*1 17,964. No. Clyde
City City Merris. James Canon [2d] P. (323 614) April 14, Rehearing 1958.
Decided March 1958. denied *2 plaintiff for Mr. J. error. Hawthorne, Harrison H. for defendant in error. Mr. E. Stinemeyer, M. for Sayre, Counsel the Colorado Munici- Mr. John Amicus Curiae. pal League,
En Banc. delivered the opinion of the Court. Frantz Justice
Mr. was with on charged operating motor vehicle Merris of Canon while under City the streets influence of in violation of an ordinance of that intoxicating liquor in a was made filed charge complaint city. of Canon To it Merris entered his City. Court Municipal At the conclusion of the trial of the guilty. of not plea and fined guilty Merris was found issue $275.00. taken Court of Fremont County An was appeal tried de novo and the issue before A County, jury. as charged, verdict returned Merris finding guilty was Thereafter, and at ten days jail. fixing penalty his Merris filed Motion Set Aside the Verdict eleven Trial, asserting grounds a New Grant Jury Modify filed its Motion to Verdict for reversal. The city court Penalty, asking for Imposition verdict portion order deleted from the verdict impose amended itself and as thus imposing penalty the penalty. Court the County
After on the motions argument the case brings Canon City ordered the action dismissed. here for review error. propo- three advances City
In reversal Canon seeking are: the first of which sitions, two have exclusive
1. cities in Colorado “Home-rule traffic In the field of matters. over local are considered some regulation, phases regulation others concern, while and municipal be matters of local *3 to those as concern. As are of state-wide regarded being matters, adopt home-rule cities may which are local local wish, such they though whatever even legislation conflicts with state law. Drunken legislation driving the streets of Colorado home-rule cities actually, determined, so a local judicially and-should matter of and concern.”
2. “As to those of traffic are phases regulation which to be of state-wide Colorado munici- concern, considered local do may always adopt regulations which palities If control with the state law. the of drunken not conflict to be a is determined matter of state-wide con- driving cern, municipalities jurisdic- nonetheless have Colorado subject, on this adopt regulations bearing tion local to not conflict with legislation local does providing state law.” that court dis- maintains trial its
Canon-City by disregarded and, these propositions missal of the case from' of law and so, ingrained principles doing departed told, effect, innovation. We are dangerous pursued that, if we sustain the trial we have turned court, will from bark established channels into long un- uncharted where it to likely waters on founder known shoals.
Inter Merris contended in motion: his alia- “1. That the ordinance the penalty upon which fixing * * * the defendant was convicted is unconstitutional it void in that the defendant of his deprives rights of due process.
“2. That said ordinance the powers exceeds and juris- diction of the in that it criminal city regulate seeks powers withheld the statute people State of Colorado.
“3. That said ordinance exceeds the powers juris- diction of in that it the infliction permits penalties alternative, of either or imprisonment, fine of said unconstitutional rendering portion ordinance and void which char- imprisonment whereby the permits acter of the a civil offense from criminal changed con- deprived action and the defendant of his thereby stitutional right reasonable doubt. Court,
“9. That its instruction No. errone- ously objection over the of the defendant deprived him of his constitutional right on burden of proof where- by the Court fixed the burden of proof prepon- derance of the evidence instead of beyond reasonable doubt.
“11. That the Court erred in refusal give its a ten- dered instruction on behalf of the defendant, with- drawing from the consideration of the jury infliction *4 of the of imprisonment.” penalty
In the of motion the trial court disposing determined that the of offense while under the of driving influence was not a intoxicating local and matter liquor rise a civil but giving debt, action in was of state-wide concern; the of the questioned application preponderance
173' aas viola- the of such offense rule in trial of evidence is inconsist- that there ordinance; the held tion of city its manner prescribed in “the penalties ency and the state the law enforcement” between vehicles to the relating operation the city ordinance of intoxicating liquors, the influence of while under invalid; is rendered the ordinance reason of which action. dismissed the ordinance involving skein of decisions
The tangled courts; other our product violations is not the just reading' A problem. are in the same courts enmeshed municipal corporations of the standard texts on of any should task unravelling that an strongly suggests this field in The law has been laggard undertaken. urgent. has seemed long action for where definitive too dangerous; A law is always resort the expediency are rights the the person individual his dignity trammeled such becomes the recourse to be when likely been the appears of the law. And to have yet expediency sanction the courts motivating given factor the disposition to the used in the trial and judicial processes Pronouncements of violations ordinances. with lan- replete of this and other courts of review are dis- that the operandi modus' guage recognizing is, of violations of ordinances' position necessity, summary proceedings. language contained reasoning
Typical Denver, Pac. McInerney v. Colo. 516: “* * * (cid:127) that a judicial recogni- to say It is needless in all the offenses a trial local right by jury, tion of enumerated, seriously impair above would useful- city government. ness and efficiency of may Whatever of the offense concerning gravity against be the view authorizes fact law, legislature state very same ordinance subject by deal with also mind, the act that, prop- to the legislative indicates regarded of those offenses one erly petty constitutes the main- welfare, requiring injuries. public local *5 174 as
tenance order as well of careful peace good in regulations towns, cities and renders sum- sanitary a in mary proceedings many cases we are necessity; not now the revolution that prepared inaugurate must follow the announcement of the doctrine that trial jury is indispensable an (Emphasis prerequisite.” supplied.) expression
Recent of this in philosophy found case of Holland v. McAuliffe, 170, 132 Colo. 286 P. (2d) 1107, which court- “summary procedure in this said that in court is countenanced from the police cases standpoint of expediency.” not
Expedience
override the Constitution of
may
Colorado; it should not
rights guaranteed
dethrone
there
“If,
one,
under.
one
the rights guaranteed
must,
sake,
federal Constitution can and
for expediency’s
be violated, abolished,
that
stricken from
immortal docu
ment, and from state Constitutions, we
find
will
our
selves governed
not
by expediency,
laws or Constitu
tions, and the revolution will have come.” State v.
44
43,
Ida.
254
Arregui,
788,
Pac.
Courts of this state have been
on
funambulating
question
nature of the action
where
violation
of an ordinance is
Most
charged.
it has been
frequently
held that
the
action
civil in nature.
City
Deitz v.
Central, 1
323;
Colo.
Greeley v.
Dur
Hamman,
supra;
v.
ango
16
Reinsberg,
327,
Colo.
Pac. 820;
26
v.
Lloyd
Canon
City,
195,
Colo.
288;
103 Pac.
Handler
Den
v.
ver, 102
53,
Colo.
77 P.
(2d) 132;
Denver,
Green v.
supra; Manzanares v. People,
156,
119 Colo.
201 P. (2d)
532; Snyder v. Denver, 123
222,
Colo.
Twinges of judicial conscience are revealed in another area of decision. Reference is made to problem the double As punishment. as early 1885 in Hughes 536, 8 Colo. 9 Pac. Mr. People, Justice Stone, in con- sidering plea the former trial and conviction under indictment, an a defense to went ordinance, filed as an language: in this the tide with * * “* help regarding distinctions these I cannot While the and while real, than fictitious refined, and more what, justification of given the decisions reasons punishment practically the same for double all, after logical satisfy soundness me of the act, failed appears authority great weight yet doctrine, uphold us, the this before in a case like this view: general punishable being single both made act, of the town ordinances state law of the distinct two committed, constitutes it wherein was proper subject punishment offenses, several respectively; municipality state and tribunals of the yield the doctrine assent to must therefore and we recognized weight greater concede rests we authority.” speaking years McInerney Helm,
A later Mr. Justice for few *7 supra, Denver, voiced Court in concern these words: * * “* weight authority fairly The of likewise sustains prosecution punishment a the view that for one proceeding a for other. these offenses is no bar to the provided every Though, by statute, if it not so be fair- pronouncing judgment judge the Will, minded when proceeding, penalty prosecution a or consider second already suffered(Emphasis supplied.) history and treatment of violations
The of the nature municipal light present con- ordinances throws on the proceedings. cept are civil that trials of such violations punishable by recovery Petty fines, offenses were assumpsit. sought in an action of debt or such fines was Municipal clearly brought out in Tiedeman on This is Corporations, §156: prior Corporation England, to Act of
“In the corporation authority by- to enact the upon implication By always that laws, rested law. empowered make such council was act, the sup- prevention by-laws necessary for the as were ,of by pression punishable Parlia- not act nuisances, of all given corporation the ment.' The also was pounds. impose act in a sum not to exceed five fines prescribes prosecution breach of also begun the months after be within three ordinance-shall charge made be occurred; and that the shall Offence has magis- served, but the oath; summons also must be oñ may proceed appearance-of the-'de- without the trate Upon may for his arrest. fendant,' and issue warrant must, paid once,-unless at the conviction; the fine be f- proper magistrate time.- shall consider it to extend the paid,.its payment may enforced is not be If the fine goods of sufficent sale; distress and and for want imprisoned period may distrain, offender be for may month, -but not to exceed one payment terminated law,- the sum due.' 'At the common enforcing by an action the method of by an'ordinance was municipal corporation proper official'against penalty imposed offender, to recover the for form, was, violation of the ordinance. This action assumpsit. either debt or assumpsit employed recovery
The action of was in the penalties, upon theory that' there had been duty which, law, breach of the a fiction of the defend- promised plaintiff perform. ant had The action of employed penalty debt could be because a sum was damages. liquidated certain, and in the nature of And provided, expressly penalty when it was be recovered that the should an action that form exclu- debt, was employed. sive, and no other could be n *8 permitted by statute, a Unless custom or or town by by-law, prescribe penalty not, could a that the should by be recovered distress and sale. Where the mode of prescribed procedure by statute- to enforce ordinances pursued. But no "charter, or that mode must be' when prescribed, remedy statutory method is the common law assumpsit may by outlined, an action of debt or as above been forms have the common law be or where adopted; proper remedy. civil action is the abolished, the statutory statute, municipal corpo- by Unless forbidden expressly action for an provide have the inherent rations courts. in their own debt, of to recover a penalty ' amount recover the where it is every sought case In described, method above or penalty by fine of and the rules criminal; rather than is civil proceeding When applicable. are generally civil procedure or the-payment method procedure fine enforce law, but by complaint a suit at by is not penalty before matter determine the who is to magistrate, a municipal been sometimes have fine, proceedings and impose ” nature criminal deemed to be a criminal quasi (Emphasis supplied.) Corporations (5th
See also II Dillon on Municipal 974, §635; Municipal Corporations Willcock on Ed.), p. 154; McQuillan (3rd and 9 Municipal Corporations on Ed.) §27.05. in Colorado cases
Following concept, early debt, were actions of fixed the ordi- to recover fines not the state, nance. of the earliest cases in this if One earliest, Central, supra, City was the case of Deitz v. in which the court said:
“The verdict seems to us to be responsive substantially to the issue. Although is in form of an proceeding debt, was, action of the real in issue question whether the defendant had been violation of guilty the ordi- nance, and this issue is settled the verdict certainly which, other guilty. only finding upon any made, could have been is the common-law principle, debt, action of verdict, in the ‘the defendant doth of, said sum etc., owe the said the' de- plaintiff above manded,’ it cannot be said that but there is any specific sum certain or demanded in such sought debt or prose- as this: the fine to be which is imposed, cution the only recovered, or less might greater within certain thing absence of limits, any regulation ordinance, and in the *9 do nothing could have jury us that it appears fine.” this with fixing amount|of for viola penalty as the long that so It will be noted a suit in a fine assessable was tion of a ordinance civil in nature was that the proceeding at the notion law, establishment but with the problem, presented nol advent and with the than at law other suits procedures both, courts imprisonment fine or of penalties by idea the retention about had some misgivings nature. to be civil in continued proceedings Ham v. Greeley this court in the comment Observe man, supra: defendant, against when
“But where the judgment, ordinance, imprisonment this include as under may, becomes more embar- instance, the first the question least, at asserted treatise, In it squarely one rassing. must that, circumstances, under such the proceeding the principles held criminal and must be governed by Horr & B. Mun. and rules to criminal actions. pertaining sustained 169, 182, by- Ord. secs. 184. And this position adjudicated several cases.” became further when problem complicated covered a statute of the ordinance was also
subject Judge state. Stone Hughes People, supra. the authorities- the distinctions drawn thought but tenuous, were punishments order to sustain two considered “the greater weight- to what he yielded recognized authority.” 6 of the constitution em- XX,
Article Section state charters adopt cities and towns of state to powers and all “local shall be the law extend to organic “Such charter and the ordinan- and matters.” shall super- thereto in such matters ces made pursuant jurisdiction territorial limits other cede within the * * * conflict therewith.” Among of the state in law any matters which cities towns and municipal local enforcement and col- is the imposition, may legislate for the violation of penalties any fines lection of provisions adopted charters, or of ordinances pursuance . . to charters. powers
These are affirmative with which home- rule towns and cities are vested. Said article and section *10 clearly powers by then makes more definitive these stating powers. provided the converse of these It is therein the “statutes of .the so Colorado, state of applicable, apply far shall continue to such cities except superseded by and towns in so far as charters passed pursuant of' such cities and towns or ordinance pro Further, to such charters.” the article and section “Any provisions:of vides that act in violation of the such charter or of ordinance thereunder criminal shall be punishable provided by any as such when so statute now or hereafter in force.” XX,
Article Section 6 words, concludes with the “This respects self-executing.” article shall inbe all “Supersede” meaning supplant is defined “as * replace, displace, put .Af;. to or set aside and another n inthe place place superior of; to take the reason of appropriateness, efficiency right.” worth, C.J.S., 83 p. company appearing 889. In the of words, in Article “supersede” XX, 6, Section term means that the law displaced municipal of the state is on a local and matter put place. where there is an however, Where, ordinance its super- the matter is of state-wide concern, place. Application session does not take law or ofl/ptate pertains, mutually ordinance, whichever is exclusive. though effectually
Even an ordinance covers counterpart local and matter, and it is a aof punishable state, law of the its violation is triable and designated as a crime where so statute. Such plain import Thereby, the uniformity' XX, of Article Section 6. disposition
in treatment and of an offense statutory achieved, whether the -act is a crime in the County surrounding .City, area Fremont Canon or a City. violation of the ordinance in Canon of the amendment is an application The home-rule per- cases with some qualms of reason. The earlier rule proceed against state to municipality mitted the act offender, constituting of one using analogy law, offenses a federal law and of state a violation of 175, v. 8 Colo. People, two against sovereigns. Huffsmith Hamman, v. 157; supra; Greeley v. People Hughes, 6 Pac. supra. resort to this analogy
There is
fallacy
Article
the framers of
recognized by
seems to have been
state;
XX,
A
an
of the
Section 6.
municipality
agency
it
and duties.
the state
certain
delegates
powers
Denver v. Tihen,
212,
Municipal
77 Colo.
Whether driving while under the influence of is a local and intoxicating municipal matter or of liquor state-wide concern makes little in ultimate difference result a of this case. Since there is statute such making crime, conduct its in the laws counterpart municipal of must be as a Canon tried crime. City punished been tried having prosecuted, The violation and deter nature, mined as civil in the trial court proceeding was dismissal. moved to properly is local and municipal
What diffi frequently We hold that operation cult to determine.
182 intoxicating under the .influence of vehicle one who is Ordinarily, concern. a matter of state-wide liquor matter. is a local and of traffic regulation Hence, Graham, 202, 110 P. 256. (2d) Colo. People designation right way, parking, of speed, questions in all streets, measures, regulatory and similar one-way But local and concern. matters of are scope, while under the influ- driving has decreed state a narcotic is forbidden intoxicating ence of liquor it is not act; regulate; it leaves nothing term. Regulation gen- in the true sense of the regulatory with restric- involves to do permission something erally City tions Blumenthal v. placed upon permission. 186 P. 556. Cheyenne, Wyo. (2d) errors become immaterial in view alleged Other what we have here determined.
The of the trial court is affirmed. judgment Mr. Justice Moore specially concurring.
Mr. Justice Knauss dissenting. concurring: Mr. Justice Moore specially The court in case is of utmost opinion and will have a direct importance probably impact upon more citizens than handed decision down within The case is such past generation. importance that I desire own views to be my clearly expressed I therefore this specially file concurring opinion. of the constitutional plain meaning provisions to the must con- applicable controversy given their I shall from constitution the trolling effect. quote pertinent language the order which it appears *12 XX, Article Section 6 under the “Home rule for caption and cities towns.”
First it provided is that: state,
“The of each or town this people city having of two thousand inhabitants population determined authority last census taken under preceding States, city the state of or said of the United Colorado with, shall town, always or are vested hereby they add have, make, amend, replace to to or power town, shall be its organic charter or said or city matters.” law and extend to all its local and municipal vested with to power language city By amend, add charter, create its and to “organic law” at all it. must however remember replace to or We “organic thus vested create power times that charter lim- provisions law” in the form of expressly matters.” municipal power ited “to all its local No provisions charter given adopt dealing whatever concern. with matters of statewide Second, it is the constitution that: provided by charter and the ordinances made pursuant “Such thereto such matters shall within the supersede terri- said torial limits other or town jurisdiction city of the law state conflict therewith.” This lan- any with the utmost guage, limits the legislative certainty, powers to matters city that are of “local and concern as municipal” distinguished from of gen- those eral or statewide reference. Third: The constitution then provides the home “* * *
rule shall have all city other powers, necessary, requisite proper government and administra- tion of its local and matters, including power to legislate upon, provide, regulate, conduct and con- * *”* trol: (Emphasis supplied.) (Here follows certain identified areas action legislative all of which are well within the coverage the term “local and munici- This pal matters.”) serves language to re-emphasize the limitations legislative “local and purely municipal matters.” Included within the mentioned we find under powers subsection (h) in, of the authority legislate “The -imposition, enforcement and collection of fines and penalties for the charter, violation of of the provisions or of *13 It charter.” of the pursuance adopted ordinance any en- imposed, could be that no fine or penalty clear is for an asserted violation the city collected by forced or concern a “local did not which ordinance purported matter.” or — that: the constitution provided by it is next
Fourth and confirm grant of this article to “It the intention is its coming within municipalities of all to the people in both local right self-government the full provisions herein of and the enumeration matters such deny shall not be construed to powers certain thereof, right towns, any and to the people cities such the full exercise of or proper essential power right.” is the limitations given emphasis
Here definite again “local legislative placed upon delegated matters.” and municipal provides:
Fifth —the constitution Colorado, applic- the state so far “The statutes of towns, cities and to such able, apply shall continue of such the charters superseded by in so far as except ordinance passed pursuant and towns or by cities such charters.” no of this There is language plain.
The meaning construction. The effect of it is for strained room as a home rule enters a field city given until such time of the enactment exercise proper of legislative power, applicable law delegated legislative in- If the state law is to be rendered govern. state shall limits on matter which city within effective council can an adopt and municipal” city “local law “supersedes” the state thereupon ordinance limits. no stretch of the By imagination within city held constitutional to warrant provision can this on a matter which is of ordinance adoption from a concern as distinguished or statewide general matter.” “local or municipal provided by importance, and of utmost
Sixth, it the constitution that: provisions
“Any act in violation of of such charter any or of ordinance thereunder shall be criminal punishable provided as such when so statute now *14 pro- (Emphasis supplied.) or in This hereafter force.” any in of vision never has been mentioned the several cases, the court, decided which have considered municipal prosecution nature for violation of the ordinance. state,
When the fundamental law of the which takes precedence city council, over all acts of the in states plain English particular that conduct which violates a city punishable ordinance “shall be criminal as authority any what such,” is this or other to court alleged that the civil decree violation shall deemed a be punishable action, applicable criminal, not and shall be under rules gov- procedures to civil cases and not under erning illegal pun- criminal cases? How can an act be punishable, ishable, as a criminal act is when all the protections afforded one are accused of “criminal” act upon alleged denied to the accused trial his for an viola- tion of the ordinance based conduct which says constitution must be held to be “criminal”? portion
I hold that this of the constitution in amounts to a Rights. substance reaffirmance of the It Bill recognizes any person committing is who accused of general act, an which is a crime under law of state, is jury alleged entitled to tried before for that offense under the time honored and well established applicable rules person to criminal cases. It means that a alleged who is to have committed the same act within city deprived the boundaries of a home rule cannot be protections guaranteed by Rights the basic Bill simply subject effort because the to him to or fine imprisonment alleged takes the form anof of a violation city ordinance. prosecution every city,
In a home rule in a munici- adjudging assessing purpose pal a fine court, or alleged imprisonment an violation for a sentence of question presented is at an ordinance there once dealing a “matter with whether the ordinance was one municipal” thus within concern local and of power city the ordinance If council enact. imprisonment impose for purports question fines not and which is concern statewide conduct which is of municipal void and matter,” the ordinance a “local or unenforceable in court. proceed- presents question itself second alleged penalties impose ings for to collect fines im- is no less ordinances violation of such question portant. the ordinance I Where state it thus: admittedly a “local and which concerns one allegedly violates matter”; where the conduct which subject criminal ordinance the accused would statutory prosecution if state, law under the city; be tried offender committed can the outside the *15 deprived municipal thereby in the court and be of rights in trial which he entitled the to would be emphatic nega- question requires an criminal case? This tive inoperative a case state law is answer. In such the municipality. “super- within the home rule It has been adoption by relating seded” therein the of an ordinance municipal prosecution to a and matter.” The “local in municipal only the court the lawful one A to be had. prosecution court could in the state that not be sustained for “superseded” the the has reason state law been provides municipality. within the The constitution how- municipal proceedings at ever that the the court level punishable shall be and continue to “criminal such.” positive language cannot be construed This to mean that proceedings civil the shall be considered in nature and governed by applicable /prosecutions thereunder the rules 'civil to cases. alleged
By the act definition the constitutional punishable was “criminal and accused in the instant case II, as such.” Article Section 16 the Constitution provides: Colorado prosecutions the accused shall have
“In criminal the by right appear person counsel; in to and defend to accusation; the nature and cause of the to demand against have face; him face to meet the witnesses process compel his of witnesses in the attendance impartial jury public by speedy an behalf, and a trial alleged county the offense the or district which to have been committed.” assuming the was enacted
Even that ordinance municipal matter” and connection with “local jurisdiction try case, court had rights. deprived basic the defendant could not of these yet ground upon There is firm another judgment imperative. prohibi- affirmance of the The against driving tion influence an automobile under the intoxicating liquor is not a “local or mat- greatest every ter.” It ais matter of concern to citizen importance of the state. It is of statewide and is covered application. only statutes of statewide courts empowered prosecutions type to conduct for this offense are the courts of the state. The cities home rule delegated legislate have been not matter of statewide concern. duty
I deem it to be the of this court to breathe life vitality into the constitutions of the state and the they practical way nation, to the end that shall in a accomplish objectives for the individual the intended people adopted supreme who them as law of gymnastics, pur- land. I am not interested in mental pose plausible of which is to search for some for excuse holding provision empty a constitutional to be an shell provision for when resorted to one whose benefit the *16 unquestionably was intended. danger processes
The which threatens our democratic appellate does stem from actions of courts which not give strength, vitality and new life constitutional that all too often
provisions. danger courts protections, last resort constitutional fritter away which basic we little little freedoms destroy too seldom apply so often and we speak actually citizen. them the reach of the in bringing within not in- was XX of Constitution Article the Colorado thereof. part Bill of or repeal Rights, tended pur- under the continued, even though long A practice, prevail cannot ordinance, authority of ported with fine of one threatened the constitutional right over minimum safe- tried under to be imprisonment pro- and under Bill provided Rights guards due up requirements cedures which measure of law. process 17,929.
No. City County Town of Denver. Glendale (322 1058) [2d] P. 17, 1958. Decided March