Mr. Speth was charged with violating an ordinance of the City of Layton in that he “knowingly permitted his vehicle to be occupied by persons unlawfully possessing and using a controlled substance, marijuana in the vicinity of Davis Drive Inn at about 9:55 P.M.”
The ordinance under which Mr. Speth was charged reads as follows:
(1) It shall be unlawful:
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(b) For any owner, tenant, licensee, or person in control of any building, room, tenement, vehicle, boat, aircraft, or other place, knowingly and intentionally to permit the same to be occupied by persons unlawfully, possessing, using or distributing controlled substances therein.1
The defendant was convicted in the city court and appealed to the district court where he was again found guilty. He appeals to this Court claiming the ordinance under which he was charged is invalid.
*829At the time of the alleged offense the statutes of Utah permitted cities certain powers including a prohibition against “. . . the sale, giving away or furnishing of intoxicating liquors or narcotics, or of tobacco to any person under twenty-one years of age; . . . ”.2 The statute has since been amended but the amendment has no bearing on the present case.
Cities are also empowered by statute to pass all ordinances, rules, and regulations for carrying into effect all powers and duties conferred and “such as are necessary and proper to provide for the safety and preserve the health, and promote the prosperity, improve the morals, peace and good order, comfort and convenience of the city and the inhabitants thereof, . . . ”.3
The ordinance in question is not one which is necessary for carrying into effect any of the purposes above mentioned.
In the case of Nasfell v. Ogden City4 the ordinance in question provided that the owner of a vehicle illegally parked on the streets of Ogden City was prima facie the one who parked the vehicle. In holding the ordinance invalid, this Court said:
[G]rants of power to cities are strictly construed to the exclusion of implied powers not reasonably necessary in carrying out the purposes of the express powers granted.
By the statute5 it is clear that the only authority given to the city was to prohibit anyone from selling, giving away, or furnishing marijuana to a person under twenty-one years of age. Mr. Speth is not charged with doing any of those unlawful acts; and that part of the ordinance which attempts to make it unlawful for an owner of an automobile, knowingly and intentionally, to permit persons to occupy it who possess, use, or distribute marijuana must be held to be beyond the power of the city to enact. The ordinance is, therefore, invalid.
The State of Utah has enacted statutes controlling the sale, gift, or use of controlled substances. Subsections (2)(a)(ii) of U.C.A., 1953, 58-37-8 contains the exact language of the ordinance set out above. The city had no power or authority to copy the statute in its ordinance.
If the city could enact an ordinance covering the same offenses as those set out in the statute, there would be a problem. A violation of the ordinance would only be a misdemeanor punishable by fine, not to exceed $300 or by a jail sentence, not to exceed six months while the state statute6 declares the offense to be punishable as follows:
(a) For the first offense, a fine of $299 or jail not to exceed six months, or both;
(b) For the second offense, a fine of $1,000 or jail not to exceed one year, or both;
(c) For the third or subsequent conviction, imprisonment in the Utah State Prison for not more than five years.
The city ordinance penalty would apply to a person who was a multiple offender as well as to a first offender for the ordinance applies simply to anyone who knowingly permits his car to be occupied by persons using controlled substances therein.
The conviction of Mr. Speth for violating that ordinance must be set aside. The judgment is reversed. No costs are awarded.
MAUGHAN, J., concurs. WILKINS, J., concurs in the result.. Layton Municipal Code, section 9.80.030.
. U.C.A., 1953, 10-8-47.
. U.C.A., 1953, 10-8-84.
. 122 Utah 344, 346, 249 P.2d 507, 508 (1952).
. See footnote 2 supra.
. U.C.A., 1953, as amended, 58-37-8(2)(b)(i), (ii), and (iii).