### No. 80-433 INTHE SUPREME COURTOF THE STATEOF MONTANA 1981

CITYOF BILLINGS, Plaintiffand Respondent,

VS

# . DOUGLAS WEATHERWAX, DefendantandAppellant.

Appeal from: District Courtof the Thirteenth JudicialDistrict, Inand for the County of Yellowstone. Honorable William J. Speare, Judgepresiding. CounselofRecord: ForAppellant: TerryL. Seiffert, Billings, Montana For Respondent: 

### Joe Leckie,City Attorney, Billings,Montana

Filed:

# ~ilL2- Submitted onbriefs: April 22, 

### 1981 Decided: 

### JUL 

### 4MI

ClerkMr. 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 toa Cityof Billingstrafficordinance. 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 asprovided 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 thismunicipality." (Emphasisdefendant's.) On May 27, 1980, trial was held and defendant was found tobe inviolation 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 thatthe cityordinance 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 asprovided 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 thisstate." (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 toresolve 

### iswhether section 11.40.020 of theBillings Traffic Code conflicts with state law so as tomake the ordinance invalid inexceeding 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. Cityof Billingsv. Herold (1956), 130 Mont. 138, 296 P.2d 263. Moreover, as between the two sovereigns, the city's authority 

### is subordinate to thatof the state. A municipal ordinancemust be inharmony 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 theTrafficCode of the Cityof Billings. Wefind thatthey

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 inactual physical control of any vehicle within the incorporated 

### limitsof any cityor town." This Court's consttutional license 

### is not a poetic

one. The legislature has expressly granted the City of Billingsthe authority toadopt 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 inparimateria with section 61-12-101(12), MCA, the conflict 

### is resolved. SeeMiller 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. Affirmed.

We concur: 

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