have the power in appropriate circumstances to supplement the general law by enacting additional reasonable regulations in the 'field' of intoxication. Each community of citizens best understands its own needs in this regard, and it appears most improbable that the Legislature intended to 'authorize by preemption' the right to become intoxicated (although not helplessly so) in playgrounds, public parks, public restrooms, museums, libraries, arboretums, observatories, city buses, city offices or even upon congested city streets and sidewalks. (Cf. Los Angeles County Ordinance No. 2549 regulating the use of intoxicating liquor in the Los Angeles General Hospital.)
Should a judge, observing a man drinking liquor in his courtroom, a public place, be required to wait until such person became 'unable to exercise care for his own safety or the safety of others' before he could direct appropriate action by his bailiff? In our opinion, such an absurdity, and countless others, follow logically from a holding that complete preemption of the 'field of intoxication' resulted from the enactment of section 647 of the Penal Code.
We may dispose of the other methods by which municipal ordinances may 'conflict' with general laws merely by noting that the ordinance here under consideration does not attempt to authorize anything which state laws prohibit, nor does it merely duplicate the prohibition enacted by the State. As stated in Tracy v. Brecht, 3 Cal.App.2d 105, 111-112, 39 P.2d 498, 501: 'There are degrees of intoxication varying all the way It is 'not mandatory or essential to charge the degree of intoxication, as such word has a common and well-understood meaning. [Citations.]' (In re Boza, supra, 41 Cal.App.2d 25, 29, 106 P.2d 29, 31.) And, as our Supreme Court observed in an early decision, 'drunkenness is unfortunately of such common occurrence, that it does not require an expert to pronounce upon it.' (People v. Monteith, 73 Cal. 7, 9, 14 P. 373, 374.) Regrettably, this observation is as true today as when made in 1887.
The Pomona ordinance clearly reveals its greater scope. It makes it an offense to be drunken, or intoxicated, or under the influence of alcohol, as those expressions are generally understood and interpreted, even though the actor has not yet become 'unable to care for his own safety or the safety of others.' Further, it covers those situations, not infrequent in crowded neighborhoods, where the drunkenness occurs 'in public view', although upon private property rather than in a 'public place.'
We conclude that the instant ordinance does not conflict with the general law and that it constitutes a proper exercise of the authority of the local government to supplement state laws in the same general field, consistent with the principles most recently enunciated in the Lane and Moss decisions.
The order under review is reversed.
FOX, P.J., concurs.
ASHBURN, Justice (dissenting).
Although I am somewhat sympathetic to the result reached by the majority of the court, I am not convinced that it reflects a correct legal conclusion in the light of the more recent decisions of the Supreme Court.
The question to be decided is whether the ordinance provision is in conflict with the State statute and hence invalid, for the constitution grants power to each county and municipality to 'make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' (Const. Art. XI, § 11.) The overriding legislative power thus recognized as residing in the State legislature is of course subject to the superior authority of ordinances pertaining to 'municipal affairs' and enacted by a charter city. (Const. Art. XI, § 6.) Plainly, intoxication in a public place is not a 'municipal affair' (cf. Helmer v. Superior Court, 48 Cal.App. 140, 145-146, 191 P. 1001; Lossman v. City of Stockton, 6, Cal.App.2d 324, 328, 44 P.2d 397; Ex parte Daniels, 183 Cal. 636, 638-639, 192 P. 442, 21 A.L.R. 1172), and the legislative power over the subject is governed by Article XI, § 11. If there were any doubt about this the following rule would be applicable: 'When there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state (Ex parte Daniels, 183 Cal. 636, 639-640, 192 P. 442, 21 A.L.R. 1172; Lossman v. City of Stockton, supra).' (Abbott v. City of Los Angeles, 53 Cal.2d 674, 681, 3 Cal.Rptr. 158, 163, 349 P.2d 974, 979.)
If the Pomona ordinance is in conflict with the State statute, as the term conflict is defined in the decision, it must yield and the fact, if it be a fact, that it was enacted first is immaterial. (Cramer v. City of San Diego, 164 Cal.App.2d 168, 171, 330 P.2d 235.)
Section 647, Penal Code, so far as pertinent reads: 'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: * * * (f) Who is found in any public place under the influence of intoxicating liquor, or any drug, or the combined influence of intoxicating Section 16-4 of Ordinance 1673 provides: 'Any person who appears at or is in any public place, or in any place open to the public view, or on any street, sidewalk, parkway, alley, highway, court, public park, railway, depot, plaza, bus depot or public square in a state of drunkenness or intoxication, or under the influence of an alcoholic beverage, narcotics, sedatives or derivatives is guilty of a misdemeanor.'
Both enactments deal with intoxication in a 'public place'; that phrase is comprehensive enough to embrace all the places named in the ordinance. (See, Gardner v. Vic Tanny Compton, Inc., 182 Cal.App.2d 506, 510, 6 Cal.Rptr. 490.) The statute prescribes as an element of the crime inability to exercise care for one's own safety or the safety of others or interference or obstruction or prevention of the free use of any street, sidewalk or any public way. The ordinance dispenses with those elements and makes mere appearance in a public place when under the influence of alcohol a misdemeanor.
As defined by the cases the constitutional phrase 'conflict with general laws' (Art. XI, § 11) may arise in several different ways. It may grow out of the exact language of the State and municipal laws (see concurring opinion of Mr. Chief Justice Gibson in In re Lane, 58 A.C. 97, at 104, 22 Cal.Rptr. 857, 372 P.2d 897; dissent of Mr. Justice Dooling in same case at page 111, 22 Cal.Rptr. 857, 372 P.2d 897; concurrence of Mr. Justice White in In re Moss, 58 A.C. 116, at 120, 23 Cal.Rptr. 361, 373 P.2d 425) or from a local attempt 'to impose additional requirements in a field that is preempted by the general law' (Mr. Justice McComb's prevailing opinions in Lane case, 58 A.C. at p. 100, 22 Cal.Rptr. at p. 859, 372 P.2d at p. 899 and Moss case 58 A.C. at p. 117, 23 Cal.Rptr. at p. 361, 373 P.2d at p. 425) or from the State's adoption of 'a general scheme for the regulation of a particular subject' (In re Lane, supra, 58 A.C. at page 100, 22 Cal.Rptr. at page 859, 372 P.2d at page 899; In re Moss, supra, 58 A.C. at page 117, 23 Cal.Rptr. at page 362, 373 P.2d at page 426). But if the State's preemption of the field or subject is not complete local supplemental legislation is not deemed conflicting to the extent that it covers phases of the subject which have not been covered by the State law. (In re Lane, supra, 58 A.C. at page 107, 22 Cal.Rptr. 857, 372 P.2d 897; In re Moss, supra, 58 A.C. at page 117, 23 Cal.Rptr. 361, 373 P.2d 425; Pipoly v. Benson, 20 Cal.2d 366, 371, 125 P.2d 482.)
It also appears from the decisions that the 'general scheme for the regulation of a particular subject' may be found in a single comprehensive statute such as the Vehicle Code, or in a multiplicity of code sections which in the aggregate spell a legislative intent to occupy the whole or a part of the particular field of legislation. It is to be noted that the general scheme found in In re Lane, supra, to exist was derived from a collocation of numerous sections of the Penal Code 'so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject' (criminal sexual activity). (58 A.C. at p. 101, 22 Cal.Rptr. at p. 859, 372 P.2d at p. 899.) Mr. Chief Justice Gibson in his concurring opinion says, at page 108, 22 Cal.Rptr. at page 863, 372 P.2d at p. 903: 'Whether a particular statute or group of statutes is sufficiently comprehensive to show an intent to occupy the entire field is a matter which cannot properly be decided upon the basis of any single, precise test. Rather, the courts must rely upon broad general principles which are flexible enough to embrace our varied and rapidly expanding body of legislation. * * * In Abbott v. City of Los Angeles,
Tolman v. Underhill,Inasmuch as the codes are to be construed as one, we, in our inquiry whether the State has enacted a general scheme of control of intoxication or public intoxication, should not confine ourselves to the Penal Code or any one enactment. 45 Cal.Jur.2d § 4, page 535: 'Although with reference to each other the original codes are regarded as constituting but a single statute, each of these codes purports to be, and is in fact, a separate act of the legislature. None of these codes is absolutely confined to any particular subject, nor is any code complete in itself. They blend into and are inseparably interwoven with each other, and taken together, they form a complete system of laws dealing with almost every subject of legislation.' Pesce v. Dept. Alcoholic Bev. Control, 51 Cal.2d 310, 312, 333 P.2d 15, 17: 'The Business and Professions Code and the Code of Civil Procedure are to be read and construed together under the 'well-recognized rule that for purposes of statutory construction the codes are to be regarded as blending into each other and constituting but a single statute.' [Citations.]' See also, In re Porterfield, 28 Cal.2d 91, 100, 168 P.2d 706, 167 A.L.R. 675. From such a broad examination of the various codes and the attention therein paid to intoxication the following situation appears.
The State has elaborately covered the matter of sale, licensing persons to sell and taxation of alcoholic beverages (see Div. 9 of Bus. & Prof.Code §§ 23000-25762), and it has shown real concern for the victims of alcoholic addiction. See, Health & Safety Code §§ 427-427.4 concerning 'alcoholic rehabilitation'; Welfare & Institutions Code §§ 5400-5407.5, providing for commitment and treatment of inebriates. The State has also covered in its statutes various phases of conduct of persons who indulge in alcoholic liquors, particularly those who have reached the stage of intoxication.
While an adult is not forbidden to possess or consume intoxicating liquor, a minor cannot lawfully do either of these things in any on-sale premises (Bus. & Prof.Code § 25658), and it is a misdemeanor to sell or furnish any alcoholic beverage to a minor or knowingly to permit him to consume the same in on-sale premises (Id.). It is forbidden to be habitually drunk in the presence of any child in one's care (Pen.Code § 273g}* or to send him into a saloon (Pen.Code § 273f} *. Whether an adult or a minor, one may not drive a motor vehicle when under the influence of intoxicating liquor (Veh.Code §§ 23101 and 23102 *; Pen.Code § 367e). In addition to the criminal sanctions the driver's license may be suspended for drunk driving (Veh.Code § 13201) and suspension is mandatory upon conviction of such offense (Veh.Code § 13352). An habitual drunkard is not entitled to a license (Veh.Code § 12805b); he may not buy liquor (Bus. & Prof.Code § 25602 *; Pen.Code § 397) and it is a crime to sell an intoxicant to an habitual drunkard (Pen.Code § 397} *. A bank may refuse to honor a check drawn by a person if it believes that the person drawing, endorsing or presenting it is or was 'so under the influence of liquor * * * as to raise doubt whether such person is or was competent to One may not operate an airplane when intoxicated (Pub.U.Code § 21407.5}, or pilot a vessel (Harb. & Nav.Code §§ 1292 and 1390). It is unlawful 'to take birds or mammals with firearms or with bow and arrow when intoxicated.' (Fish and Game Code § 3001.)
The presence of an astarisk * in each instance indicates that the legislature has declared the act or omission to be a misdemeanor.
A public officer is guilty of a misdemeanor if intoxicated while on duty and upon conviction forfeits his office (Gov.Code § 3001). A physician may not use alcoholic beverages to such extent or in such manner as to be dangerous or injurious to himself or any other person or to impair his ability to conduct his practice with safety to the public. (Bus. & Prof.Code § 2390). A pharmacist who is intoxicated or under the influence of liquor while on duty may suffer suspension or revocation of his license. (Bus. & Prof.Code § 4352.)
There are certain places where the State law expressly or impliedly sanctions intoxication with impunity. Section 21415, Public Utilities Code, provides that no person shall perform any act in connection with the maintenance or operation of any aircraft when under the influence of intoxicating liquor, but adds: 'This section does not apply to a person who is in an aircraft merely as a passenger, but this section shall not be construed to relieve any such person of criminal liability imposed by any other law for being intoxicated while in an aircraft.'
Section 647(f),* Penal Code, the one now before us, prohibits one who is under the influence of an intoxicant from being found in any public place 'in such a condition that he is unable to exercise care for his own safety or the safety of others,' or 'by reason of his being under the influence of intoxicating liquor * * * interferes with or obstructs or prevents the free use of any street, sidewalk or other public way,' thus implying permissive appearance of an intoxicated person in a public place in the absence of the stated disqualification, and also implying lawfulness of one's intoxication in a private club or his own home or his own front yard. But it is unlawful 'for any pedestrian who is intoxicated to such an extent as to create a hazard to himself or others to walk or be upon any roadway' (Veh.Code § 21958}; the term highway includes street (Veh.Code § 360); and the roadway is the portion 'improved, designed, or ordinarily used for vehicular travel' (Veh.Code § 530). A minor may not have any alcoholic beverage in his possession on any street or highway or other public place except when acting as a messenger (Bus. & Prof.Code § 25662}. However, the State holds so lightly an offense of mere intoxication that an arresting officer may release a person arrested without a warrant 'for intoxication only' where 'no further proceedings are desirable,' instead of taking him before a magistrate (Pen.Code § 849).
So comprehensive and detailed are the statutory provisions governing the conduct of persons using alcoholic liquor that it seems necessary to conclude that the legislature has adopted a general scheme for the regulation of a particular subject (In re Lane, supra, 58 A.C. p. 100, 22 Cal.Rptr. 857, 372 P.2d 897) in such a way that the entire field has been preempted by the State. It has covered drunkenness in a public place with prescribed limitations. The city has undertaken to do away with those limitations, a type of local legislation which is condemned where the State has entirely preempted the field. Such supplemental legislation cannot stand. (In re Lane, supra, 58 A.C. at p. 100, 22 Cal.Rptr. 857, 372 P.2d 897). This does not appear to be a situation wherein the State has left 'phases of the subject' uncovered. Section 16-4 of the Pomona ordinance is supplemental legislation which is precluded by the State's preemption of the entire field. The language of the Chief Justice in his concurrence in the Lane case is pertinent: 'Several decisions of this court antedating those discussed above take the position that state legislation renders This synthetic process of fitting apparently unrelated statutes, enacted at different times and in different codes, into a mosaic depicting a complete or nearly complete picture of a given subject, such as prostitution or lewdness or intoxication, is not entirely new. It dates back at least to Tolman v. Underhill, 39 Cal.2d 708, 711, 249 P.2d 280, which was decided in 1952. Its application to extramarital sex relations (In re Lane, supra) and to indecent exposure and obscene exhibitions (In re Moss, supra), came as somewhat of a shock to city officials, lawyers and judges, who were accustomed to the view that supplementary local legislation was proper wherever State laws were silent. 35 Cal.Jur.2d § 234, page 57, published in 1957, says: 'The courts have shown little disposition to hold that action by the legislature in a given field, however extensive, precludes different action in the same field, even of a similar character, by cities. It seems that the only cases that hold that state regulation occupies a field so as to preclude ordinances that do not directly conflict with them are those where the legislature has expressly provided that there shall be no local regulation on the subject.' 32 California Law Review, page 382: 'The California cases have shown little disposition to hold that action by the Legislature in a given field, however extensive, precludes different action in the same field, even of a similar character, by cities or counties.' Page 387: 'The frequent enactment and upholding of supplementary and additional municipal and county ordinances notwithstanding the existence of comprehensive regulations by the legislature in the same field indicates a decided reluctance on the part of the California courts to hold that the legislature has legislated so extensively as to 'occupy the field' and to condemn on that ground ordinances which do not directly conflict with any general law.'
When the emotional coloring of the problem is put aside the trained legal mind (whether it likes it or not) should have little difficulty in following this modern application of an old rule,--preemption. It is immediately recalled that a municipality is but an arm or agency of the state (except in municipal affairs) and as such possessed of only those powers which have been expressly or impliedly conferred by the legislature (Von Schmidt v. Widber, 105 Cal. 151, 157, 38 P. 682; Cockerill v. City of Redding, 198 A.C.A 108, 110-111, 17 Cal.Rptr. 754); also that municipalities have been given no commission to correct the errors or supply the omissions of the legislature after it has preempted a given field. It is also recognized that there is no 'home rule' residing in municipalities except as provided by the constitution and statutes enacted pursuant thereto (see 30 Cal.L.Rev. p. 38), and that '[i]n fact, California appears to have gone further than any other state in setting up constitutional guarantees to cities of the right of local self-government.' (Id. p. 4.) As stated in City of San Mateo v. Railroad It also may be said of § 16-4 of the Pomona ordinance that it conflicts with the terms of § 647(f) of the Penal Code because it strikes down the plain implications of that State law. When the legislature says that one may not be upon a public street when under the influence of intoxicating liquor if (1) he is unable to exercise care for his own safety or that of others, or (2) interferes with or obstructs free use of the street, it necessarily implies that mere intoxication is not enough to bar him; the city when it says that mere intoxication in a public place is enough to constitute a crime trespasses upon the ground already occupied by the State. The fact that the statute has not expressly declared the right of an intoxicated person who is not a danger to others and not interfering with them, to be upon the street lawfully, merely indicates that that is a phase of the matter which the legislature considered unnecessary to expressly pre-exempt. We 'are not required to find such an intent solely in the language used in the statute' (In re Moss, supra, 58 A.C. at page 117, 23 Cal.Rptr. at page 362, 373 P.2d at page 426). Conflict exists where the local legislation impinges upon the clear implications of the State statute. 'It is therefore clear that the Legislature has determined by implication that such conduct shall not be criminal in this state.' (In re Lane, supra, 58 A.C. at p. 102, 22 Cal.Rptr. at p. 860, 372 P.2d at p. 900.)
As a practical matter there seems to be ground and need for further regulation in this matter of drunkenness. Under the city ordinance the offense is easily proved. That mere intoxication in public should be a misdemeanor seems to be demonstrated by the fact that such easily enforced ordinances take care of the Saturday night drunks and clear the streets of them, also dispose of the inveterate 'Wino' drinkers whose terms in jail are separated by only such brief periods as are consumed in obtaining the price of wine and the opportunity to consume it. In most of such cases the police would be powerless if required to make proof under the State statute.
In my opinion the order of the municipal court dismissing the instant case should be affirmed.