Big Top, Inc. v. Schooley

• Decision Date: 22 January 1962
• Docket Number: No. 19912,19912
• Citation: 368 P.2d 201,149 Colo. 116
• Parties: BIG TOP, INCORPORATED, a corporation, Plaintiff in Error, v. John M. SCHOOLEY, Manager of Safety and Excise of the City and County of Denver, State of Colorado, and the City and County of Denver, a municipal corporation of the State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 201

368 P.2d 201

149 Colo. 116

BIG TOP, INCORPORATED, a corporation, Plaintiff in Error, v. John M. SCHOOLEY, Manager of Safety and Excise of the City and County of Denver, State of Colorado, and the City and County of Denver, a municipal corporation of the State of Colorado, Defendants in Error.

No. 19912.

Supreme Court of Colorado, In Department.

Jan. 22, 1962.

Phelps & Wittelshofer, Richard P. Hall, Denver, for plaintiff in error.

Robert S. Wham, City Atty., W. Keith Peterson, Asst. City Atty., Denver, for defendants in error.

FRANTZ, Justice.

In this opinion Big Top, Incorporated will be referred to as 'Big Top,' John M. Schooley, Manager of Safety and Excise of the City and County of Denver as 'Schooley,' and the City and County of Denver as 'Denver.'

Big Top applied for a 3.2% beer license for its premises at 4051 East Yale Avenue in Denver. As the licensing authority, Schooley, without a hearing, denied the application by letter, wherein he advised Big Top, as the basis for denial of a hearing and of a license, that it presently had a 3.2% beer license at another location in Denver and that, under a Denver ordinance, no one could hold more than one 3.2% beer license in the city.

In a complaint seeking declaratory and mandatory relief under Rules 57 and 106 respectively of R.C.P.Colo., Big Top launched a two-pronged assault upon the ordinance: (1) that it was void because wholly outside the scope of the regulatory authority reposed in local licensing authorities by the statute, and (2) that the ordinance was not adopted by the 'licensing authority' of Denver as required by the statute.

The trial court held contrary to the contentions of Big Top and determined that the ordinance was a valid exercise of legislative authority by the Council of Denver pursuant to which Schooley correctly ruled. Convinced that its attack upon the enforcement of such ordinance adversely tne enforcement of such ordinance adversely affected its right to a hearing and to a license, should it satisfy the requirements of the law as to qualifications and other conditions, Big Top is before us on writ of error, renewing its attack on the ordinance.

Article XXII of the Constitution of Colorado was adopted on November 8, 1932, and became effective 'from and after July 1st, 1933.' At the 1933 session the legislature enacted 'An Act Regulating the Sale and Manufacture of Beer,' which was approved April 5, 1933. S.L.1933, Ch. 45. At a special session for the same your the legislature repealed Chapter 45, and passed separate statutes, one 'An Act Regulating the Sale and Manufacture of Beer and Wine Containing not more than 3.2% of Alcohol by Weight,' Ex.Sess. 1933, Ch. 5, and the other, 'An Act Regulating the Manufacture and Sale of Alcoholic Liquor Containing more than 3.2% of Alcohol by Weight,' and so forth. Idem, Ch. 12. Both acts were approved on August 22, 1933.

It will be noted that the legislature drew a line at '3.2% of alcohol by weight.' Beer and wine having 3.2% or less of alcohol by weight were covered by Chapter 5; beverages containing in excess of 3.2% of alcohol by weight, by Chapter 12. Chapter 5 was amended in 1935, and as amended substantially is the present 'fermented malt beverages' law. C.R.S. '53, 75-1. The amendment specifically ordained that 'such fermented malt beverage is hereby declared to be non-intoxicating.' S.L.1935, Ch. 82, § 2. This specific declaration was deleted by an amendment in 1945. S.L.1945, Ch. 154, § 2.

That which was non-intoxicating as a matter of law by reason of legislative prescription in 1935 now must be resolved as a question of fact by virtue of the 1945 amendment. Houpt v. Town of Milliken, 128 Colo. 147, 260 P.2d 735; Gettman v. Board of Comm., 122 Colo. 185, 221 P.2d 363. There is no longer and doubt regarding the competence of the legislature within reasonable limits to draw the line at which a beverage becomes intoxicating. Such action represents a reasonable exercise of legislative authority under Article XXII of the Constitution. Gettman v. Comm., supra.

It is for this very reason that 'fermented malt beverages' may not be, as the trial court erroneously said they were, a matter of local and municipal concern, and hence the subject of councilmanic action. An additional reason for holding said beverages to be of statewide concern is the pronouncement that legislation in this area represents the exercise of the state's police power. MacArthur v. Sierota, 122 Colo. 115, 221 P.2d 346.

Denver contends that the restriction of one license to a person to sell fermented malt beverages is regulatory and inoffensive to C.R.S. '53, 75-1. Reliance in particular is placed upon 75-1-7, which provides:

'The licensing authorities having the power to issue licenses under this article shall likewise have the power to make such reasonable rules and regulations with respect to the sale of fermented malt beverages as they may deem proper, not inconsistent with the provisions of this article.' (Emphasis supplied.)

C.R.S. '53, 75-1 relates to fermented malt beverages and C.R.S. '53, 75-2 has to do with malt, vinous or spirituous liquors. Their history is one of hand in hand existence. Thus viewed, it becomes important to note that 75-2 provides for one license to a person, whereas 75-1 does not contain such a limitation--indeed, suggests a construction...