*1 311 142 205, 351 826; Colo. P. Liber Flor, v. Colo. Faber (2d) 590; v. Colorado, 609. I adhere in these to the views expressed several must dissent. dissenting opinions, therefore
Mr. joins Justice Hall in this dissent. 19,113.
Wilbert Gazotti of Denver. (352 963) [2d] P.
Decided June
Mr. Harold L. Meadoff, plaintiff error. Donald E. Mr. James Kelly, McGruder,
defendant error.
En Banc. of the Court. the opinion
Mr. Justice Moore delivered *2 pro- Denver County An ordinance of the City vides that: and cаrry take
“It to person shall be unlawful intent with away, or to to take and away attempt carry posses- his use or to steal or or convert to purloin sion, of value to the owner.” anything a viola- found
Gazotti, error, guilty in was plaintiff the City the court of оrdinance, tion of this in Court Superior to the appeal of Denver. On sentenced to term result obtained and he was same action dismiss the He filed a motion to jail. county which upon court, grounds in the lower among following: find the the motion was basеd we person lacks over the “A. This Court jurisdiction action. matter of the the defendant and the subject being defendant “B. ordinance under which The be and as to sought unconstitutional on its face tried is that: to defendant applied punishing
“1. State Statute Thеre exists Colorado conduct. the same defendant tried under being ordinance
“2. The deprives punishment as imprisonment authorizes to due rights process. def endant of his is of said ordinance by “3. conduct prohibited The statewide concern.” sub- cоurt denied the motion to dismiss and
The trial a verdict of mitted to a which returned jury the case judgment aforementioned was guilty, entered. Gazotti, judgment, brings review seeking of error. cause here writ by
QUESTION BE TO DETERMINED adopt and have the to a Home Rule Does providing an сourts, ordinance its enforce any person take and to that: “It shall he unlawful for or carry away attempt carry away, to take and intent to steal or his own use or purloin or convert value possession, owner.”? anything of It is negative. answered in question is is not a matter of larceny or municipal concern over which
of Denver can exercise virtue jurisdiction pro by visions of Article XX of the Constitution of Colorado. statute defining the crime part ’53, follows: (C.R.S. 40-5-2) is the
“Larceny felonious stealing, taking carrying, leading, riding or or driving goods away personal chattels of another. shall embrace theft Larceny every which deprives another of his other personal or money property, those means or muniments right title to real or рroperty, personal, may * * ascertained *3 That section also that if the provides value stolen property $50.00, or removed then the exceeds same shall constitute grand a larceny, provides pen- such alty by confinement for a penitentiary term not less year than one nor than ten more years. provides also that where the article stolen or removed does not exceed of $50.00, the value punishment therefor shall exceed at hard labor imprisonment $300.00 a term six exceeding months, or both such by and imprisonment. fine 1953, 40-5-21,
C.R.S. under provides $50.00 shall constitute a misdemeanor.
In recent opinions this court have discussed we at length issue of law involved in this case. Our in Canon v. opinions Merris, City 169, 137 Colo. 323 P. 614; Geer Alaniz, v. 138 (2d) 177, 260; Colo. 331 P. (2d) Denver, Zerobnick v. 139, 11; 139 Colo. 337 P. (2d) Davis City Denver, Colo. 30, v. County 140 342 (2d) P. 674; and City County Pike, Denver v. 140 Colo. 17, 342 P. 688, (2d) point to the conclusion inescapably subject the ordinance involves matter
statewide concern as distin- covered state- statute by from guished a matter of concern. locаl and municipal Our conclusion on de- controlling being question cisive of the consider case, becomes unnecessary other matters relied on for reversal. judgment is reversed and cause remanded
with directions to dismiss the action. Doyle
Mr. Justice Hall specially concur.
Mr. Justice Knauss dissents. Hall Justice speciаlly concurring:
I am in with the decision of complete agreement I however, feel is not com- majority; plete. states: majority opinion
“In recent of this court we have discussed opinions at case. length issue of law involved Our Canon opinions City Merris, 169, v. 137 Colo. 614; 260; (2d) Alaniz, 177, Geer v. 138 Colo. 331 P. (2d) Denver, 139, Zerobnick v. 139 Colo. 337 P. Davis (2) 11; v. City Denver, 140 Colo. 674; Pike, Denver the conclusion point inescapably of the ordinance involves a matter statewide concern covered a state as distin- statute concern.” guished from matter of local subscribe, To all of that but do not subscribe — most recent of this court ignoring pronouncement *4 Colorado decided March 19,076, Retallick v. Springs, 28, 1960. (Mr. the of this court majority
In the Retallick case the of participating), spite Chief Justice Sutton of Colorado constitute fact that statutes the State scheme governing operation a complete legislative held state, the boundaries of the motor vehicles within driving that reckless and careless were matters majority bar, In the at concern. holds that statutes of the state cover the whole field and therefore is a matter of state- wide concern and cannot be considered as local and municipal. impossible situation,
As view the it is to recоncile — they parallel Retallick with at bar the case cases — presented arguments urged all in Retallick can be — equal arguments with force this case all the ad- apply equal vanced this case force to Retallick. Any distinguish only effоrt the cases can lead futility Significantly, frustration, and failure. the ma- jority ignore make no such effort, but Retallick as com- pletely though it were nonexistent.
Though majority purpose serves the useful giving may to Gazotti his freedom —which well be — wholly inadequate short lived as I is, it, view only I fear, will, serve to create conflict and confusion. legitimate grounds If there are substantial and distinguishing Retallick from the case at bar, those rea- pointed majority opinion sons out in should the results reconciled. If such cannot be done, then we ignore, problem face, rather should than and resolve consistency. some it with semblance Frantz concurs. Justice Doyle specially concurring: in the result. I feel, concur however, in view of the determining proper inherent in difficulties allocation authority between under Twentieth Amendment of the constitution appropriate state, that it is to indicate the reasons for the try particular result and to to fit this case into the com- plex of have issued decisiоns which and which threaten persist. pattern, A framework or though even *5 of this solution contribute might
wholly adequate, court does opinion problem. most perplexing complexities me, explore not, it seems to adequately allocating legislative that exist problem units overlapping governmental between separate job regulate it is to territorial and whose jurisdiction soci- mobile highly interdependent the citizens of and state secret that municipal, county, is no ety. the lack are much conсerned over in Colorado officials that has the thought gone reasoned any exposition area; this recent decisions this into this Court’s me view advanced seems to to contradict concern the decisions court, namely, opinion have clarified following adequately the Merris problems. these implica- leaves the court’s brevity mat- white between dichotomy
tion the black concern matters that are of statewide ters are drawn in the concern which was of local the test. I do not believe still furnishes Merris Case As far as opinion actually means. this is what the black and abandoned what call know Court Denver, City in Davis v. approach white It was stated: there 140 Colo. that matters which are ex- “To hold of the state as mаtters local and just preserve clusive (once regulated only city can be create a inflexible highly system has would acted) city or obtain continu- and would require from this Court as to whether a rulings ous stream jacket” This kind of “strait or statewide. locаl changing to the in which society inappropriate rule is v. Merris, of Canon should City supra, and City live we holding.” as so be construed case to Davis was companion A Pike, Denver v. that an seldom it is can be activity out how said
pointed to be either of or true sense exclusive statewide pointed concern; of culty out that the the diffi- root of usually is that of both and local elements present. unique interest are not a This was new People observation, this court Graham, had said in *6 202, 110 256: municipal,’ оccurring “The words ‘local in section supra, expression may Article XX, is not a fixed that distinguished local, be eternalized. What is as from general upon depends statewide, somewhat time * * * Technological and circumstances and econоmic play part any forces their in such transition.” proper question Thus, the in to ask this is whether larceny exclusively (i.e. is a matter of local concern municipalities outweigh where the interests so any preclude interest of the state as to state control of activity municipality); within the it not, and if is whether on balance the interests of the as a state whole great require legislative so to it that retain sole jurisdiction over the matter of “statewide concern.”
Approaching quеstion standpoint agree from this majority. with the result The State of Colorado general larceny a has statute. C.R.S. ’53, 40-5-2. attempted by
The of Denver has question to ordinance here enter this field with an defining larceny anything, general in, if ordinance more рrovides: terms than the state statute. ordinance person any carry “It shall be unlawful to take away attempt carry away, or to to take and with intent purloin posses- steal or convert to his use or anything value to sion, the owner.” city sought has in thе case of this ordinance recognized an has been define offense from earliest part pronouncements aas common law of the inherent sovereignty state. Pollock of the See and Maitland, English seq. History Law, In 458 et addition to this asрect, the seriousness historical crime from the people standpoint of the of all the need penalty uniformity definition seems to me to crimes the group the crime of within bring larceny legislative which are within the exclusively that the Colorado also the fact state. is Noteworthy a felony defines Constitution, XVIII, Sec. Article * * * the state.” occur the laws of “wherever may a felony more serious degree Since in its sub- brand the entire tends to recognition constitutional matter. ject as aimеd at that this ordinance is faced by than one other
specific problem, some i.e. that Colorado, all citizens communities indiscriminately unjustifiably, people intentionally, evi- is not even There property. take other people’s of theft type geared particular dence it is size. What metropolis to cities of say, might peculiar, a sepa- to create then is an attempt we have different penalty punishable by rate offense a state statute. There is in the stаte provided from *7 conduct is of definition of what in clarity interest here conduct is prohibited language defining prohibited. of citizen in The interest every same here. not re- overlapping closely of hodge podge avoiding conduct of сriminal definitions lated but identical of the state in securing one. The interest a strong is enforcement, sentencing pro- parity of level high most is also reformatory practices, effective cedures, and of cities would seem to be interests The only important. ma- their enforcement utilizing advantage the area of also consider Undoubtedly they chinery. more summary proced- as one theft petty expeditiously process court can more a municipal ures cases. volumе of large interests makes it conflicting The cataloguing meager. interests are entirely those exclude predominate; they not only interests locality. area of I am of the opinion Consequently to all citizens of the significance crimе major one of statewide concern and in which one pre-empts precludes any general state law the field and regulation government. units theft the local analytical in this
The historical factors present area traffic in the field of enforcement Springs, and thus Retallick No. re- 19,076, v. Colorado concurring Hall, ferred to in clearly distinguishable. Pre-emption such as we find present in the case at bar is not in the field of reckless holding driving, justify a wherein local interests legislative jurisdiction. susceptible to local For the above reasons concur in the reversal. 18,830. Epple
George Donald First National Bank Greeley, Executor.
(352 796) [2d] Decided June