City and County of Denver v. Schmid, 13729.

• Decision Date: 25 November 1935
• Docket Number: 13729.
• Citation: 52 P.2d 388,98 Colo. 32
• Parties: CITY AND COUNTY OF DENVER v. SCHMID.
• Court: Colorado Supreme Court

52 P.2d 388

98 Colo. 32

CITY AND COUNTY OF DENVER v. SCHMID.

No. 13729.

Supreme Court of Colorado, En Banc.

November 25, 1935

Error to County Court, City and County of Denver; George A Luxford, Judge.

Fred Schmid was charged with violating an ordinance of the City and County of Denver, and, to review a judgment sustaining defendant's motion for dismissal, the City and County of Denver brings error.

Affirmed.

HILLIARD and BOUCK, JJ., dissenting.

James D. Parriott, former City Atty., Teller Ammons, City Atty. and Frank L. Hays, Asst. City Atty., all of Denver (Horace N Hawkins, of Denver, of counsel), for plaintiff in error.

Paul F Irey and Homer S. McMillin, both of Denver, for defendant in error.

BURKE Justice.

These parties are hereinafter referred to as Schmid and the city, respectively.

Schmid was charged with violation of a city ordinance, tried in the municipal court, and convicted. He thereupon appealed to the county court, where, at the close of the city's case, defendant moved for dismissal on 11 grounds. The motion was sustained, and, to review the judgment thereupon entered, accordingly the city prosecutes this writ.

Three errors are assigned: (1) The sustaining of the motion; (2) the discharging of the defendant; (3) entering judgment for defendant. That the last two are so clearly without our rules as to require no consideration is too apparent for discussion. Ohio Casualty Co. v. Colorado Portland Cement Co. (Colo.Sup.) 51 P.2d 591, decided Nov. 4, 1935.

In view of the common knowledge that notwithstanding the county court's holding that the ordinance was void the city is still attempting its enforcement, although it has virtually abandoned this cause by its failure to file a reply brief, the court has deemed it advisable, of its own motion to take up the consideration out of order. It was accordingly assigned to the writer November 18.

The ordinance in question was passed by the city in 1934. It provides that no barbershop shall be open on Sundays or holidays, or between the hours of 6 p. m. and 8 a. m., from which prohibition 'beauty parlors,' as defined by another ordinance, are expressly excluded. This ordinance follows a preamble which declares, in the opinion of the city council, 'it is necessary and desirable for the immediate preservation of the public health, welfare and safety, that provision be made by ordinance that barbershops and barber schools shall not remain open or operate during the time when inspectors of the State Barbers' Board are not on duty.' The city's case consisted of the introduction in evidence of the ordinance in question, a section of the city charter, and a stipulation setting forth, inter alia, that Schmid operated a barbershop in the city and did not close at 6 o'clock on the day in question as commanded by the ordinance. The motion for dismissal set forth that the passage of the ordinance was beyond the powers of the municipality; that it was unreasonable, discriminatory, and oppressive; that it tended to create a monopoly; that if applicable its subject-matter was not expressed in its title; and that it violated section 25 of article 2 of the State Constitution and the Fourteenth Amendment of the Federal Constitution.

Our consideration of the error assigned is happily and properly limited by the following statements...