NO. 81-364 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

CITY OF MISSOULA, 

Plaintiff and Respondent, 

VS. 

DORIS M. SHEA, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable John Henson, Judge presiding 

Counsel of Record: 

For Appellant: 

M. G. McLatchy argued, Helena, Montana 

For Respondent: 

Jim Nugent, City Attorney, argued, Missoula, Montana 

Filed 

- 

Submitted: March 1, 1982 

Decided: Febr uary 
I. * , - . : f.,. 

Honorable B. W. Thomas, district judge, delivered the Opinion 

of the Court. 

Defendant was charged in Missoula Municipal Court with 

sixty parking ordinance violations dating from June 1, 1976, 

to April 22, 1978. Seventeen of the charges were dismissed 

because they were filed after the one-year statute of 

limitations had expired. All but two of the charges were 

under sections 20-132(c) (now section 10-24-030) and 20-184 

(now section 10-54-070), Missoula Municipal Code (parking 

meter violations). The remaining charges were under sections 

20-115 (now section 10-22-040) and 20-118 (now section 10- 

22-220), M.M.C. (non-parking meter violations). After her 

conviction in Municipal Court, defendant appealed to district 

court. The district court upheld her conviction. 

The case was submitted on the following stipulated 

facts: 

(1) That the defendant is the registered owner of both 

vehicles involved in this case and that she was the registered 

owner at all times pertinent to any proceedings herein; 

(2) That the meter maids or law officers involved, 

affixed a notice of violation to the vehicles involved on 

the dates, times and locations alleged in the notices of 

violation, which notices are attached to the complaints and 

incorporated by reference; that all alleged violations 

occurred within the city limits of the City of Missoula; 

(3) That at each of the times such notices of violation 

were affixed to the vehicles involved, the vehicles were 

either parked next to a parking meter with a red flag showing 

violation or that the vehicles were otherwise parked in 

violation of the city ordinances as alleged in the notices 

of violation; 

(4) That the foregoing stipulated facts are not inclusive 

to this case, but the same shall be submitted to the court 

without jury, on which the court may render its verdict and 

judgment ; 
(5) That these stipulated facts are for the purposes of 

trial ; 

(6) That it is agreed by the parties that the court 

shall render its decision upon the foregoing stipulated 

facts and defendant's plea of "not guilty". 

Defendant raises the following issues: 

1. Are the Missoula parking ordinances constitutionally 

infirm? 

2. Are the escalating fine provisions of the Missoula 

ordinances valid? 

3. May a defendant appealing from a municipal court in 

a traffic case be required to post an appeal bond? 

Although there were two charges brought under Missoula 

Municipal Code sections 20-115 and 20-118, the majority of 

charges were brought under sections 20-132(c) and 20-184, 

M.M.C. This opinion applies to all the ordinances. They 

read as follows: 

"Sec.20-115. Marking no parking zones. Whenever 

curbs or curbing are painted yellow in color by 

the city engineer pursuant to an ordinance or 

resolution of the city council, no person shall at 

any time stop, stand or park; or whenever signs 

are erected by the city engineer pursuant to an 

ordinance or resolution of the city council which 

prohibits parking, establish limited time parking 

zones or in any way limit or restrict parking, no 

person shall stop, stand or park in violation of 

the provisions indicated on such signs." 

"Sec. 20-118. Registered owner to be responsible 

for illegally parked vehicle. Every person in 

whose name a vehicle is registered or licensed 

shall be responsible for any parking of the 

vehicle in violation of this division. It shall 

be no defense to such charge that the vehicle is 

illegally parked by another unless it is shown 

that at such time the vehicle was being used 

without the consent of the registered owner 

thereof. " 

"Sec. 20-132. Extension of time beyond the legal 

limit; parking after expiration of time. 
"(a) No person shall deposit or cause to be deposited in a parking meter a coin for the purpose 

of increasing or extending the parking time for 

any vehicle beyond the legal maximum parking time 

which has been established for the parking space 

adjacent to which the parking meter is placed. 

"(b) No person shall permit a vehicle to remain 

or be placed in any parking space adjacent to any 

parking meter while the parking meter is indicating 

a signal indicating violation. 

"(c) No person shall cause, allow, permit or 

suffer any vehicle registered in his name or 

operated or controlled by him to be upon any 

street within the parking meter zone in any space 

adjacent to which a parking meter is installed, at 

any time during which the meter is showing a 

signal indicating that such space is illegally in 

use, other than such time as is necessary to 

operate the meter to show legal parking, between 

the hours of 9:00 a.m. and 6:00 p.m. of any day, 

Sundays and legal holidays excepted." 

"Sec.20-184. Presumption in reference to illegal 

parking. (a) In any prosecution charging a 

violation of any law or regulation governing the 

standing or parking of a vehicle, proof that the 

particular vehicle described in the complaint was 

parked in violation of any such law or regulation, 

together with proof that the defendant named in 

the complaint was at the time of such parking the 

registered owner of the vehicle, shall constitute 

in evidence a prima facie presumption that the 

registered owner of such vehicle was the person 

who parked or placed such vehicle where, and for 

the time during which, such violation occurred. 

(b) The foregoing stated presumption shall apply 

only when the procedure indicated in sections 20- 

182 and 20-183 has been followed." 

The second sentence of section 20-118, M.34.C. was 

eliminated by the city council on July 10, 1978, because of 

this Court's decision in the case of State v. Jetty (1978), 

176 Mont. 519, 579 P.2d 1228. 

The District Court found that the presumption provided 

for by section 20-184(a), M.M.C. was unconstitutional in 

that it resulted in an impermissible shifting of the burden 

of persuasion under the holding in Sandstrom v. State of 

Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed. 2d 39. 

The District Court further found that the remaining provisions 

of the ordinances established a prima facie responsibility 

upon the registered owner, which that owner had a right to 
rebut by way of an affirmative defense, following the 

decision in Jetty. The defendant did not offer any evidence 

in rebuttal in district court to show that she was not the 

person who parked the car. 

Defendant contends that a prima facie case that the 

registered owner parked the vehicle is no different than a 

presumption that the registered owner parked the car. She 

makes three arguments in support of her contention: (1) 

the presumption shifts the burden of persuasion to the 

defendant, thus violating the due process requirement that 

the state prove each element of a criminal offense beyond a 

reasonable doubt; (2) the presumption is not based on a 

sufficient constitutional nexus between the fact presumed 

and the fact proved; and (3) the presumption presumes guilt 

itself, when it should only presume one of the several 

elements of the crime. 

To accept defendant's arguments would require that we 

reverse or modify the position taken by this court in State v. 

Jetty (supra) . 

In Jetty, this Court had under consideration a City of 

Livingston parking ordinance. The opinion stated: 

"Defendant's second issue on appeal becomes 

academic due to this Court's holding on the first 

issue. However, because of the wide use of this 

traffic ordinance throughout the state, we feel 

it necessary to comment on its constitutionality. 

"The Livingston city code, Section 28-264, provides: 

'(a) Every person in whose name a vehicle is 

registered (licensed) shall be responsible for any 

parking of such vehicle in violation of this 

division. 

'(b) It shall be no defense to such charge that 

such vehicle was illegally parked by another, 

unless it is shown that at such time the vehicle 

was being used without the consent of the registered 

(licensed) owner thereof.' 

"The Livingston ordinance is identical to a Seattle, 

Washington, ordinance which was declared unconstitutional in part by the Washington Supreme Court 

in City of Seattle v. Stone (1966), 67 Wash.2d 

886, 410 P.2d 583. 
"We cite City of Seattle v. Stone, supra, with 

approval and adopt the following rationale: 

'The second sentence of the Seattle ordinance 

[section 28-264 (b) , Livingston ordinance] preceding the proviso is patently incompatible 

with the concept of due process. It purports to 

make a defendant responsible even though he in 

fact might not have Seen responsible for the 

parking violation. 

'For the reasons indicated, we are forced to 

strike down as unconstitutional that portion of 

the second sentence of 5 21.66.180 [Livingston 

ordinance subsection (b)] preceding the proviso, 

for it deprives an automobile owner of due process 

of law. 

'We then interpret the remainder of 521.66.180 

[Livingston ordinance 28-264, subsection (a)], as 

do the authorities heretofore cited, to establish 

only a prima facie responsibility upon the registered 

owner, which he has right to rebut, if he can. 

-- This in nowise interrupts the city's exercise of 

its police power -- or its right and power to enforce 

its parking ordinances.'(Emphasisadded.) 410 

P.2d 585. [Eracketed material added.] 

"As pointed out, the owner is still prima facie 

liable under the ordinance and subject to arrest 

and prosecution. However, he cannot be deprived 

of his defense that some one else he permitted to 

use his car was the actual violator." 176 Mont. 

at 523, 524, 579 P.2d at 1230-1231. 

As the above quotation shows, in Jetty this Court 

adopted the reasoning of the Washington court in the case of 

City of Seattle v. Stone, supra, including its holding that 

a city parking ordinance can make the registered owner prima 

facie liable so long as he is not deprived of the defense 

that he was not the actual violator. 

We agree with the defendant that to make the owner of a 

vehicle prima facie liable upon proof that his vehicle has 

been parked illegally is equivalent to a presumption that 

the owner parked the vehicle. This requires us to consider 

whether that presumption, in the light of its effect, meets 

the constitutional requirements for the use of presumptions 

in criminal cases. 

Since its decision in Seattle v. Stone, supra, the 

Washington Supreme Court has developed a strict three-part 

test of the constitutionality of criminal presumptions: (1) 
although a presumption may shift the initial burden of 

producing evidence to the defendant, it may not operate to 

relieve the prosecution of its burden of persuasion on that 

element by proof beyond a reasonable doubt; (2) the facts 

presumed must follow from the facts proven beyond a reasonable 

doubt, and (3) the trier of fact must know that the presumption allows, but does not require, it to infer the 

presumed fact from proof of the operative fact. State v. 

Roberts (1977), 88 Wash.2d 337, 562 P.2d 1259. Based on 

those requirements, the Washington Court of Appeals in City 

of Spokane v. Potter, Opinion No. 3699, September 23, 1980, 

found that a presumption similar to the one we are dealing 

with here, appearing in a Spokane parking ordinance, was 

unconstitutional, relying on Roberts as prevailing over 

Seattle v. Stone, supra. Although these Washington decisions 

are not binding on us, they indicate an erosion of the 

foundation for the Jetty holding. 

Decisions of the United States Supreme Court on due 

process questions are binding on us. The requirements or 

principles set forth in Roberts stem from United States 

Supreme Court rulings expressed in such cases as -- In re 

Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 

and Sandstrom v. Montana, supra. However, the United States 

Supreme Court has not gone so far as to require that the 

nexus between the fact proved and the fact presumed must be 

established beyond a reasonable doubt. Instead, that Court 

has said that there must at least be "substantial assurance 

that the presumed fact is more likely than not to flow from 

the proved fact on which it is made to depend." Leary v. 

United States (1969), 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 

23 L.Ed.2d 57, 82. 

Under the rule in Jetty, the City need only prove the 

act of parking and the registered ownership of the vehicle 
to make a prima facie case of guilt. The burden then shifts 

to the owner to establish that she was not the driver. The 

act of illegal parking becomes an essential element of the 

offense, which the City is permitted to prove by means of 

the presumption. Rule 301(b)(2), Mont. R. Evid., states 

that a disputable presumption "may be overcome by a preponderance of evidence contrary to the presumption. Unless 

the presumption is overcome, the trier of fact must find the 

assumed fact in accordance with the presumption," Thus, the 

trier of fact is not free to accept or reject the presumption. 

The effect of the presumption is to violate constitutional 

due process requirements by shifting the burden of persuasion 

to defendant and contradicting the presumption of innocence. 

We therefore come to the conclusion that the prima 

facie presumption is unconstitutional and invalid. The 

ruling in Jetty relative to the validity of the portion of 

the above-quoted Livingston ordinance and the prima facie 

responsibility of the registered owner was given for the 

express purpose of providing future guidance to cities. The 

ruling was not necessary to the decision in that case. It 

cannot stand. 

We have also reached the conclusion that we should 

reconsider the holding in Jetty which struck from the Livingston 

ordinance, on due process grounds, the following provision: 

"It shall be no defense to such charge that such 

vehicle was illegally parked by another, unless it 

is shown that at such time the vehicle was being 

used without the consent of the registered (licensed) 

owner thereof." Livingston City Code, section 

28-264 (b) . 

That provision made the registered owner vicariously 

liable for the illegal parking of a vehicle by one who was 

driving with the permission of the owner. Under such a 

provision, no presumption is involved in determining the 

liability of the owner. The offense constitutes only two 
elements, the registered ownership and the illegal parking. 

There is absolute liability on the part of the registered 

owner upon proof of those two elements. 

"While as a general rule, one person is not liable for 

the criminal acts of another in which he did not participate 

either directly or indirectly, there is a class of cases 

which form an exception to such general rule; [those] cases 

relat[e] to criminal responsibility for the maintenance of a 

public nuisance and for the violation of revenue and police 

regulations by one's agent or servant." State v. Erlandson 

(1952), 126 Mont. 316, 249 P.2d 794. This principle has 

been applied to traffic regulations. Commonwealth v. Ober 

(1934), 286 Mass. 25, 189 N.E. 601, City of Chicago v. 

Crane (1943), 319 I11.App. 623, 49 N.E.2d 802; City of Chicago 

v. Hertz Commercial Leasing Corp. (1978),71 I11.2d 333, 375 

Montana statutes contemplate the imposition of vicarious 

liability in certain criminal offenses. Section 45-2-301, 

MCA, provides: "Accountability for conduct of another. A 

person is responsible for conduct which is an element of an 

offense if the conduct is either that of the person himself 

or that of another and he is legally accountable for such 

conduct as provided in 45-2-302, or both." 

Section 45-2-302, MCA, provides: "When accountability 

exists. A person is legally accountable for the conduct of 

another when:. . .(2) The statute defining the offense makes 

him so accountable;" 

The Commission Comment for this subsection states: 

"Subsection (2) makes clear a person may be 

held legally accountable in circumstances not 

otherwise included in section 94-2-107 [R.C.M. 

1947, now 45-2-302,MCA], where the particular 

statute so provides. . . An example of such a 

statute might be one imposing vicarious criminal 

liability on a tavern owner far the act of an 

employee resulting in sale of liquor to a minor." 
We hold that vicarious criminal responsibility can be 

imposed, without breaching due process restrictions, in 

the regulation of traffic and the parking of motor vehicles. 

Jetty is overruled insofar as it holds to the contrary. 

In addition to the statutes quoted above, section 45- 

2-104, MCA, is pertinent here. That section reads as 

follows: 

"Absolute liability. A person may be guilty of an 

offense without having, as to each element thereof, 

one of the mental states described in subsections 

(33), (37), and (58) of 45-2-101 only if the 

offense is punishable by a fine not exceeding 

$500 and the statute defining the offense clearly 

indicates a legislative purpose to impose absolute 

liability for the conduct described." 

The next question which we must consider is whether a 

city has authority to adopt a vicarious liability parking 

ordinance. We hold that it does have that authority. 

Section 7-5-4101, MCA, reads as follows: 

"General powers of municipal council. The city or 

town council has power to make and pass all bylaws, ordinances, orders, and resolutions not 

repugnant to the constitution of the United States 

or of the state of Montana or to the provisions of 

this title, necessary for the government or 

management of the affairs of a city or town, for 

the execution of the powers vested in the body 

corporate, and for the carrying into effect the 

provisions of this title." 

Section 61-12-101(1), MCA provides that a city may within 

the reasonable exercise of its police power, regulate the 

standing and parking of vehicles. 

We find nothing repugnant to the United States or Montana constitutions in a vicarious liability parking ordinance. 

We find such an ordinance to be within the reasonable exercise 

of police power, if it conforms with the requirements of 

Section 45-2-104, MCA, that the offense be punishable by a 

fine not exceeding $500 and that the ordinance defining the 

offense clearly indicates alegislative purpose to impose 

absolute liability arising from the ownership of the vehicle. 

The Missoula ordinances provide a minimum fine of $1.00 
for parking meter violations if appearance or payment is 

made at the police station within fourteen days; otherwise, 

two dollars. For other parking violations, the minimum fine 

is $4.00 if appearance is made at the police station within 

three days; otherwise, $8.00. For both kinds of violations, 

the minimum fine is $10.00 if a warrant for arrest is issued. 

It appears that the maximum penalty is ninety days in jail 

and a $300.00 fine. Missoula Municipal Code, Section 20-2; 

section 7-5-109, MCA. 

The Missoula ordinances prior to July 10, 1978, clearly 

indicated a legislative purpose to impose absolute liability 

on the registered owner of a motor vehicle for parking 

violations. However, since the maximum penalty to which the 

owner is subject under those ordinances exceeds the maximum 

allowed by section 45-2-104, MCA, those ordinances cannot be 

accepted as valid instruments for the imposition of vicarious 

liability. Because of that determination and our holding 

above that the defendant cannot be held prima facie responsible under a presumption that she was the one who illegally 

parked a vehicle registered in her name, the judgment below 

must be reversed. 

The prevalence of similar ordinances throughout Montana 

makes it imperative we address the remaining issues: (1) 

the validity of escalating fines, and (2) the necessity of 

filing an appeal bond. 

Escalating fines 

The relevant Missoula parking meter ordinances were 

discussed above. The municipal court declared unconstitutional the $10.00 fine assessable upon the issuance of an 

arrest warrant, and the city has not appealed from that 

decision. The district court left undisturbed the penalty 

imposed by the municipal court. The pertinent issue raised 

in defendant's appeal is the validity of those provisions of 

the ordinances which increase the fine for failure to make 

payment or an appearance within the time limits stated. 
In our view, those provisions are in violation of the 

basic principle of criminal law that punishment must be for 

the violation itself and must be proportional to the gravity 

of the offense. They are designed not to punish for the 

offense, but to encourage early payment of the fine. While 

such a scheme may be acceptable in enforcing civil penalties, 

we hold that the escalating fine provisions of the Missoula 

ordinances violate Article 11, Section 28 of the Montana 

Constitution, which provides that laws for the punishment of 

crime shall be founded on principles of prevention and reformation. 

Appeal Bond 

The case of State v. Bush (1974), 164 Mont. 81, 518 

P.2d 1406, interprets section 46-17-311, MCA, as requiring 

that a bond be furnished in order to perfect an appeal in a 

criminal case from a city or justice court to the district 

court. We cannot reason from the holding of that case that 

appeal bonds are necessary when appeals are taken from 

municipal courts, since those courts are governed by different 

statutes than those which apply to justice and city courts. 

In particular, section 3-6-104, MCA, provides that a municipal court shall establish rules for appeals to the 

district court, subject to the Supreme Court's rule-making 

and supervisory authority. Nothing in the record here shows 

that the municipal court of Missoula has adopted rules 

governing appeals, cr that any such rules have been approved 

by the Supreme Court. 

Proceedings and practice in municipal court are required 

by section 46-17-401, MCA, to be the same as in district 

court, except as provided by Title 3, Chapter 6, and Part 4 

of Title 46, Chapter 17, MCA. Examination of those parts 

of the Code reveals no reference to appeals from municipal 

court except those contained in section 3-6-104, MCA mentioned 
above. Practice in district court does not require the 

filing of a bond to perfect an appeal in a criminal case. 

Since there is no showing that an appeal bond reguirement is contained in properly approved rules of the municipal 

court, and there is no requirement for a appeal bond in 

district court practice, we conclude that the municipal 

court here could not require that a bond be filed before the 

appeal to the district court was perfected. We distinguish 

the furnishing of an appeal bond from the furnishing of a 

bail bond on appeal, which can be required under section 

46-9-103, MCA. 

We reverse the decision of the district court. The 

complaints against appellant are dismissed. 

 ono or able B.w.' Thomas, District 

Judge, sitting in place of Mr. 

John C. Harrison 

We concur: 

?!-d> Justice 

Honorable John M. McCarvel, District 

Judge, sitting in place of Mr. Chief 

Justice Frank I. Haswell 

Honorable Joseph B. Gary, District 

Judge, sitting in place of Mr. 

Justice Daniel J. Shea 
THE CITY OF MISSOULA, ) 

) Plaintiff, ) 

) 

VS . ) 

) 

DORIS M. SHEA, 1 

) 

Defendant. ) 

DISSENT 

I would affirm the decision of the trial court for the 

following reasons. First of all, I agree with the statement of 

facts of the majority opinion and I do not feel that it is 

necessary to overrule State v. Jetty, 176 Mont. 519, 579 P.2d 

1228, as apparently is done by the majority opinion. 

As is shown in the majority opinion and by the trial 

court's opinion that following State v. Jetty, supra, the Missoula 

City Commission struck out the conclusive presumption of Section 

20-118 as being unconstitutional in that it deprived the automobile 

owner of due process of law. Therefore, following Jetty the remainder of Section 20-118 merely established a prima facie responsibility of the registered owner which he had the right to rebut 

if he could. In like manner, Section 20-184 merely provides that 

there is a prima facie presumption that the registered owner of such 

vehicle was the person who parked or placed such vehicle illegally 

and for the time such violation occurred. This, then in the light 

of State ---- v. Jetty, supra, permits the owner of the vehicle to come 

forward if he so desires to overcome the prima facie case and certainly is not an unconstitutional shifting of the burden of proof 

in a parking case for two reasons. First, this is a malum prohibitum 

offense and secondly, the legislature has authorized the establishment of absolute liability in such matters which has been upheld 

by this court. See Section 45-2-302(2), MCA. This will be 

discussed at a later time. 
The effect of the majority's decision is to strike 

from the ordinances as unconstitutional, that portion of the 

ordinance which established a prima facie presumption that the 

registered owner of the vehicle was the person who parked the 

vehicle. The effect of this is to place the municipalities 

in the State of Montana in a complete state of disarray and is 

inconsistent with what the majority of the courts are doing in the 

United States. In State v. Jetty, supra, the court declared and 

interpreted the remainder of the parking regulations of Livingston 

establishing a prima facie responsibility upon the registered 

owner, which he or she had the right to rebut if he or she could. 

-- State v. Jet=, supra, followed the original decision of the City 

of Seattle v. Stone, 67 Wash.2d 886, 410 P.2d 583, and said on 

page 1230 and 1231 as follows: 

"We cite City of Seattle v. Stone, supra, 

with approval and adopt the following rationale; 

"The second sentence of the Seattle 

ordinance (section 28-264(b), Livingston 

ordinance) preceding the proviso is patently incompatible with the concept of 

due process. It purports to make a 

defendant responsible even though he in 

fact might not have been responsible 

for the parking violation. 

'For the reasons indicated, we are forced 

to strike down as unconstitutional 

that portion of the second sentence of 

Sec. 21-66.180 (Livingston ordinance 

subsection (b) ) preceding the proviso for 

it deprives an automobile owner of due 

process of law. 

"We then interpret the remainder of 

Sec. 21.66.180 (Livingston ordinance 

28-264, subsection (a) ), as do the 

authorities heretofore cited, to establish 

only a prima facie responsibility upon the 

registered owner, which he has the right 

to rebut, if he can. This in nowise 

interrupts the city's exercise of its police 

power or its right and power to enforce its 

parking ordinances. '11 (emphasis added in 

original) 410 P.2d 583. (Parenthesis 

material added in original.) 

It is interesting to note that in the second City of 

Seattle .-p v. Stone case, when the conclusive presumption was 
removed, there was a short decision, 71 Wash.2d 905, 426 P.2d 604, 

605, and affirmed the conviction when the owner of the vehicle did 

not come forward to rebut the prima facie case established by the 

ownership of the vehicle. 

Looking at other jurisdictions, the courts there have 

discussed the problems that exist if the majority opinion is followed 

to its logical conclusion in that the municipalities are really 

offered no alternative when a parking violation occurs. Therefore, 

the practical aspect would require the cities to place a large 

number of policemen at all cars so that the offender can be apprehended when he returns to the vehicle or in the alternative to remove the 

vehicles and charge large storage and removal fees etc. which will 

undoubtedly cause the citizens to rise up in arms. 

The State of Illinois addressed this problem in the City 

of Chicago --- v. Hertz Commercial Lease Corp., 375 N.E.2d 1285 (cert. 

denied by the U. S. Supreme Court). The Illinois Supreme Court 

discusses virtually all of the aspects of the law regarding parking 

ordinances. 

"Parking ordinances similar to, and almost 

identical to, the above cited ordinance have 

been examined by courts throughout the country 

over the past 50 years. The controversy 

almost invariably emerges as a concerted attempt 

by the courts to discern the intention of the 

local authority in regulating parking, Some 

local authorities seek to impose liability 

ultimately on the driver and do so by summoning 

the registered owner to court, at which time the 

owner is presumed to have parked the vehicle. 

The owner may successfully rebut this presumption, 

in which case the local authorities are thrust 

into the dilemma of either securing personal 

jurisdiction over the driver, or dismissing the 

case. Other local authorities seek to impose 

liability directly on the registered owner, in 

which case the owner is held vicariously responsible 

for the violation. In either case, the person 

subject to the penalty is strictly liable, in 

the legal sense that the owner or driver need not -7 --- 

have intended to commiense to be responsible for the violation, 
"The defendants vigorously argue that the 

plain meading of the words 'prima facie 

responsible' in the Chicago ordinance indicates 

that it was the municipality's clear intention 

to allow the registered owner to rebut the 

presumption that the vehicle was parked by the 

owner. The issue cannot be so facilely resolved 

show that'the vehicle was not parked~~illegally or that 

he was not the registered owner of the vehicle at 

the time of the alleged violation. The defenses are 

limited, but the plain meaning of the ordinance 

admits of no more. 

"A predecessor of the ordinance in question provided: 

"'Whenever any vehicle shall have been parked in 

violation of any of the provisions of this chapter 

prohibiting or restricting parking, the person in 

whose name such vehicle is registered shall be 

subject to the penalty for such violation.' (Chicago 

Municipal Code, ch. 27, sec. 34.1.) 

"This unambiguous language imposes both strict 

and vicarious liability on the owner whenever his 

vehicle is illegally parked, irrespective of 

whether the owner was the person who parked the 

vehicle. 

"The defendants assert that, because the present 

ordinance added the words 'prima facie responsible 

tor such violation,' the City deliberately chose 

to incorporate into the ordinance the presumption 

that proof of ownership is prima facie evidence - 

- 

that the vehicle was parked by the owner. We interEtXe development of the ordinance differelTtly." 

375 TE.2d at 1288. (emphasis supplied.) 

You will note in the Chicago ordinance the words "prima 

facie" as appears in the Missoula ordinance. The Illinois court went 

on to state in the City of Chicago case the additional'language: 

"We are in accord with the results reached by 

the supreme courts of Ohio, llissouri and Iowa. 

We believe that the City intended, under both 

the previous and the present ordinances, to 
subject the owner of an illegally parked 

vehicle to the penalty for such parking 

violation. -- The incorporation of the words 

'prima facie responsible' merely clarified 

that the defendant is not conclusivelv ., subjete to penalty once the City establishes 

its prima facie case of a violation and 

--- ownershiw. but that he can come forward with 

evidenceL Gontrovertin~ either element of the 

case against him. . . -.- .--- 

"An irrebuttable presumption may be a constitutional denial of due process if it deprives a 

party of the opportunity to prove the nonexistence of an essential element of the substantive offense. The defendants' position 

assumes that an essential element of the 

ordinance is the presumption that the oshmer was 

the person who parked the vehicle. As we have 

previously stated, the ordinance does not purport 

to incorporate that presumption into the substantive offense. The two elements of the substantive 

- offense are rebuttable 'by a showing that a violation 

was not commi'tted or that the defendant was not the 

-- owner at the time of the violation. The constitu- 

- tional requirement of procedural due process is 

satisfied because the defendant is not wrecluded from 

rebuiiin~ either element ok the substantive of kense. " 

There are similar holdings by other courts, for instance 

-- Iowa Cit~ V. Nolan, - 239 N.W.2d, 102, wherein the ordinance held that 

illegally parked automobiles was a violation "... if the identity 

of the owner cannot be determined, the owner or person or corporation 

in whose names the vehicle is registered shall be prima facie 

responsible for said violation." The Iowa court said on page 105 

as follows: 

"In this appeal the ordinances before us are 

clearly within a permissible area of regulation 

in the interest of people's lives and property. 

The tragic statistics have been so well promulgated as to be within the ordinary person's 

general knowledge. About 50,000 lives are lost 

annually through traffic accidents, A vastly 

greater number of persons are injured and 

crippled.. Certainly an illegally parked vehicle 

on a downtown street during rush hour can seriously 

endanger pedestrian and vehicular travel. 

Under the rationale of the above authorities, 

a registered owner may be vicariously liable for 

his illegally parked vehicle and subject to 

punishment pursuant to a public welfare regulation. 

Whether he may be subjected to imprisonment is not 

before us now. " 
The court then added: 

"Under this public welfare doctrine, it is 

clear section 6.54.1 may impose prima facie 

strict criminal responsibility upon the 

registered owner of an illegally parked vehicle. 

By proving (1) the existence of an illegally 

parked vehicle, (2) registered in the name of 

the defendant, and (3) inability to determine 

the actual operator, the city can make out a 

prima facie case for imposing responsibility for 

the violation upon the vehicle's owner. Under 

prior authority of this court and others, this 

'prima facie' responsibility means 'at first 

view' or 'on its face' or 'without more', 

State v. Richards, 126 Iowa 497, 502, 102 N.W.2d 

439, 441, the proof of ownership is sufficient 

to create a jury question on defendant's responsibility for the violation. Commonwealth v. 

Pauley, Mass., 331 N.E.2d 901, 905. This proof 

would also be sufficient to convict defendant 

unless the evidence indicated defendant was not in 

fact responsible for the violation. This permits 

defendant to come forward with evidence that 

someone was operating the vehicle without his 

consent or with other facts which would rebut the 

prima facie inference that the registered owner 

of a vehicle is responsible for its operation. 

In the area of public welfare offenses, such 

burden shifting is not constitutionally infirm. 

See U.S. v. Park, supra, 421 U.S. at 672, 95 

S.Ct. at 1912, 44 L.Ed.2d at 501." 

Also see City of Kansas City v. Hertz Corp. 499 S.W.2d 

449, wherein the Missouri Supreme Court upheld a prima facie 

responsibility comparable to that of the Missoula ordinance. Also 

411 

see Commonwealth .- v. Minicost Car Rental, Inc. (1968) 242 N.E.2dlland 

the City of St. Louis v. Cook, 221 S.W.2d 468. 

In other words, practically all of the courts are unanimous 

and hold that if it is merely a prima facie establishment of liability 

that can be rebutted there is no unconstitutional shifting of burden 

in a case such as this 

The legislature, under provisions of Section 45-2-302(2), 

MCA, provided as follows: 

"A person is legally accountable for the conduct 

of another when: 

(2) the statute defining the offense makes him 

SO accountable; " 

Using the rationale of the above cases this should be 

sufficient to affirm the trial court's findings. 
However, in Montana we have an additional reason why the 

District Court's decision should be upheld. A search of the record 

fails to justify the statement of the court that in a parking 

violation that there could be a penalty in excess of the $500.00 

fine authorized by Section 45-2-104, MCA, There is a specific fine 

of a maximum of $50.00 because the specific fine set forth in the 

parking ordinance takes precedence over the general ordinance 

penalties of Missoula and set forth in Section 20-2 of the Missoula 

City Code. Section 20-2 is not a portion of the parking ordinance 

and this is gratuitously thrown in to reverse the trial court. 

This court has repeatedly held that the specific controls over 

the general as stated in the State Consumer Counsel v. Montana 

Department of Public Service Regulation, 181 Mont. 225, 593 P. 2d 34, 

36 (1979), State v. Holt, 121 Mont. 459, 194 P. 2d 651, and 

In Re Wilson's Estate, 102 Mont. 178,56 P.2d 733 (1936). 

The majority opinion holds that both vicarious liability 

and absolute liability are constitutional in Montana if the penalty 

does not exceed $500.00. Section 45-2-302(2) and 45-2-104, MCA. 

This is exactly what Section 20-118 of the Missoula City Code 

does. It states: 

"Every person in whose name a vehicle is 

registered or licensed shall be responsible 

for any parking of the vehicle in violation 

of this division." 

This sentence was declared constitutional in State v. Jetty, supra, 

and clearly establishes vicarious liability on the owner. Because 

the Missoula City Code does not impose a penalty that exceeds 

Section 45-2-104, MCA, this Court should affirm the conviction of 

petitioner under the rational of City of Chigago v. Hertz, supra, 

Section 45-2-302(2) and 45-2-104, MCA, and Missoula City Ordinances 

20-118 and 20-184. 

On the question of graduated fines, it is my contention 

that this is within the power of police regulations of a municipality 
and one that the courts should not interfere with so long as they 

are reasonable. It is obvious that if a person pays his fine 

without any additional actions by the municipality that a fine of 

$1.00 is reasonable. However, if it is necessary to send out 

notices and do additional bookkeeping because the person has not 

paid his fine, the expense to the city is greater and the violator 

should pay these costs. Under the exhibits introduced by the 

appellant, the maximum fine is $50.00 in any instance, which clearly 

is less than the prohibitions of Section 45-2-104, MCA. Considering 

all of the above I would affirm the District Court's decision and 

impose the fine. 

/ 

JOSH B. GARY, District'/;Sudge, sitting 

iuplace of ~r.. Justice ~aniel J. Shea 

JOHN M. McCARVEL, District Judge, sitting in place of Chief 

Justice Frank I. Haswell, concurring in Judge Joseph B. Gary's 

dissent: 

The Defendant relies on two United States Supreme Court 

decisions, Sandstrom - v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 

61 L.Ed.2d 39, and -- In Re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 

1068, 25 L.E.2d 368. These cases have no relevance to the misdemeanor 

defense of illegal parking. In Sandstrom the Supreme Court clearly 

defined what element was involved in that case. 

"The question presented is whether, in a case in 

which intent is an element of the crime charged, 

the iurv 2 .& instruction 'the law presumes that a 

person intends the ordinary consequences of his 

voluntary acts,' violates the Fourteenth Amendment's requirements that the State prove every 

element of a criminal offense beyond a reasonable 

doubt." 99 S.Ct. at 2453. 

Those cases refer to the specific intent offenses. Intent is 

not an element of the offense charged in this case. 

jd/f*,/ 71/2b?+d 

OHN M. McCARVEL, ~istrict Judge, sitv ting in place of Chief Justice Frank 

-21- I. Haswell