Eachus v. People

• Citation: 124 Colo. 454,238 P.2d 885
• Decision Date: 19 November 1951
• Docket Number: No. 16634,16634
• Parties: EACHUS v. PEOPLE.
• Court: Supreme Court of Colorado

Page 885

238 P.2d 885

124 Colo. 454

EACHUS v. PEOPLE.

No. 16634.

Supreme Court of Colorado, en Banc.

Nov. 19, 1951.

Rehearing Denied Dec. 10, 1951.

Moynihan-Hughes-Sherman, Montrose, Elam B. Underhill, Grand Junction, for plaintiff in error.

Duke W. Dunbar, Atty, Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

CLARK, Justice.

Plaintiff in error, to whom we will herein refer as defendant, was convicted upon an information charging that he and one Mow on or about the 11th day of January, A. D. 1950, 'not being a butcher, who has filed a bond as provided by law having a permanent place of business, did then and there unlawfully sell to one Edward D. Miller a portion of a carcass of beef, to wit: One-quarter of beef, without first exhibiting the hide intact of the same, and exposing the brand upon the hide, if any, to the purchaser, and did then and there unlawfully fail, neglect and refuse to preserve the hide of the said beef for a period of thirty days, and to exhibit the same upon the demand of Lawrence Gant, contrary to the form of the statute * * *.' The statute in question is section 7, chapter 28, '35 C.S.A., hereinafter set forth.

It is not denied that on or about the date alleged in the information defendant and Mow did deliver one-quarter of beef to Miller; that the hide of said animal was not exhibited to Miller; that defendant was the seller of said quarter of beef; and that he received pay from Miller for the same. During the early course of the trial it developed that Mow had no interest in the beef sold to Miller; that he was merely assisting defendant in making delivery thereof; and thereupon, counsel representing Mow so moving, dismissal of the charge as to him was ordered by the court. Other facts necessary to be related may better be discussed in connection with the several assignments of error to be herein considered.

Defendant presents twelve separate assignments of error, all of which will fall into one of the following classifications: (1) Violation of constitutional provisions; (2) improper admission of evidence; (3) relating to instructions of the jury; and (4) insufficiency of evidence.

I.

Most strongly urged on the part of the defendant is his attack charging in substance that the statute upon which the information is based is void in that it deprives persons of liberty and property without due process of law, contrary to provisions of the federal and state Constitutions, and that it likewise compels a defendant charged thereunder to be a witness against himself in violation of constitutional provisions. Strangely enough, and notwithstanding the considerable period of time that this statute has been in existence in the State of Colorado, it has not heretofore been construed by our court. We quite agree with the position of counsel for defendant that this statute is in the nature of a police regulation; that it was adopted by the Legislature in behalf of the livestock industry of Colorado, and is designed to assist in the prevention of larceny of livestock.

Before entering into detailed discussion as to the particular statute now before us, as background and in the belief that it may be helpful, we indulge one or two general observations.

First, that it is the well-defined policy of the law, many times repeated, that every reasonable presumption favors the validity of a statute and, that where attacked on constitutional grounds, the courts will uphold it unless it is clearly shown to be unconstitutional. The burden of proof is upon the assailant, and he must establish clearly and beyond reasonable doubt that the legislative enactment cannot be supported by any reasonable intendment or allowable presumption. Decisions so holding are legion, but we confine citations to only a few of the several Colorado cases, beginning with Consumers' League v. Colorado & Southern Ry. Co., 53 Colo. 54, at page 58 125 P. 577, at page 578, Ann.Cas.1914A, 1158, wherein we said: 'The presumption is that every statute is valid and constitutional, and such presumption is to be overcome only by clear demonstration. In case of doubt every possible presumption and intendment should be made in favor of the constitutionality of the act, and it is to be overthrown only when it is clear and unquestioned that it violates the fundamental law. * * * 'The doctrine is elementary that no act of the General Assembly should be declared unconstitutional unless it is clearly and palpably so.' People [ex rel. School Dist. No. 2] v. [County] Commissioners, 12 Colo. 89 [at page] 93, 19 P. 892, 894. 'A fundamental principle of construction requires those who seek to overthrow a statute on account of its repugnance to a constitutional provision to show the unconstitutionality of the act beyond all reasonable doubt.' Denver City v. Knowles, 17 Colo. 204 [at] 211, 30 P. 1041, 1044 (17 L.R.A. 135). 'When an act of the Legislature is attacked as in violation of the Constitution of the United States or of the state, by familiar rule, we are required to uphold the legislation, unless its unconstitutionality appears beyond all reasonable doubt.' [Farmers'] Ind. Ditch Co. v. Agr. Ditch Co., 22 Colo. 513 [at] 528, 45 P. 444, 450. 'Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.' Munn v. People, 94 U.S. 113, 24 L.Ed. 77.'

To the Consumers' League case, supra, we add only Chicago, B. & Q. Railroad Co. v. School District No. 1, 63 Colo. 159, 166, 165 P. 260; Rinn v. Bedford, 102 Colo. 475, 477, 84 P.2d 827.

Secondly, the same rules of construction apply where the statute under consideration was enacted pursuant to the inherent police powers of the state. The property of every citizen and his right to engage in business is subject to the police power of the state, which is not easily defined, but as a concise statement of its purpose and extent, we quote from State v. Pitney, 79 Wash. 608, 140 P. 918, 919; Ann.Cas.1916A, 209.

'If the law under consideration is a proper exercise of the police power, its constitutionality will hardly be denied. In determining the validity of the law, therefore, inquiry must be directed to whether its provisions come within the scope of the 'police power.' The early decisions define this power as extending to those regulations promulgated by or under the authority of the Legislature which had for their object the promotion of the public health, the public morals, or the public safety. Without reviewing the evolution of the law upon this subject as evidenced by the decisions of courts of last resort, it may be said that, whatever may be the limits by which the earlier decisions circumscribed the power, it has in the more recent decisions been defined to include all those regulations designed to promote the public convenience, the general welfare, the general prosperity, and extends to all great public needs, as well as regulations designed to promote the public health, the public morals, or the public safety. In Chicago, B. & Q. R. Co. v. [People of] Illinois [ex rel. Drainage Com'rs], 200 U.S. 561 , 26 S.Ct. 341, 50 L.Ed. 596, it was said: 'We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.''

'Police power' is extensively discussed in the case of Bland v. People, 32 Colo. 319, 76 P. 359, 65 L.R.A. 424. In that case we said 32 Colo. at page 325, 76 P. at page 361: 'In the exercise of the police power the Legislature has a large discretion, and it is our duty to sustain such legislation unless it is clearly and palpably and beyond all question in violation of the Constitution.'

and 32 Colo. at page 331, 76 P. at pages 362, 363, 'The foregoing authorities establish, * * * (2) that in the exercise of the power the Legislature may adopt such reasonable means as are necessary to accomplish the purposes of the statute; (3) that to the Legislature is confided a large discretion in declaring the public policy, and that, unless the legislation is clearly and palpably in violation of the fundamental law, it will be sustained; (4) that all property is held under the implied obligation that the owner's use of it shall not be injurious to the public.'

It is contended on behalf of defendant that the statute is unreasonable and places undue and unnecessary burdens upon persons who may be innocent of any offense. Argument by way of analogy and example to this end comprises more than half of defendant's brief, but no decision of any appellate court wherein a similar statute has been declared unconstitutional has been called to our attention. On the other hand, the courts of last resort in jurisdictions other than Colorado have with unanimity upheld statutes to the same import as, and in several instances almost identical with, ours, and have answered negatively defendant's contentions on constitutional objections herein raised by him, as well as others not assigned.

In a case involving a statute very similar to our Colorado act, except that it applies only to persons who 'occasionally' slaughter animals for beef, the Supreme Court of South Dakota in 1913, in the case of State v. Devers, 32 S.D. 473, 143 N.W. 364, held that the gist of the offense is the selling of the beef without exhibiting the hide. Further, that statements in the statute relating to the killing of animals are only for the purpose of limiting the class of the offense to persons who slaughter cattle for beef, and that the material thing to be determined is that the person who offered the beef for sale be the same person who slaughtered the animal.

The supreme court of New Mexico in 1929, in construing a statute very similar to ours, in ...