City and County of Denver v. Henry, 13574.

• Decision Date: 26 November 1934
• Docket Number: 13574.
• Citation: 38 P.2d 895,95 Colo. 582
• Parties: CITY AND COUNTY OF DENVER v. HENRY.
• Court: Colorado Supreme Court

38 P.2d 895

95 Colo. 582

CITY AND COUNTY OF DENVER v. HENRY.

No. 13574.

Supreme Court of Colorado, En Banc.

November 26, 1934

Reheraring Denied December 17, 1934.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by Oscar Henry against the City and County of Denver. Judgment for plaintiff, and defendant brings error.

Affirmed.

BUTLER CAMPBELL, and BOUCK, JJ., dissenting.

James D. Parriott, Frederick P. Cranston, and Karl C. Brauns, all of Denver, for plaintiff in error.

Morrissey Mahoney & Scofield and Harold G. King, all of Denver, for defendant in error.

BURKE Justice.

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

In a collision between a city truck and Henry's automobile in which Henry's wife was a passenger, the latter was killed. Herein Henry sued the city for damages, and on a verdict in his favor for $3,000 judgment was entered. To review that judgment the city prosecutes this writ and asks that it be made a supersedeas. Both parties request final disposition of this case on this application, and, since the question is of importance to the public, and particularly to the courts in a trial of similar cases, we comply with that request. This cause is the first coming to this court which raises the particular question involved, and it was not at issue here until September 20, 1934.

The accident involved occurred at the intersection of three streets in the city of Denver. As one of its defenses, the city alleged that the accident and injury were contributed to and caused by the negligence of Henry; 'that, among other things, said negligence consisted in the failure of the plaintiff to yield the right of way to the truck driven by an employee of the defendant, which said truck entered the intersection, described in the complaint, Before the automobile driven by plaintiff entered the intersection; that plaintiff failed to grant the right of way to defendant's truck, as provided by the laws of the State of Colorado.'

Henry's motion to strike the quoted portion of the city's answer was sustained, and the correctness of that ruling is the only question presented and argued. The motion was sustained on the theory that the right of way was governed by city ordinance, not by statute.

The statute in question provides: 'The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection. When two vehicles enter an intersection at the same time the driver of the vehicle on the left shall yield to the driver on the right.' Section 87, c. 122, p. 539, Laws 1931.

After the passage of that statute the city enacted the following ordinance: 'Every driver of a vehicle approaching an intersection of a street shall yield the right of way at such intersection to any vehicle approaching from the right.' Section 65, Ordinance 16, Series of 1932.

If the ordinance controlled here, the ruling complained of was right, and the judgment must be affirmed. If the statute controlled, the judgment must be reversed.

Denver is a 'home rule' city, organized under article 20 of the State Constitution, and section 6 of that article is applicable to it. Said section 6 vests in the city all powers 'necessary, requisite or proper for the government and administration of its local and municipal matters,' 'the full right of self-government in both local and municipal matters,' and further provides that statutes applicable shall continue in effect 'except in so far as superseded' by charter or ordinance. Hence the question here is, 'Is the control of traffic at street intersections in the city of Denver a local or municipal matter?'

The principal authorities relied upon by the city to support its present position are Armstrong v. Johnson Storage & Moving Co., 84 Colo. 142, 268 P. 978, 979; People v. City & County of Denver, 90 Colo. 598, 10 P.2d 1106; Helmer v. Superior Court, 48 Cal.App. 140, 191 P. 1001; Ex Parte Daniels, 183 Cal. 636, 192 P. 442, 445, 21 A.L.R. 1172.

In Armstrong v. Johnson Storage & Moving Co., we held that the streets of Denver are 'highways of the state' to the extent of bringing Johnson within that phrase as used in a statute imposing a license fee for the operation of trucks for hire. In People v. City & County of Denver we held that the streets of Denver are such public highways as to make the city liable for a state gasoline tax imposed under a statute (Laws 1929, p. 491, § 6) providing that it should be paid by 'every person who shall use in this state for propelling a motor vehicle on the public streets or highways, any motor fuel,' etc. In each of these cases the question was one of taxation, not the exercise of police power, and the legislative intent to include the city was clear. The language used in those opinions must be confined to the questions presented, and so confined does not help us here. That city streets are state highways for the purpose of enabling the state to levy taxes on vehicles and their motive power used thereon is no proof that they are such state highways as preclude the city, in the exercise of its police power, from regulating traffic thereon. In the Helmer Case defendant was charged with drunken driving in the city of Sacramento in violation of a state statute making the offense a felony. A city ordinance, which he contended controlled, made the offense a misdemeanor. He sought prohibition to prevent trial. The District Court of Appeals held the ordinance inapplicable because the offense was not a 'municipal affair,' saying that modern conditions had made the handling of automobile traffic 'a matter of the gravest concern to the people of the entire state.' But the court further rested its conclusion on the right of the state to enact criminal statutes applicable to city streets. This is sound, but some of the language used to support it greatly weakens the court's first conclusion. Confining the court's language to the question Before it, nothing more is decided than that the protection of the public from a drunken driver was not a matter 'of purely municipal concern.' In the Daniels Case defendant was convicted of violating a speed ordinance of Pasadena and was discharged on habeas corpus because 'the regulation of traffic upon the streets of a city is not one of those municipal affairs in which by the Constitution chartered cities are given a power superior to that of the state Legislature, but that such power is subject to the general laws of the state, and ordinances inconsistent therewith are invalid.' The court held the ordinance invalid under section 11, art. 11, of the California Coustitution, because in conflict with the statute. That section of the Constitution authorizes municipalities to make and enforce 'such local, police, sanitary, and other regulations as are not in conflict with general laws.' Article 20 of our Constitution contains no such limitation.

We have heretofore called attention to the fact that 'authorities from other states aid but little in ascertaining the intent and purpose of the article [said article 20] in question.' Because 'It has no counterpart in the Constitutions of other states.' What power is granted by it has, however, been fairly well settled by our decisions. It is 'Every power possessed by the Legislature in the making of a charter for Denver.' It is determined 'by ascertaining whether the Legislature, in the absence of article 20, could have conferred upon the municipality the power in question.' City and County of Denver v. Hallett, 34 Colo. 393, 83 P. 1066; Londoner v. Denver, 52 Colo. 15, 119 P. 156; Denver v. Mountain States T. & T. Co., 67 Colo. 225, 184 P. 604, 606, 608. Prior to the adoption of article 20, the Legislature did invest municipalities with control of vehicular traffic. Section 8987, par. 7, p. 2290, C. L. 1921. Since the adoption of the article, we have said that the city, under its charter, 'undoubtedly * * * has the power to reasonably regulate vehicular traffic.' Staley v. Vaughn, 92 Colo. 6, 17 P.2d 299, 300. And, as disclosed by its charter and ordinance, it has continued so to act.

If the city had power, prior to the enactment of the statute, to pass such an ordinance as that here in question, it had that power by virtue of the Constitution, and the statute could not take it away. If the statute, instead of assuming to regulate the right of way at all highway intersections, had pretended to authorize home rule cities to do so within their boundaries, could there be any doubt of the validity of an ordinance passed under that statute? Yet the source of authority for the passage of the ordinance is the Constitution and the city's charter, not a legislative grant.

Considering this question as a practical one, which after all is the best test, there seems no escape from the conclusion that the regulation of traffic at street intersections in the city of Denver is primarily a matter of local concern because proper regulation is almost wholly dependent upon local conditions. It may be easy on country roads, or in small towns, to determine which car first enters an intersection, but the impossibility of so doing at the most congested intersections in the city of Denver, during the hours of heaviest traffic is clearly apparent to any one who will stand at one of these corners and use his eyes. A driver there can readily determine who is on his right hand and hence entitled to precede him. But to watch both sides under such circumstances, and particularly to get the necessary mental picture of countless cars coming from four directions and determine with any degree of certainty which has first entered the intersection is beyond human capacity. All men know this, and we take judicial...