Dwyer v. People

• Decision Date: 28 November 1927
• Docket Number: 11963.
• Citation: 82 Colo. 574,261 P. 858
• Parties: DWYER v. PEOPLE.
• Court: Colorado Supreme Court

261 P. 858

82 Colo. 574

DWYER v. PEOPLE.

No. 11963.

Supreme Court of Colorado, En Banc.

November 28, 1927

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Barney Dwyer was convicted of operating a public dance hall without a license, under Laws 1927, p. 577, and he brings error and applies for supersedeas.

Judgment affirmed.

Clyde L. Starrett, of Colorado Springs, for plaintiff in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty. Gen., for the People.

BURKE, C.J.

Plaintiff in error is hereinafter referred to as 'defendant.' He was charged with violating chapter 147, Laws 1927, by operating a public dance hall without a license. He waived a jury, and on trial to the court was found guilty and fined $25. To review that judgment he brings error and asks that the writ be made a supersedeas.

The sole question here presented is the constitutionality of the statute above mentioned. That statute, from which incorporated towns and cities are expressly exempted, forbids the operation of a public dance hall without a license from the board of county commissioners. It provides that:

'Such board of county commissioners shall have the authority within its discretion, to grant such license' (section 1), and 'shall have full power and authority, at its discretion, to revoke and cancel any license * * * whenever such board shall, by proper resolution, determine that the public morals or public safety or public health of the community require such revocation or cancellation' (section 3).

Defendant says an absolute and uncontrolled discretion is thus vested in the county board, and no adequate remedy afforded for the abuse thereof, and that the act therefore violates the due process clause of the Constitution. In support of this position he cites Walsh v. Denver, 11 Colo.App. 523, 53 P 458; City of La Junta v. Heath, 38 Colo. 372, 88 P. 459; Munson v. City of Colorado Springs, 35 Colo. 506, 84 P. 683 6 L.R.A. (N. S.) 432, 9 Ann.Cas. 970; Weicker Co. v. Denver, 75 Colo. 475, 226 P. 857.

The Walsh Case concerned a license to operate a meat market; the Heath Case to sell artesian water; the Munson Case to carry on the business of a ticket broker; and the Weicker Case to erect a warehouse. They rest upon the doctrine of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, and relate to a business 'harmless in itself and useful to the community,' and which any person has a right to engage in, subject only to reasonable regulation. The doctrine is not applicable to those enterprises which, because of their very nature, are likely to become destructive of good morals and the peace and order of society, such as public dance halls, which 'easily become the center of vice.' Freund, Police Power, § 250. The business here under consideration is therefore governed by the rule applicable in cases involving licenses for the sale of intoxicating liquor before that traffic was constitutionally forbidden.

Defendant also relies upon Krier v. Town of...