Opinion
Page __
Rehearing Granted Jan. 17, 1962.
Burton Marks, Beverly Hills, for petitioner.
Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and George J. Franscell, Deputy City Atty., Los Angeles, for respondent.
McCOMB, Justice.
Burton Marks petitions for a writ of habeas corpus on behalf of his client, Carol Lane (hereinafter referred to as 'defendant'), claiming that she is being illegally restrained of her liberty by the Chief of Police of the City of Los Angeles.
Facts: Defendant was convicted of the crime of 'resorting,' after a court trial in the Municipal Court for the Los Angeles Judicial District on two charges of violating section 41.07 of the Los Angeles Municipal Code. She was sentenced to serve 30 days in the Los Angeles City Jail on each count, the sentences to run concurrently. The Appellate Department of the Superior Court of Los Angeles County affirmed the convictions without an opinion.
The evidence in support of the convictions was that in each case defendant went from her living room to her bedroom in her own home for the purpose of having intercourse with a male to whom she was not married, thus violating section 41.07 of the Los Angeles Municipal Code.
This is the sole question necessary for us to determine: Has the State preempted the field of regulating the criminal aspects of sexual activity and prostitution?
Yes.
The Law: A local municipal ordinance that is in conflict with a general law adopted by the Legislature is invalid if it attempts to impose additional requirements in a field that is preempted by the general law. (Cal.Const. art. XI, s 11; Abbott v. City of Los Angeles, 53 Cal.2d 674, 682, 3 Cal.Rptr. 158, 349 P.2d 974; Agnew v. City of Los Angeles, 51 Cal.2d 1, 5 (2), 330 P.2d 385; Tolman v. Inderhill, 39 Cal.2d 708, 712 (4), 249 P.2d 280; Pipoly v. Benson, 20 Cal.2d 366, 370 (5), 125 P.2d 482, 147 A.L.R. 515; Natural Milk etc.
[367 P.2d 674] [18 Cal.Rptr. 34] Ass'n v. City etc. of S. F., 20 Cal.2d 101, 108 (1) ,124 P.2d 25.)
When doubt exists as to whether an attempted regulation pertains to a municipal or a state matter, or if it is the mixed concern of both, such doubt must be resolved in favor of the legislative authority of the state. (Abbott v. City of Los Angeles, supra, 53 Cal.2d at 681 (6), 3 Cal.Rptr. at p. 163, 349 P.2d at p. 979.)
Section 41.07 of the Los Angeles Municipal Code provides: 'No person shall resort to any office building or to any room used or occupied in connection with, or under the same management as any cafe, restaurant, soft-drink parlor, liquor establishment or similar businesses, or to any public park or to any of the buildings therein or to any vacant lot, room, rooming house, lodging house, residence, apartment house, hotel, housetrailer, street or sidewalk for the purpose of having sexual intercourse with a person to whom he or she is not married, or for the purpose of performing or participating in any lewd act with any such person.'
An examination of the Penal Code shows clearly that the State has occupied the field with regard to the criminal aspects of sexual activity and prostitution and has provided appropriate penalties in each instance.
As evidence of this fact, we need only refer to the following Penal Code sections: (1) Sections 261, 262, 263 and 264 (rape); (2) sections 265, 266b, 266c, 266d and 266f (abduction for marriage, defilement, or illicit living relationship); (3) sections 266, 266a, 266e, 266g, 267, 315, 316, 318 and 784 (prostitution); (4) section 266h (primping); (5) section 266i (pandering); (6) section 268 (seduction under promise of marriage); (7) sections 269a and 269b (adultery); (8) sections 274, 275 and 276 (abortions); (9) sections 281, 282, 283 and 284 (bigamy); (10) sections 285 and 785 (incest); (11) sections 286 and 287 (crime against nature); (12) sections 288, 288.1 and 647a (crimes against children); (13) section 288a (sex perversions); (14) section 290 (registration with sheriff or police chief); (15) sections 311, 311.2, 311.3, 311.4, 311.5, 311.6, 311.7, 311.8, 311.9 and 312 (obscene matter); and (16) sections 314, 647 and 650 1/2 (acts against public decency).
Although living in a state of cohabitation and adultery is prohibited (Pen.Code, s 269a), neither simple fornication or adultery alone nor living in a state of cohabitation and fornication has been made a crime in this state. (Rudell v. Board of Administration, etc., 8 Cal.2d 600, 602 (2), 66 P.2d 1203; In re Cooper, 162 Cal. 81, 83 et seq., 121 P. 318; Ex parte Thomas, 103 Cal. 497, 37 P. 514; White v. White, 82 Cal. 427, 449, 23 P. 276, 7 L.R.A. 799; San Chez v. Superior Court, 153 Cal.App.2d 162, 165 (6), 314 P.2d 135.)
It is therefore clear that the Legislature has determined by implication that such conduct shall not be criminal in this state. (Cf. Abbott v. City of Los Angeles supra, 53 Cal.2d 674, 685, 3 Cal.Rptr. 158, 159, 349 P.2d 974.)
Abbott v. City of Los Angeles, supra, involved the constitutionality of a 'criminal registration act' enacted by the City of Los Angeles. The only registration of criminals required by the Penal Code was the registration of persons convicted of certain specified sex crimes. (Pen.Code, s 290.) In holding the ordinance unconstitutional as an attempt to legislate in a field already preempted by the state, this court said, at page 685, 3 Cal.Rptr. at page 165, 349 P.2d at page 981: 'In Title 2 of Part IV, the Legislature has provided a method of controlling crimes involving the use of concealed weapons, machine guns, pistols, tear gas, silencers, and similar items to which a portion of the Los Angeles ordinance is directed. That the state Legislature has not included as many types of crime within this specific portion of the statute as does the ordinance is merely indicative of the fact that the state Legislature did not deem such was necessary in the overall state scheme.
[367 P.2d 675] [18 Cal.Rptr. 35] 'An examination of the Penal Code also indicates that the state Legislature has preempted the very field of registration as a means of apprehension of criminals. This it has done by expressly requiring registration in some instances and by inferentially rejecting it in others. Thus, in this basic respect the state statutes and the local ordinance are in conflict.'
Accordingly, a city ordinance attempting to make sexual intercourse between persons not married to each other criminal is in conflict with the state law and is void.
In view of our conclusions, it is unnecessary to discuss other questions raised by petitioner.
Petitioner is ordered discharged from custody.
GIBSON, C. J., and TRAYNOR, SCHAUER and PETERS, JJ., concur.
DOOLING, Justice (dissenting).
I dissent.
The counties and municipal corporations of the state have a constitutional grant of power contained in section 11, article XI, of the Constitution of California in the following language: '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.' The power so granted by the Constitution to counties and municipalities 'is just as broad, sweeping, and inclusive as the powers with relation thereto which are vested in the legislature itself, except that they must not conflict with the Constitution or with general laws, and must be confined in their application only to the city or county adopting them.' (Stanislaus County etc. Ass'n v. Stanslaus County, 8 Cal.2d 378, 384, 65 P.2d 1305, 1307; see also McKay Jewelers, Inc. v. Bowron, 19 Cal.2d 595, 600, 122 P.2d 543, 139 A.L.R. 1188; In re Mass, 219 Cal. 422, 425, 27 P.2d 373; Odd Fellows' Cem. Ass'n v. City and County San Francisco, 140 Cal. 226, 230, 73 P. 987.) Unless it can reasonably be said that the ordinance before us in this case is 'in conflict with general laws,' it comes within the constitutional grant of power quoted above and is just as effective within the limits of the City of Los Angeles as it would be within the limits of the state if it had been adopted by the Legislature.
The majority opinion recognizes the constitutional power of the city to legislate in this field unless it can be found that its legislation is in conflict with general laws; and from the fact that the Legislature has made criminal many other sexual activities but that 'neither simple fornication or adultery alone nor living in a state of cohabitation and fornication has been made a crime in this state,' the majority opinion concludes that 'the Legislature has determined by implication that such conduct shall not be criminal in this state.'
This holding flies in the fact of the whole body of decisional law that has been built up by the courts in this state in determining from case to case whether particular local ordinances enacted under the authority of the Constitution, article XI, section 11 are or are not in conflict with the general laws.
Commencing with the caveat in In re Sic, 73 Cal. 142, 149, 14 P. 405, 408: 'We do not wish to be understood as holding that the sections of the ordinance which make criminal other acts not punishable under the general law are void because the legislature has seen fit to legislate upon the same subject,' this court has consistently refused to invalidate local legislation on the ground standing alone that the Legislature has adopted some or many regulations in the same field. This court, in every case where it has invalidated such local legislation as being in conflict with general laws, has found some additional factor or factors from which the intention of the Legislature to occupy the field to the exclusion of any local legislation either expressly appears or can be reasonably implied. An examination of some of the decided cases will make this fact perfectly clear.
In the same volume with In re Sic, supra, may be found Ex parte Johnson, 73 Cal. 228, [367 P.2d 676] [18 Cal.Rptr. 36] 15 P. 43, which upheld against the claim that it conflicted with Penal Code, section 315 (which then prohibited keeping, or residing in, a house of prostitution) an ordinance making it a misdemeanor to frequent for the purpose of prostitution any building occupied for that purpose.
In Ex parte Hong Shen, 98 Cal. 681, 33 P. 799, an ordinance of the City and County of San Francisco prohibiting the sale of opium without the written prescription of a physician was attacked as being in conflict with a state law making it unlawful to sell opium without labeling the bottle or package with its name, the word 'poison' and the name and address of the seller, and requiring a record of the sale to be kept. The court upheld the ordinance, saying at page 685, 33 P. at page 801: 'So, in the action at bar, the legislature has simply prohibited the sale of opium * * * unless a certain record is kept. It has not directly authorized the sale of opium without the prescription of a physician; it has not legislated upon that subject at all, except in providing that where a physician's prescription is presented, no other record need be kept. The city has gone further than the statute and provided that no opium shall be sold without a prescription. While the regulation is different from that of the state there is no conflict, and therefore it is not in violation of the provision of the constitution quoted above.'
I might paraphrase the above quoted language: 'The legislature has not authorized fornication or adultery. It has simply not legislated on that subject at all.'
In re Murphy, 128 Cal. 29, 60 P. 465, upheld, in the first of several cases on the subject of local regulations of gambling, a municipal ordinance making it a misdemeanor to engage in a gambling game not prohibited by the state law. The court succinctly said at page 30, 60 P. at page 465: 'Since it was competent for the city, by ordinance, to prohibit all games not denounced by the statute, lack of jurisdiction is not made to appear.'
In Odd Fellows' Cem. Ass'n v. City and County of San Francisco, supra, 140 Cal. 226, 73 P. 987, an ordinance prohibiting the burial of any human body within the limits of the City and County of San Francisco was attacked as being in conflict with general laws. Among the laws relied on was Penal Code, section 297, forbidding the burial of any human body within San Francisco, except in some cemetery already existing or thereafter authorized by the board of supervisors. Against the claim that this gave the right of burial in existing cemeteries, the court said at page 233, 73 P. at page 989: 'This is a negative provision, and does not by inference confer the right to bury in the excepted cemeteries. That right was pre-existing, but was subject to be taken away by police regulations, and remained subject to that condition after the enactment of section 297, to the same extent as before. * * * (S)o far as it (the ordinance) forbids burials within those cemeteries, it is not in conflict, for that section gives no right to do that, and makes no provision relating thereto.'
It is equally true that the provisions of the Penal Code prohibiting certain sexual activities are likewise negative provisions, and give no right to engage in the illicit sexual activity prohibited by the ordinance here under consideration.
In re Hoffman, 155 Cal. 114, 99 P. 517, was concerned with the validity of a local ordinance of the City of Los Angeles requiring a higher percentage of solids and butter fat in milk sold in the city than the percentage required by a state statute governing the sale of milk. The court said at page 118, 99 P. at page 519: 'The Legislature has, in effect, declared that it shall be unlawful to sell milk containing less than 11.5 per centum solids, 3 per centum of which solids shall be milk fat. An ordinance of a municipality requiring of the milk vended therein a larger percentage of solids, if not in its exactions unreasonable, does no violence to the law of the state. The state's declaration merely is that milk shall not be sold containing less than 11.5 [367 P.2d 677] [18 Cal.Rptr. 37] per centum of solids, 3 per centum of which shall be milk fat. If the city of Los Angeles had provided that milk might be vended which contained less per centum of milk fats than that exacted by the state law, there would be presented a plain case of conflict. The municipality would be endeavoring to legalize that which the state had declared to be unlawful. But what the city has in fact done has been to impose not fewer but additional qualifications upon the milk which may be vended to its consumers. 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.'
The history of local and state-wide legislation for the control of motor vehicle traffic is particularly enlightening. In Mann v. Scott, 180 Cal. 550, 182 P. 281, this court held that the State Motor Vehicle Act in its then form, although it legislated expressly upon the subject of traffic on city streets, did not preclude the cities from adopting more stringent or additional traffic regulations. This court said at pages 558-559, 182 P. at pages 284: 'In other words, we believe that by extending the operation of the act in terms to the traffic upon city streets the Legislature did no more than to prescribe obviously necessary safeguards for travel upon such streets * * * and that it did not thereby intend to prohibit the enactment of such new and additional police regulations in furtherance of the purpose of the act as might appear reasonable and proper in a given locality.'
The question again came before this court in Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172. The Motor Vehicle Act there under consideration contained an express provision: 'Limitations as to the rate of speed herein fixed shall be exclusive of all other limitations fixed by any law of this state or any political subdivision thereof.' (183 Cal. 641, 192 P. 445.) The court in view of this express legislative declaration held that the Legislature had demonstrated an intent to occupy the field to the exclusion of local legislation, the court saying at page 643, 192 P. at page 445: 'It seems to have been the legislative purpose, by the declaration that 'the limitations as the rate of speed herein fixed shall be exclusive of all other limitations,' to authorize vehicles to travel at those limits within cities and counties.' The court was careful to add, however, at page 645, 192 P. at page 446: 'If the legislature had merely fixed the maximum speed limit, it is clear that local legislation fixing a lesser speed limit would not be in conflict therewith, but would be merely an additional regulation.'
These two cases point up the fact which the majority opinion ignores, that it has never been the rule that from the fact alone that the Legislature has prohibited some or many activities in a particular field it has thereby evidenced an intention to occupy the entire field to the exclusion of any additional local regulation.
The case of Pipoly v. Benson, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515, cited in the majority opinion, is the latest decision in the field of the regulation of motor traffic. It gives no support to the view that from the fact alone that the state has legislated in the field of motor vehicle speed the Legislature has impliedly occupied the entire field to the exclusion of additional local regulation. In Pipoly this court expressly recognized the general rule that from the mere fact that the Legislature has legislated in a field an intention to exclude additional local legislation in the field is not to be implied in the following language, 20 Cal.2d at page 370, 125 P.2d at page 484: 'The applicable rule in these situations where state control is dominant has been [367 P.2d 678] [18 Cal.Rptr. 38] stated as follows: 'Where the Legislature has assumed to regulate a given course of conduct by prohibitory enactments, a munipality with subordinate power to act in the matter may make such new and additional regulations in aid and furtherance of the purpose of the general law as may seem fit and appropriate to the necessities of the particular locality and which are not in themselves unreasonable.' (Citation.) The cases in this state have consistently upheld local regulations in the form of additional reasonable requirements not in conflict with the provisions of the general law. (Citations.)' In Pipoly this court found the intention to occupy the field, as in Ex parte Daniels, supra, in an express legislative declaration: 'The provisions of this division are applicable and uniform throughout the State and in all counties and municipalities therein and no local authority shall enact or enforce any ordinance on the matters covered by this division unless expressly authorized herein.' (20 Cal.2d 372, 125 P.2d at page 486.)
It re Iverson, 199 Cal. 582, 250 P. 681, and In re Simmons, 199 Cal. 590, 250 P. 684, upheld local ordinances imposing more stringent requirements on the sale of intoxicating liquor than those contained in the Wright Act adopted by the Legislature, although the regulations of the Wright Act upon the manufacture and sale of intoxicating liquor were extensive. In Iverson this court said, 199 Cal. at page 586, 250 P. at page 682: 'It does not follow that because the legislature has seen fit to make certain general rules applicable in all the cities and elsewhere in the state it has thereby impliedly prohibited the enactment of additional local regulations by municipalities in keeping with the purpose of the general law.' (Emphasis added.)
In Natural Milk etc. Ass'n v. City etc. of S. F., 20 Cal.2d 101, at page 110, 124 P.2d 25, at page 30 also cited in the majority opinion, this court reiterated the settled rule: 'In the instant case the requirement in the ordinance that only pasteurized (certified excepted) milk may be sold is nothing more than a different and additional regulation. The Agricultural Code permits certified guaranteed milk, both raw and pasteurized, and grade A, both raw and pasteurized. The ordinance merely imposes the additional restriction that the milk * * * must be pasteurized.'
I have discussed the cases rather extensively because only so could I demonstrate the consistency with which this court has refused to hold that merely from the fact standing alone that the Legislature has legislated in a field can its intention to exclude additional local legislation in the same field be implied. An analysis of the cases cited and relied upon in the majority opinion will show that in not one of them did the court depart from the long settled rule that from the fact standing alone that the Legislature has legislated in the field no implication can be found that the Legislature intended to preclude further local legislation in the same field. In every one of them the court found some additional factor or factors to support its conclusion that the Legislature intended its legislation to occupy the field. Pipoly v. Benson, supra, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515, as already pointed out, found the intention to occupy the field in an express legislative declaration. Natural Milk etc. Ass'n v. City etc. of S. F., supra, 20 Cal.2d 101, 124 P.2d 25, sustained the validity of the ordinance there under attack. Tolman v. Underhill, 39 Cal.2d 708, 249 P.2d 280, found the requirement of a non-communist oath imposed by the Regents of the University of California in conflict with certain express legislative provisions, including (quoting from 39 Cal.2d at p. 711, 249 P.2d at page 282): 'Section 1364 (Government Code) markes it unlawful to remove a person 'from an office or position of public trust' because of his failure to comply with the law, charter or regulation prescribing an additional test or qualification, other than tests and qualifications provided for under civil service and retirement laws, if he has taken or offers to take the oath prescribed by section 1360. And section 1365 states that [367 P.2d 679] [18 Cal.Rptr. 39] an officer cannot lawfully be removed from office because of his refusal to require additional tests or qualifications of persons he appoints to positions of public trust.' From these and other provisions of general law the court found a legislative intention to occupy the field. Agnew v. City of Los Angeles, 51 Cal.2d 1, 330 P.2d 385; involved the validity of an ordinance requiring an additional city license from an electrical contractor already licensed to engage in the same business under a state licensing statute. Only if the state had licensed petitioner to engage in fornication, which of course it has not done, and the city attempted to interfere with her exercise of the right granted by that license could Agnew be in point. In Abbott v. City of Los Angeles, 53 Cal.2d 674, 3 Cal.Rptr. 158, 349 P.2d 974, the court was at great pains to point out other legislation which would be interfered with in its effective enforcement by the registration ordinance held invalid. (See the discussion and statutory provisions analyzed to show this conflict, 53 Cal.2d at pp. 684-689, 3 Cal.Rptr. at pp. 165-168, 349 P.2d at pp. 981-984.) While the language, divorced from the rest of the opinion, quoted from Abbott by the majority might seem to support the conclusion reached by the majority in this case, a reading of the entire Abbott opinion demonstrates that the court was careful to find other grounds in other statutory enactments to support its conclusion that the Legislature had occupied the field in the Abbott case.
The majority opinion departs from a long and well settled rule without citing, distinguishing or overruling any of the many cases which have uniformly upheld additional local regulations to those enacted by the Legislature, and without giving any guides for the determination of the validity of any ordinance which adopts additional regulations to those enacted by the Legislature in any field. If from the fact standing alone that the Legislature has adopted some, or any, or much, legislation in any field, the intention to occupy the field may be implied, how much or how little legislation does it take to support that implication? Because of its failure to point out any certain test which may be applied in any case of claimed conflict of an ordinance with the general laws the majority opinion in this case casts doubt on the validity of every local ordinance (of which there must be thousands in the state) in every field in which the Legislature itself has enacted any legislation.
As an example, one area in which local additional regulations have frequently been upheld is in the regulation of gambling. (See, e. g., Ex parte McClain, 134 Cal. 110, 66 P. 69, 54 L.R.A. 779; In re Murphy, supra, 128 Cal. 29, 60 P. 465; Remmer v. Municipal Court, 90 Cal.App.2d 854, 204 P.2d 92; Sternall v. Strand, 76 Cal.App.2d 432, 172 P.2d 921; In re Lawrence, 55 Cal.App.2d 491, 131 P.2d 27; People v. Philbin, 50 Cal.App.2d Supp. 859, 123 P.2d 159.) I do not suppose that the majority of this court intends to overrule the cases upholding additional local restraints upon gambling; but one could as easily employ the technique of the majority opinion to reach the conclusion that all such local regulations of gambling are invalid, as follows: 'The Legislature has legislated extensively in the field of gambling. (See, e. g., Pen.Code, ss 330, 330a, 330b, 330c, 330.1, 330.2, 330.3, 330.4, 330.5, 330.6, 331, 332, 335a, 336, 337, 337a, 337b, 337c, 337d, 337e, 337f, 337g, 337h, 337.1, 337.2, 337.3, 337.4, 337.5, 337.6, 337.7, 337.8, 337.9.) It is clear that it has thereby occupied the field and has determined by implication that any other form of gambling not prohibited by state law shall not be criminal in this state.'
This court by this decision is, in my opinion, practically wiping out the constitutional grant of power to local legislative bodies contained in article XI, section 11, because once we abandon the heretofore settled rule that the local bodies can adopt additional regulations to those provided by state law there will be very few areas left, outside of strictly municipal affairs, in which any local regulations can operate.
[367 P.2d 680] [18 Cal.Rptr. 40] I am satisfied that under long established principles the ordinance here under attack is not in conflict with the general laws, that the opinion in this case will inevitably throw doubt on the validity of a host of local ordinances throughout the state the validity of which was heretofore not open to question, and that the validity of the ordinance here involved should be upheld.
WHITE, J., concurs.