dissenting: Without any briefing whatever to support the trial court’s decision, the court here in a far reaching precedent authorizes municipalities of the state to enact their own criminal laws, thereby opening the door for provincialism to go rampant.
Ordinance No. 1247 of the city of Lyons makes it a misdemeanor for “Any person who shall drink or consume cereal malt beverages or have in his possession an open container of cereal malt beverages while in any vehicle upon the public highways, roads, streets, alleys, sidewalks, parks or any other municipally owned or public facility.” (Emphasis added.)
Separate trials of the two defendants in the district court resulted in acquittals for both defendants, the trial court holding the ordinance in question unconstitutional. Appeal was perfected by the city of Lyons on a reserved question, but the defendants made no appearance in this court nor did they file briefs. Counsel for the city of Lyons filed a brief, and in addition the League of Kansas Municipalities filed a brief amicus curiae, both seeking to overturn the trial court’s decision.
The court premises its decision upholding the ordinance upon the ground that its enactment was a proper exercise of the police power 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.)
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.
K. S. A. 1971 Supp 21-3102, in speaking of the scope and application of the Kansas criminal code, reads in part:
*743“(1) 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, . .
(Emphasis added.)
The foregoing is an emphatic declaration by the legislature that the field of criminal law has been pre-empted by the state.
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, 469 S.W. 2d 923 [Tex. Civ. App. 1971].) 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 rule 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.)
The state statute prohibiting the transportation of alcoholic liquor in opened containers accessible to the driver in any vehicle upon the public roads is K. S. A. 41-804. It reads:
“It shall be unlawful for any person to tranport [transport] in any vehicle upon a public highway, street or alley any alcoholic liquor except in the original package or container which shall not have been opened and the seal upon which shall not have been broken and from which the original cap or cork shall not have been removed, unless the opened package or container be in the locked rear trunk or rear compartment, or any looked outside compartment which is not accessible to the driver or any other person in said vehicle while it is in motion. Any person violating tifus section shall be deemed quilty of a misdemeanor, and upon conviction shall be punished by a fine or not more than two hundred ($200) or by imprisonment for not more than six (6) months or by both such fine and imprisonment.”
*744The foregoing criminal statute is a part of the “Kansas liquor control act.” (See K. S. A. ch. 41, “Intoxicating Liquors and Beverages;” L. 1949, ch. 242.)
In the “Kansas liquor control act” “alcoholic liquor” is defined for purposes of the act in K. S. A. 1971 Supp. 41-102 as follows:
“(2) ‘Alcoholic liquor’ includes the four varieties of liquor as defined herein, namely, alcohol, spirits, wine and beer, and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer, and capable of being consumed as a beverage by a human being, but shall not include any beer or cereal malt beverage containing not more that [than] three and two-tenths percent (3.2%) of alcohol by weight.” (L. 1965, ch. 314, §1.) (Emphasis added.)
From the foregoing sections of the “Kansas liquor control act” it is apparent the state law of Kansas prohibits the transportation of alcoholic liquor by any person in opened containers accessible to the driver in any vehicle upon a public highway, street or alley, but it is not made a crime to transport opened containers of cereal malt beverage containing not more than 3.2% of alcohol by weight. The sale of such cereal malt beverage is permitted in grocery stores.
The Attorney General of Kansas in an opinion dated May 27, 1966, on “Procedure, Crimes, Intoxicating Liquors” addressed to Judge Gwartney ruled that the legislature did not intend to include cereal malt beverages containing not more than 3.2% alcohol by weight in the phrase “intoxicating liquor” as used in K. S. A. 1965 Supp. 38-715.
The ordinance here in question does not require the transportation of an opened container of cereal malt beverage upon the public roads or facilities by any person, but merely requires the possession of an opened container of cereal malt beverage by a person who is in a vehicle in such places. The vehicle may be parked on a municipally owned or public facility. The opened container of cereal malt beverage may be empty, and intention or knowledge on the part of the person charged that the opened container is in the vehicle is not an element of the offense. The mere possession in the vehicle is sufficient. Such acts denounced as a crime by the ordinance have no relationship whatever to the sale or consumption of “alcoholic liquor,” the premise upon which the court’s decision is written.
Furthermore, the ordinance does not define “cereal malt beverage” which appears to be all-inclusive, regardless of alcoholic content. It fails to differentiate cereal malt beverage containing *745not more than 3.2% of alcohol by weight from cereal malt beverage containing a greater quantity of alcohol by weight. On this point the ordinance is void for vagueness. (Papachristou v. City of Jacksonville, 405 U. S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839.)
It is therefore abundantly apparent the ordinance in question prohibits acts which are permitted by the state law of Kansas. Thus, the ordinance is in conflict with the state law. The ordinance tends to nullify a state law and, in my opinion, it is void.
The 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. (Kim v. Town of Orangetown, supra.) This has been expressly recognized in City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306. There the uniform act regulating traffic on highways (G. S. 1949, 8-501, et seq., as amended) was said to be a complete and independent code dealing with the subject of vehicle and pedestrian traffic, and was intended to be applicable and uniform throughout the state and in all political subdivisions and municipalities. The court said local authorities could not enact or enforce rules or regulations in conflict with its provisions unless expressly authorized. However, the court there recognized that local authorities could enact additional traffic regulations pursuant to G. S. 1949, 8-507 (wherein express authority was granted to municipalities) which do not conflict with the provisions of the act. The court there held the city of Garden City was authorized by G. S. 1949, 8-507 to adopt traffic regulations in addition to those provided in G. S. 1949, 8-508, making it unlawful for any person, who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle within the city and prescribe penalties not in conflict with G. S. 1949, 8-530. Under the Miller case a single act may be an offense in violation of a city ordinance, although it is made a public offense by statute, and a violation of such ordinance and statute by the same act constitutes separate offenses and subjects the offender to separate punishment. It should be noted the ordinance and the state statute were identical in defining the prohibited acts.
Kansas cases support the pre-emption or conflict theory. In Trimble v. City of Topeka, 147 Kan. 111, 75 P. 2d 241, the city of Topeka enacted an ordinance attempting to regulate the occupation of barbering, and the court in determining the power of the city *746held the ordinance conflicted with the regulatory acts of the state upon the same subject and nullified the state law. As a consequence the ordinance was held void. The Trimble case was followed in House v. City of Topeka, 178 Kan. 284, 286 P. 2d 180, where the validity of an ordinance of the city of Topeka prohibiting the sale of any groceries, meats or vegetables on Sunday, and providing penalties therefor, was under attack. Violation of the ordinance was made a misdemeanor. The ordinance was held void on the ground it conflicted with the state law which permitted the sale of groceries, meats and vegetables on Sunday without penalty. In my opinion this case is authoritative precedent which should control the court’s decision herein.
In a more recent decision of this court it was specifically said, "it is within the power of the legislature to define what acts shall constitute crimes.” (State v. Bolin, 200 Kan. 369, 370, 436 P. 2d 978.)
Powers granted to cities by the Home Rule Amendment to the Kansas Constitution (Art. 12, § 5) preclude municipalities from entering a field of legislation which has been occupied by general legislative enactments of statewide concern applicable uniformly to all cities. (Art. 12, § 5, [b], Kansas Constitution; Capitol Cable, Inc. v. City of Topeka, 209 Kan. 152, 159, 495 P. 2d 885; and see, City of Baytown v. Angel, supra.)
The exercise of the police power by a municipality must be consistent with the general laws of the state. The police power cannot be asserted by a municipality to override the authority of the state from whence its authority comes. (Kim v. Town of Orangetown, supra.)
In conclusion it is respectfully submitted that 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 heretofore cited the test of concurrent legislative and municipal authority is the absence of conflict with the legislative will. (See also, Maryland & D. C. Rifle & Pistol Ass’n, Inc. v. Washington, 442 F. 2d 123 [D. C. Cir. 1971]; and Stine v. Kansas City, 458 S. W. 2d 601 [Mo. 1970].)
It is respectfully submitted the decision of the lower court declaring the ordinance in question void should be affirmed.