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
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, which 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."
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 sexual intercourse with a male to whom she was not married.
Sexual intercourse between persons not married to each other is prohibited by some of the above-mentioned Penal Code sections under specified circumstances, including where the female is under the age of 18 (Pen. Code, § 261, subd. 1); where she resists and her resistance is overcome by force or violence (Pen. Code, § 261, subd. 3); where she is prevented from resisting by threats or by use of a narcotic or anesthetic (Pen. Code, § 261, subd. 4); where she is in no position to resist because of insanity, an unconsciousness of the nature of the act, or a fraudulent belief that the perpetrator is her husband (Pen. Code, § 261, subds. 2, 5, 6); where there is a monetary consideration (prostitution) (Pen. Code, § 647, subd. (b)); where the female is of previous chaste character and is seduced under promise of marriage (Pen. Code, § 268); where the parties or either of them, are married to others, and the parties live in a state of cohabitation (Pen. Code, §§ 269a, 269b); and where the parties are within the degrees of relationship declared by law to be incestuous (Pen. Code, § 285).
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.)
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, § 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: "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.
"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."
Our attention has been directed to In re Sic (1887) 73 Cal. 142 [14 P. 405]; Ex parte Johnson (1887) 73 Cal. 228 [15 P. 43]; Ex parte Hong Shen (1893) 98 Cal. 681 [33 P. 799]; In re Murphy (1900) 128 Cal. 29 [60 P. 465]; Odd Fellows' Cemetery Assn. v. City & County of San Francisco (1903) 140 Cal. 226 [73 P. 987]; In re Hoffman (1909) 155 Cal. 114 [99 P. 517, 122 Am.St.Rep. 75]; Mann v. Scott (1919) 180 Cal. 550 [182 P. 281]; In re Iverson (1926) 199 Cal. 582 [250 P. 681]; In re Simmons (1926) 199 Cal. 590 [250 P. 684].
The last three of those cases specifically recognize that where the state has fully occupied the field, there is no room for additional requirements by local legislation. Any statements in the remaining cases which would lead to a contrary conclusion have been overruled by later decisions of this court, such as Pipoly v. Benson (1942), supra, 20 Cal.2d 366, 370 ; Agnew v. City of Los Angeles (1958), supra, 51 Cal.2d 1, 5 ; Abbott v. City of Los Angeles (1960), supra, 53 Cal.2d 674, 682.
See also James v. United States, 366 U.S. 213, 215 [81 S.Ct. 1052, 6 L.Ed.2d 246], in which the United States Supreme Court refused to follow its holding in a prior case involving identical facts, pointing out that the prior decision had been "thoroughly devitalized" by a later holding by the Supreme Court. (Asher v. Texas, 128 U.S. 129, 131 et seq. [98 S.Ct. 1, 32 L.Ed. 368]; Malloy v. Fong, 37 Cal.2d 356, 364 [232 P.2d 241]; Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 583 [5b] [160 P.2d 21]; Jones v. Jones, 182 Cal.App.2d 80, 88  [5 Cal.Rptr. 803]; Lewis v. Security-First Nat. Bank, 58 Cal.App.2d 827, 828 [137 P.2d 864]; Kenney v. Antioch L.O. School Dist., 18 Cal.App.2d 226, 231 [63 P.2d 1143]; Palvutzian v. Terkanian, 47 Cal.App. 47, 52 [190 P. 503]; 13 Cal. Jur.2d (1954) Courts, § 135, p. 666.)
Defendant is ordered discharged from custody on the charges involved in this proceeding.
Gibson, C.J., Traynor, J., Schauer, J., and Peters, J., concurred.
I have joined in Justice McComb's opinion, but in view of the importance of the subject I think that a more complete discussion of the authorities and the principles relating to occupation of the field is appropriate.
The criminal aspect of sexual intercourse obviously is not a subject within the area of municipal affairs as to which local regulations are superior to state statutes, and local regulations on the matter are invalid if they are in "conflict" with the state legislation as that term is used in section 11 of article XI of the Constitution.
It is settled that the enactment by the state of legislation constituting a comprehensive and detailed general plan or scheme with respect to a subject shows, without more, an intent to occupy the field, leaving no room for local regulation, regardless of whether there is an express declaration to that effect by the Legislature. In Eastlick v. City of Los Angeles, 29 Cal.2d 661, 664-668 [177 P.2d 558, 170 A.L.R. 225], a statute relating to claims against municipalities for injuries resulting from the dangerous condition of their property set forth the time and place for filing the claims and required that certain matters should be included in them. The city charter provided that the claimant must separately specify each item of damage. The court rejected the city's contentions that the charter provision was merely supplementary to the general law
The Eastlick decision was followed in Wilson v. Beville, 47 Cal.2d 852, 858-861 [306 P.2d 789], where the court held that a city charter provision requiring the filing of claims could not be applied to an inverse condemnation proceeding because the Legislature had fully occupied the field of eminent domain, including the enactment of procedural measures and statutes limiting the time within which actions could be brought. Although there appears to have been no statute applicable to the filing of a claim before commencing an inverse condemnation action, the court concluded that the state legislation as to eminent domain provided "a complete and detailed system," that procedural matters were "fully covered," and that the city could not establish shorter time limits or make recovery more onerous than the Legislature had. (47 Cal.2d at pp. 860-861.)
The doctrine of occupation of the field was applied with respect to another subject in Tolman v. Underhill, 39 Cal.2d 708, 712-713 [249 P.2d 280], where we held that loyalty oaths prescribed by the regents of the University of California for faculty members were invalid because the state had fully occupied the field by numerous statutes relating to oaths and other tests and qualifications for employment. The court did not indicate that any particular statute prohibited the invalidated oath but rested its decision squarely on the ground that "the Legislature has enacted a general and detailed scheme requiring all state employees to execute a prescribed oath ..., and it could not have intended that they must at the same time remain subject to any such additional loyalty oaths or declarations as the particular agency employing them might see fit to impose." (Italics added.) The principal statutes involved in the Tolman case were superseded by the Levering Act (Gov. Code, §§ 3103-3109), and in Bowen v. County of Los Angeles, 39 Cal.2d 714, 715-716 [249 P.2d 285], we held that this act likewise established "a general and detailed plan with uniform standards for all public employees" and therefore occupied the field.
In accord is Hall v. City of Taft, 47 Cal.2d 177, 184 et seq. [302 P.2d 574], which affirmed a judgment in favor of a contractor enjoining the city from enforcing its building regulations
State statutes requiring examination, licensing, and regulation of contractors, including "elaborate provision" for investigation of their activities, have been held to occupy the field so that a municipality could not impose supplementary licensing and regulatory requirements even though such supplemental measures were not specifically prohibited by the statutes. (Agnew v. City of Los Angeles, 51 Cal.2d 1, 5-6 [330 P.2d 385].)
The general principle was expressly recognized in Chavez v. Sargent, 52 Cal.2d 162, 177 [339 P.2d 801], where the court said: "State regulation of a subject may be so complete and detailed as to indicate an intent to preclude local regulation." Although concluding that the state had not enacted a completely detailed scheme with respect to the question there involved, the court held that legislation regarding activities of organized labor had set forth both a general policy and basic regulations which were fully comprehensive of the field and that a local ordinance in conflict with the policy was invalid. (52 Cal.2d at pp. 177-178.)
Abbott v. City of Los Angeles, 53 Cal.2d 674, 681, et seq. [3 Cal.Rptr. 158, 349 P.2d 974], again applied the principle discussed above. It was there held that state legislation relating to crime prevention and detection, including a statute requiring that persons convicted of certain specified sex crimes must register in the area where they reside, occupied the field so that a city had no power to enact an ordinance requiring the registration of persons convicted of various enumerated offenses, many of which were not embraced by the state statute. The opinion, pointing to a number of statutes, stated that the Legislature had adopted "a complete legislative scheme intended to occupy the field" and that what was said in Tolman, supra, 39 Cal.2d at page 713, regarding the enactment of a detailed scheme by the Legislature was even more applicable to crime prevention and detection than it was to tests for loyalty. (53 Cal.2d at pp. 687-688.) The statement in
It is thus apparent that the enactment by the state of a comprehensive and detailed general plan or scheme with respect to a subject serves, without more, to occupy the field to the exclusion of local regulation.
Several decisions of this court antedating those discussed above take the position that state legislation renders ordinances invalid only where there is a direct conflict in terms or an exact duplication and that, therefore, a locality may always impose requirements in addition to those set forth by state legislation on a subject. (Mann v. Scott (1919) 180 Cal. 550, 556 et seq. [182 P. 281]; In re Hoffman (1909) 155 Cal. 114, 117-118 [99 P. 517, 122 Am.St.Rep. 75]; Odd Fellows' Cemetery Assn. v. City & County of San Francisco (1903) 140 Cal. 226, 233 [73 P. 987]; In re Murphy (1900) 128 Cal. 29, 30 [60 P. 465]; Ex Parte Hong Shen (1893) 98 Cal. 681, 685 [33 P. 799]; Ex Parte Johnson (1887) 73 Cal. 228, 229 [15 P. 43]; see In re Sic (1887) 73 Cal. 142, 149 [14 P. 405].) These cases did not discuss and apparently did not consider whether the state legislation involved was comprehensive in character. They are, of course, correct insofar as they hold that some or considerable state legislation falling short of a comprehensive general scheme does not occupy the field, but they have been impliedly overruled by the later decisions to the extent that they rest on the theory that requirements in addition to those set forth in state legislation may always be imposed by a locality. There is also language in accord with this erroneous theory in Natural Milk etc. Assn. v. City etc. of San Francisco (1942) 20 Cal.2d 101, 109-110 [124 P.2d 25]; In re Simmons (1926) 199 Cal. 590, 593 [250 P. 684]; and In re Iverson (1926) 199 Cal. 582, 585-587 [250 P. 681]. However, in these three cases the statutes expressly authorized supplementary local regulation, and ordinances imposing additional requirements were properly upheld even though, as indicated by the court, the state legislation was comprehensive. The language in the cases cited in this paragraph must, as pointed out by Justice McComb with respect to most of
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.) In order to hold that the field has been occupied, it is not necessary that the Legislature has specifically declared the scheme or policy in so many 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.) 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; Tolman v. Underhill, supra, 39 Cal.2d at p. 713.)
What has been said above makes it clear that whether the state has fully occupied the field with respect to any given subject depends upon considerations which will necessarily vary and must therefore be determined in every case without prejudging the result as to subjects not before the court.
Under these circumstances much unnecessary confusion and uncertainty would result if each locality were to enforce different rules with respect to the subject involved here. Even if it be assumed that the considerations having a substantial bearing on the matter are not identical in all localities, I am satisfied that there are not sufficient differences to justify the harmful consequences of a multiplicity of divergent regulations by municipalities. The subject is not one affecting only an isolated group of citizens but is one involving the concerns of people generally, and it should be legislated upon accordingly.
It has been suggested that the ordinance was not intended to create a crime in addition to that punishable by state law but was designed and is enforced as a law against prostitution where prostitution is difficult to prove.
I agree that petitioner should be discharged from custody with respect to the charges involved here.
Traynor, J., and Peters, J., concurred.
I dissent. It has always been the law in this state, until this decision, that where the Legislature has prohibited certain conduct the cities and counties under the express grant of power contained in the California Constitution, section 11, article XI, could prohibit other and different conduct in the same field by local ordinance. The cases in support of this rule are collected in the dissenting opinion heretofore filed in this case (Cal.) 18 Cal.Rptr. 33, 35, 367 P.2d 673, 675, and need not be repeated here.
I concede that as to statutes requiring affirmative action, i.e., registration, the filing of claims, the obtaining of licenses, etc., the requirements for such affirmative action provided by state statute may be well intended to be exclusive of additional requirements and in effect may amount to an implied legislative determination that if such affirmative requirements are met, nothing more of affirmative action can be required. The hiatus in the reasoning of the majority in this case is found in the attempt to transfer this concept to purely prohibitory
The distinction may well be illustrated by a licensing statute such as that involved in Agnew v. City of Los Angeles, 51 Cal.2d 1 [330 P.2d 385]. Where the state requires certain steps to be taken to procure a license to engage in a particular business, those steps are taken and the license issued, the right of the licensee to engage in the licensed business is affirmatively granted to him by the state and the implication that no further requirements should be imposed upon him may be naturally drawn. But where the Legislature prohibits certain sexual relations between unmarried persons, are we equally to infer an intention of the Legislature that the right of unmarried persons to engage in any other sort of sexual relations not expressly forbidden by the Legislature has been impliedly granted to them? To so hold is in effect to say that because the Legislature has not forbidden fornication, it has licensed it. I cannot bring myself to the point of agreeing that we may imply from the Legislature's failure to prohibit fornication an intention to make it legal.
Section 11, article XI was placed in the Constitution by the people of the state. If the changes which the state has undergone make it unwise to continue in force the power granted by that section to the cities and counties to enact legislation not in conflict with general laws, the people can repeal it. Until they do so its grant of power remains, what it has always been, "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. Assn. v. County of Stanislaus, 8 Cal.2d 378, 384 [65 P.2d 1305].)
White, J., concurred.