(dissenting).
The power of the city to regulate the peace and good order of its citizenry is not dependent only on statute. It is constitutional, being derived from Sec. 5,, Art. XI, which states in part:
Each city forming its charter under this section shall have, and is hereby granted, the authority to exercise all powers relating to municipal affairs, and to adopt and enforce within its limits, local police, sanitary and similar regulations not in conflict with the general law, and no enumeration of powers in this Constitution or any law shall be deemed to limit or restrict the general grant of authority hereby conferred;
The Legislature has specifically granted authority to the City to prohibit criminal trespass by Section 10-8-50, Utah Code Annotated 1953, wherein it states that cities have the power to:
provide for the punishment of trespass and such other petty offenses as the board of commissioners or city council may deem proper.
*533It is further important to note that Section 10-8-84, U.C.A.1953, confers specific authority on cities to pass such an ordinance.
Ordinances — Punishment.—They may pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, 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, and for the protection of property therein; and may enforce obedience to such ordinances with such fines or penalties as they may deem proper; provided, that the punishment of any offense shall he by fine in any sum less than $300 or by imprisonment not to exceed six months, or by both such fine and imprisonment.
The doctrine is so well established as to be beyond question that when a city is acting within authority thus expressly granted, it has the power to legislate on the same subject as a. state statute. See Salt Lake City v. Kusse, 97 Utah 113, 93 P.2d 671; American Fork City v. Charlier, 43 Utah 231, 134 P. 739 (1913); Tooele City v. Hoffman, 42 Utah 596, 134 P. 558 (1913); Salt Lake City v. Howe, 37 Utah 170, 106 P.705 (1912).
It will be noted that the statement from McQuillin in the main opinion is a generality excerpted from various statements concerning this general area of law. ' It cites cases decided under particular circumstances which do not necessarily have application to constitutional and statutory provisions such as ours. That same authority, in a context more specifically applicable to the situation here, also states:
Where the unlawful act may be an offense against both the state and the municipal corporation, decisions exist to the effect that the penalty of the ordinance, where it is not otherwise limited to such extent, may be greater than that provided in the state statute .... Clearly, of course, a statutory penalty may be exceeded or increased by the penalty of an ordinance where power to impose such penalty by ordinance has been expressly given. [McQuillin, Municipal Corporations, Section 17.15, pp. 328, 329 (3rd Ed.)]
The test whether an ordinance is repugnant to or in conflict with state law is not whether it deals with the same subject matter in a different manner by providing a different penalty, but it is whether the ordinance permits or licenses something which the state statute forbids or prohibits, or vice versa. See Salt Lake City v. Kusse, supra; and see, e. g. City of Columbus v. Molt, 36 Ohio St.2d 94, 304 N.E.2d 245, and authorities therein cited.
The ordinance here in question does not authorize what the state law has forbidden, nor does it forbid what the state law has authorized. It is therefore my opinion: that the ordinance is within the authority granted to the city and the responsibilities it is enjoined to carry out; that it is neither repugnant to nor inconsistent with other existing law, but is supplementary thereto; and that therefore it should not be declared void.
Further, without conceding, or intimating, any view on my part that the ordinance should be declared unconstitutional, I also observe that I can see no justification whatever for declaring the whole ordinance invalid. Nothing about it could possibly be invalid except only the jail sentence part, which can be regarded as sever-able. (All emphasis added.)
ELLETT, J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.