City of Central v. Axton

• Decision Date: 17 January 1966
• Docket Number: No. 21046,21046
• Citation: 159 Colo. 69,410 P.2d 173
• Parties: The CITY OF CENTRAL, a Municipal Corporation, Plaintiff in Error, v. William L. AXTON, individually, and doing business as the Glory Hole Tavern, Faye Tyson, formerly known as Faye Clapham, individually, and doing business as the Lost Gold Mine, Carl Skagerberg and Elva Skagerberg, individually, and doing business as the Grubstake, and also doing business as Wells Fargo, Algie Steen and Leola Steen, individually, and doing business as Leola's Snack Bar, June Callahan and lsabelle Moncey, and Juannelle Cohen, Individually, and doing business as the Golden Key, Defendants in Error.
• Court: Colorado Supreme Court

Page 173

410 P.2d 173

159 Colo. 69

The CITY OF CENTRAL, a Municipal Corporation, Plaintiff in Error, v. William L. AXTON, individually, and doing business as the Glory Hole Tavern, Faye Tyson, formerly known as Faye Clapham, individually, and doing business as the Lost Gold Mine, Carl Skagerberg and Elva Skagerberg, individually, and doing business as the Grubstake, and also doing business as Wells Fargo, Algie Steen and Leola Steen, individually, and doing business as Leola's Snack Bar, June Callahan and lsabelle Moncey, and Juannelle Cohen, Individually, and doing business as the Golden Key, Defendants in Error.

No. 21046.

Supreme Court of Colorado, En Banc.

Jan. 17, 1966.

Rehearing Denied Feb. 7, 1966.

Albert B. Dawkins, Paul M. Hupp, Denver, for plaintiff in error.

Fugate, Mitchem & Hoffman, Denver, for defendants in error.

McWILLIAMS, Justice.

The designation of parties in this court is deemed necessary to an orderly consideration of this writ of error and such designation is therefore set forth as follows:

1. The City of Central, a municipal corporation which will hereinafter be referred to as Central City, is designated as the plaintiff in error;

2. William L. Axton, individually and doing business as the Glory Hole Tavern is designated as a defendant in error;

3. Faye Tyson, formerly known as Faye Clapham, individually and doing business as the Lost Gold Mine is designated as another defendant in error;

4. Carl and Elva Skagerberg, individually and doing business as the Grubstake and also doing business as Wells Fargo are designated as defendants in error;

5. Algie and Leola Steen individually and doing business as Leola's Snack Bar are designated as defendants in error;

6. June Callahan and Isabelle Moncey are designated as defendants in error; and

7. Juannelle Cohen, individually and doing business as the Golden key is designated as a defendant in error.

The City Council of Central City in 1957 enacted Ordinance No. 133 which made it unlawful for any person to engage in certain specified businesses, professions or occupations within Central City without first paying the clerk of Central City a license fee and obtaining from him a receipt or license setting forth that the fee had been paid. The ordinance enumerates the various 'activities' for which a license is required and suffice it to say the ordinance is quite broad and all-inclusive in its terms. The manner in which the amount of the license fee is to be determined is also spelled out in the ordinance.

William Axton, who was engaged in the business of operating a combination restaurant and tavern, did not pay a license fee for the year 1960. Accordingly, Central City, under the penalty section of the aforementioned ordinance, brought an action in the police court in and for Central City against Axton for his failure to pay the business tax. This proceeding culminated in a judgment in favor of Central City and against Axton in the amount of $200 and costs.

Axton appealed the judgment to the county court in and for Gilpin County and upon trial the complaint was dismissed on the ground that under its territorial charter Central City was held to lack the authority or power to impose such an occupational tax upon Axton. Upon review of that judgment we determined that under its territorial charter Central City did have the power to impose an occupational or business tax on Axton. Accordingly, the judgment was reversed and the cause remanded with directions that the trial court 'reinstate the complaint and proceed to trial upon the issues formed by the pleadings.' See City of Central v. Axton, 150 Colo. 414, 373 P.2d 300.

In the interim Central City brought similar actions in the police court in and for Central City against all of the other defendants in error for their failure to pay the license fee for the year 1961. In each instance these several actions culminated in judgments in favor of Central City and were as follows:

1. against Faye Tyson in the amount of $150 and costs;

2. against Carl and Elva Skagerberg in the amount of $250 and costs;

3. against Algie and Leola Steen in the amount of $100 and costs;

4. against June Callahan and Isabelle Moncey in the amount of $100 and costs; and

5. against Juannelle Cohen in the amount of $150 and costs.

Each of the foregoing judgments was thereafter appealed to the county court in and for Gilpin County and they came on for trial on the same date as did Axton's case upon the aforementioned remand by this court.

As indicated, then, all of these several matters came on for trial in a consolidated proceeding in the county court in and for Gilpin County. However, upon the trial date, it was brought to the attention of the trial court that June Callahan was then deceased and that Isabelle Moncey's whereabouts were then unknown. Accordingly, upon motion, the trial court issued a procedendo and remanded the matter as it related to June Callahan and Isabelle Moncey to the police court in and for Central City. Hence, we no longer concern ourselves in this writ of error with June Callahan and Isabelle Moncey, who under the circumstances were improperly designated as defendants in error.

When these several matters came on for trial Carl and Elva Skagerberg filed a motion wherein they requested that their appeal be dismissed and the matter remanded to the police court or, in the alternative, that they be permitted to confess judgment in the county court in and for the County of Gilpin in the amount of $250 and costs. The trial court declined to rule on this motion and proceeded to trial as to the remaining defendants. At the conclusion of the trial, the court dismissed the complaints as to all of the defendants, apparently including in its order of dismissal both Carl and Elva Skagerberg who had previously asked to have their appeal dismissed or, in the alternative, sought to confess judgment in the sum of $250 and costs. By this writ of error Central City now seeks to have these various judgments of dismissal reversed.

As to the defendants in error Carl and Elva Skagerberg, the trial court should have either granted their motion to dismiss their appeal or granted their motion to confess judgment in the county court, and it was error under these circumstances to dismiss the complaint against them. Accordingly, we need hereinafter concern ourselves with the following defendants in error only: William L. Axton, who operates a restaurant and tavern; Juannelle Cohen, who operates a restaurant and tavern; Algie and Leola Steen, who operate a snack bar; and Faye Tyson, who operates a guided tour through a gold mine and sells curios at the entrance thereto.

In its order dismissing the several complaints filed by Central City the trial court stated that it was doing so because the ordinance with which we are here concerned 'is so ambiguous, so unreasonable, so arbitrary and so lacking in setting forth definitions and standards that the entire ordinance must be ruled invalid and unconstitutional.'

In this court Central City argues that the several judgments of dismissal must be reversed for a variety of reasons, all of which may be categorized as follows:

1. the county court in and for Gilpin County did not have jurisdiction to entertain the attempted appeals by the several defendants from the judments of the police court in and for Central City; and

2. if the county court in and for Gilpin County did have jurisdiction to entertain these appeals, it erred in finding Ordinance No. 133 unconstitutional.

Central City is still operating under a territorial charter granted it in 1864 by the Territorial Legislature. Hence, at the very outset it should be emphasized that we are not here concerned with a home rule city or one organized under general laws of the state relating to the organization and incorporation of towns or cities. Rather, we are concerned with a city which has chosen to continue to exist under a territorial charter granted it some twelve years before the State of Colorado came into being.

In connection with the jurisdictional issue raised by Central City, it is to be noted that this controversy arose and was resolved on the trial court level long prior to January 12, 1965, which was the effective date for most--though not all--of the several sections in Amended Article VI to the Colorado Constitution. As regards this jurisdictional issue, Central City contends that the several defendants should have appealed the judgments entered against them in the police court to the district court, rather than to the county court for the County of Gilpin. In support of the contention that the county court of Gilpin County had no jurisdiction to entertain any of these appeals by the defendants in error, Central City relies upon Article VIII, section 7 of its territorial charter, which provides as follows:

'Appeals shall be allowed from decisions in all cases arising under the provisions of this act, or any ordinance passed in pursuance thereof, to the district court, and every such appeal shall be granted in the same manner and with like effect as appeals are taken from and granted by justices of the peace under the laws of this territory.' C.R.S. '53, 139-36-2 provides that appeals from a municipal or police court may be taken to the county court of the county where the municipal or police court is located. Central City argues, however, that the aforementioned provision of its territorial charter providing for appeals from the police court to the district court takes precedence over C.R.S. '53, 139-36-2. To support its theory that its territorial charter takes precedence over state statute, Central City relies upon C.R.S. '53, 139-1-9, which reads as follows:

'All general laws providing for the organization and government of incorporated cities and towns in the state of Colorado are hereby repealed; provided, that the existence of cities and towns heretofore incorporated within the state, which...