*1 рriority such waters which the decreed in the use of serve use could not it, the court but such awarded by any appropriation individual stock- the basis an as against company his co-stockholders. holder of the decreed a certain The record reveals that the court of Cottonwood Creek amount of the natural flow Company, of his stock owner- virtue Needle Rock propor- company, petitioner ship his receive in this will part The record does so decreed. tionate of the water he is entitled to more. not disclose that judgment the district court is reversed any, proceedings, if con- further to be remanded, cause expressed. herein the views sistent with Justice Bakke dissents. Francis E. Bouck Mr. Chief and Mr. Justice Justice not participating. Knous 14,701.
No. Dyers, Smith Brothers Cleaners Inc. People Rogers. ex rel. (119 623) [2d] P. Rehearing September
Decided denied December 1941. *2 Hellerstein, A. Mr. Lotíis in error. plaintiff Byron Rogers, L. General, G. Mr. E. Attorney Fundingsland Vogl, counsel, and Mr. Albert L. special for the people.
Mr. Morris Rifkin, Orlinsky, Mr. Albert amici curiae.
En Banc.
Mr. Justice Otto Bock delivered the opinion court.
This action was brought by on the people relation attorney general to enforce certain provisions supple- chapter (chapter 36A, Session Laws C.S.A.) against plaintiff error, ment to volume ’35 engaged cleaning dyeing The first trade. complaint charges plaintiff in cause of action defendant, refer error, to which we hereinafter selling considerably estab- than the its services at less prices; minimum al- of action lished leges the second cause the act that defendant violated wages paying employees in required its less than the minimum thereby; action in the third cause of provisions of the act stated that defendant violated employees requiring to work in excess of its thereby. maximum hours of fixed labor issue that In its answer defendant raised sole chapter unconstitutional, void is null and in- II of that it violates sections 3 and of article 1 of the Fourteenth Constitution, stаte and section Amendment federal Constitution. *3 attorney general each the
At the trial and defendant argu- judgment pleadings, for the and after moved on ments of counsel the court sustained the motion making attorney general perma- an order and entered restraining temporary injunction the defendant nent violating charged complaint. To from the as the act judgment sued out a this and order defendant rеview seeking error and is here reversal. writ of primary of for defendant The counsel contention cleaning dyeing industry private in is and is a that dustry public not sub interest, not affected a ject legislation prices which an or restriction may dyer charge for services. It cleaner and industrial will be only legislative objective noted that chal lenged by price-fixing provision, defеndant is the found set forth first 7 of act and cause section minimum-wage of It does not attack action. provisions, urges minimum-hour but that these should they are so interwoven the substance of the fail if nullify as to its effect. act itself Defendant also asserts that in the instant case there is involved the right an individual engaged in a business of private personal service, not affected with a interest, to fix his public own This prices. he right, maintains, is protected by the due-process-of-law clauses state and federal Constitutions.
The first important case decided within the last decade
by
United States
sus
Supreme Court,
which it
tained price-fixing legislation
by
state,
a business
not affected with a
interest,
is
public
Nebbia v. New
Inp
York,
291 U.S.
“The due clause makes no mention of sales of prices аny more than it of business or contracts speaks or buildings or other incidents of property. thought seems nevertheless to have persisted that there is some- thing peculiarly sacrosanct about one may price for what he charge sells, makes or that, however able to regulate other elements trade, of manufacture or with incidental effect the state is upon price, incapable of directly itself. This controlling view was negatived many years Illinois, Munn v. ago. U.S. v v i'fi
“The phrase ‘affected with a can, in public interest’ the nature of mean things, no more than that an indus- try, reason, adequate subject control for the *4 public good. In several of the decisions of this court wherein the expressions ‘affected with a interest,’ public and ‘clothed use,’ public have been for- brought ward as the criteria of the validity control, has been admitted that are they not of def- susceptible inition and form an test unsatisfactory of the constitu-
453 tionality legislation practices or directed at business prices. finally, upon the rest, decisions must These requirements process met basis that the of due not were arbitrary opera- because the in their laws were found upon tion and effect. But there can no doubt that be proper by appropriate occasion and measures the state including may regulate any aspects, its a business charged prices products for the or commodities it sells.
[*]
[*]
[*]
anyone liberty
“The Constitution does not secure to
to conduct his business in such fashion as to inflict in-
jury upon
public
large,
upon any
at
or
substantial
group
people.
any
of the
Price control, like
other form
regulation,
only
arbitrary,
of
criminatory,
is unconstitutional
if
dis-
demonstrably
policy
irrelevant to the
legislature
adopt,
unnecessary
is free to
and hence an
liberty.”
and unwarranted interference with individual
away
This definite trend
from a narrow cоnstruction
due-process-of-law
emphasized
clause was further
Sup.
in West Coast Hotel
v. Parrish,
Co.
300
379,
U.S.
Supreme
578,
Ct.
81 L. Ed.
703, which the
Court of
expressly
the United States
overruled Adkins v. Chil
Hospital,
dren’s
261 U.S.
which held invalid a mini
wage
any
mum
act. If there are
further doubts concern
ing
question
legislative
as to whether the
enactments
before us
are valid and
not
do
violate due
they
fully dispelled by
law,
have bеen
decision
the recent case of Olsen v. State
Nebraska,
rel,
ex
Sup.
313 U.S.
case involved the
Ct.
fixing compensation of maximum private employment agency might which a collect from applicant employment. Supreme an Court of opinion, States, United an unanimous reversed Supreme Nebraska, Court of which held the act vio due-process-of-law principle. previous lative of the In a (Ribnik opinion Sup. McBride, 227 U.S. 913) L. the same 545, 72 Ed. court had declared a similar *5 454 the unconstitutional, as in violation of due-process-
law & Brother (Tyson This cases of-law clause. and other 718; 426, 71 L. Ed. Banton, 273 U.S. Ct. Sup. 235, 49 Co., Sup. Williams v. 278 U.S. Standard Oil for defendant L. counsel Ed. which upon the Olsen by are overruled primarily rely) expressly it de- out what decision, case in the cоurt points which nominates as “a basic from departure philosophy in approach majority the Ribnik In dis- case.” “affected with a cussing phrase interest,” as public test of constitutionality, Justice Douglas case, Olsen York referring Nebbia v. New deci- sion, test, “That says: labeled Mr. Justice Holmes in by dissent his case Tyson at as (273 446) U.S. p. ‘little more than a fiction,’ was discarded in Nebbia v. New Yоrk, It supra, 531-539. was there stated that pp. such criteria ‘are not and form of definition susceptible an test of the unsatisfactory legisla- constitutionality tion at directed business and that practices prices,’ ‘affected with' a can mean phrase interest’ public ‘no more reason, than that an for industry, adequate ” to control for the subject public good.’
An reasоn that the of minimum adequate fixing prices for services in the for our cleaning dyeing industry, is for the is contained purposes, public good, legis- lative declaration of section 1 of the act. Con- policy wisdom, need or cerning appropriateness here from the last legislation involved we quote para- case, “Differences of the Olsen follows: graph ‘should оn that score a choice which opinion suggest be left ... left the Constitution —to the where it was McBride, at supra, States and to Ribnik v. Congress.’ There is for the necessity no p. dissenting opinion. state to demonstrate before us evils persist despite in this bargaining which attends competition constitutional analysis, only prohibi- In final field. have suggested respondents tions or restraints which are those notions of this legislation the invalidation of this Court embedded in earlier decisions public policy admonished, which, long but as Mr. Justice Holmes Broth- & Tyson should not read into Constitution. Hos- 446; er v. Adkins v. Children’s Banton, at p. *6 find expression 570. do not pital, they at Since supra, p. continuing them Constitution, give in the we cannot of constitutionality the as standards which vitality is to be states of the the ecоnomic and social programs 97 Colo. also, Interrogatories, In re See, determined.” 82 392, Okla. Arnold, 183 587, 663; 52 P. Herrin v. (2d) Cleaning Dry Florida 977; P. Miami Co. v. Laundry (2d) Dry Florida 759; 1, 183 So. Board, & 134 Fla. Laundry 137 Laundry, Everglades Board v. & Cleaning Laundry 290, Fla. 188 So. 113 was of chapter conclude that the enactment
We basis find no exercise of proper police power fed- state in the clauses of due-process-of-law pro- eral for condemning price-fixing Constitutions visions of 7 of the act. section solely to this we have dealt
Up point to substantive as applied due of law question process nowWe in law contained the act under consideration. re turn to a of whether procedural consideration of law. due set out therein quirements satisfy Barksdale, No such raised in People were questions 104 Colo. P. in which the constitution (2d) involved. also was ality chapter & court, counsel Cleaners By Gigantic leave amici file a brief as Denver were Dyers permitted case. As their first contention present curiae that act assert unconstitutionality they urging for no allows no and affords hearing, appeal provides evidence. no Section right present provides Boаrd” “the state “The Administrative constitutes State Its agency.” administrative are confined to powers contained in said section. enforcement on which it is here procedural question sought this section declared invalid is found in have paragraph Laws, 3, of the 1937 Session section, (1), subdivision (e) investiga- and is To make p. “(e) (1) as follows: determining tions and relative to surveys this State the fair cost for average and reasonable performing various by cleaning services regularly performed establishments; all dyeing findings together to submit with a schedule of minimum retail and wholesale prices based costs to such fair and reasonable upon average and, ap- Industrial Commission for when approval, shall proved, said minimum retail and wholesale pricеs on member of the trade within this binding every State, in that of the trade shall sell or offer no member to sell minimum any of the services included such price schedule at a is lower than the fair and price which reasonable cost as established and average approved the minimum schedule.” Does the au- procedure thorized by this paragraph adequately safeguаrd fundamental rights embraced in the of “due conception *7 re- process”? We think not. There are no provisions a notice or the quiring and to hearing right present evidence; nor is there to ex- any provided opportunity amine or cross-examine To witnesses. due satisfy pro- cess of law, based evi- only findings upon competent dence at an authorized arе valid. hearing This also the applies approval findings by required Industrial Commission under said subsection. No such is protection found in the provisions of the here law under consideration, and in that it is respect invalid on its face. The to right be heard is a fundamental con- under cept necessary administrative procedure in a de- termination is reasonable, what fair and just, failurе legislative to such a provide is right fatal. Denver, of Brown v.
In the case early 7 Colo. Pac. we said: “The doctrine of the is, authorities that whenever is sought his deprive person or property, to cre- ate it, a charge against to, or preliminary which may be it, made basis of taking owner must have oppor- proceeding, notice of the and be afforded an tunity оf the assess- to be heard as to the correctness charge. ment or It matters not the character what proceeding may by property be, virtue of which his judicial, is mary sum- taken, administrative, to be whether stage otherwise; it, at some and before against property charge is taken or the absolute becomes property, opportunity either owner or his an wrongs may correction of and errors which have been given. committed must be guaranties Otherwise constitutional infringed. above cited are upon meaning “Learned dissertations phrase, process ‘due of law,’ have been written judges applicable summary writers, and law but as proceedings of the character under consideration, its meaning comprehended foregoing paragraph. authorizing proceedings provides If the law for no- property tice to the owner of the affected, to be gives opportunity appear specified him an at a time place, competent before a board or tribunal to ad- proper may relief, minister in order that he heard concerning charge the сorrectness of the before it is requirements conclusive, made the constitutional are satisfied.” Laundry
In Dry the case of Miami Co. v. Florida Cleaning Laundry & Supreme Board, in which the Court of Florida held an act similar to ours constitu- hearing tional, for notice and a before the satisfy board to due are contained the act. principles A statement of the here involved will be Morgan found in the recent case of v. United States, (58 Sup. 1129), U.S. 1 said: “The first the 82 L. Ed. where the court
question goes very to foundation of agencies by action administrative entrusted Congress with broad control over activities which in directly their by detail cannot be dealt legis- expansion lature. The vast of this field of administra- regulation response pressure tive to the of social
458
adherence
by
our system
under
needs is made possible
shall appropri-
that
the legislature
principles
basic
action
of administrative
the standards
determine
ately
of a quasi-judicial
proceedings
and that
administrative
shall
the citizen
liberty
property
character
of fair
rudimentary
requirements
be' protected by
hearing,’
These demand ‘a fair and open
play.
—essen-
regu-
administrative
validity
to the legal
tial alike
confidence
of public
and to the maintenance
lation
governmental
this important
the value and soundness of
an ‘in-
has
described
hearing
Such
been
process.
”
cases.)
several
(Citing
safeguard.’
exorable
113,
7, chapter
that section
must follow
conclusion
hearing,
for notice
its failure
by
provide
of due pro-
requirements
does not satisfy
procedural
unconsti-
it to be
declare
therefore
cess of law and we
an appeal
to provide
The mere failure
tutional.
deny
not
the board does
order of
court from a final
any
of access
right
order the
such an
to a
aggrieved
party
matter
any
determining
to the courts for
purpose
in-
of judicial
subject
be the appropriate
which would
298,
Garrett,
231 U.S.
Louisville, etc., R. R. Co. v.
quiry.
48,
Counsel
falls.
the entire act
void,
are
price-fixing
be
may
in its
act,
parts,
That a
severable
legislative
remainder,
and valid as to the
unconstitutional
in part
Loan
Home Owners’
no
is an
longer
open question.
2, 104
District No.
Public Water Works
Corporation v.
Wheatridge
v.
Water
Gordon
745;
P.
466,
(2d)
Colo.
standing
District,
If,
109 P.
899.
(2d)
107 Colo.
unobjectionable
effect
alone,
legal
given
can
act,
and the
intended the
legislature
pro
part
Kansas,
Dorchy
fall.
stand,
vision to
it does not
In the
The case is remanded with directions to injunction, granting permanent by striking order any restraining provisions therefrom tion authorized sec- chapter judg- and, modified, of said as so ment is affirmed. Justice Burke in
Mr. concurs part dissents part. part concurs dissents
Mr. Justice Hilliard part.
Mr. Justice Bakke not participating. Justice Burke. question
I concur in the court’s reversal on the procedure. of
I dissent to the conclusions on the question cited I do not some of the authorities fixing. agree I think this decision even thereof, goes but support the legislature further and unlimited gives authority *10 so, to enter the If indi- fixing. whole field of all vidual business has liberty controlling purely private and due thereto gone by board applied has been scrapped. concurs of the opinion
Mr. Justice Hilliard court so far as act legislative involved declared valid; as to the holding thereof are uncon- portions stitutional, he dissents. Rehearing.
On Petition for concurring dis- originally, now Justice Knous, sents from that portion opinion section holding S.L. unconstitutional. chapter 14,793.
No. et Ritchie al. Ferrelli et al. (119 610) [2d] P. September 29, Rehearing Decided 1941. denied December