dissenting: In a far-reaching precedent the court by its decision is extending the Home Rule power of a city to legislate in the field of criminal law.
The court in City of Lyons v. Suttle, 209 Kan. 735, 498 P. 2d 9, premised its decision upholding an ordinance of the City of Lyons upon the ground that its enactment was a proper exercise of the police poioer by the city governing body. The subject matter was treated under the police power on the theory that “Beverages with some alcoholic content have long been considered of such a nature and effect that laws regulating sales and consumption have been passed and enforced.” (Emphasis added.)
In the case presently before the court the Home Rule Amendment to the Constitution of Kansas is asserted to authorize cities to venture into the field of criminal law. But powers granted to cities by the Home Rule Amendment to the Kansas Constitution (Article 12, Section 5) preclude municipalities from entering a field of legislation which has been occupied by general legislative enactment of statewide concern applicable uniformly to all cities. (Article 12, Section 5 [6], Kansas Constitution; Capitol Cable, Inc. v. City of Topeka, 209 Kan. 152, 159, 495 P. 2d 885; and see City of Baytown v. Angel, 469 S. W. 2d 923 [Tex. Civ. App. 1971].)
My dissent is premised upon the theory that the subject matter of the ordinance has been pre-empted by the state and the ordinance is also in conflict with state law.
Pre-emption by the state in the field Uf criminal law is indicated *505by the intention of the legislature in several ways. K. S. A. 21-3102 (1) provides in part:
“No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state. . . .”
The foregoing is an emphatic declaration by the legislature that the field of criminal law has been pre-empted by the state.
Further indication that the subject matter of the ordinance in question has been pre-empted by the Kansas Criminal Code is found in the fact that the legislature submitted the drafting of the Kansas Criminal Code to the Kansas Judicial Council. Pursuant thereto the Kansas Judicial Council drafted the code and supplied comments to the various sections upon recommending passage of the code to the legislature. Article 42 (K. S. A. 21-4201 to 21-4206 inclusive) is headed “Crimes Against the Public Safety” with a subhead “Weapons Control”. The Judicial Council comment following section 21-4202 states: “These sections are the first sections of a comprehensive weapons control act and should be read with sections 21-4203 through 21-4206.” (Emphasis added.)
Some states have held that the penal system adopted by a state constitutes a complete legislative scheme intended to occupy the field. (Abbott v. City of Los Angeles, 53 C. 2d 674, 3 Cal. Rptr. 158, 349 P. 2d 974; Kim v. Town of Orangetown, 66 Misc. 2d 364, 321 N. Y. S. 2d 724; and City of Baytown v. Angel, supra.) Other jurisdictions have said that a municipality being a creature of the state and deriving its governmental powers from the state, cannot prohibit what the state permits. (State v. Brennan, 3 Conn. Cir. 413, 216 A. 2d 294.)
The rule denying power to a local body when the state has preempted the field is a rulé of necessity, based upon the need to prevent dual regulations which could result in uncertainty and confusion; and whether the state has pre-empted the field to the exclusion of local legislation depends not only upon the language of the statutes adopted, but upon the purpose and scope of the legislative scheme. (Abbott v. City of Los Angeles, supra.)
The primary method of determining whether an ordinance is inconsistent with the penal law of the state is to see whether the local law prohibits anything which the state law permits. Where an act permissible under the state law becomes a violation of the local law, the local law is unauthorized. (Kim v. Town of Orangetown, supra, and the many authorities cited therein.)
A careful comparison of ordinance No. G-360 of the City of *506Junction City and K. S. A. 21-4201 [Weeks], set forth in the court’s opinion, will disclose that the City of Junction City was copying verbatim the provisions of the State Criminal Code with a few exceptions. Where the state code denounces the carrying of concealed weapons on one’s person, the ordinance deletes the word “concealed” and denounces the carrying of weapons on one’s person, or in any land, water or air vehicle. Section 1 (g) in the ordinance, dealing with fully automatic firearms, is made a misdemeanor by section 12-411 of the ordinance. This is in conflict with the state law because K. S. A. 21-4201 (4) [Weeks] declares such an offense to be a felony.
It is readily apparent the ordinance in question prohibits acts which are permitted by the State Law of Kansas. Thus, the ordinance is in conflict with the penal law of the state.
Tire authority of a municipality to abrogate state law can never be implied or inferred. It is only derived from express grant, never from a general grant of power. (City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306.) In my opinion the Home Rule Amendment is tortured to permit the City of Junction City to enact the ordinance here in question.
The authorities cited and discussed in my dissenting opinion in City of Lyons v. Suttle, supra, beginning at page 742 of the official report, are reasserted and incorporated herein by reference.
It is respectfully submitted a municipal ordinance cannot permit an act which the state penal system forbids, or forbid an act which the state penal system permits. Under Kansas decisions the test of concurrent legislative and municipal authority is the absence of conflict with the legislative will.
It is respectfully submitted the decision of the lower court declaring the ordinance in question void should be affirmed.