ROBERT WOOLVERTON, ET AL. v. CITY AND COUNTY OF DENVER
No. 19,275
Supreme Court of Colorado
April 24, 1961
Rehearing denied June 5, 1961
361 P. 2d 982
The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.
Mr. DONALD E. KELLEY, Mr. JAMES P. MCGRUDER, for defendant in error.
En Banc.
MR. JUSTICE DOYLE delivered the opinion of the Court.
PLAINTIFFS in error will be referred to as defendants as they appeared in the superior court where they were prosecuted by the City and County of Denver for gambling. On August 5, 1959, on trial to a jury, defendants were found guilty and sentenced to 90 days in jail and a $300.00 fine. They were charged with violating Sec. 821.1 Denver, Colo. Rev. Municipal Code (1950), which provides in part:
“821.1. Maintaining Gambling Devices, Playing Gambling Devices, Betting on Games Prohibited. It shall be unlawful for any person to * * * play for money or any valuable thing at any game with cards, dice, or with any article, device, or thing whatever, which may be used for the purpose of playing or betting upon, or winning or losing money or other property; or to bet on any game others may be playing.”
The evidence discloses that defendants engaged the complaining witnesses in a dice game which commenced in Jefferson County on June 26, 1958. The same parties engaged in a poker game in Jefferson County on June 27, 1958, and that evening continued to gamble at an address in Denver. It was this latter transaction which formed the basis for a prosecution in the municipal court of Denver.
Upon conviction in that court appeal was taken to the superior court. Important in determination of the con-
“40-10-10. Wagering upon games — penalty. — If any person shall play at any game whatsoever, for any sum of money or other property of value, or shall make any bet or wager for any sum of money or other property of value, upon the result of such game, every such person, on conviction thereof, shall be fined in any sum not less than fifty dollars nor more than one hundred and fifty dollars.”
Another section has authorized municipalities to enact policing regulations in various fields among which is that presently before us.
“To suppress bawdy and disorderly houses, houses of ill fame or assignation, within the limits of the city or town, or within three miles beyond, except where the boundaries of two cities or towns adjoin the outer boundaries of the city or town; and also suppress gaming and gambling houses, lotteries and fraudulent devices and practices, for the purposes of gaining or obtaining money or property, and to prohibit the sale or exhibition of obscene or immoral publications, prints, pictures or illustrations.”
The underscored portion pertains to gaming and gambling and is here pertinent.
The main contention advanced by defendants is that the City lacked legislative jurisdiction to enact the above quoted ordinance and was powerless to prosecute under it. They summarize their arguments by asserting:
“* * * The regulation of gambling being a matter of state-wide concern, the subject ordinance is in excess of the powers and jurisdiction of the City and County of Denver, and which power and jurisdiction to regulate has been withheld by statute to the people of the State of Colorado and not to the municipalities of the State.”
The defendants’ argument is a derivation and extension of the principles embodied in Canon City v. Merris, 137 Colo. 169, 323 P. (2d) 614, wherein it was held that a home rule municipality lacked power to enact legislation prohibiting driving a motor vehicle while under the influence of intoxicating liquor. The gist of the Court‘s decision is found in these words:
“What is local and municipal is frequently difficult to determine. We hold that the operation of a vehicle by one who is under the influence of intoxicating liquor is a matter of state-wide concern. Ordinarily, regulation of traffic is a local and municipal matter.”
In the course of the opinion,
” ‘Supersede’ is defined ‘as meaning to supplant * * *; to replace, displace, or set aside and put another in the place of; to take the place of by reason of superior worth, appropriateness, efficiency or right.’ 83 C.J.S., p. 889. In the company of words, appearing in
Article XX, Section 6 , the term ‘supersede’ means that the law of the state is displaced on a local and municipal matter where there is an ordinance put in its place. Where, however, the matter is of state-wide concern, supersession does not take place. Application of state law or municipal ordinance, whichever pertains, is mutually exclusive.” (Emphasis supplied.)
The underscored sentence in the above quotation, which was given by way of dictum, carries with it the following implied corrollary rules:
1.
If these definitions were to be carried to an extreme conclusion, it would become necessary to void the ordinance now before us, since it has both local and state-wide aspects. The mutual exclusion concept would create two distinct spheres of exclusive legislative jurisdiction and two distinct bodies of law; the one local, the other state-wide. Since neither could exercise power in the area belonging to the other, it would then become necessary for each subject to be treated and classified by this Court as general or local, to the end that the legislative jurisdiction of the state and that of the local authority could be properly circumscribed.
The first inquiry is whether such a rigid and narrow approach is required by the language of the constitution.
II.
Accepting the foregoing premise that there are black
First,
The constitution, furthermore, does not expressly deal with those subjects having both state-wide and municipal problems, thus leaving these matters to legislative implementation. Thus a strict and unflexible application of the mutual exclusion theory to a municipal ordinance is not required by either the express or implied provisions of the constitution.
Secondly, pre-Merris decisions of this Court have long recognized the existence of subjects neither exclusively state-wide nor exclusively local, but having the attributes of both. Public health is of such a nature.
“Under the provisions of
Article XX of the Constitution and of its charter, the city acquired exclusive control of local and municipal affairs, but it remained ‘as much amendable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities.’ People ex rel. v. McNichols, 91 Colo. 141, 13 P. (2d) 266. Health is a matter which may be either of general or of municipal concern. Infectious diseases in particular recognize no city lines, and under its police power the state retains the right to regulate such matters affecting public health as are of general concern, including the right to license and regulate hospitals wherever situated. At the same time, congested living conditions within cities may produce health problems justifying further regulation than those deemed necessary by the legislature, and as to such matters cities may possess the police power of further regulation within their limits. We are not here confronted with any conflicting mandate of statute and ordinance or with challenge to any particular statutory command, but only with challenge to the broad right of the legislature to provide for the licensing of hospitals, within the limits of home-rule cities, in the interest of the general health. That challenge cannot be sustained.” (Emphasis supplied.)
Clear recognition is thus given to the concept that in a field of both local and state interest the municipality has not a superseding authority as contemplated by
Denver v. Tihen, supra, is generally regarded definitive of the extent and operation of
“* * * That public policy of the state applies to every portion of the state. It is just as applicable to the home rule cities now as it was and is to municipalities organized under general statutes.”
In concluding that the subject was not purely local, the Court said:
“* * * Applying the principle laid down in these decisions, we say that while the matter of the taxation and assessment of cemeteries in this state, not organized or maintained for private or corporate profit, is, in a sense, local to every city and county in the state, yet in the larger and fuller sense, considering the general sentiment of all civilized people that ground set apart for the burial place of the dead is sacred, it is a matter of state-wide importance and of governmental import, and not merely of local or municipal concern. Certainly in the absence of a specific contrary provision on the subject, this court should not hold that the people of the state did nor would consent that cemeteries in any part of the state should be subject to taxation or assessment.”
We draw from Denver v. Tihen, supra, that although the locality may possess a general power, nevertheless some aspect or part of it retains its identity as general
Provident Loan Society v. City and County of Denver, 64 Colo. 400, 172 Pac. 10, is even clearer in its recognition that dual non-conflicting legislative authority is valid in areas where both the city and the state have interests. The legislative subject in that case was that of licensing and regulating pawnbrokers. An ordinance was upheld despite the fact the state had legislated on the subject. There, too, the supplemental authority of the city to act in dealing with its special problems was the determining factor. The Court‘s reasoning appears in the following language:
“It is well settled that the mere fact that the state, in the exercise of the police power, has made certain regulations does not, however, prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two and the requirements of the municipal by-law are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. 19 R.C.L. 804, Sec. 110.”
And concluded at p. 405:
“The city has the power to legislate upon local and municipal matters. If, as contended by plaintiff in error, the business of pawnbroking is a matter of state-wide interest, this fact does not prevent such business from being also a matter of municipal interest. The preservation of the health, safety, welfare and comfort of dwellers in urban centers of population requires the enforcement of very different and usually much more stringent police regulations in such districts than are necessary in a state taken as a whole.”
See also Bay v. City and County of Denver, 109 Colo. 74, 121 P. (2d) 886, where the validity of local legislation regulating interest rates on small loans which conflicted
“Both parties agree, as is a fundamental principle, that an ordinance which is in conflict with a state law of general character and state-wide application is invalid. Glendinning v. Denver, 50 Colo. 240, 114 Pac. 652. See, also 37 Am. Jur., p. 787, §165; 43 C.J. 215, §219; McQuillin on Municipal Corporation (2d ed.) vol. 2, p. 697, §683. As the legal basis for its position the city cites that, in. considering the application of this fundamental principle, the courts many times have held the mere fact that the state in the exercise of its police power has made certain regulations, does not prohibit the municipality from exacting additional requirements (see Provident Loan Society v. Denver, 64 Colo. 400, 172 Pac. 10; 37 Am. Jur. 790, §165; 43 C.J. 219, 220, §220), and asserts that the reduced rates to be charged on small loans in Denver under the promulgations of the ordinance are no more than additional requirements to the coexisting prohibitions of the statute. * * *”
If an ordinance and a statute which do not conflict can coexist, it would follow that a city, acting with the express consent of the state, can legislate on a subject within the legitimate sphere of both its interest and that of the state. Clear recognition of this consent principle is apparent in McCormick v. City of Montrose, 105 Colo. 493, 99 P. (2d) 969, which upheld a local ordinance declaring house to house non-consentual peddling a nuisance (involving Real Silk Hosiery salesman). A state statute authorized towns and cities to declare nuisances and the question was whether the ordinance was within the terms of a legislative grant to the city. The
“* * * The Twentieth Amendment to the Constitution gives home rule cities the right to exercise police power as to local matters, possibly subject to the limitation that they may not exercise police power in such manner as to interfere with the state‘s exercise of its police power where it has elected to deal with the same subject matter. Denver v. Tihen, 77 Colo. 212, 235 Pac. 777. But no conflict is here involved, and we need not and do not concern ourselves either with the existence of a limitation or its extent, if there is one. Whether there shall or shall not be soliciting in or upon private residences within the city, at least until the state has seen fit to exercise its police powers with reference to it, is a matter of local concern only. If the city has the power to penalize the conduct declared by the ordinance to be a nuisance, we think that it is immaterial that it provided that such conduct shall first be given the name of nuisance, which defendant contends is not, and which may not be in fact, a fitting name. The real question is whether the city has the power to punish the proscribed conduct not whether it has the right to name it.”
It seems clear then that the cases have not recognized exclusive spheres of activity whereby the authority of the state and the city must be meticulously separated and the respective powers so isolated as to involve the severe penalty of death to any ordinance which strays onto state soil. On the contrary, the Courts have sensibly recognized the practical impossibility of such divisions.
Third, the post-Merris cases have recognized that
“* * * The ordinance in question, insofar as it deals with the conduct of parties to a ‘labor dispute’ is clearly an attempt to cover in a different and sometimes conflicting manner the same field as is covered by the ‘Labor Peace Act.’ As such, it must be held without force or effect.”
In Sierota v. Scott, 143 Colo. 248, 352 P. (2d) 671, the Court construed the terms used in granting authority to a municipality in determining whether it was acting within the power granted, and concluded that the ordinance there in question was outside the power granted by the General Assembly.
City of Aurora v. Mitchell, 144 Colo. 526, 357 P. (2d) 923, was also a preemption case. It recognized that a statutory city is entirely subject to statutory authorization. Davis v. City and County of Denver, 140 Colo. 30, 342 P. (2d) 674, considers in detail the validity of the consent principle now under discussion and declares that a state may grant legislative authority to a home rule municipality on a subject such as that now before us which has both general and local attributes.
III.
Proceeding on the premise that some subjects are neither strictly local nor exclusively state-wide and that the mutual exclusion doctrine is not applicable to these intermediate subjects, we turn to the next inquiry, i.e., whether gambling is to be fitted into one of the extreme categories or is a problem having both general and local interest.
Historically, gambling was not regarded as a matter
“It seems that by the common law, the playing at cards, dice &c., when practiced innocently and as a recreation, the better to fit a person for business, is not at all unlawful, nor punishable as any offence whatsoever.”
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*
*
“And although gaming, in the manner as has been said, may be lawful, yet if a person be guilty of cheating, as by playing with false cards, dice, &c., he may be indicted for it at common law, and confined and imprisoned according to the circumstances of the case and heinousness of the offence.”
*
*
*
“Also, from the destructive and pernicious consequences which must necessarily attend excessive gaming, both the courts of law and equity have shown their abhorrence of it. Hence in a case where A came to the house of B and won of him 900 £. which he carried away, and afterward won 1500 £. more, which he had in his possession, but which B and his servants took from him by violence, upon which A brought an action of trespass, the Court of Chancery granted an injunction.”
The prohibition or regulation of gambling was not considered the exclusive prerogative of the sovereign. Only the incidental consequences were regarded as anti-social and subject to prohibition, and the extent of common law prohibitions and sanctions is now uncertain. Therefore it differs from offences such as larceny, the prohibition of which was the exclusive province of the sovereign. Cf., the concurring opinion in Gazotti v. Denver, 143 Colo. 311, 352 P. (2d) 963. In the United States it appears from an examination of the texts that gambling
“Thus, a municipal ordinance making it an offense to permit gaming in the place or house of any person is not invalid because the state had enacted a statute which prohibited such acts in public places. Greenville v. Kemmis, 58 S.C. 427, 36 S.E. 727, 50 L.R.A. 725. An ordinance declaring it unlawful for an automobile to be driven on public streets at a greater rate of speed than six miles per hour, was held not to be in conflict with a statute prohibiting the driving of automobiles ‘within the thickly settled or business portion of any city at a greater speed than twelve miles per hour.’ * * *”
The Greenville case, cited with approval above, held that a municipality could prohibit gambling even though the state had defined and prohibited the offense. It was said that the city was authorized by virtue of a charter provision allowing the city to pass ordinances necessary for securing the peace and good government of the city.
That the State of Colorado has depended upon the cities to adopt ordinances prohibiting and punishing gambling is disclosed not only by
Although the precise question before us has not
IV.
The final question is whether the exercise of municipal jurisdiction, under the present circumstances, is valid. We have concluded that the subject is not one on which mutual exclusion operates, and further that the municipality has a sufficient interest to exercise jurisdiction in the absence at least of some state prohibition. Since the state has not asserted its authority so as to exclude the city as in Denver v. Tihen, supra, and has in fact manifested consent to the adoption of such an ordiance by
It might be argued that the consent statute cited above applies to non-home rule towns and cities only. The cases do not hold to such a distinction. See McCormick v. City of Montrose, supra, wherein a home rule
V.
In holding that in limited circumstances the city can legislate on a subject also within the power of the state, in no way compromises the salutary holdings of the Merris case requiring criminal law safeguards to be observed in municipal prosecutions where counterpart statutes declare crimes. The mere fact that the city has the power to legislate does not mean that there could ever be recognition of dual sovereignty or double prosecutions. The Twentieth Amendment decisions such as in Durango v. Reinsberg, 16 Colo. 327, 26 Pac. 820; Huffsmith v. People, 8 Colo. 175, 6 Pac. 157 and Hughes v. People, 8 Colo. 536, 9 Pac. 50, are not hereby resurrected. This holding clearly recognizes, just as the General Assembly has recognized, that it is more practical for the city to prohibit and punish gambling within its borders than for the state to do so, and that those ordinances adopted with the consent or approval of the state are valid. The present determination that there is nothing basically invalid about legislation on the same subject, by both a home rule city and the state, does not effect the prohibition against double prosecution, nor does it undermine any basic safeguards.
It follows that sec. 821.1 of Denver, Colo. Rev. Municipal Code (1950), defining and punishing gambling, is a valid exercise of the municipal legislative authority, and that Denver was engaged in the valid legal exercise of its power and authority in prosecuting defendants pur-
Other errors urged by defendants, we consider unnecessary to discuss. A review of the record persuades us that defendants were afforded a fair and impartial trial and that no prejudicial error was committed.
The judgment is affirmed.
MR. JUSTICE MOORE concurs in the result.
MR. JUSTICE FRANTZ and MR. CHIEF JUSTICE HALL dissent.
MR. JUSTICE MOORE specially concurring in the result.
Plaintiffs in error were convicted of violating an ordinance of the City and County of Denver which prohibited gambling. The question for determination presented by the record is whether the prohibition of gambling is a matter which is “local and municipal” within the meaning of
It is suggested that the ordinance of the city of Denver imposes a greater penalty for gambling than does the state statute and that even assuming the premise that gambling is a matter which presents “local and municipal” problems the “inconsistency” of punishment between the statute and the ordinance would necessarily invalidate the ordinance. It is not true that all differences between an ordinance and a statute result in an inconsistency which is fatal to the ordinance.
It is a fundmental principle applicable to home rule cities, as well as other cities and towns, that a municipal ordinance can neither destroy a basic right created by statute nor can it authorize an act which the state law prohibits. A municipal ordinance could not legalize gambling, prostitution or other vice prohibited by state law. See 37 Am. Jur. p. 787, McQuillan on Municipal Corporations 2nd ed. Vol. 2, 697, sec. 683. There are numerous authorities for the proposition that although
A number of authorities have prescribed tests for the determination of the existence of a conflict between statute and ordinance which would be fatal to the ordinance. In State v. Carran, 133 Ohio St. 50, 11 N.E. (2d) 245, we find the following:
“In determining whether an ordinance is in ‘conflict’ with general laws, the test is whether the ordinance permits or licenses that which the statute forbids or prohibits, and vice versa.”
In 37 Am. Jur. p. 790, sec. 165, we find the following pertinent sentence:
“Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective.”
The foregoing principles were approved, discussed and applied by this court in Ray v. Denver, 109 Colo. 74, 121 P. (2d) 886.
In Ex Parte Hoffman, 155 Cal. 114, 99 Pac. 517, it was said:
“It may often, and does often, happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities so that it becomes proper, and even necessary, for municipalities to add to state regulations provisions adapted to their special requirements.”
I am of the opinion that Denver as a home rule city has the power to adopt an ordinance prohibiting gam-
bling because it is a matter which is local and municipal and presents special problems in urban communities which warrant special treatment at the local level. The Denver ordinance does not permit or license that which the state law forbids; nor does it prohibit a course of conduct by any citizen which as a matter of right is conferred upon him by statute. The increased burden by way of a greater penalty which is imposed by the ordinance is not “in conflict” with the state law in a legal sense.
Solely on the grounds expressed, and not for the reasons set forth in the opinion of Mr. Justice Doyle, I would affirm the judgment.
MR. JUSTICE FRANTZ dissenting:
Once again an effort is being made to compress the compass of Canon City v. Merris, 137 Colo. 169, 323 P. (2d) 614. I had thought that decision to be eminently correct when it was released; I retain that conviction; and being so convinced, I must resist any attempt at shrinking its scope and effect.
By statute gambling is forbidden and a penalty provided for its violation.
Then, too, cities or towns are empowered “to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to [them], with such fines and penalties as the council or board of trustees shall deem proper; provided, no fine or penalty shall exceed three hundred dollars, and no imprisonment shall exceed ninety days for one offense.”
Whether acting pursuant to
It is of moment that we note the difference in punishment which may be inflicted for gambling. Under the statute (
This difference in penalty takes on importance if gambling is a matter of state-wide cognizance because, should
“Municipal corporations shall have power to make and publish, from time to time, ordinances not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by this chapter, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding three hundred dollars, or by imprisonment not exceeding ninety days.” (Emphasis supplied.)
Of course, if the problem of gambling is essentially
Is there an area of interest in gambling which can be said at once to be state-wide and local and municipal, in which the first to act legislatively preempts the field, or in which either may enact laws enforceable by the enactor, and if so, does the first to proceed against the violator take jurisdiction to the exclusion of the other? Is gambling a matter of state-wide concern, reposing in the General Assembly the sole power to enact legislation in connection therewith, or does it pose a local and municipal problem, making effective the application of the 20th Amendment?
“The powers of the government of this state are divided into three distinct departments—the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.” (Emphasis supplied.)
Thus, the Constitution vests the legislative power of the state in the General Assembly, the veto power in the Governor, and these powers are not delegable except where “in this constitution expressly directed or permitted.” Delegation of this power to legislate cannot be bestowed by implication, and no implied power to so delegate can be evolved by interpretation; the Constitution explicitly forbids it. Whatever the legislature passes in the proper exercise of its constitutional authority, a municipality cannot in effect veto, either in whole or in part, by adopting ordinances contrary to, inconsistent with, or at variance with parts of, such enactments; the Constitution explicitly forbids the exercise of veto by anybody but the Governor.
The question immediately comes to mind: Wherein can it be said that the 20th Amendment “expressly” grants to a home rule city the power to enact ordinances on any governmental business other than those of purely local and municipal concern? A more than cursory perusal of
Continuing our consideration of
Quoting further: “It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters, and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.” (Emphasis supplied.) The recurring theme is the power to act in local and municipal matters: home rule cities or towns shall have “the full right of self-government in both local and municipal matters” and any right or power essential or proper to the full exercise of such right.
It is then provided that “[t]he statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by
Always keeping in mind that ordinances on local and municipal matters may be adopted pursuant to the authority of the charter, we now consider
There is nothing to seek between the lines of
Hence, there can be no concurrent authority. Whatever is adequate to warrant the exercise of the “legislative power of the state” is a matter of statewide concern, and if the General Assembly legislates thereon, the statute is applicable throughout the length and breadth of the state. According to
To hold that municipality and state may each act in certain twilight spheres because of common concern regarding such matters necessarily recognizes a delegation of legislative power impliedly bestowed. Yet the whole 20th Amendment bespeaks the delegation of express powers, negatives the bestowal of implied powers, and,
Cities and towns shall always have a vital interest in any problem of a statewide nature. To refer to a statewide matter is to refer to something that affects every part of the state. A matter could not be of statewide concern if it did not affect all parts of the state, including cities and towns, whether they be home rule municipalities or not. Degrees of concern should not be the measuring stick. Murders in Denver may give it an ascendancy of concern in regard to them over the towns of Red Cliff or Red Wing or other cities and towns of Colorado, but that is not, and should not be, the test. If there is present a generality of concern throughout the state in a problem, regardless of peaks and dips in the level of interest therein, the matter is of statewide cognizance.
Such dissection of the 20th Amendment led us to say in Canon City v. Merris, supra:
“‘Supersede’ is defined ‘as meaning to supplant * * *; to replace, displace, or set aside and put another in the place of; to take the place of by reason of superior worth, appropriateness, efficiency or right.’ 83 C.J.S., p. 889. In the company of words appearing in
Article XX, Section 6 , the term ‘supersede’ means that the law of the state is displaced on a local and municipal matter where there is an ordinance put in its place. Where, however, the matter is of statewide concern, supersession does not take place. Application of state law or municipal ordinance, whichever pertains, is mutually exclusive.”
With a more exacting scalpel Mr. Justice Moore did a more extensive dissection in his concurring opinion, and concluded:
“The meaning of this language is plain. There is no room for strained construction. The effect of it is that until such time as a home rule city enters a given field of legislative enactment by a proper exercise of the delegated legislative power, the applicable law of the state
shall govern. If the state law is to be rendered ineffective within the city limits on a matter which is ‘local and municipal’ the city council can adopt an ordinance which thereupon ‘supersedes’ the state law within the city limits. By no stretch of the imagination can this constitutional provision be held to warrant the adoption of a city ordinance on a matter which is of general or statewide concern as distinguished from a ‘local or municipal matter.‘”
Mr. Justice Moore and I had an abundance of precedent to vindicate our utterances. These precedents merely accepted the plain language of the 20th Amendment at face value, and sought not to embellish or deform its simple grant of power to home rule cities and towns, that they shall exercise self-government in local and municipal matters. I would have us adhere to our previous pronouncements. This does not deny that there may be a problem of application, for questions of statewide versus local and municipal concern will trouble courts in the future as they have in the past.
That supersession takes place only as to local and municipal matters has been time and again intimated in the decisions of this court. Without any attempt to cite all the cases so indicating, I would point out some which sustain the proposition.
In order to sanction a regulation of a home rule city, we must determine that the regulation of the subject “is purely a local matter.” Walker v. People, 55 Colo. 402, 135 Pac. 794. Such determination must result from the distinction between governmental powers and functions and “matters of purely local and municipal character.” People v. Denver, 90 Colo. 599, 10 P. (2d) 1106.
The effect of modifying words showing the extent to which a home rule city may exercise its delegated power is nowhere better exemplified than in the case of Mauff v. People, 52 Colo. 562, 123 Pac. 101. The following quoted portion of the decision is so much in point that the potent modifying words I have capitalized and other
“The purpose of article XX was to give to the people of the city and county of Denver exclusive control in matters of local concern ONLY. The people of the city and county of Denver have no power whatever to legislate by their charter upon matters of state and county governmental import and character. The fact that the authority given by article XX to the people of the city and county of Denver to legislate was confined and limited SOLELY to local matters was the precise thing that made it possible for the courts to uphold and enforce it. If by article XX it had been undertaken to free the people of the city and county of Denver from the state constitution, from statute law, and from the authority of the general assembly, respecting matters other than those PURELY of local concern, that article could not have been upheld.”
Whatever is local and municipal is subject to the jurisdiction of the home rule city. All other matters are subject to the control of the state. This is the unequivocal meaning of People v. Graham, 107 Colo. 202, 110 P. (2d) 256. Note:
“The only question with which we are here concerned is whether the derelictions charged in the information are violations of regulations of motor vehicle traffic of a local and municipal nature, over which a home-rule city has exclusive jurisdiction. If not, the general laws of the state apply.” (Emphasis supplied.)
Decisions have drawn the line of demarcation between matters subject to the jurisdiction of state or municipality on whether the subject of action has aspects beyond that which is local and municipal in character. Thus, it has been said that the home rule municipality is “as much amenable to state control in all matters of a public, as distinguished from matters of a local, character as are other municipalities.” (Emphasis supplied.) Keefe v. People, 37 Colo. 317, 87 Pac. 791, 8 L.R.A.N.S. 131; Mauff v. People, supra; People ex rel. v. McNichols, 91 Colo. 141, 13 P. (2d) 266.
It appears to me that the point of cleavage in making the above distinction is this: local and municipal matters are subject to municipal action, but, if there is something additional in the way of an interest in which the public has a concern, then the state has jurisdiction. Perhaps this is made more definite by an additional quotation from People ex rel. v. McNichols, supra. A state law concerning vital statistics was involved and the court held that vital statistics “are not of local concern only; they are of general public importance.” The purport of the quoted section is that vital statistics are of local concern, but that such concern does not end there; that the general public has an interest in vital statistics. Hence, the home rule city is controlled by the statute.
The last cited case suggests a guide for determining when a matter is subject to the jurisdiction of the state or of a home rule city. Other guides appear from decisions rendered by this court. For instance, the fact that a home rule city may attach a more immediate and greater importance to a subject than may be found in the general public does not make that subject a local and municipal matter only. If the state at large has an interest, the law of the state takes precedence.
Such is the purport of People ex rel. v. McNichols, supra. And such is the purport of two other decisions of this court. It was said in Keefe v. People, supra, that:
“The work of building a sanitary sewer by a city, in a sense, is local, in that it affects, primarily, its own citizens; but it is directly connected with the public health, and is a matter of concern and great importance to the people of the entire state.”
Hence, a state statute regulating hours of labor on public works was held applicable to Denver.
To like effect was the decision in Denver v. Bossie, 83 Colo. 329, 266 Pac. 214. We quote:
“That the building and maintenance of a court house
is of general public interest is manifest from the necessities of justice. That a court house and its usual incidents be maintained in Denver county is of nearly as great importance to the state at large as to Denver, and so of the court house of every other county. The legislation of the state which requires every county to maintain such a place is a recognition of this proposition.” (Emphasis supplied.)
The lesson to be drawn from these last three decisions is this: even though the subject of state legislation has a greater impact upon the municipality than upon the public at large, still the fact that the general public has an interest in the matter makes the matter properly one for state action.
Another test resorted to in a number of cases may be put this way: whatever the legislature might have granted to a city before the adoption of the 20th Amendment constitutes a local and municipal matter upon which the city may legislate. City of Pueblo v. Kurtz, 66 Colo. 447, 182 Pac. 884, makes this clear in these words:
“* * * the city has the right under the XXth amendment and the Home Rule amendment to adopt any provision for its charter on subjects local and municipal or ‘of local concern,’ and such provision supersedes the statute. Subjects local and municipal or of local concern are held * * * to include any power which the Legislature might have granted before the amendment.”
Unless there is an express constitutional provision permitting it, the general assembly may not transfer its legislative power to any other governmental agency. Such is the substance of
“Senate Bill providing that where subject matter of municipal ordinance may be of both local and state-wide concern, existence of state legislation on subject matter, or subsequent adoption of state legislation thereon, shall not deprive municipal corporation of right or power to make ordinances thereon not inconsistent with laws of the state, unless statute declares that only state shall have power to adopt legislation thereon, and that where statute and ordinance cover same subject matter so that same act can be prosecuted as criminal matter both for violation of statute and ordinance, prosecution for ordinance violation shall bar prosecution under statute and prosecution under statute shall bar prosecution under ordinance, is an invalid delegation of legislative power in violation of the Constitution. Const. art. 5, § 1; C.R.S. ‘53, 139-33-1 (3).” (Emphasis supplied.)
In November, 1912, the people of this state adopted the present
“Any act in violation of the provisions of such charter or of any ordinance thereunder shall be criminal and punishable as such when so provided by any statute now or hereafter in force.”
Concerning this quoted portion of Section 6, we said in Canon City v. Merris, supra, that “[e]ven though an ordinance effectually covers a local and municipal matter, and it is a counterpart of a law of the state, its violation is triable and punishable as a crime where so designated by the statute.”
Prior to the adoption of
Later, the circumscription expressed in the Keefe case was considerably softened and intimation made that the people could permit a delegation of authority by the general assembly to define and punish crime. For this court stated, “The people have confided to the general assembly the power of declaring what acts or omissions shall constitute a crime, but they have not confided to the general assembly the authority to transfer this power to any other person or body.” People v. Lange, 48 Colo. 428, 110 Pac. 68.
In a very recent case, Casey v. People, supra, not involving a home rule city, we perhaps too broadly stated, “Only the legislature may declare an act to be a crime. People v. Lange, supra. That precious power cannot be delegated to others not elected by or responsible to the people.”
Although too sweeping in denying the power of the people to delegate legislative authority, because
Denver has been delegated authority by the people to make a charter and to enact ordinances extending to local and municipal matters, the violation of which shall be criminal and punishable as such when such charter and ordinances have counterpart statutory provisions the violation of which is criminal. Does municipal action regarding gambling fall within that which may be considered purely local and municipal?
It should be observed that
We have held that the keeping and use of gambling devices, being prohibited by statute, are common nuisances. Gambling Devices v. People, 110 Colo. 82, 130 P. (2d) 920. Gaming and gambling houses are nuisances. People ex rel. v. District Court, 26 Colo. 385, 58 Pac. 604, 46 L.R.A. 850. See 66 C.J.S. § 48, p. 800. To the extent that Denver suppresses gambling houses or devices, or gambling, it had the power without resort to the statute.
But may Denver define gambling, make it an offense and provide for the punishment by fine or imprisonment, or both, in the event of a violation of the ordinance? It may if gambling is a purely local and municipal matter. Is it such? Salt Lake City v. Doran, 42 Utah 401, 131 Pac. 636, holds that the large and populous municipalities present greater opportunities for successful gambling operations, thereby making it a local and municipal problem. There are cogent reasons why I cannot agree.
The fact that crime can be more fruitful and accomplished with greater ease in more densely populated areas is not a reason for making it a local and municipal matter. If this were true, then burglary and robbery, for instance, might be said to be local and municipal. In order for an ordinance to supersede a statute defining a crime, the city adopting such ordinance must have some peculiar circumstances which present a local and municipal problem. The peculiar circumstances may be such that, as a matter of law, it may be said that the subject of the ordinance is of concern to the municipality. On the other hand, whether the problem is truly a local and municipal concern may be a question of fact.
Gambling per se is a problem of general importance
There is no more quoted section of our statutes than
“A crime or misdemeanor consists in a violation of a public law * * *” (Emphasis supplied.)
It is an offense against the sovereign, and a criminal action is one prosecuted by the state against a person charged with a public offense committed in violation of a public law. Hoffman v. People, 72 Colo. 552, 212 Pac. 848. That the legislature permitted cities and towns to “suppress” gaming and gambling houses and gaming devices and practices indicates that it retained power to define offenses involving gambling and to provide for their punishment.
Gambling has been considered so completely a matter of state-wide concern that its legitimation has been believed to be a matter for the voters of the state to act upon. Consider the ordinance in question. If it is a matter of local and municipal concern, it is then something that the state can never affect by legislation. If it is a matter of local and municipal concern, the state would be foreclosed from passing any law on the subject which could be effective in Denver. If it is a matter of local and municipal concern, Denver could adopt by amendment such an innocuous ordinance that in effect gambling would be sanctioned within the confines of the city. For these reasons I believe that gambling must be considered not only as being of local concern, but equally of state-wide interest, and ergo, subject to state control.
The state could have delegated to Denver the power in form of ordinances to enact rules and regulations by which Denver as an agency of the state would aid the
“Judge Dixon was of opinion that the power conferred upon the boards of county commissioners could be sustained upon either of two principles of constitutional law: First, the law being complete, its operation might be made contingent; second, because such delegation is in the furtherance of the power of local self-government.
“It will be conceded that the powers conferred upon the legislature to make laws cannot be delegated to any other body or authority, except as the principle may be modified by the second maxim. It is, however, not essential that the law should take effect immediately upon its leaving the hands of the legislature. Its operation may, under certain limitations, be made to depend upon a contingency.
“Mr. Justice Agnew, speaking for the court in Locke‘s Appeal, 72 Pa. St. 491, says: ‘What is more common than to appoint commissioners under a law to determine things, upon the decision of which the act is to operate in one way or another? * * * Then the true distinction, I conceive, is this: the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be the subject of inquiry and determination outside the halls of legislation.‘”
In recent decisions Mr. Justice Moore has affirmed this proposition. Hazlet v. Gaunt, 126 Colo. 385, 250 P. (2d) 188; Prouty v. Heron, 127 Colo. 168, 255 P. (2d) 755.
I have stated what I believe to be an irrefutable position on spheres of operation for state and home rule
MR. CHIEF JUSTICE HALL joins in this dissenting opinion.
No. 19,284.
ROY L. CLEERE, ET AL., AS COLORADO BOARD OF FUNERAL DIRECTORS AND EMBALMERS v. GLENNA MASON BULLOCK.
Decided April 24, 1961.