Davis v. City and County of Denver, s. 18293

• Decision Date: 20 July 1959
• Docket Number: 18299,Nos. 18293,18283,18292,s. 18293
• Citation: 140 Colo. 30,342 P.2d 674
• Parties: Thomas E. DAVIS, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant in Error. Ralph Curtis MASON, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant in Error. Judge Solon HINTON, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant in Error. Jack VON PICKRELL, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 674

342 P.2d 674

140 Colo. 30

Thomas E. DAVIS, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation,

Defendant in Error.

Ralph Curtis MASON, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation,

Defendant in Error.

Judge Solon HINTON, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation,

Defendant in Error.

Jack VON PICKRELL, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation,

Defendant in Error.

Nos. 18293, 18292, 18283, 18299.

Supreme Court of Colorado, En Banc.

July 20, 1959.

Francis P. O'Neill, Walter L. Gerash, Denver, for plaintiffs in error.

John C. Banks, James P. McGruder, Denver, for defendant in error.

DOYLE, Justice.

The plaintiffs in error in these several cases were defendants in the Superior Court of the City and County of Denver. They seek reversal of judgments imposing fines and jail sentences for violating an ordinance prohibiting the operation of a motor vehicle while operators' licenses were suspended. We will determine the several writs of error in a single opinion. The cases were tried in January of the year 1957. Apparently the prosecutions were separate and were conducted under the procedure which then obtained, that is to say, the cases were treated as civil actions rather than as criminal prosecutions. The charge in each instance was that the defendant had violated Section 513.17-2(1)[506.4] of the Denver Municipal Code which punishes the driving of a motor vehicle while the operator's license has been suspended or revoked.

Various questions are presented in the briefs, but inasmuch as the prosecution of the writs of error here had antedated our decision in City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614, supplemental briefs were requested on the question of applicability of that decision to the present cases. These briefs are now submitted, and our disposition will be made on the supplemental issues. Determination of the original questions are unnecessary to the disposition of the issues now presented.

The ordinance under which the defendants were prosecuted reads as follows:

'513-17-2(1). Driving while license denied, cancelled, suspended or revoked or driving without a license. It shall be unlawful for any person, either resident or non-resident, whose operator's or chauffeur's license or driving privilege has been suspended, or revoked as provided by the Motor Vehicle Division, State of Colorado, or any other state, to drive any motor vehicle on any public highway, street or alley, in the City and County of Denver at any time when said license or privilege is denied, cancelled, suspended or revoked * * *'

The State of Colorado also has a statute dealing with the subject of driving while license is suspended or revoked. This is found in C.R.S.1953, 13-3-31(1) 1957 Cum.Supp. (as amended in 1955) and this provides:

'Driving while license is suspended or revoked--penalty.--(1) Any person who shall drive any motor vehicle upon any highway of this state at a time when his operator's, minor operator's or chauffeur's license or driving privilege, either as a resident or nonresident, is denied, suspended, cancelled, or revoked, shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not less than one day or more than six months, or by a fine of not less than fifty dollars or more than five hundred dollars, or both such fine and imprisonment.'

A provision of the Denver Ordinances pertinent to the present inquiry is that which imposes penalty. This is a general penalty ordinance which provides for imposition of a fine not exceeding $300 and for imprisonment not to exceed 90 days. Section .10 Municipal Code.

It is noteworthy that although the definition of the offense contained in the statute, and that of the ordinance are substantially the same, the penalty prescribed by the ordinance is considerably less than that set forth in the statute.

1. The failure of the trial court to treat the cases as criminal and to extend to defendants the rights which belong to one charged with a criminal offense does not justify reversal of the cases under the circumstances presented by the records before us. Rather they are governed by our decision in Geer v. Alaniz, 138 Colo. 177, 331 P.2d 260 wherein it was held that such rights must be asserted and that failure to demand trial by jury, or other alienable rights to which persons charged with crime are entitled, results in a waiver.

2. The validity of the ordinance under which the prosecution was conducted is, however, subject to review and the judgment is subject to reversal if it is decided that the particular ordinance was void.

Determination of the question whether the City had authority to enact the ordinance which punishes the driving of a vehicle which license is revoked or suspended must be based upon a decision whether the matter is one of local or municipal concern or of general and state-wide concern.

A home-rule city is granted exclusive power over matters local and municipal. This authority is contained in the Constitution of Colorado, Article XX, Section 6, which in part provides:

'The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.'

Under the above section, once it is clear that the subject matter is local and municipal, the enactment of an ordinance supersedes a state statute. City and County of Denver v. Henry, 95 Colo. 582, 38 P.2d 895. Matters local are then the exclusive domain of the municipality. Where the matter is not local and municipal, the City, even though a home-rule municipality, derives no authority from Article XX.

There is no constitutional provision corresponding to Article XX which confers jurisdiction on the State and requires that in matters of general interest the regulation be conducted by the State alone to the exclusion of the City. It would thus seem to follow that outside and beyond Article XX, in the area of State control, the City is an agency of the State and is subject to control by the Assembly. Denver v. Tihen, 77 Colo. 212, 235 P. 777; City and County of Denver v. Hallett, 34 Colo. 393, 83 P. 1066; Londoner v. City and County of Denver, 52 Colo. 15, 119 P. 156; People ex rel. Hershey v. McNichols, 91 Colo. 141, 13 P.2d 266.

The City does not, and indeed could not, contend that the licensing and regulation of vehicle operators is a matter exclusively local and municipal within Article XX, Section 6, supra, so that enactment of the ordinance would supersede a statute on the same subject. Counsel argue that even though the subject is general in scope, the City is not precluded from enacting an ordinance in the aid of the policy declared in the statute. The difficulty with this position is that under our governmental system it is not possible for the City to derive authority from Article XX, supra, based upon the fact that a subject is a 'little bit' local. If the subject is local, the City has, under Article XX, exclusive authority. If it is predominantly of general interest, the State has the power to act and in this latter situation the City can exercise authority only with the consent of the State.

Undoubtedly the State was motivated by the necessity for establishing a uniform and integrated state-wide policy fixing standards for the issuance of operators' licenses to persons driving vehicles. Even 'though the problem may be particularly serious within the borders of a municipality, it is nevertheless apparent that varying standards would create an intolerable condition. Power to establish a licensing system would seem to carry with it authority to make provision for revocation and furthermore to penalize the driving of a motor vehicle without a license or while such license is revoked or suspended. These considerations dictate our conclusion that the subject is predominantly state-wide and general. The City, of course, is interested in preventing unlicensed drivers on its streets. However, it is impossible to perceive any beneficial result from an ordinance which deals with the indentical subject covered by a state statute.

The City maintains that City of Canon City v. Merris, supra envisaged the condition which is now presented, that is, an ordinance and a statute on the identical subject existing side by side when it was said therein [137 Colo. 169, 323 P.2d 620]:

'Even though an ordinance effectually covers a local and municipal matter, and it is a counterpart of a law of the state, its violation is triable and punishable as a crime where so designated by the statute.'

When the above language is considered in full context, it is apparent that the Court was referring to the necessity for recognition of criminal trial standards in those areas of local and municipal affairs wherein there is a state statute which recognizes the act or conduct as a crime. This language was not intended to approve concurrent legislation on matters of general concern. A 'counter-part' ordinance mentioned in the Merris case is one which deals with a local and municipal matter enactment of which supersedes the state statute on the subject within the boundaries of the municipality.

3. The question remains whether the City is at liberty to adopt an ordinance in furtherance of the policy of the State as expressed in a statute. This question must, under the present circumstances, be answered in the negative. Article XX of the Constitution does not grant to the City authority to regulate matters of general and state-wide concern and, as indicated above, this power can be exercised by municipalities only if the State consents to its exercise and provided that the matter, although predominantly general, is one in which the municipality has sufficient interest to warrant the delegation of...