City of Missoula v. Shea

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

Submitted: March 1, 1982
Decided: February

Filed

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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 p e r s o n s h a l l d e p o s i t o r c a u s e t o b e de-
p o s i t e d i n a p a r k i n g meter a c o i n f o r t h e p u r p o s e
of i n c r e a s i n g o r extending t h e parking t i m e f o r
any v e h i c l e beyond t h e l e g a l maximum p a r k i n g t i m e
which h a s been e s t a b l i s h e d f o r t h e p a r k i n g s p a c e
a d j a c e n t t o which t h e p a r k i n g meter i s p l a c e d .

" ( b ) No p e r s o n s h a l l p e r m i t a v e h i c l e t o r e m a i n
o r b e p l a c e d i n a n y p a r k i n g s p a c e a d j a c e n t t o any
p a r k i n g meter w h i l e t h e p a r k i n g meter i s i n d i c a t i n g
a signal indicating violation.

" ( c ) No p e r s o n s h a l l c a u s e , a l l o w , p e r m i t o r
s u f f e r any v e h i c l e r e g i s t e r e d i n h i s name o r
o p e r a t e d o r c o n t r o l l e d by him t o b e upon any
s t r e e t w i t h i n t h e p a r k i n g m e t e r zone i n any s p a c e
a d j a c e n t t o which a p a r k i n g m e t e r i s i n s t a l l e d , a t
any t i m e d u r i n g which t h e m e t e r i s showing a
s i g n a l i n d i c a t i n g t h a t such space i s i l l e g a l l y i n
use, o t h e r than such t i m e a s i s necessary t o
o p e r a t e t h e meter t o show l e g a l p a r k i n g , between
t h e h o u r s o f 9:00 a . m . a n d 6:00 p.m. o f any d a y ,
Sundays a n d l e g a l h o l i d a y s e x c e p t e d . "

"Sec.20-184. Presumption i n r e f e r e n c e t o i l l e g a l
parking. ( a ) I n any p r o s e c u t i o n c h a r g i n g a
v i o l a t i o n o f any law o r r e g u l a t i o n g o v e r n i n g t h e
s t a n d i n g o r p a r k i n g of a v e h i c l e , proof t h a t t h e
p a r t i c u l a r v e h i c l e d e s c r i b e d i n t h e c o m p l a i n t was
p a r k e d i n v i o l a t i o n o f any s u c h l a w o r r e g u l a t i o n ,
t o g e t h e r w i t h p r o o f t h a t t h e d e f e n d a n t named i n
t h e c o m p l a i n t was a t t h e t i m e o f s u c h p a r k i n g t h e
r e g i s t e r e d owner o f t h e v e h i c l e , s h a l l c o n s t i t u t e
i n evidence a prima f a c i e presumption t h a t t h e
r e g i s t e r e d owner o f s u c h v e h i c l e was t h e p e r s o n
who p a r k e d o r p l a c e d s u c h v e h i c l e w h e r e , and f o r
t h e t i m e d u r i n g which, such v i o l a t i o n occurred.

( b ) The f o r e g o i n g s t a t e d p r e s u m p t i o n s h a l l a p p l y
o n l y when t h e p r o c e d u r e i n d i c a t e d i n s e c t i o n s 20-
182 a n d 20-183 h a s been f o l l o w e d . "

The s e c o n d s e n t e n c e o f s e c t i o n 20-118, M.34.C. was

e l i m i n a t e d by t h e c i t y c o u n c i l on J u l y 1 0 , 1 9 7 8 , b e c a u s e o f

t h i s C o u r t ' s decision i n t h e c a s e of S t a t e v. J e t t y (1978),

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

The D i s t r i c t C o u r t f o u n d t h a t t h e p r e s u m p t i o n p r o v i d e d

f o r by s e c t i o n 2 0 - 1 8 4 ( a ) , M . M . C . was u n c o n s t i t u t i o n a l i n

t h a t i t r e s u l t e d i n a n impermissible s h i f t i n g of t h e burden

of p e r s u a s i o n u n d e r t h e h o l d i n g i n S a n d s t r o m v . S t a t e o f

Montana ( 1 9 7 9 ) , 442 U.S. 510, 99 S . C t . 2450, 6 1 L.Ed. 2d 39.

The D i s t r i c t C o u r t f u r t h e r found t h a t t h e r e m a i n i n g p r o v i s i o n s

of t h e o r d i n a n c e s e s t a b l i s h e d a prima f a c i e r e s p o n s i b i l i t y

upon t h e r e g i s t e r e d owner, which t h a t owner had a r i g h t t o
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, pro-
vides:

'(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 unconsti-
tutional 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] pre-
ceding 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 - - right and power to enforce
or its
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 pre-

sumption 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 pre-
ponderance 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), ( 3 7 ) , 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 by-
laws, 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 Mon-

tana 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 respon-
sible 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 unconsti-
tutional 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 re-
formation.

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 mun-
icipal 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 reguire-
ment 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 remain-
der of Section 20-118 merely established a prima facie respon-
sibility 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 - -v. Jetty, supra, permits the owner of the vehicle to come
State -
-
forward if he so desires to overcome the prima facie case and cer-
tainly 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 establish-
ment 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.

-- v. Jet=,
State 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 pat-
ently 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. ' 1 1 (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. v. Stone case, when the conclusive presumption was
p-
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 apprehen-
ded 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
-7 - that the owner or driver need not
the legal sense-
-
have intended to c o m m i e n s e to be respon-
sible 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 that
or
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
-
- proof of ownership is prima facie evidence
that
that the vehicle was parked by the owner. We inter-
E t X e development of the ordinance differelTtly."
375 T E . 2 d 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 sub-
.
,
jete to penalty once the City establishes
its prima facie case of a violation and
ownershiw. but that he can come forward with
- - -
evidenceLGontrovertin~either element of the
-.case against him. . .
---.

"An irrebuttable presumption may be a consti-
tutional denial of due process if it deprives a
party of the opportunity to prove the non-
existence of an essential element of the sub-
stantive 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 substan-
tive 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 ofkense."

There are similar holdings by other courts, for instance
Iowa C i V.
-- t ~ 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 prom-
ulgated 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',
S t a t e v. R i c h a r d s , 126 Iowa 497, 502, 102 N.W.2d
439, 441, the proof of ownership is sufficient
to create a jury question on defendant's respon-
sibility for the violation. C o m m o n w e a l t h v.
P a u l e y , 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.
S e e U.S. v. P a r k , 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.

/

J O S H B. GARY, District'/;Sudge,sitting
iuplace of ~r..
Justice ~ a n i e lJ. 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 - Montana (1979), 442 U.S. 510, 99 S.Ct. 2450,
v.
61 L.Ed.2d 39, and - - Winship (1970), 397 U.S. 358, 364, 90 S.Ct.
In Re
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 instruction 'the law presumes that a
2 &
.

person intends the ordinary consequences of his
voluntary acts,' violates the Fourteenth Amend-
ment'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*,/ McCARVEL, ~istrictJudge, sit-
OHN M.
71/2b?+d
v
ting in place of Chief Justice Frank
-21- I. Haswell