City of Aurora v. Martin, C--224

• Decision Date: 05 March 1973
• Docket Number: No. C--224,C--224
• Citation: 181 Colo. 72,507 P.2d 868
• Parties: CITY OF AURORA, a municipal corporation, Petitioner, v. Marion J. MARTIN, Respondent.
• Court: Colorado Supreme Court

Page 868

507 P.2d 868

181 Colo. 72

CITY OF AURORA, a municipal corporation, Petitioner, v. Marion J. MARTIN, Respondent.

No. C--224.

Supreme Court of Colorado, En Banc.

March 5, 1973.

Gary L. Calder, Aurora, for petitioner.

Charles G. Jordan, Denver, for respondent.

GROVES, Justice.

The respondent Marion Martin was convicted in the Aurora Municipal Court of violating the City of Aurora's assault and battery ordinance. On appeal to the district court the conviction was reversed on the grounds that: (1) assault and battery is a matter of state-wide concern; and (2) the municipal ordinance was pre-empted by enactment of the state assault and battery statute. We view the matter differently.

Aurora is a home rule city under Colo. Const. art. XX. The city's assault and battery ordinance reads as follows:

'An assault and battery is an unlawful beating of another. It shall be unlawful to commit assault and battery upon the person of another. Any person found guilty of assault and battery upon conviction, shall be fined an amount not to exceed three hundred dollars ($300.00), or by imprisonment not to exceed ninety (90) days.'

The language of the ordinance is practically identical to the state assault and battery statute, C.R.S.1963, 40--2--35. ¹ The only significant difference between the ordinance and the statute is that the statute provides a possible penalty of one year's imprisonment, or a fine not exceeding five hundred dollars, or both.

The city does not contend that assault and battery is a matter of strictly local and municipal concern. See Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971). It argues, rather, that there is sufficient local concern with the subject of assault and battery so that it becomes a matter of 'mixed' state and local concern. Woolverton v. Denver, 146 Colo. 247, 361 P.2d 982 (1961). It calls attention to the fact that the majority of assault and battery filings in the Aurora Municipal Court result from demestic disputes. The municipal court would seem particularly appropriate for handling this type of case. We conclude that the offense of assault and battery may be viewed as a matter of 'mixed' state and local concern.

The question then becomes whether the municipal ordinance and the state statute can co-exist within the city. We are not concerned here with a municipal ordinance which has intruded into a state established felony category. See Quintana v. Edgewater Municipal Court, Colo., 498 P.2d 931 (1972). Neither are we concerned with the question of whether the subject of assault and battery so requires state-wide uniformity of regulation that a local ordinance cannot stand, since the local ordinance is practically identical to the state statue. See Bennion v. Denver, Colo., 504 P.2d 350 (1972).

There is nothing basically invalid about legislation on the same subject by both a home rule city and the state, absent some conflict between the two regulations. Bennion v. Denver, Supra, and Vela v. People, Supra.

Several tests for determining whether an ordinance and statute conflict were set forth in Ray v. City and County of Denver, 109 Colo. 74, 121 P.2d 886 (1942). As applied here, the essence is whether the ordinance authorizes what the state forbids, or forbids what the state has expressly authorized. In the light of this test, it is apparent that there is no conflict between the substantive portions of the city ordinance and the state statute.

The respondent contends that a conflict does exist because the assault and battery statute provides for a greater penalty than does the municipal ordinance, citing Davis v. Denver, 140 Colo. 30, 342 P.2d 674 (1959). In Davis this court did hold an ordinance invalid on the independent ground that the penalty provisions of the statute and ordinance 'conflicted.' However, in the later cases of Vela v. People, Supra, and Woolverton v. Denver, Supra, no conflict was found even though the various statutes and ordinances considered in those cases had different penalties. Cf. Bennion v. Denver, Supra. If a statute provides for a substantially greater penalty than does a similar municipal ordinance, this fact may be considered in ruling whether the General Assembly intended, by enactment of the statute, to pre-empt that field of regulation. Except in felony categories, mere difference in penalty provisions in a statute and ordinance does not necessarily establish a conflict in the sense discussed here.

The final question is whether the state, by enactment of the assault and battery statute, pre-empted this area of regulation. There is no express declaration of any legislative intent to pre-empt. Additionally, there is nothing in the statute from which we can conclude that the state impliedly intended to preclude any exercise of municipal jurisdiction over the subject of assault and battery. In Retallick v. Colorado Springs, 142 Colo. 214, 351 P.2d 884 (1960), this court rejected the idea that the mere enactment of a state statute constituted a pre-emption by the state of the matter...