No. 80-433 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

CITY OF BILLINGS, 

Plaintiff and Respondent, 

VS . 

DOUGLAS WEATHERWAX, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone. 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Terry L. Seiffert, Billings, Montana 

For Respondent : 

Joe Leckie, City Attorney, Billings, Montana 

Filed: ~ilL2- 

Submitted on briefs: April 22, 1981 

Decided: JUL 4 MI 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Weatherwax appeals a Yellowstone County District 

Court conviction for driving under the influence of alcohol 

pursuant to a City of Billings traffic ordinance. 

Douglas Weatherwax was cited on April 29, 1980, for 

driving under the influence of intoxicating liquor in 

violation of section 11.40.020 of the Traffic Code of the 

City of Billings. The ordinance provides: 

"It is unlawful and punishable as provided in 

Section 11.40.050 for any person who is under 

the influence of alcohol to a degree which 

renders him incapable of safely driving a 

motor vehicle to drive or be in actual 

physical control of any motor vehicle within 

this municipality." (Emphasis defendant's.) 

On May 27, 1980, trial was held and defendant was 

found to be in violation of the ordinance. Appeal was then 

taken to the District Court, and the matter was set for 

trial in September 1980. On July 2 defendant moved to 

dismiss the complaint on the grounds that the city ordinance 

did not comply with section 61-8-401(1)(a), MCA, and was, 

therefore, invalid. Section 61-8-401(1)(a), MCA, states: 

"It is unlawful and punishable as provided in 

section 61-8-714(1) for any person who is 

under the influence of: 

"(a) alcohol to drive or be in actual 

physical control of a motor vehicle upon the 

highways of this state." (Emphasis defendant's. ) 

The District Court denied defendant's motion without 

opinion. On September 10, 1980, trial was held and 

defendant was found guilty of driving while under the 

influence in violation of the Traffic Code of the City of 

Billings. Defendant now appeals. 

The only question which this Court is asked to 
resolve is whether section 11.40.020 of the Billings Traffic 

Code conflicts with state law so as to make the ordinance 

invalid in exceeding the municipality's jurisdiction. 

Over the years this Court has developed several 

fundamental principles with regard to the interaction of 

state statutes and city ordinances. Clearly, the organized 

municipalities in this state have only such power as is 

granted them by the legislature. City of Billings v. Herold 

(1956), 130 Mont. 138, 296 P.2d 263. Moreover, as between 

the two sovereigns, the city's authority is subordinate to 

that of the state. A municipal ordinance must be in harmony 

with the law of the state. State v. Haswell (1966), 147 

Mont. 492, 414 P.2d 652. 

The relatively narrow question before us, therefore, 

is whether the provisions of section 61-8-401(1)(a), MCA, 

are harmonious with the provisions of section 11.40.020 of 

the Traffic Code of the City of Billings. We find that they 

are. 

The legislature has seen fit to grant certain 

authority to local governments, and only if the City of 

Billings has gone beyond that authority in enacting the 

ordinance will we invalidate it. In doing so we must be 

persuaded that state 1a.w either expressly or impliedly 

prohibits such an ordinance, as the invalidation of local 

laws is not to be undertaken lightly by this Court. See 

City of Kodiak v. Jackson (Alaska 1978), 584 P.2d 1130, 

1132-33. 

Section 61-12-101(12), MCA, empowers a city to 

"[regulate] or [prohibit] any person who is under the 

influence of intoxicating liquor from driving or being in 
actual physical control of any vehicle within the 

incorporated limits of any city or town." 

This Court's consttutional license is not a poetic 

one. The legislature has expressly granted the City of 

Billings the authority to adopt such an ordinance. The fact 

that the City used language that did less than mirror the 

corresponding state statute does not automatically make the 

ordinance an invalid exercise of authority. Although 

defendant's belief that the ordinance is in conflict with 

section 61-8-401(1)(a), MCA, may be facially persuasive, 

when that section is read in pari materia with section 

61-12-101(12), MCA, the conflict is resolved. See Miller v. 

Miller (1980), Mont. , 616 P.2d 313, 320, 37 

St.Rep. 1523, 1529. The ordinance has every appearance of 

being precisely what the legislature contemplated, and this 

Court will not exalt the form of one statute over the 

substance of another to invalidate it. 

Af f irmed. 

We concur: i /