City of Canon City v. Merris

• Decision Date: 17 March 1958
• Docket Number: No. 17964,17964
• Citation: 137 Colo. 169,323 P.2d 614
• Parties: CITY OF CANON CITY, Plaintiff in Error, v. Clyde James MERRIS, Defendant in Error.
• Court: Colorado Supreme Court

Page 614

323 P.2d 614

137 Colo. 169

CITY OF CANON CITY, Plaintiff in Error, v. Clyde James MERRIS, Defendant in Error.

No. 17964.

Supreme Court of Colorado, En Banc.

March 17, 1958.

Rehearing Denied April 14, 1958.

J. Harrison Hawthorne, Canon City, for plaintiff in error.

E. H. Stinemeyer, Canon City, for defendant in error.

John M. Sayre, Boulder, for Colo. Municipal League, amicus curiae.

FRANTZ, Justice.

Merris was charged with operating a motor vehicle on the streets of Canon City while under the influence of intoxicating liquor in violation of an ordinance of that city. The charge was made in a complaint filed in the Municipal Court of Canon City. To it Merris entered his plea of not guilty. At the conclusion of the trial of the issue Merris was found guilty and fined $275.

An appeal was taken to the County Court of Fremont County, and the issue tried de novo before a jury. A verdict was returned finding Merris guilty as charged, and fixing the penalty at ten days in jail. Thereafter, Merris filed his Motion to Set Aside the Verdict of the Jury and Grant a New Trial, asserting eleven grounds for reversal. The city filed its Motion to Modify Verdict and for Imposition of a Penalty, asking the court to order deleted from the verdict that portion of the verdict imposing the penalty and as thus amended itself impose the penalty.

After argument on the motions the County Court ordered the action dismissed. Canon City brings the case here for review upon error.

In seeking reversal Canon City advances three propositions, the first two of which are:

1. 'Home-rule cities in Colorado have exclusive power over local and municipal matters. In the field of traffic regulation, some phases of regulation are considered to be matters of local and municipal concern, while others are regarded as being of state-wide concern. As to those which are local matters, home-rule cities may adopt whatever legislation they wish, even though such local legislation conflicts with state law. Drunken driving upon the streets of Colorado home-rule cities is actually, and should be judicially so determined, a matter of local and municipal concern.'

2. 'As to those phases of traffic regulation which are considered to be of state-wide concern, Colorado municipalities may always adopt local regulations which do not conflict with the state law. If the control of drunken driving is determined to be a matter of state-wide concern, Colorado municipalities nonetheless have jurisdiction to adopt local regulations bearing on this subject, providing the local legislation does no conflict with state law.'

Canon City maintains that the trial court by its dismissal of the case disregarded these propositions and, in doing so, departed from ingrained principles of law and pursued dangerous innovation. We are told, in effect, that, if we sustain the trial court, we will have turned the municipal bark from long established channels into uncharted waters where it is likely to founder on unknown shoals.

Inter alia Merris contended in his motion:

'1. That the ordinance fixing the penalty upon which the defendant was convicted * * * is unconstitutional and void in that it deprives the defendant of his rights of due process.

'2. That said ordinance exceeds the powers and jurisdiction of the city in that it seeks to regulate criminal powers withheld by the statute to the people of the State of Colorado.

'3. That said ordinance exceeds the powers and jurisdiction of the city in that it permits the infliction of penalties of either alternative, a fine or imprisonment, rendering that portion of said ordinance unconstitutional and void which permits imprisonment whereby the character of the offense is changed from a civil to a criminal action and the defendant thereby deprived of his constitutional right of reasonable doubt.

* * *

* * *

'9. That the Court, by its instruction No. 3, erroneously and over the objection of the defendant deprived him of his constitutional right on burden of proof whereby the Court fixed the burden of proof as by a preponderance of the evidence instead of beyond a reasonable doubt.

* * *

* * *

'11. That the Court erred in its refusal to give a tendered instruction on behalf of the defendant, withdrawing from the consideration of the jury the infliction of the penalty of imprisonment.'

In disposing of the motion the trial court determined that the offense of driving while under the influence of intoxicating liquor was not a local and municipal matter giving rise to a civil action in debt, but was of state-wide concern; questioned the application of the preponderance of evidence rule in the trial of such offense as a violation of the city ordinance; held that there is inconsistency in 'the penalties prescribed and its manner of enforcement' between the law of the state and the ordinance of the city relating to the operation of vehicles while under the influence of intoxicating liquors, by reason of which the ordinance is rendered invalid; and dismissed the action.

The tangled skein of decisions involving ordinance violations is not just the product of our courts; other courts are enmeshed in the same problem. A reading of any of the standard texts on municipal corporations strongly suggests that an unraveling task should be undertaken. The law has been laggard in this field where definitive action for too long has seemed urgent.

A resort to expendiency in the law is always dangerous; the individual dignity of the person and his rights are likely to be trammeled when such becomes the recourse of the law. And yet expediency appears to have been the motivating factor in the sanction given by the courts to the judicial processes used in the trial and disposition of violations of municipal ordinances. Pronuncements of this and other courts of review are replete with language recognizing that the modus operandi for the disposition of violations of ordinances is, of necessity, by summary proceedings.

Typical of this reasoning is the language contained in McInerney v. City of Denver, 17 Colo. 302, 29 P. 516, 519:

'* * * It is needless to say that a judicial recognition of the right to a trial by jury, in all the local offenses above enumerated would seriously impair the usefulness and efficiency of city government. Whatever may be the view concerning the gravity of the offense against a state law, the very fact that the legislature authorizes the city to deal with the same subject by ordinance indicates that, to the legislative mind, the act also properly constitutes one of those petty offenses regarded as local injuries. The public welfare, requiring the maintenance of peace and good order as well as of careful sanitary regulations in cities and towns, render summary proceedings in many cases a necessity; and we are not now prepared to inaugurate the revolution that must follow the announcement of the doctrine that a jury trial is an indispensable prerequisite.' (Emphasis supplied.)

Recent expression of this philosophy is found in the case of Holland v. McAuliffe, 132 Colo. 170, 286 P.2d 1107, 1109, in which this court said that 'summary procedure in police court cases is countenanced from the standpoint of expediency.'

Expedience may not override the Constitution of Colorado; it should not dethrone rights guaranteed thereunder. 'If, one by one, the rights guaranteed by the federal Constitution can and must, for expediency's sake, be violated, abolished, stricken from that immortal document, and from state Constitutions, we will find ourselves governed by expediency, not laws or Constitutions, and the revolution will have come.' State v. Arregui, 44 Idaho 43, 254 P. 788, 792, 52 A.L.R. 463. See Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647.

Application of this philosophy to ordinance violations has produced an anomaly: the trial is civil in nature, but the effects and consequences are criminal in fact. Green v. City and County of Denver, 111 Colo. 390, 142 P.2d 277; Douglas v. City of Kansas City, 147 Mo. 428, 48 S.W. 851. Label the judicial process as one will, no resort to subtlety can refute the fact that the power to imprison is a criminal sanction. To view otherwise is self-delusion. Courts should not, ostrichlike, bury their heads in the sand.

That the judicial conscience has had uneasy moments with this concept is revealed in our decisions. 'But where the judgment, when against the defendant, may, as under this ordinance, include imprisonment in the first instance, the question becomes more embarrassing.' City of Greeley v. Hamman, 12 Colo. 94, 20 P. 1, 2. 'The failure to follow that procedure [to file a complaint giving adequate notice of the charge], as so glaringly appears here, is inexcusable, especially where the violation of city ordinances are held to be in the nature of civil cases although of a quasicriminal or penal nature where imprisonment may be inflicted.' (Emphasis supplied.) Scott v. City and County of Denver, 125 Colo. 68, 241 P.2d 857, 858.

Courts of this state have been funambulating on this question of the nature of the action where a violation of an ordinance is charged. Most frequently it has been held that the action is civil nature. Deitz v. City of Central, 1 Colo. 323; City of Greeley v. Hamman, supra; City of Durango v. Reinsberg, 16 Colo. 327, 26 P. 820; Lloyd v. Canon City, 46 Colo. 195, 103 P. 288; Handler v. City and County of Denver, 102 Colo. 53, 77 P.2d 132; Green v. City and County of Denver, supra; Manzanares v. People, 119 Colo. 156, 201 P.2d 532; Snyder v. City and County of Denver, 123 Colo. 222, 227 P.2d 341; Harris v. Municipal Court of City and County of Denver, 123 Colo. 539, 234 P.2d 1055; Walton v. City of Canon City, 13 Colo.App. 77, 56 P. 671; People v. Braisted, 13 Colo.App. 532, 58 P. 796. In other cases the court has regarded the action quasi-criminal in nature. Noland v. People, 33 Colo. 322, 80 P. 887; De Weese v. People, 61 Colo. 140, ...