Asphalt Paving Co. v. County Com'rs of Jefferson County
| Decision Date | 27 March 1967 |
| Docket Number | No. 22244,22244 |
| Citation | 162 Colo. 254,425 P.2d 289 |
| Parties | ASPHALT PAVING CO., a corporation, Jefferson Transit Mix, Inc., Table Mountain, Inc., Mobile Concrete, Inc., and Westway Motor Freight, Inc., Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON and Duke W.Dunbar, as Attorney General of the State of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
F. Richard Hite, Denver, for plaintiffs in error.
Conrad Gardner, Robert K. Willison, Golden, Ronald Lee Cooke, Denver, for defendant in error, Board of County Commissioners of Jefferson County.
J. Fred Schneider, Denver, for Colorado State Association of County Commissioners, amicus curiae.
Duke W. Dunbar, Atty. Gen., George L. Zoellner, Chief Highway Counsel, Asst. Atty. Gen., Richard W. Phillips, Asst. Atty. Gen., for defendant in error, Duke W. Dunbar.
This writ of error is directed to a declaratory judgment action originally brought in the trial court. The case was tried to the court on an agreed statement of facts after which written findings of fact and conclusions of law were made. A judgment was then entered in favor of the defendants in error who were defendants in the trial court. We shall refer to the parties by name or as they appeared in the trial court.
The judgment upheld the validity of three separate resolutions, previously adopted by the Board of County Commissioners of Jefferson County, which prohibited the operation of through traffic by trucks and other commercial vehicles--except pick-up trucks and trucks used for local delivery--upon certain county roads in essentially residence-developed areas of the county. We note here that the plaintiffs' operations consist primarily of hauling large amounts of sand, gravel and other heavy loads from their places of business to distant points.
It is asserted that the trial court erred because:
(1) The Board is not a 'local authority' as defined by C.R.S.1963, 13--1--1(30) and so did not have the powers delegated by the ligislature to local authorities, under C.R.S.1963, 13--5--1287(3), to adopt traffic regulations; additionally, that Boards of County Commissioners cannot lawfully exercise any police powers;
(2) That, even if C.R.S.1963, 13--5--128(3) does apply to Boards of County Commissioners, the statute is unconstitutional in that it unlawfully delegates legislative power to an administrative agency because it fails to set forth necessary standards to govern any regulations adopted thereunder;
(3) That, even if these regulations were lawfully adopted, they constitute special ligislation and are discriminatory as to these plaintiffs;
(4) That the regulations, if otherwise valid, nevertheless, deprive the plaintiffs, without due process of law, of a property right to use the public county roads to haul their products; and,
(5) Even if the Board had the power to adopt reasonable regulations as to vehicular traffic, by so doing here the Board created a crime, and this it had no power to do.
We will treat the issues raised seriatim.
Was the Board a 'local authority' with power to adopt reasonable traffic regulations upon the county highways in question; and, can the Board exercise certain police powers? For the reasons hereinafter set forth the answer to these two questions is in the affirmative.
C.R.S.1963, 13--1--1(30) defines a 'local authority' as:
'* * * every county, municipal, and other local board or body having authority to adopt local police regulations under the constitution and laws of this state.'
The trial court held that this Board of County Commissioners falls within the above statutory definition. The plaintiffs, however, urged it erred in so holding because such boards, generally speaking, are merely administrative agencies of the state for purposes of political organization and local administration, without any power to adopt Police regulations. See Town Commissioners of Centreville v. County Commissioners of Queen Anne's County, 199 Md. 652, 87 A.2d 599 (1952), and 14 Am.Jur., Counties § 5. Such a contention, though, ignores the corollary expressed in Farnik v. Board of County Commissioners, 139 Colo. 481, 341 P.2d 467 (1959) as well as in 14 Am.Jur., Supra, to the effect that counties also possess powers which have been expressly delegated to them or which can be reasonably implied from such express grants. The trial court, by its ruling, rejected the plaintiffs' contention as applied to present-day operations of counties. We agree with this ruling.
The fact that the term 'county' was included in C.R.S.1963, 13--1--1(30) along with 'municipal' units indicates that the legislature intended such county governmental units, functioning through their Boards of County Commissioners, to have at least certain police powers. The provision in the act relating to 'other local board or body' can apply only to the numerous units of local government other than counties and municipalities, which overlap our state in profusion.
It seems to us that the ligislature can and does, at times in Colorado, delegate limited police and ligislative powers to local governmental units. The rule as to the latter is succinctly set forth in 16 Am.Jur.2d, Constitutional Law § 250 where it is stated:
'It is a well-settled rule, supported with practical unanimity by the authorities, that the general doctrine prohibiting the delegation of ligislative authority has no application to the vesting in political subdivisions of powers to govern matters which are local in scope.'
The statute under which this Board acted as authority to adopt 'through truck' regulations, is C.R.S.1963, 13--5--128(3), which reads:
'Local authorities, with respect to highways under their jurisdiction, may also, by ordinance or resolution, prohibit the operation of trucks or other commercial vehicles, or may impose limitations as to the weight thereof, on designated highways, which prohibitions and limitations shall be designated by appropriate signs placed on such highways.'
In addition, C.R.S.1963, 36--1--7(9) grants to Boards of County Commissioners the power:
'To lay out, alter or discontinue any road running into or through such county, and also to perform such other duties respecting roads as may be required by law.'
And, C.R.S.1963, 13--5--7 provides that:
'* * * local authorities with respect to streets and highways under their jurisdiction and within the Reasonable exercise of the police power, * * *'
may regulate non-state highway streets (with certain exceptions) in various specified ways including in subsection (g) the 'Regulating (of) the operation of vehicles'; and further that they may restrict '* * * the use of highways as authorized in sections 13--5--118 to 13--5--129.' (Emphasis added.)
In our view, C.R.S.1963, 13--5--128(3) allowed the Board to adopt the disputed resolutions since we have held Supra that it is a 'local authority' under C.R.S.1963, 13--1--1(30).
It is worth noting, at this point, that in Colorado our legislature, as government has grown more complex, has extended its reliance on Boards of County Commissioners to carry out, on a local level, local governmental functions where it has deemed such necessary. For example, in addition to the statutes here under attack, in the past, counties have been delegated the following powers, among others, each of which requires the Board of County Commissioners to exercise certain police powers, viz.: to license and control dogs (C.R.S.1963, 36--12--1); to adopt building regulations and restrictions (C.R.S.1963, 36--15); to license and regulate public dance halls (C.R.S.1963, 36--17); to issue liquor licenses (C.R.S.1963, 75--2--9); to adopt zoning regulations (C.R.S.1963, 106--2); to regulate roadside signs on county roads (C.R.S.1963, 120--13--39 to 120--13--41); and to adopt, subject to state approval, lower prima facie speed limits on highways and roads located in unincorporated areas within their boundaries (Colo.Sess.Laws 1965, ch. 79). Several of these delegations of power have been heretofore upheld by this court, e.g. see Baum v. City and County of Denver, 147 Colo. 104, 363 P.2d 688 (1961) (zoning); Dwyer v. People, 82 Colo. 574, 261 P. 858 (1927) (dance halls). In a different vein we held in Lewis v. Lorenz, 144 Colo. 23, 26, 354 P.2d 1008 (1960), which was a case involving the use of the roadside borrow pit for a water conduit, that 'The statutes are conclusive of the fact that the county commissioners have the sole right to authorize And control the use of the highway * * *.' (Emphasis added.)
Generally speaking, in the absence of any constitutional prohibition, there is nothing illegal about a state legislature delegating powers local in nature to local governmental units, provided that the proper constitutional tests are met as to maintaining a separation of powers and nonabrogation of proper responsibility. See 16 Am.Jur.2d, Constitutional Law § 250; 16 C.J.S. Constitutional Law § 178. Although it has been said (see Davis, Administrative Law Treatise, § 2.07) that 'The law of the state delegation (of power) differs substantially from the law of federal delegation', nevertheless, somewhat similar restrictions on the authority of the Congress to delegate powers to the executive branch of government seem to exist. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1934).
Does C.R.S.1963, 13--5--128(3) set forth adequate standards to meet the constitutional tests of separation of powers and non-abrogation of legislative functions? This answer is also in the affirmative.
Again referring to that statute, we note that the Board was granted the power to:
'* * * prohibit the operation of trucks or other commercial vehicles, or may impose limitations as to the weight thereof, on designated highways, which prohibitions and...
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